R v Hines Ca384/02
[2002] NZCA 353
•29 November 2002
| NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL |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 | CA384/02 CA386/02 CA399/02 |
THE QUEEN
V
WILLIAM HINES
LEONARD ROSS AFAMASAGA
JUSTIN CHRISTOPHER HARDER
| Hearing: | 27 and 28 November 2002 |
| Coram: | Gault P Robertson J Salmon J |
| Appearances: | MA Kennedy for Appellant Hines (on 27 November 2002) J Faleauto for Appellant Afamasaga (on 27 November 2002) CL Harder for Appellant Harder (on 28 November 2002) AR Burns for Crown |
| Judgment: | 29 November 2002 |
| JUDGMENT OF THE COURT DELIVERED BY SALMON J |
Mr Hines and Mr Afamasaga appeal against the refusal of bail by a Judge in the High Court. Mr Harder appeals against the conditions imposed on the grant of bail to him. The appellants are three of a number of accused charged with drug offending relating to methamphetamine. The appellants stood trial with five other accused over a period of two months in the High Court. On 4 November the Judge declared a mistrial. He revoked the bail of the three appellants who had all been on bail prior to and during the course of the trial. A new trial date has been set to commence early next year.
The reason why bail had been revoked was because over the course of the trial the Judge had formed the view that there was a risk of interference with a key Crown witness. He indicated, however, that he was prepared to reconsider the issue of risk of interference in respect of any accused. Four of the accused applied for bail. Mr Hines and Mr Afamasaga and one other were refused bail. Mr Harder was granted bail subject to very strict conditions.
In his decision on the applications the Judge referred to s8(1)(b) of the Bail Act 2000. It provides:
(1) In considering whether there is just cause for continued detention, the court must take into account the following considerations:
(a)whether there is a risk that the defendant may fail to appear in court on the date to which the defendant has been remanded:
(b)whether there is a risk that the defendant may interfere with witnesses or other evidence:
(c)whether there is a risk that the defendant may offend while on bail.
He held that it would be inappropriate to stipulate a specific standard of risk when Parliament had not done so, but said that in his view to amount to just cause for continued detention the risk that a defendant may interfere with a witness should be more than nebulous and insignificant and should be a real and significant risk. It should be taken into account along with the other considerations referred to in s8 of the Act. Counsel for the appellants accepted that this statement as to the approach to interpretation was correct.
The Judge noted that the witness in question had declined protection under the Police Witness Protection Scheme because he had a property and a business which he was not prepared to sacrifice. He observed that the accused know where his factory is. He referred to a previous attempt to interfere with this witness by a man who is described as well known in the criminal fraternity in Auckland with many criminal convictions, including convictions for dishonesty and violence. The Judge drew the inference that this man approached the witness at the instigation of at least one of the accused for the purpose of interfering with him as a witness.
The Judge posed three basic questions to be answered in deciding whether each of the applicant’s for bail presented a risk of interfering with the witness.
Is the witness a threat to the group?
Is the particular person applying for bail a part of the group?
Given the opportunity, if given bail, would each of them do anything to get at the witness either on their own or through an intermediary.
He concluded that each of the four applying for bail was a member of a group to which the witness presented a threat. He held that each of them might if given bail, do something to interfere with the further appearance of the witness and that there was a strong incentive for each of them to do this. He further held that there was the likelihood that another member or members of the group might put pressure upon one or more of them to act in interfering.
Hines
So far as Mr Hines is concerned, the Judge referred to evidence on interception tapes which suggested that he was capable of violence. He found that there was sufficient evidence on which a jury could find beyond reasonable doubt that Mr Hines was one of a group who came and went to the factory while methamphetamine was being manufactured there. He described Mr Hines as being closely associated with Mr Saifiti, who the Crown alleged was the mastermind who organised, financed and controlled the manufacture and sale of methamphetamine. He referred to Mr Hines’ many previous convictions, including offences of dishonesty and violence.
The Judge took into account the considerations in s8 of the Bail Act, including Mr Hines’ counsel’s submissions as to the strength of the evidence against him and the probability of conviction and his medical condition. He held, however, that there was a real and significant risk that Mr Hines might interfere with Mr Taylor.
Ms Kennedy notes that Mr Hines was on bail prior to and during trial, for a period of almost two years without incident or breach. She referred to what she said was the vague nature of evidence that Mr Hines was ever at the factory owned by the witness. She noted that there was no evidence that the appellant had any direct or indirect connection with the communications between the witness and the person who approached him.
