R v L HC Auckland CRI 2007-004-22968

[2007] NZHC 1086

This case has been anonymized

ORDER SUPPRESSING ANY DETAIL RAISED IN THE COURSE OF ORAL SUBMISSIONS OR IN WRITING OR REFERRED TO IN THIS JUDGMENT WHICH INDICATE DIRECTLY OR INDIRECTLY THE CONTENT OF THE INTERCEPTED COMMUNICATIONS, WITH THE EXCEPTION OF THOSE SET OUT IN PARAGRAPH

[7] OF JUDGE BOUCHIER'S DECISION.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-022968

THE QUEEN

Appellant

v

L

Respondent

Hearing:         16 October 2007

Appearances: Mr Johnstone for appellant

Mr L   in person

Mr Palvaast (McKenzie Friend) Judgment:    16 October 2007

JUDGMENT OF WINKELMANN J

R V L HC AK CRI 2007-004-022968  16 October 2007

Crown Solicitor, Auckland

[1]      The Crown appeals against the grant of bail by Judge Bouchier earlier today in relation to Mr L  .  Mr L   faces three charges under s 45 of the Arms Act for  unlawful possession  of a  firearm,  for  offending  in  date  ranges  between  10

January 2007, 14 January 2007, 26 April 2007 and 29 April 2007 and 21 June 2007 and 25 June 2007.  That offending is alleged to arise out of Mr L  ’s attendance at training camps in the Urewera area.   The Crown says that those training camps were part of a general para-military training operation that occurred over a period of time.  The participants in the camps are said to have been training and planning for future events with the potential to violently disrupt the community.

[2]      Before Judge Bouchier the Crown opposed bail and Mr Johnstone for the Crown  this  afternoon  says  that  the  grounds  of  opposition  were  summarised accurately  by  her  with  one  exception  in  paragraphs  [5]  and  [6]  of the  Judge’s decision.  She said there:

In the submission of the police there is a real and significant risk that the defendant  may interfere with  witnesses  or  evidence,  there is  a  real  and significant risk that he may offend while on bail, the serious nature of the offences with which he has been charged, the strength of the evidence and the probability of conviction, and special matters relevant to the particular circumstances in the submission of the police, the serious or potential danger to the community arising from the termination.

The individual grounds in respect of Mr L   are that there is a risk he may offend whilst on bail – given his previous convictions and record of offending whilst on bail and the submission is that it is imperative that he be prevented from contacting other defendants or potential witnesses to prevent him manipulating them and the intercepted communications.

[3]      The Crown says that  one  aspect  of the  Judge’s error  in granting  bail to Mr L   was that she failed to record and failed to take into account, a further ground of opposition.  She should have taken into account as a discretionary matter in deciding whether or not to grant bail, the nature and gravity of potential charges which might be laid against Mr L   under the Terrorism Suppression Act 2002. The Crown also contends that there were other errors by the Judge.  I will return to that issue shortly.

The District Court bail decision

[4]      The Judge set out by way of background some of the evidence which the Crown relies on in relation to Mr L  ’s involvement in the camps and planning around those.  She also made reference to Mr L  ’s bail history.  Mr L   has a history of offending whilst on bail as follows; speaks threateningly, 2 x wilful trespass, resisting police, assaults police, threatening behaviour, misuse of telephone, possession of a knife in a public place, possession of offensive weapon, failing to answer District Court bail x 2, contravention of a Protection Order, wilful damage, male assaults female, common assault.  Various breaches of bail conditions are also recorded.  I set those out in full because Mr L   does not say that the Judge has mis-recorded those convictions and they do inform the decision which follows.

[5]      The Judge noted that the Crown’s submission was that the charges under consideration  were  grave  and  that  the  evidence  against  Mr  L    was  strong because of recorded instances of telephone and text content.   She also referred to photographic evidence of people attending at camps, which are described as “rama camps”.  She recorded Mr L  ’s strong denial of the allegations against him by the police.

[6]      She then directed herself that in considering matters under the Bail Act 2000 she had to take into account the risk of reoffending, any risk to the public whilst on bail and the risk of Mr L   contacting other  defendants.    She referred  to  a decision of Judge Morris of last  week and recorded a comment  he  made  about Mr L  .  It is not clear to me how that comment is relevant to any issues arising on bail.

[7]      The Judge said that it was difficult to assess the strength of the risk to the public and it was difficult to assess whether the evidence against Mr L   was strong or not.  She took into account her assessment of Mr L   based on her past dealings with him (Mr L   says he was before her in the context of a number of failed prosecutions against him), and concluded:

Having dealt with Mr L   on a number of occasions in the past and looking at the matters that have been raised in the police grounds for opposition, I cannot, in my view, on the evidence before me at this present moment, find that Mr L   poses such a significant danger to the public that he ought to be incarcerated pending the trial.  Certainly, there may be some concern about the interference with witnesses and/or other defendants, contact between them.  In my view those can be dealt with by way of bail conditions  which  would  prevent  him  from  contacting  those  people  and, should he do so, of course he would risk a remand in custody.

