R v Police HC New Plymouth Cri-2009-443-5

[2009] NZHC 151

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2009-443-000005

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 February 2009

Appearances: J Hannam for Appellant

J Gurnick for Crown

Judgment:      17 February 2009

ORAL JUDGMENT OF VENNING J Bail Appeal

Solicitors:           Crown Solicitor, New Plymouth

Copy to:            J Hannam, New Plymouth

R V NEW ZEALAND POLICE HC NWP CRI-2009-443-000005  17 February 2009

[1]      On 22 December 2008 the appellant sought and was declined bail in the District Court at Hawera by Judge Roberts.  The active charges before the Court on that day were one of burglary dating back to 28 June 2008 and the two more recent charges, the unlawful taking of a vehicle and possession of an offensive weapon relating to an incident that occurred on 15 December.

[2]      The Judge noted that s 12 of the Bail Act applied and ultimately declined bail.  The appeal is against that decision.

[3]      In support of the appeal Mr Hannam has acknowledged that the appellant has a long list of previous convictions and has also acknowledged that at the time of this alleged offending the appellant was on bail for four earlier burglary charges and one of possession of cannabis all laid in the District Court at Lower Hutt.

[4]      Mr Hannam submitted that the following factors supported the grant of bail.

•    first, that the burglary charge, the most serious charge before the Court on

22 December was historical;

•    that there were others charged with the other two offences who were on bail;

•    the presumption of innocence;

•    the appellant had a stable address in Lower Hutt;  and

•    there would be some difficulty for counsel taking instructions to respond to the current charges.

[5]      In  relation  to  those  factors,  the  burglary  charge  before  the  Court  was undoubtedly a factor influencing the Judge’s decision to decline bail.  But the short point, as discussed with counsel, is that if the appellant’s complaint is that it is

historical, then if it had been laid shortly after 28 June depending on the time of the burglary charges in Lower Hutt it may well be he would not have been granted bail on those charges.

[6]      The next point that others charged in relation to the other offending were granted bail does not advance matters from the appellant’s point of view.  It is the appellant’s personal circumstances and history that count against him rather than the nature of the offending in this case.

[7]      Next while of course accepting the presumption of innocence the District Court Judge was entitled and this Court is entitled to have regard to the strength of the case.  On the summary of facts at least the appellant was in a vehicle that was undoubtedly taken from its owner.  The driver of the vehicle failed to stop after the police had activated lights and siren.  When it was finally stopped the appellant ran away and sought to evade the police.  If he was innocent there would have been no reason for him to act in that way.

[8]      That fact that the appellant has a stable address is noted but it does not appear to have affected his ability to travel to Hawera and become involved in the incident which brought him before the Court.

[9]      Finally  the  fact  that  there  may  some  difficulty  in  counsel  obtaining instructions, while a factor is by no means of sufficient significance to count against the other countervailing factors.

[10]     The short point is that this appellant was never going to be granted bail on these charges given his previous history of offending and given the charges before the Court.   The appellant has the rather unfortunate achievement of meeting the criteria of s 12 under both 1(a) and (b).  He has over 160 previous convictions, 79 involving dishonesty.  He has a history of offending on bail and previous convictions for failing to comply with bail or Court orders.

[11]     There was nothing before the District Court and there is nothing before this

Court by which the appellant could satisfy the Court on the balance of probabilities

that he would not, while on bail, commit an offence of burglary or any other serious property offence.   The best information before the Court about those risks is his previous history of offending.  There is no other information before the Court.

[12]     The Judge was quite right to decline bail.  This appeal is without merit and is dismissed.

Venning J