R v Ben-Abu - [2003] NZCA 442

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA209/03

THE QUEEN

v

ILAN BEN-ABU

Hearing: 30 July 2003

Coram:Anderson J Paterson J Salmon J

Appearances: P J Kaye & N Webby for Appellant
T A Simmonds for Crown

Judgment: 5 August 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1] This is an appeal, pursuant to s66 of the Bail Act 2000, against a refusal by a

Judge of the High Court to grant bail.

[2] The appellant has been committed for trial in the High Court on
22 September 2003 on an indictment alleging that he, along with a Ms J A Birak and a Mr A Atias committed the following offences against the Misuse of Drugs Act:

R V ILAN BEN-ABU CA CA209/03 [5 August 2003]

(a) One count of importing the Class B controlled drug MDMA (Ecstasy)

(b) One count of possession of the Class B controlled drug MDMA (Ecstasy) for a prohibited purpose.

(c) One count of conspiracy to supply the Class B controlled drug

MDMA (Ecstasy) to other persons unknown.

[3] The Crown case is that Ms Birak entered New Zealand from Amsterdam on

20 November 2002 with a suitcase constructed with a secret apartment containing

53,624 Ecstasy tablets. The appellant arrived in New Zealand from Thailand on

27 November and the other co-accused arrived in New Zealand, from Singapore. A search of Mr Atias on entry disclosed a brand new Samsonite hard sided briefcase containing a special purpose-built hidden compartment. This led to Mr Atias being observed covertly by Police and Customs after he left the airport. He booked into a motel in Grey Lynn and was seen that evening in the company of the other accused at an inner city restaurant. On the morning of 29 November all three accused checked into the same motel. On the afternoon of 29 November the Police conducted a search of the motel room occupied by the two male accused after the associate of a well-known Auckland drug dealer had been seen at the motel. A short time later the accused Ms Birak was seen to approach the motel unit where she apparently noticed damage caused by the Police entry and began to walk away. She was stopped and searched and found to have in her possession the suitcase containing the 53,624 tablets of Ecstasy. She was also in possession of a British passport issued to a man whom she said was her deceased brother. Coincidentally, the appellant was found to have in his possession two new passport photos of himself giving rise to a possible inference that they may have been intended to be used in connection with the passport found in the possession of Ms Birak. These matters combined with other evidence of association and common interests support a reasonably strong Crown case on the counts in the indictment, particularly, as far…

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 R v Ben-Abu

Details

AGLC: R v Ben-Abu [2003] NZCA 442
Case: [2003] NZCA 442
Decision Date: 5 August 2003

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Ben-Abu was heard and decided on August 5, 2003. The appellant, Ilan Ben-Abu, appealed against the High Court's refusal to grant him bail. The appellant was facing trial on charges of importing and possessing MDMA (Ecstasy) and conspiracy to supply the drug. The Crown argued that the appellant, along with two co-accused, was involved in a large-scale drug importation scheme, which involved a suitcase with a hidden compartment containing 53,624 Ecstasy tablets. The case against the appellant was considered strong, with evidence suggesting his association with the other accused and potential involvement in the drug operation.

The primary legal issue in the appeal was whether the High Court was correct in its assessment of the risk of flight and in denying bail to the appellant. The appellant argued that he had a right to be considered for bail, despite being a foreign national, and that he could be subject to bail conditions that would mitigate the risk of flight. The Crown, however, maintained that the appellant posed a significant flight risk due to the strength of the case against him, the nature of the charges, and the potential for him to obtain false travel documents. The Court of Appeal had to decide whether the High Court's determination of flight risk was correct and whether the appeal should be allowed based on any errors in principle or plain wrongness.

The Court of Appeal held that the High Court's judgment was based on a reasonable assessment of the risk of flight. The appellant's possession of passport photos and the co-accused's possession of a passport suggested a potential for obtaining false travel documents. Given the appellant's involvement in a large-scale drug operation, the Court of Appeal was not persuaded that the High Court was wrong in its determination. The appeal was dismissed, and the appellant remained subject to the bail conditions set by the High Court. The Court emphasized the importance of considering the risk of flight, particularly in cases involving serious drug offenses with significant potential profits.

Orders