R v Police HC Auckland Cri-2007-404-355

[2007] NZHC 1408

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-000355

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 December 2007

Appearances: R A A Weir for Appellant

D J McNaughton for Respondent

Judgment:      7 December 2007

JUDGMENT OF HARRISON J

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – D McNaughton

Counsel:             R A A Weir, P O Box 46281, Herne Bay, Auckland

Fax: [phone]

R V NZ POLICE HC AK CRI-2007-404-000355  7 December 2007

[1]      Mr R   is charged with one count of aggravated robbery.   He appeared in the District Court at Pukekohe on 24 October 2007.  He sought but was declined bail.  He now appeals that decision.

[2]      It is common ground that given his previous criminal history Mr R   was subject to s 10 Bail Act 2000.  He was under an obligation to satisfy the Court that bail should be granted.  Judge Wade was not satisfied.  He took into account a number of factors.  He gave particular weight to Mr R  ’s extensive criminal history, in particular, his convictions from 1998 for a variety of serious offences including aggravated robbery.

[3]      The ratio of the Judge’s decision is found in [5] as follows:

Unfortunately, the fallacy of that argument is that the recent convictions for driving whilst disqualified, failing to answer Court bail, breach of supervision, breach of community work, although in themselves not serious, are clear indications that Mr R   is simply not prepared or unwilling or unable to comply with any Court imposed conditions.  I, therefore, cannot be satisfied that if granted bail, he would not represent a danger to the public and  I,  therefore,  am  obliged  in  accordance  with  s  10  to  refuse  the application.

[4]      Mr Robert Weir, who appears in this Court but was not counsel in the lower Court, recognises that in order to succeed on appeal Mr R   must establish that the Judge either erred in law, failed to take into account relevant considerations or was plainly wrong.   He submits that this passage from Judge Wade’s judgment reflects a clear error.  He accepts that the first sentence is legally correct.   But he says the Judge had no logical basis for using his conclusion that Mr R   was unprepared or unwilling to comply with terms of bail to justify a consequential conclusion, expressed in his second sentence, that he would not represent a danger to the public.

[5]      While Mr Weir may be strictly correct, it is plain that the Judge concluded that Mr R   presented real and significant risk of re-offending if granted bail. Indeed, Mr Weir cannot submit otherwise.  Mr R   has an unfortunate history of contempt for court orders.   He has convictions, for example, for driving while disqualified, failing to answer court bail, breach of supervision and breach of community work.  The Judge was correct to say these offences are not of themselves

serious.  However taken together, they paint a picture of a man who is not prepared to abide by conditions of bail.

[6]      In my view Judge Wade had a proper foundation for concluding that bail should be declined because of the risk of re-offending.   Alternatively expressed, Mr R   presented a real risk that he would fail to comply with terms  and conditions of bail.

[7]      Mr Weir advances a number of ancillary submissions.   First, he points to delay.  This factor is always of concern.  Depositions are unlikely to take place until April 2008.   Mr Weir is unable to accelerate the process because Mr R   is charged with two others.  If Mr R   is committed for trial, that event will not take place until late in 2008.   However, Mr Weir accepts that he will have an opportunity to re-apply for bail after depositions if he can point to a weakness in the Crown case.  For the moment, while I am concerned about this factor, I do not regard it as decisive.

[8]      Second, Mr Weir says the Judge erred in failing to take into account the strength of the evidence and the probability of conviction.  However, these related factors  are  discretionary  and  only  relevant  in  the  context  of  an  argument  that Mr R   presented a real and significant risk of flight.  That factor was absent and I cannot see that the Judge’s approach can be criticised.

[9]      Third, Mr Weir submits the Judge did not have the benefit of evidence about Mr R  ’s employment circumstances.   He has submitted two affidavits from those who worked with Mr R   at Fonterra.   Both speak well of him as a diligent, hard-working man who was able to work in an unsupervised way in his assigned duties.  Both also acknowledge that Mr R   provides the sole financial support for his wife and two young children.

[10]     While I accept, of course, the statements of both the claimants at face value, they are insufficient to negate the overwhelming evidence upon which Judge Wade relied in concluding that Mr R   presented a real and substantial risk of re- offending while on bail.  Personal circumstances are relegated to a secondary status in this consideration.

[11]     All in all, I am not satisfied that Judge Wade erred when exercising his

discretion to decline Mr R  ’s application for bail.  I dismiss his appeal.

Rhys Harrison J