[8]      Mr Johnstone for the Crown submits that the Judge made three errors.  The first, as already mentioned, that she failed to address herself to the nature and gravity of potential charges arising out of the conduct as alleged against Mr L  .  The second ground is that she reached no view as she was required to do under s 8 of the Bail Act, of the risk of Mr L   offending whilst on bail.  The third alleged error is that she made no decision in relation to the strength of the charges.

[9]      Mr Johnstone also placed additional material before me today in the form of surveillance photographs from a camp which took place earlier this month.   These photographs were collected this morning and were not available at the earlier bail hearing.   The photographs show a  significant  number  of people  participating  in military training type operations.   The people are wearing camouflage gear, some with  their  faces  partially  obscured.    The  Crown  does  not  say  that  Mr  L   attended that camp.  The significance of the photographs is said to be that although there have been 17 people arrested for offending connected with these camps only two of those have been identified as people shown in the photographs.   There is therefore a concern that there are others involved in these camps, yet to be identified or investigated.

[10]     Mr L   is self-represented today.  He has a McKenzie friend sitting with him.   He also has a number of supporters in court with him, Mr Wenzell and Mr Otimi.  Mr L   asked that he be able to produce some character evidence and we discussed how that would occur.  Mr Johnstone and Mr L   were in agreement that I could deal with the matter by allowing Mr Otimi and Mr Wenzell to speak on Mr L  ’s behalf in relation to the issue of his character, and that I would set out the gist of what they said in my judgment.  They did speak on his behalf and I thank them for that.

[11]     Mr Otimi said that he had known Mr L   for the last three months.  He has been working him as a student in a communication course Mr L   has been attending in Manurewa. Mr Otimi says that he knows from having spent this time with Mr L   that Mr L   has experienced frustration in dealing with the Court  system.    However  he  has  excellent  qualities  and  they  are  qualities  that Mr Otimi believes could be enhanced with support.   He says that Mr L   has worked very hard in helping other people, in particular people who have to have contact  with  the  Court  system  but  do  not  understand  it,  and  unrepresented defendants.  Mr L   has been taken into Mr Otimi’s hapu and the hapu want to carry on working with him to support him.

[12]     Mr Wenzell says he has also known Mr L   through the training course and that Mr L   has worked very diligently in attending that course six days a week.   The course is about  methods of communication.    Mr  Wenzell says that Mr L    also  has  worked  hard  during  this  time  helping  people  with  private prosecutions.  I understand this to be a reference to private prosecutions against the police force.

[13]     I gave Mr L   the opportunity to respond to the various points the Crown made, in particular the errors that the Crown allege exist in the Judge’s decision. Also to the submissions Mr Johnstone made in relation to the considerations of s 8 of the Bail Act.  Mr L   does not wish to respond to these.  He says that he is not here to argue these points.  He relies on the character evidence put before the Court and on the decision of Judge Bouchier and her assessment of him.   He gives the Court his word that there will not be a breach of bail if bail is continued.  He has a stable work background and he is not a threat to the public.   He says that he is undergoing training to assist him in dealing with difficult situations.   This is self- improvement training.  He assures me that in light of this training there is no risk of reoffending or that conditions of bail will be breached.

[14]     I then consider the alleged errors in the decision of Judge Bouchier.  I do not accept that it was an error of law for the Judge to decline to form a view on the strength of the case if, on the evidence before her she found it difficult to do so.  In this  case  substantial  portions  of  the  evidence  are  not  admissible  on  this  point.

Section 20 of the Bail Act provides that when considering the strength of evidence and probability of conviction:

(a)       the   court   may   only   consider   a   statement,   document, information, or matter that would be admissible in a court of law if made by the appropriate person or given or produced in proper form.

[15]     Because of this provision the  intercepted conversations are evidence that could not be taken into account at that bail hearing on this issue.   The intercepted conversations are obtained pursuant to warrants under the Crimes Act and the Suppression of Terrorism Act, and are not admissible in any proceedings under the Arms Act, which is the Act under which Mr L   is currently charged.   The evidence of those conversations may however be taken into account by a Court in considering whether the defendant may interfere with witnesses or evidence, whether the defendant may offend whilst on bail, or any of the other considerations set out in s 8.  This is because in relation to those provisions of s 8, s 20(1) of the Bail Act applies.  Section 20(1) provides:

In  hearing  an  application  for  bail  a  court  may  receive as  evidence any statement,  document,  information,  or  matter  that  it  considers  relevant, whether or not it would be otherwise admissible in a court of law.

[16]     I accept the Crown’s submission that the Judge did fail to properly address the risk of offending whilst on bail.   Although she directs herself that that is a consideration under s 8, she does not reach a concluded view on it.  There is some reference at paragraph [22] as to whether Mr L   poses such a significant danger to the public that he ought to be incarcerated pending trial.  But that is not the same issue as a real and significant risk of offending whilst on bail.  I am strengthened in my view that she did not squarely address this issue by her failure to bring to account on this issue, Mr L  ’s record of offending whilst on bail.

