O'Rourke v Police

[2014] NZHC 196

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-454-1 [2014] NZHC 196

JUSTIN O'ROURKE Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	18 February 2014
Counsel:	M Andrews for Appellant B D Vanderkolk for Respondent
Judgment:	18 February 2014

ORALJUDGMENT OF RONALD YOUNG J (Appeal against refusal to grant bail)

[1]      Mr O’Rourke is charged with driving while disqualified, unlawful possession of a firearm and of ammunition.  He was refused bail in the District Court and he appeals against that refusal.  The appellant says the Judge failed to take into account relevant considerations and took into account irrelevant considerations and that his decision was wrong in principle because of the particular delay until any trial.

[2]      The  prosecution  allege  that  on  24 December Mr O’Rourke  was  driving  a motor vehicle.  The police tried to stop the vehicle but the car drove off at speed. Eventually it stopped.  Mr O’Rourke’s two associates then left the car and ran off. The police allege that Mr O’Rourke who was driving the car went across into the

front passenger seat and tried to hide in the footwell.

O'ROURKE v POLICE [2014] NZHC 196 [18 February 2014]

[3]      In a bag on the ground next to the passenger door was a single barrel sawn off shotgun.   Inside the vehicle were three live shotgun cartridges on the floor of the front passenger’s side.  When he was spoken to by police Mr O’Rourke denied any knowledge of the firearm and ammunition.  The Crown say Mr O’Rourke admitted being the driver of the vehicle.

[4]      In the District Court the Judge noted that Mr O’Rourke had pleaded  not guilty to each of the charges.   He also noted that s 12(1)(b) of the Bail Act 2000 applied and so the onus was on Mr O’Rourke to show that in the circumstances bail should be granted because he could satisfy the Court on the balance of probabilities he would not commit an offence involving violence, endangering the safety of any person or commit any serious property offence.

[5]      The Judge in his decision noted the appellant had a long history of offending and that the case against the appellant appeared to be strong given it was suggested by the police that the gun had been discharged inside the car while the appellant was present.   The prosecution case was given the appellant had been the driver of the vehicle he would be responsible at least as a party to the possession of the ammunition and gun.  The Judge concluded that Mr O’Rourke had not satisfied him that there was on balance no risk of serious property offending and concluded that bail should not be granted.

Grounds of appeal

[6]      Rather than a driving while disqualified charge, the charge in fact should be driving while a licence is suspended.   It seems that Mr O’Rourke had his licence suspended arising from demerit points and was thus driving in breach of that suspension on this occasion.

[7]      The appellant’s case is that while he may have been the driver of the vehicle, he did not know that the shotgun and cartridges were in the vehicle.  They were in a bag held by his brother who dropped it beside the car when he ran off from the vehicle.

[8]      I consider it is not sensibly possible on the facts to assess the strength of the case for the prosecution and the defendant in any particular way in this case.  If the Crown can establish that the shotgun was fired in the car while the defendant was present then that may be significant evidence relating to his possession.  On the other hand if they cannot establish that he knew the gun was in the bag then he is likely to be acquitted.

[9]      In those circumstances, therefore, I accept that the appellant is entitled to the presumption of innocence.  I accept, therefore, that the Judge’s assessment that the appellant was caught in the act or at least an element of such, is not correct on what is currently known.

[10]     However, the strength of the prosecution case was not the pivotal factor in the Judge’s decision.  It was the s 12, Bail Act, presumption.  The difficult question for Mr O’Rourke is because of the presumption in s 12(1)(b) of the Act whether he can satisfy the Court that he will not, if granted bail, commit the prohibited offences. Neither in the District Court nor in this Court has Mr O’Rourke made a particular effort to establish that he would not commit these offences.

[11]     Mr O’Rourke has a long history of criminal offending.   In addition he has been convicted of a number of offences committed while on bail.  As to his criminal history, Mr O’Rourke has been to prison on a number of occasions particularly for burglary and other property offences dating back over a decade.

[12]     He has a long history of breaches of court orders.  He has been convicted of escaping from custody, failing to stop, failing to answer police bail, breaches of conditions of supervision, breach of court release conditions from prison, the latter on a number of occasions.

[13]     He does not have a history of violent offending but he does have a long history of serious property offending with many convictions for burglary.  I note that in 2010 he was sentenced to two and a half years’ imprisonment for burglary and in July of that year three years’ imprisonment also for burglary.   A number of the burglary convictions are while he was on bail for other offences.

[14]     Without any further information it cannot possibly be said that Mr O’Rourke has overcome the s 12 onus for the reasons that I have given.   On that basis I consider the Judge was, therefore, correct to remand him in custody.

[15]     Mr O’Rourke’s further complaint is that if he is remanded in custody he will likely serve  a  greater  period  of  imprisonment  on  remand  than  any sentence  of imprisonment he might receive.   There is no information before me as to an assessment of a likely sentence if Mr O’Rourke is convicted, nor of the delay until trial.  However, even assuming this assessment is correct, while there is discomfort in the prospect of someone spending more time in custody on remand than any ultimate sentence, given Mr O’Rourke cannot overcome the s 12 presumption then a

remand in custody must inevitably follow.1

[16]     For the reasons given, therefore, the appeal against refusal to grant bail is dismissed.

Solicitors:

M Andrews, Barrister, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North

Ronald Young J

1      Bail Act 2000, ss (12)(4) and (5).