Olua v The Queen - [2012] NZCA 177

IN THE COURT OF APPEAL OF NEW ZEALAND

CA205/2012
[2012] NZCA 177

BETWEEN DANIEL ONYEWUCHI OLUA
Appellant

AND THE QUEEN
Respondent

Hearing: 2 May 2012

Court: Stevens, Chisholm and Priestley JJ

Counsel: P J Kaye for Appellant
M J Lillico for Respondent

Judgment: 8 May 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

This is an appeal under s 66 of the Bail Act 2000 against a decision of Wylie J on 3 April 2012 refusing to grant bail.[1] The appellant, Mr Olua, seeks release on electronic monitored bail. The appellant is in New Zealand on an expired visitor’s permit and has been in custody since his arrest in May 2010. He faces a charge of importing methamphetamine and two charges of possession of methamphetamine for supply. His trial is set down for hearing on 2 July 2012.

Background facts

[1] Olua v New Zealand Police [2012] NZHC 642.

The charge of importing methamphetamine relates to a parcel that entered New Zealand in May 2010. Customs officers detected that the parcel contained 444 grams of methamphetamine, a quantity that would have a street value of up to $440,000. The Crown alleges that the appellant, together with a co-accused, arranged for a third party to uplift this package for forwarding on to an unknown person.
Later, the police executed a search warrant at the appellant’s address. Police located 132 grams of methamphetamine at that address.
Police enquiries subsequently revealed that the appellant had opened bank accounts in the names of Reginald Aguocha, Joshua Nwosu and Daniel Olua. When applying for those accounts the appellant produced four different South African passports. The South African High Commission has advised that at least three of those passports are not authentic.

Bail history

The appellant first applied for bail on 4 August 2010. This was declined by Judge Blackie on the grounds that the charges were very serious and there was a flight risk.[2] Courtney J upheld that decision on appeal.[3]
[2] Police v Olua DC Manukau CRI-2010-092-7088, 4 August 2010.
[3] Olua v New Zealand Police HC Auckland CRI-2010-404-393, 12 November 2010.
An application for electronically monitored bail was lodged on 19 January 2011. Judge Blackie declined that application, holding that the flight risk could not be adequately dealt with by electronic monitoring.[4] Toogood J upheld that decision on appeal.[5]
[4] Olua v Police DC Manukau CRI-2010-092-7088, 19 January 2010.
[5] Olua v New Zealand Police HC Auckland CRI-2011-404-81, 30 March 2011.
In December 2011 the appellant (together with his alleged co-offender) sought a stay of proceedings. Judge Johns declined to grant a stay.[6] The Judge held that a substantial delay had occurred resulting in a breach of s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), but she found that a stay would not be a reasonable and proportionate response to the delay.[7] Instead, the Judge suggested that the appellant should apply to the District…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Olua v The Queen

Details

AGLC: Olua v The Queen [2012] NZCA 177
Case: [2012] NZCA 177
Decision Date: 8 May 2012

CaseChat Overview and Summary

Olua was the appellant in a case heard by the High Court of Australia, appealing against a decision by a lower court to refuse bail. The appellant was charged with multiple drug offences and had been in custody for a considerable period, leading to questions about the fairness and constitutionality of his prolonged detention without trial. The central legal issue was whether the appellant's continued detention without trial contravened his rights under the New Zealand Bill of Rights Act 1990 (NZBORA), specifically the right to be tried without undue delay and the presumption of innocence. The court had to balance these rights against the considerations set out in the Bail Act, particularly whether there was just cause for continued detention. The court examined the nature and strength of the evidence against the appellant, the seriousness of the charges, and the risk factors associated with releasing him on bail.

The court considered that the right to be tried without undue delay and the presumption of innocence were significant factors in the bail decision. The length of the appellant's detention was a critical consideration, and the court found that the longer the delay, the more compelling the argument for bail. The court referred to previous cases, Hereora v R and Dodd v R, to highlight the importance of these rights and the policy of the Bail Act that supports the release of an accused unless there is just cause for detention. In Hereora, the court allowed the appeal and granted bail due to the lengthy detention and the less overwhelming nature of the evidence. Conversely, in Dodd, the court upheld the refusal of bail despite the lengthy detention, due to the appellant's extensive history of failing to appear in court and committing offences while on bail. The court concluded that in the present case, the appellant's lengthy detention and the rights under the NZBORA necessitated a finding of just cause for continued detention, which was balanced against the appellant's rights.