She submitted that it was not sufficient for the Judge to conclude that another accused might interfere with the witness. The section required consideration as to whether the defendant posed the risk. She referred to the decision of Anderson J in R v Gilmer (unreported, High Court, Auckland Registry, A.819/02, 29 June 2001) at paragraph 16:
The statutory criterion in s 8(1)(b) is whether there is a risk that the defendant (emphasis added) may interfere with witnesses or other evidence. What the Judge has found, according to the terms of the judgment, is that there is a realistic risk that witnesses might be interfered with by the gang or other gangs. There is no finding, nor cogent evidential basis for a finding, of a risk that this appellant may interfere with witnesses. Moreover, the question of opportunity to interfere with witnesses has to be examined by reference to reasonable terms and conditions of a grant of bail to the extent that such reasonable terms and conditions may meet a general anxiety of risk.
She noted that in the present case Mr Hines was originally granted bail notwithstanding his previous convictions, and that the circumstances that justified that original grant have not changed. She submitted that it could not be just cause for continued detention that a person other than the particular appellant might act improperly.
In response to that submission we note that the Judge in the High Court reached his decision on the basis that each of those to whom bail was refused posed a risk. There has been a change of circumstance since bail was originally granted. That change is two-fold.
The attempted interference with the witness has come to light.
Much more is known about the importance of the evidence of the witness and the participation of the accused in the offending.
In particular the High Court Judge has had the opportunity to listen to two months of Crown evidence against the accused. On the basis of that evidence and the other factors referred to by the Judge he concluded that in respect of the three accused to whom bail was refused there was a real and substantial risk of interference with the witness. It is not a question of someone other than Mr Hines representing the risk. The Judge’s finding was that Mr Hines himself represented such a risk.
We have not been satisfied that, so far as Mr Hines is concerned, any error has been demonstrated in the manner in which the Judge exercised his discretion. He correctly applied the law. He based his decision to refuse bail to Mr Hines upon appropriate considerations. Mr Hines’ appeal is refused.
Afamasaga
Mr Faleauto submitted that Mr Afamasaga should have been treated in the same way as Mr Harder. He emphasised that Mr Afamasaga was not one of the principals in this offending. He is alleged to be a dealer. He said that the witness does not give any evidence against Mr Afamasaga. He emphasised the appellant’s good behaviour while on bail and the fact that he been living with a family who subjected him to strict supervision.
The Judge referred to Mr Afamasaga’s numerous convictions for offences including dishonesty, disobedience and violence, including five cases of failing to answer District Court bail. He referred to an intercepted conversation between Mr Saifiti and Mr Afamasaga concerning the collection of a debt for the Head Hunters’ gang. Mr Afamasaga is a nephew of Mr Saifiti.
Finally, the Judge referred to the fact that in the case of Mr Afamasaga s12(4) of the Bail Act 2000 applied and the onus was on the appellant to satisfy the Court that bail should be granted. He said that even if that onus were not present he would still find that there was a real and significant risk that Mr Afamasaga may interfere with the witness if granted bail.
The family with whom Mr Afamasaga was staying were present in Court during the hearing of the appeal. Mr Kelly, a member of that family sought leave to address the Court. That leave was granted. He said that he had provided a surety for Mr Afamasaga when he was originally granted bail. He had not been let down. He said that the appellant had grown during the two years he had stayed with them. That prior to living with his family the appellant had never had a job. He has now been working for two years alongside Mr Kelly. He had shown a sense of responsibility and was a completely different person to the one who was alleged to have committed the offences. He said strict supervision was applied. The appellant was allowed no visitors or telephone calls. He said in relation to the appellant’s convictions for violence that while living in his house and working with him he had never heard him even raise his voice.
We were impressed with this compelling statement. As we understand it the Judge in the High Court did not have the benefit of Mr Kelly’s evidence. He may well have come to a different decision had that evidence been before him.
In the circumstances of this case we are not in a position to reconsider the question of bail in the light of what Mr Kelly told us. Unlike most bail applications, the decisions made in this case depend very much on the evidence which the Judge heard during eight weeks of trial. We do not have that evidence before us. It would, therefore, be inappropriate for us to allow the appeal on the basis of the additional information given to us by Mr Kelly. Taking into account just the Judge’s decision we do not consider that he was in error in refusing bail to Mr Afamasaga. However, we do consider that it would be appropriate for his bail application to be reconsidered in the light of Mr Kelly’s evidence.
