Robinson v Police HC Auckland CRI 2007-404-154

[2007] NZHC 1996

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-154

PAUL ROBINSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 August 2007

Appearances: S Tait for Appellant

B Northwood for Respondent

Judgment:      14 August 2007

(ORAL) JUDGMENT OF ANDREWS J [re.  Appeal against refusal to grant bail]

Solicitors:           S Tait, PO Box 76538, Manukau City

Crown Solicitor, PO Box 2213, Auckland

P ROBINSON V NZ POLICE HC AK CRI 2007-404-154  14 August 2007

[1]      The appellant appeals against the refusal to grant bail in the decision given by

Judge Kendall in the District Court at Auckland on 24 May 2007.

[2]    The  appellant  is  charged  with  five  counts  of  manufacturing methamphetamine and two counts of supplying methamphetamine.   He is jointly charged with seven others.  He was granted bail in November 2006 shortly after his arrest.  He appeared before Judge Kendall on 24 May 2007 on a breach of bail and bail was revoked.  An appeal was filed at the time but initially not proceeded with.  It is opposed by the Police.

[3]      In the District Court the Judge revoked bail on the grounds that the appellant had committed two serious breaches of bail.   He noted in his decision that the appellant had to take responsibility for complying with his bail conditions and could not raise in his defence that he was not sure what those conditions were.

[4]      The appeal is on the grounds that the Judge placed too much weight on the appellant’s breach of bail conditions and failed to take into account other required considerations.  Further, today Mr Tait put forward conditions of bail to which the appellant would agree.

[5]      In his written submissions Mr Tait submitted that there is no risk of the appellant failing to appear, of interfering with witnesses, or offending while on bail. He noted that the appellant disputes the charges and is committed to defending them. He noted that it is likely to be many months before trial.   He further submitted that he is prejudiced in preparing for the appellant’s trial if the appellant is in custody.

[6]      The Crown opposed bail principally on the grounds of the breaches of bail. Mr Northwood, in his written submissions, noted that as at 23rd  May 2007 the appellant had committed five breaches of bail including breaching a non-association clause, changing his address, failing to report and owning, using or possessing a cellphone.  He had appeared in Court for bail breaches on 2nd and 27th April, prior to

the 24th May appearance.  He had received warnings before bail was revoked.

[7]      Today Mr Northwood advised that the depositions hearing for the charges against the appellant is confirmed for the 12th - 14th September and it is likely that a trial cannot be allocated until the second half of 2008.      The charges against the appellant are serious.   The Police claim that the evidence against the appellant is overwhelming and if convicted on the offences the appellant certainly faces a substantial term of imprisonment.

[8]      In hearing an appeal against a refusal to grant bail I am of course hearing a challenge against the exercise of the Judge’s discretion to grant bail.  I am required to be satisfied that the Judge has made an error of principle, failed to take into account  relevant  matters,  taken  into  account  irrelevant  matters  or  been  plainly wrong.

[9]      The appellant is not bailable as of right.  However, he is to be released on reasonable terms and conditions unless the Court is satisfied that there is just cause for continued detention.  The matters to be considered by the Court are set out in ss 7 and 8 of the Bail Act 2000.

[10]     The offences with which the appellant is charged are serious.  I accept that if convicted on them a sentence of imprisonment is inevitable.  I also accept that the appellant  was  previously granted  bail,  there  were variations  of  bail  and  he  has breached his bail conditions.   In the circumstances the Judge certainly had grounds on which to decline bail.

[11]     However, there is today put before me conditions of bail which may be sufficient and it is also stressed that the time until trial is indeed long.   On those grounds it is appropriate to reconsider the question of bail.

[12]     In the circumstances I am prepared to grant bail on terms which I will set out but the appellant must be under absolutely no illusions.  He has previously had his bail revoked and if there is any breach of the conditions that I will set out then it is virtually a certainty that bail will be revoked and the remainder of the time until trial will be spent on remand in custody.     That will no doubt be made clear to the appellant by his counsel.

[13]     The appellant is therefore released on bail on the following conditions:

a)        He is to reside at 69 Totara Road, Te Atatu North.

b)        He is curfewed at that address between the hours of 7pm and 7am.

c)        He is to present himself at the door when, and if, called upon by the

Police.

d)       He  is  to  report  on  Mondays,  Wednesdays,  Fridays  at  Henderson

Police Station between the hours of 9am and 5pm. e)  He is not to consume or possess illegal drugs.

f)        His  passport,  which  is  already  in  Police  custody,  is  to  remain surrendered to the Police and the appellant is not to apply for any travel documents.

g)        He is not to have any contact with any of his co-accused or any

Crown witnesses;  and

h)        He is not to own, possess or use any cellular phone.

Andrews  J