R v Police HC Auckland CRI 2010-090-3332

[2010] NZHC 2366

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-090-3332

R

v

NEW ZEALAND POLICE

Hearing:         30 November 2010

Appearances: P Heaslip for the Applicant

R Reed for the Crown

Judgment:      30 November 2010

ORAL JUDGMENT OF WHITE J

Counsel:       P Heaslip, PO Box 4108 Shortland Street, Auckland 1140

Solicitors:      Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

R V NEW ZEALAND POLICE HC AK CRI 2010-090-3332  30 November 2010

[1]      Ms R   appears today on a third breach of bail.

[2]      The  background  to  her  case  is  set  out  in the  minutes  of  Keane  J  dated

1 October 2010, Andrews J dated 21 October 2010 and Lang J dated 24 November

2010.  I do not propose to repeat the background to the charges that Ms R   faces or the circumstances in more detail because they are summarised in those minutes.  Suffice it to say that on the occasion of Ms R  ’s appearance before Keane J on 1 October 2010 when she was granted bail, the Judge made it clear that the first breach was to be recorded in the Crown book and that she was to be issued with a final warning.

[3]      Notwithstanding that warning, there was a second breach which resulted in Ms R   appearing in this Court on Tuesday 19 October 2010 for a further breach of bail.  Andrews J on that occasion accepted her explanation and re-admitted her to bail.   In the minute of Andrews J dated 21 October 2010, however, it is recorded at [4]:

Ms R   should be aware however, that in the event that in the future any  occasion  arises  at  which  she  considers  she  must  leave  the  curfew address, other than to come to Court, then she should contact the Officer in Charge of her case and give them prior notice of her absence.   That will avoid any issues such as she has been faced with other [sic in] the last day or so.

[4]      There has been some debate as to whether the contents of paragraph [4] were conveyed to Ms R   at the time, but, bearing in mind that a copy of the minute was sent to her counsel, I am reasonably confident that at least the gist of that paragraph was conveyed to her and that she knew from the minute of Andrews J that if on any occasion she considered it was necessary to leave the curfew address other than to come to court she should contact the Officer in Charge of her case and give prior notice.

[5]      Notwithstanding that further warning Ms R   breached bail again on

22 November 2010 when she claimed, and it is apparently not disputed, that she was ejected from her mother’s house by her mother and was subsequently apprehended by the Police with a co-offender in a vehicle in which was also found methamphetamine and a computer.   In respect of those items, she is subject to

separate charges in the Waitakere District Court in respect of which she is due to appear on 15 December this year.  Crown Counsel advised that those matters can be put to one side except to the extent that they relate to the breach of bail for the drugs charges which are relevant today.

[6]      For Ms R  , Mr Heaslip submits that she should be re-admitted to bail on a 24 hour curfew as before because the breach on this occasion does not justify her being deprived of bail.  It is noted that the charges are not going to be heard until

23 March 2011 and that Ms R   is entitled to be at large until that time. Ms R  ’s bail history is admitted, but it is submitted that that does not provide sufficient justification for declining to continue bail.

[7]      For the Crown, Ms Reed drew attention to the fact that this matter is before this Court by virtue of the provisions of s 59 of the Bail Act which has the effect of providing that because the charges are serious drugs charges when there has been a breach of bail the matter must be brought before this Court.  Ms Reed also pointed out that the matter must be considered in the context of s 12 of the Bail Act because by virtue of the provisions of subsection (1)(b) which apply to Ms R  , the onus is on her to satisfy the Court that bail should be granted: s 12(4).

[8]      Ms Reed also referred to the provisions of s 12(5)(b) and suggested that the Court could not be satisfied by Ms R   that she may not commit burglary or other serious property offences.  I am not satisfied that either her record or any of the other circumstances before the Court give rise to particular concern in that regard, but having said that, the onus still remains on Ms R   to satisfy me that bail should be granted.  Ms Reed also drew attention to the fact that over the last eight years Ms R   has had an appalling record, having some 110 convictions with many offences being committed whilst on bail and that therefore in these circumstances she has not discharged the onus.  The need to protect the safety of the public remains and Ms R   should be remanded in custody until the pre-trial, scheduled for 9 February 2011 in the District Court at Auckland.

[9]      In reply for Ms R  , Mr Heaslip submitted that there was no basis for considering the application of s 12(5)(b) and I have already indicated that I accept

that.  In his submission the 24 hour curfew has worked and the safety of the public is not at risk.  Ms R  ’s mother regrets having ejected her from the address on

22 November 2010.

[10]     Having considered the submissions made on behalf of Ms R  , I am not satisfied, however, that she has discharged the onus on her under s 12(4) of the Bail Act.  The concerns identified by Ms Reed exist and I am particularly concerned not only with the seriousness of the alleged offending but also with Ms R  ’s bail history and the fact that she has regularly committed offences while on bail over the past eight years and that she would have been aware not only of the warning by Keane J in his minute, which he described as a final warning, but also the indication given by Andrews J, who effectively granted her an indulgence, when she made it clear that Ms R   was not to leave the property without advising the Officer in Charge of her case which she failed to do on the third occasion.

[11]     For those reasons the application is declined.  Ms R   is remanded in custody  until  9  February  2011  when  she  is  to  appear  in  the  District  Court  at

Auckland.

D J White J