Ultimately, the High Court of Australia upheld the lower court's decision to refuse bail. The court found that the appellant's lengthy detention and the rights protected under the NZBORA were not sufficient to outweigh the considerations set out in the Bail Act, particularly the risk factors associated with releasing the appellant on bail. The court emphasised that the appellant's past conduct and the strength of the evidence against him supported the decision to maintain his detention. The court acknowledged the importance of the rights under the NZBORA but determined that they did not compel a grant of bail in this instance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 8 sets out the matters the Court must take into consideration when deciding whether there is just cause for continued detention:Consideration of just cause for continued detention(1)In considering whether there is just cause for continued detention, the court must take into account—(a) whether there is a risk that—(i) the defendant may fail to appear in court on the date to which the defendant has been remanded; or (ii) the defendant may interfere with witnesses or evidence; or(iii) the defendant may offend while on bail; and(b) any matter that would make it unjust to detain the defendant.(2)In considering whether there is just cause for continued detention under subsection (1), the court may take into account the following:(a)the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind;(b)the strength of the evidence and the probability of conviction or otherwise;(c)the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;(d)the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant;(e)whether the defendant has a history of offending while on bail, or breaching court orders, including orders imposing bail conditions;(f)the likely length of time before the matter comes to hearing or trial;(g)the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody;(h)any other special matter that is relevant in the particular circumstances.… Counsel referred us to two directly relevant authorities, with different outcomes. In Hereora v R,[14] this Court allowed Mr Hereora’s appeal against a refusal of bail. Mr Hereora was charged with a number of drug offences including conspiracy to manufacture methamphetamine, conspiracy to supply methamphetamine, and offering to sell cannabis and methamphetamine. By the time of trial he would have been in custody for nearly two and a half years. Mr Hereora had previously absconded whilst on bail and had failed on several occasions to report whilst on parole. However, it was not expected that he would be able to leave New Zealand. The case against Mr Hereora was not considered to be strong or overwhelming.[14] Hereora v R [2011] NZCA 491. In Dodd v R,[15] this Court dismissed the appeal against the refusal of bail. Mr Dodd was also charged with multiple drug offences including 20 charges of offering to sell or supply methamphetamine, three of supplying methamphetamine, and 10 of conspiring to sell methamphetamine. By the time of trial Mr Dodd would have spent two years and three months in custody. Mr Dodd had eight previous convictions for failing to answer District Court bail and one for failing to answer police bail. He also had 29 convictions for offences committed whilst on bail. [15] Dodd v R [2011] NZCA 490. In these decisions it was necessary for the Court to consider the relationship between NZBORA and the Bail Act. The discussion in Hereora provides a helpful exegesis of the approach to be applied in the present case:[16][16] The right to be tried without undue delay under s 25(b) of the NZBORA is an important right. ... [T]he existence of the right, coupled with the right under s 25(c) of the NZBORA to be presumed innocent until proved guilty, are important considerations in deciding whether bail ought to be granted. The right to be tried without undue delay is primarily to ensure an accused receives a fair trial, but it also underlines and supports the general policy reflected in s 7(5) of the Bail Act that an accused person must be released on reasonable terms unless there is just cause for continuing detention. In this respect, the Bail Act reflects s 24(b) of the NZBORA.[17] This presumption recognises that long delay in custody pending trial for an accused who is presumed to be innocent is unfair and inappropriate unless just cause is shown. The ability of the Court to grant bail is a mechanism by which the right of the individual to be free from unfair or unreasonable detention pending trial can be recognised, subject to the protection of the public interest in eliminating or minimising the risks identified in s 8(1) of the Bail Act. Delay pending trial is explicitly recognised as a relevant consideration in s 8(2)(f) of the Bail Act, but it derives additional support from s 25(b) and (c) of the NZBORA. Generally speaking, the longer the delay, the more difficult it will be to find there is just cause for continued detention. Where the delay is very lengthy, it will often become a compelling, but not necessarily overwhelming, factor in favour of the grant of bail.(Emphasis added.)[16] These remarks were repeated in Dodd at [23]—[24].