[17]     The final alleged error that is that the Judge failed to take into account the Crown’s submission that a key consideration was the nature and gravity of potential charges.  The Crown says that the Arms Act charges are laid against Mr L   in the context of a wider investigation into the operations of a para-military group, and that charges under the Suppression of Terrorism Act are under consideration.   Mr Johnstone submits that in circumstances where further and perhaps more serious

charges are under consideration but cannot be laid without leave of the Solicitor General (under delegated authority from the Attorney-General), the fact of those potential charges is a relevant consideration.

[18]     The Judge did err in failing to address the Crown’s submission in this regard. Although charges that have yet to be laid would not normally be a matter to which the Court would attach much weight in the context of the issue of bail, in circumstances where the laying of the charges is held up by a statutorily prescribed leave procedure, potential charges may be a relevant consideration.   I consider the Judge should have turned her mind to the relevance of this issue in considering whether there was just cause for continued detention under the provisions of s 8.

[19]     The fact that the Judge has made errors in a time constrained hearing and bail determination does not  of itself mean that  there  is  just  cause  for  Mr  L  ’s detention.  Having reached the view that there were errors, I am required to consider the issue of bail afresh.  In addressing the Crown’s two key grounds of opposition to bail, I have to consider whether there is a real and significant risk that Mr L   may offend whilst on bail, and whether he may interfere with witnesses or evidence. The Crown does not submit that there is a risk that he will fail to appear in Court in future.

[20]     I deal then with the issue of interference with witnesses or evidence.  I have regard to the intercepted communications which are set out in the opposition to bail form.  These conversations have to be considered in the context of the evidence of Mr L  ’s attendance at training camps.   In the intercepted conversations Mr L     makes   several  remarks   which  provide   some   evidence   that   he   has commitment to a group or a connection with a group of people who  have been involved in camps and planning for future operations which are the subject of on- going investigations.    Examples of Mr L  ’s comments in intercepted conversations are those set out in the judgment of Judge Bouchier:

I am training up to be a very very vicious commando.

Hey I don’t want to know anymore white men, white men are going to die in this country, anyone with a white face comes near me if they haven't got fuckin manners or call me sir I’ll fuckin kill ‘em.

And there are a number of other comments, which I do not set out.

[21]     As I understand Mr Johnstone’s submissions, the evidence or witnesses that it is submitted that Mr L    may interfere with if released are not  likely to be witnesses in relation to the charges that he currently faces under the Arms Act.  But there is some force in the submission by the Crown that if he is released on bail, Mr L   could make contact with potential witnesses in the on-going investigation and impede that police investigation into potential charges against Mr L   and others.  That may not be relevant to the mandatory consideration under s 8(1)(a)(ii) (I express no concluded view on this given the limited argument on the issue) but can certainly be taken into account as a discretionary matter under s 8(2).

[22]     The other key issue is the risk of offending whilst on bail.  Mr L   has a quite considerable history of offending whilst  on bail,  referred to  earlier.    That offending involves violent offending although not at the most serious end of the spectrum.   The intercepted conversations and other evidence in relation to his attendance at these camps, is evidence that I may also have regard to on this issue. There  is  strong  evidence  before  me  that  Mr  L    has  a  commitment  to  an enterprise which has very troubling objectives, and which encompass the possibility of violence.  There is a risk that if released, he will recommit to those activities and plans.

[23]     I therefore consider that there is a real and significant risk of offending whilst on bail.  I also attach some weight to the special consideration that Mr L   might interfere with witnesses and evidence in a wider police investigation which includes himself and others.   Relevant at this point also is the potential for further serious charges against Mr L   and others, and the fact that the police inquiry is on- going  in relation to those potential  charges.    I  must  then  consider  whether  the imposition of bail conditions can meet these concerns.

[24]     I am not satisfied that the imposition of strict conditions on bail can meet these concerns.  Mr L   has in the past shown a disregard for bail conditions and court orders.   I refer to the breaches of bail conditions, convictions for failure to answer  bail and  also  to  his having  previously offended  whilst  on  bail.    I  have

weighed  carefully  the  fact  that  Mr  L    does  present  as  a  man  who  has considerable community support.  He has people who speak in support of him who say that he is a decent person who helps others.  But the character references he has produced cannot outweigh the other troubling material before me.    In the circumstances,  I  consider  that  there  is  just  cause  for  Mr  L  ’s  continued detention.  The appeal is allowed and bail is revoked.

[25]     It may be appropriate that at a later point bail be revisited when the police operation is at a more complete stage, when a clearer picture has emerged as to what if any other charges are to be laid against Mr L   and finally, when there is a better picture of the strength of the Crown evidence against Mr L  .

[26]   I make an order suppressing any detail provided in the course of oral submissions or in writing or referred to in my judgment which indicate directly or indirectly the content of the intercepted communications, with the exception of those set out in paragraph [7] of Judge Bouchier’s decision because they are already in the public domain.  I do so because of concerns that the fair trial rights of Mr L   and other accused not be prejudiced.  I note that Mr L   opposes the suppression, but I also must weigh the fair trial rights of other accused in making this order.

[27]     Mr L   is remanded in custody until Friday 19 October 2007 at 10 am when he is to appear in the Auckland District Court.

Winkelmann J