S v Police HC Auckland CRI 2006-404-304

[2006] NZHC 1409

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-304

S

Appellant

v

THE POLICE

Respondent

Hearing:         10 November 2006

Appearances: P Heaslip for appellant

M Wharepouri for respondent

Judgment:      10 November 2006

JUDGMENT OF ALLAN J

Solicitors:

P Heaslip, Auckland  [email protected]

Crown Solicitor, Auckland

S V THE POLICE HC AK CRI 2006-404-304  10 November 2006

[1]      On 26 July 2006, the appellant was refused bail in the Waitakere District Court.  He now appeals against that decision.  Unfortunately the Judge’s notes in the District Court are unavailable.  This appeal has accordingly proceeded on a de novo basis.

[2]      It is necessary to recount the appellant’s recent history in brief terms.  He is for trial in this Court on a charge of possessing a Class A drug for supply.  I am told he will shortly appear at callover on that charge.  His trial is unlikely to take place until the middle of next year.  He was released on bail, having been processed on that charge.

[3]      More recently, in July 2006 an incident occurred between the appellant, his former partner and her current partner.  The result was that the appellant was charged with a number of offences.  Following depositions, he has pleaded guilty to charges of injuring with intent and breaching protection orders.

[4]      The  two  charges  of  breaching  a  protection  order  relate  to  two  separate incidents involving the appellant’s former partner and her mother.  Briefly the later incident involved an occasion upon which the appellant got into a scuffle with his former partner’s male friend, at a time when the appellant was holding a bunch of car keys in his hand, with the result that the alleged victim suffered certain injuries to his head.  At least that is the appellant’s account of matters.  The police contend that the appellant had a knife in his possession.  That factual dispute has not been resolved. But in any event the appellant has pleaded guilty to a charge of injuring with intent and breaching a protection order.

[5]      An  outstanding  charge  relating  to  a  breach  of  a  protection  order  of

22 October 2005 and involving the mother of the appellant’s former partner, is also to be dealt with along with the offending I have just described.  The appellant has pleaded guilty to that charge also.  On the more recent charges the appellant has been remanded in custody.

[6]      For completeness I note that these recent offences were committed at a time when the appellant was already on bail for the alleged drug related offending.

[7]      Mr Heaslip submits that bail ought to be granted to the appellant on three grounds:

a)       Trial delay:   there will be a significant delay before the appellant’s trial in this Court.   That is always a concerning factor and must be taken into account.  There is the parallel issue of the difficulty which the appellant’s counsel will have in obtaining instructions.   Having said that, the facts relating to the offending for which the appellant is to be tried in this Court, fall within a narrow compass as I will shortly relate.

b)There  is  no  certainty  that  the  appellant  will  receive  a  custodial sentence in respect of the July offending.  Mr Heaslip submits that on any view, these  charges  fall  at  the  lower  end  of the  spectrum  of gravity for charges of this type.  A great deal of speculation is needed on the part of this Court before much weight can be attached to that submission.   It is however proper to observe that the offence is not one, which of itself, necessarily demands a custodial sentence.

c)       The appellant is unlikely to abscond or fail to appear when required., It is further submitted that he is unlikely to commit any offences while on bail.  Only limited weight can be accorded to that submission.  The domestic incident which brought about the recent convictions in the District Court occurred while the appellant was on bail for the alleged drug offending, and the appellant has a depressing record of having committed offences while on bail in the past.

[8]      Mr Heaslip also submitted that I should weigh in the balance the apparent strength or lack of it, as he put it, of the Crown case in this Court.  In brief, the police alleged that the appellant was apprehended while driving a motor vehicle, and he endeavoured to make his escape on foot, while carrying a bag which proved to

contain class A drugs.  His defence will be that the bag was not his, and he had no reason to believe that it contained drugs.

[9]      He may be able to persuade a jury to acquit him, but those facts do not of themselves suggest that the defence is strong.

[10]    The Crown opposes bail chiefly because there is a significant risk, Mr Wharepouri submits, that the appellant will commit further offences while on bail. In that regard he points to the unfortunate bail history.

[11]     I am unable to accept the submission that this is a case in which it is proper to grant bail for two broad reasons:

a)       Section 13 applies to the appellant.   He awaits sentence in the near future on the outstanding District Court charges.  It seems to me that the provisions of s 13 of themselves constitute a barrier to the release of this man on bail.

b)I am by no means satisfied that the appellant is not likely to commit offences while on bail if the appeal is allowed.  In saying that I do not for one moment suggest that there is an onus on him to establish that he will not commit such offences.  The plain facts simply are that he has a long list of offences committed while on bail, and most recently the domestic charges arise from an incident that occurred while he was already on bail on the drug charges which he faces in this Court.

[12]     For those reasons the appeal is dismissed.

C J Allan J