R v G HC Wellington CRI 2007 485 21

[2007] NZHC 238

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007 485 21

THE QUEEN

v

G

Hearing:         30 March 2007

Appearances: N Hard for Appellant

D La Hood for Crown

Judgment:      30 March 2007

ORAL JUDGMENT OF RONALD YOUNG J

[1]      This is an appeal against a refusal by the District Court to grant bail to Mr G     on   charges   of   possession   of   methamphetamine,   possession   of equipment capable of manufacturing methamphetamine, possession of a methamphetamine  pipe and  possession  of  a  motor  vehicle  for  the  purpose  of commission of an offence under the Misuse of Drugs Act.  In addition, it is alleged the appellant breached a condition of existing bail conditions.

[2]      As to the facts, the Crown allege the appellant purchased glassware and other items  over  the  internet  which  are  able  to  be  used  to  manufacture methamphetamine.   They apprehended Mr G   with this glassware in his car

and when they searched his car they also found a methamphetamine pipe and some

R V G HC WN CRI 2007 485 21  30 March 2007

methamphetamine.   Mr G   was then on bail on charges of manufacturing methamphetamine, supplying and conspiracy to supply methamphetamine.

[3]      The Judge in the District Court assumed (it is agreed wrongly) that s 12 of the Bail Act applied to this bail application.   He concluded in part that he was not satisfied that Mr G   would not have continued to offend and refused bail.

[4]      While the Judge did consider a number of s 8  factors, the proper course, it seems to me, given the error he made is for me to reconsider bail anew.

[5]      The appellant in support of bail submits as follows.  As to the strength of the Crown case with respect to the charges involving the purchase of the glassware the appellant says this was bona fide chemical equipment not drug paraphernalia per se, and that the appellant has an innocent explanation for his possession.  The appellant accepts that there is evidence of a breach of bail relating to his cellphone possession and evidence of  a  recent text.    He  accepts  that  the  evidence  in  relation  to  the possession of methamphetamine and the pipe given it was found in the car he was driving is strong.  He says, however, that given the evidence on the main charge is not strong, overall, the breach and relatively minor alleged offending should not be sufficient to revoke his bail.

[6]      As to his personal circumstances and other s 8 factors, counsel points to the length of time to trial acknowledging, however, that the trial with regard to the previous alleged offending is due in June 2007.   Secondly, Mr Hard stresses the modest strength of the police case.  Thirdly, he submits the only factor of concern should be the possibility of further offending which he says is modest.  He points to the appellant’s modest previous conviction list and the fact that he has never previously been imprisoned.

[7]      I have read and taken into account the Crown submissions.

[8]      I  am  not  prepared  to  grant  bail.    Firstly,  the  appellant  has  shown  his unreliability  by  breaching  his  existing  bail  conditions  relating  to  the  cellphone despite his claim that the cellphone not being used by him.  There is evidence that is

not true and in any event it would be difficult to accept his assertion.  By itself that would not be decisive, but together with other factors here it is relevant.  The fact that he is prepared to breach bail when subject to such serious charges plays its part and is relevant to both reliability when surrendering to his bail and offending while on bail.

[9]      Secondly, the strength of the evidence is high in relation to the possession of methamphetamine and the possession of pipe found in the appellant’s car.  As to the equipment it will of course be for the jury to decide whether the Crown can prove this case.  The Crown point to differing explanations given by the appellant for his possession of those items.  The appellant points to the fact that these are legitimate items of glassware that could be used for a number of reasons.  I therefore treat the evidence with regard to that offending and that charge as essentially neutral for bail purposes.   The alleged offending is against a background of, as I have said, very serious methamphetamine charges currently before the Court.   The strong probability of offending while on bail, given such serious charges, is therefore highly relevant.   In terms of the accused’s background he has seven previous drug convictions since 2005.   I acknowledge, none sufficiently serious to justify imprisonment.  He has some history of offending while on bail prior to this.

[10]     Overall,  those  factors  convince  me  that  there  is  a  strong  case  that  the appellant is likely, and has probably already offended while on bail, and that the risk is beyond that which could be governed by conditions, and so a remand in custody would be the appropriate course.  I take into account also that the remand would only be   until   June   of   this   year   when   the   appellant   faces   trial   on   serious methamphetamine matters.  If he is acquitted on those matters I can see no reason why bail should not then be granted.  If convicted, potential sentences will overcome any bail matters.

[11]     The appeal is therefore formally allowed because of the error by the District

Court Judge. However, on a reconsideration, bail is refused.

“Ronald Young J”