We do not have the power in terms of s67(4) of the Bail Act to remit the case to the High Court for rehearing. We, therefore, invite the appellant to make a fresh application to that Court, supported by the evidence of Mr Kelly.
For the reasons outlined earlier, we must dismiss Mr Afamasaga’s appeal.
Harder
The Judge said that he did not consider that the case against Mr Harder was weak as has been submitted on his behalf by Mr Christopher Harder. He noted that the evidence of Mr Taylor strongly implicates Mr Saifiti in the manufacturing of methamphetamine. The evidence against Mr Harder relates to his dealings with Mr Saifiti and the alleged on-selling of the manufactured methamphetamine by Mr Saifiti through Mr Harder. He said that, therefore, Mr Harder has an interest in ensuring that Mr Saifiti is not convicted of manufacturing or supplying methamphetamine. He went on to say:
Because of Mr Harder’s intelligence and organisational ability as demonstrated at the trial Mr Harder would present a very attractive means for Mr Saifiti to interfere with Mr Taylor. I accordingly consider that there is a real and significant risk that if granted bail Mr Harder may take an active part in interfering with Mr Taylor.
He further noted that because of Mr Harder’s lesser involvement with Mr Saifiti and his group and the absence of any history of violence or talk of violence on his part he considered that the risk of interference was less in Mr Harder’s case and that it might be counteracted by appropriate bail conditions.
Mr Harder’s appeal effectively sought a variation of his existing bail conditions.
A 19 page memorandum was filed which traversed a substantial amount of ground. Counsel on his behalf endeavoured to canvass areas including challenges to the Judge’s findings which were not strictly matters in contention on the appeal before the Court. One of those was that he considered it unfair to have his organisational ability demonstrated in representing himself at the trial, relied upon to limit his freedom.
We have also seen a further application under s347 of the Crimes Act 1961 filed by Mr Harder personally which is yet to be heard and determined. We made clear to counsel that it appeared prudent that this matter should be dealt with at the earliest opportunity because if that were to succeed then no question of bail would arise and many of his concerns would become history.
The High Court Judge concluded that it was necessary to impose “very restricted bail conditions”. He accordingly granted bail on the condition that Mr Harder live at 12 London Street and be there 24 hours every day. He was required to come to the door of those premises if and when the Police called to check if he was there.
The Judge made an exception which enabled Mr Harder to visit his grandfather at the Caughey Preston Home in Meadowbank, but he had first to advise Police officers nominated by the Crown of his intention, and details of such visits (such as direct travel to and from and times of travel) were to be agreed with that Police officer in advance and in writing.
The Judge specifically held that Mr Harder’s child and its mother could visit him at 12 London Street and no exception needed to be made in respect of the child.
On the question of employment, he indicated that if there was a proposal for employment of a nature where attendance at it and travel to and from could be closely defined and monitored, the Judge would be prepared to entertain an application for variation of bail.
Other conditions were imposed to lessen the opportunity of any direct or indirect influence on the trial witness about whom there was concern.
In its substance, counsel’s submission before us was that there needed to be an ability for Mr Harder to be able to respond to routine activities such as visiting a dentist or doctor, or having a haircut. There was also reference to being able to walk to the local shops or exercise dogs and other less exacting matters of that sort.
It is clear that the Judge (who had been appraised of all the circumstances of this matter over a lengthy period of time) was persuaded that very restrictive bail conditions had to apply. In our judgment, however, the exception which was provided in respect of visits to the grandfather can provide an analogy for other necessary and essential deviations from that position. This possibility was acknowledged and accepted by the Crown.
It is clear that if Mr Harder is to leave 12 London Street at any time, or in any circumstances, there must first be an authorisation in writing from the designated police officer (whether by letter, fax or email) which defines the time, date, circumstance and where he is permitted to go. We would see this as including doctor, dentist, hairdresser and something as defined as a job interview. It does not appear to us that it is necessary that this should include dog walking, dairy shopping or other activities which someone could well carry out on his behalf.
The Judge has specifically indicated that, as far as actual employment is concerned, there could be a variation to deal with a specific job so it makes sense that a defined job interview could be a necessary forerunner for that. We would not see a general dispensation to go out and about job hunting as being encompassed.
The appeal is accordingly allowed to the extent that his present bail will be subject to the additional condition that he may leave the premises at 12 London Street for essential visits providing he has first obtained, and has in his hand, a written authorisation from the Police which details the times, date, place and circumstances of his being away from the home.
Solicitors
Crown Solicitor, Auckland
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