Police v N HC Auckland CRI 2006-090-692

[2006] NZHC 1381

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-090-692

THE POLICE

Applicant

v

N

Respondent

Hearing:         8 November 2006

Appearances: K Glubb for applicant

R Mansfield for respondent

Judgment:      8 November 2006

JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor Auckland

R Mansfield, Auckland [email protected]

POLICE V N HC AK CRI 2006-090-692  8 November 2006

[1]      Mr N   appears this afternoon consequent on his apprehension by the police earlier this week, in circumstances constituting a breach of his bail conditions.

[2]      It is necessary to outline the brief history of Mr N  ’s recent Court appearances, although  I do so only in sufficient detail to enable this somewhat unusual matter to be put in its proper context.

[3]      Mr  N    currently faces  in  this  Court  an  indictment  charging  two counts of supplying methamphetamine, two counts of possessing methamphetamine for supply and one of possessing an air gun.  His trial was initially set down for 30

October 2006, but through no fault of his own it has been adjourned to a date as yet unknown, but likely not to be before mid 2007.  Mr Mansfield says there is to be a callover in March next year, which will address the fixing of a trial date.

[4]      Mr N   also faces various charges in the Waitakere District Court.  To certain of them he has pleaded guilty, but he has not yet been sentenced because it is agreed he will be sentenced on all outstanding charges on which he has been convicted, at the same time.

[5]      In February 2006, Mr N   was granted bail in the District Court, but within a matter of days was in breach of the conditions imposed, and was remanded in custody.   He remained in custody until 29 September 2006, when he made an application to this Court for bail, on grounds which I now relate.  The application was heard by Williams J.  The Judge noted that the Crown case in this Court appears relatively strong, but he was prepared to grant bail on that occasion for two primary reasons:

a)        The period until the trial was relatively limited;

b)The bail application was being made for humanitarian reasons, chief of which was the health of Mr N  ’s father, who has a number of serious health problems.  Mr N   Jr wished to spend time

with his father prior to the trial, which was then scheduled for 30

October.

[6]      Understandably, the Judge was satisfied that given the state of Mr N   Snr’s health, there were compelling reasons why the grant of bail for such a short period was in order.

[7]      So Williams J granted bail for a period of several weeks on terms requiring that Mr N  :

a)       Reside at 101 Stotham Street, Green Bay, Waitakere, subject to a 24 hour curfew at that address, unless he left the property in the company of his father;

b)He is to present himself at the door on the occasion of any visit by a police officer in uniform, or producing his/her warrant.

c)        He was not to enter licensed premises other than supermarkets;

d)He was not to consume drugs or alcohol or associate with known drug users, directly or indirectly.

[8]      There  is  a  further  humanitarian  factor  not  specifically  addressed  by Williams J, but which appears in the documents and has been alluded to today.  That stems  from  the  fact  that  Mr  N  ’s  long  term  partner,  Ms  McKelvie,  is pregnant with their child.  Although the baby is not due for several weeks, there are complications and she is to be induced on Monday next.

[9]      There is no evidence that those conditions were not adhered to during the period prior to the adjournment of the trial.

[10]     The  trial  date  was  vacated  at  a  hearing  before  Cooper  J  on  Monday

30 October 2006.  At that time, the Judge renewed the grant of bail and relaxed the conditions by imposing a 12 hour curfew to take effect during the evening and night hours.

[11]     Since that appearance, Mr N   has been apprehended by the police in circumstances constituting a breach of several of the conditions of his bail.   The police found him at 2.30 am on Monday 6 November 2006 in a vehicle which he was forbidden to drive.  The fact he was not at home at that time of itself constitutes a breach of the condition.   The police invoked s 18(2) of the Misuse of Drugs Act. Mr N    allegedly  resisted  and  was  arrested  for  obstruction.    The  police searched  the  vehicle  and  allegedly  found  methamphetamine,  a  set  of  scales,  a quantity of cash and a further quantity of cannabis head, along with other paraphernalia.   He has been charged with a series of offences arising from that incident.

[12]     Mr  N    appeared  in  the  Waitakere  District  Court  on  Monday  6

November, and again on Tuesday 7 November, but the issue of bail rests with this

Court, having regard to his background.

[13]     The provisions of s 12 apply so that there is an onus upon Mr N   to satisfy the Court on the balance of probabilities that he will not offend while on bail in the manner set out in that section.  Given the occurrences of the last few days, it is manifest that Mr N   is in significant difficulty in endeavouring to discharge that burden.

[14]     However, I believe that this is a case in which the Court is entitled to have regard to the humanitarian aspects of the matter.  The plight of Mr N   Snr remains in issue, and the forthcoming birth of Mr N  ’s child is likewise relevant.  Moreover, Mr Mansfield has indicated to me, as indeed has Mr N   Snr, that urgent steps are being taken to see whether Mr N   Jr, who acknowledges a significant addiction to hard drugs, can be accommodated within a programme – almost certainly a residential programme – which will assist him in putting his drug addiction behind him.   The precise extent to which he can be assisted by such a programme, and the availability of a residential programme, are both matters upon which the Court has little material as yet.   However, it is a consideration which weighs in the humanitarian balance.

[15]     I propose to adopt the unusual course of granting Mr N   bail on the humanitarian grounds I have outlined.   But I do so on the following basis:   The conditions which are to apply are those set out in the judgment of Williams J on 29

September 2006, including the 24 hour curfew then imposed.  There will be a further condition to the effect that Mr N   will be entitled to leave the property in order to be with his partner at the birth of their child, and on any other occasion reasonably related to the birth of their child, including during the period of days following the birth.

[16]     Further, I understand from Mr Mansfield that Mr N  ’s partner may now be facing one or more charges.  The condition which requires Mr N   not to consort with known drug users is not to be taken to apply to Charlotte Rose McKelvie.

[17]     This grant of bail is not permanent.  It is intended to apply for a period which will expire on Friday 24 November 2006 at 11 am, when the matter will be called in the Duty Judge List.  Over that period one assumes that Mr N   will have had an opportunity of attending the birth of his child, and Mr Mansfield will have had an opportunity of gathering together material relating to the possibility of treatment being available to Mr N  , prior to his trial in the middle of 2007.

[18]     It will not be necessary for a formal fresh application for bail to be made.  My intention is simply to place the question of a further grant of bail, if any, in the hands of the Judge then presiding.  In other words, there will be a de facto review.  If Mr N   keeps out of trouble between now and then, that will clearly be a factor that will weigh with any presiding Judge.

[19]     If  you  do  not  keep  out  of  trouble  Mr  N  ,  in  the  sense  of  not committing further offences, or if you breach any of the conditions now attached to the grant of bail, you can take it for granted my generosity and that of Williams J will be the last you will see of generosity in this Court.  The leniency I am granting you is rare, and arises simply by reason of a compelling combination of humanitarian factors.

[20]     A further purpose in listing this matter for further callover on 24 November is that it may be that a variation of conditions now imposed will be in order if it is appropriate for bail to continue.

[21]     Mr Glubb points out that there may be some justification for considering a condition which requires the monitoring of Mr N  ’s abstention from drug taking, involving in some fashion regular testing.  That is a matter the Crown is free to raise with the Court, although I suggest it be raised in the first instance with Mr Mansfield before the Court is asked to grapple with it in a formal sense.

[22]     Mr Glubb asks for a certificate pursuant to s 63 of the Bail Act.  That is a perfectly proper request and I grant a certificate accordingly.

C J Allan J