Smith v Police HC Wellington CRI 2010-485-32

[2010] NZHC 1016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-32

BETWEEN  EUGENE EARL SMITH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 April 2010

Counsel:         R Stevens for Appellant

J Murdoch for Respondent

Judgment:      13 April 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Smith seeks bail.  The application must be made to this Court because he has a previous conviction for manufacturing a Class B drug and s 16 of the Bail Act applies.

[2]      He is charged with manufacturing homebake heroin from morphine sulphate, possession of morphine for supply, permitting his premises to be used to make homebake heroin and possession of equipment or precursors.  The police say that 60 milligrams of morphine sulphate tablets were found on his person when he was searched, and at his property was found acetic anhydride, which is used in the manufacturing of heroin.   They also found bent spoons, citric acid, baking soda, syringes and cigarette filters.

[3]      Mr Smith has an extensive list of criminal convictions.  There are six for drug related offences since 1990, mostly for possession, and two for failing to answer bail. There are a number of convictions for offending while on bail, although there are

many fewer than the misleading history produced by the police suggests.   Such

EUGENE EARL SMITH V NEW ZEALAND POLICE HC WN CRI 2010-485-32  13 April 2010

documents should be confined to offences committed while on bail and in respect of which he was later convicted.   There are 65 convictions in all, the most recent in

2008 for failing to answer Court bail.   He has received 10 previous sentences of imprisonment.

[4]      Despite that unpromising record Mr Stevens urged on me that he has never been convicted of failing to comply with a bail condition, and has no recent history of offending while on bail.

[5]      In my view there is a clear risk that Mr Smith will continue to offend while on bail.  At the time of his arrest on the present charges he was bailed for similar offences;  possession of precursor materials, possession of a Class B controlled drug, and manufacturing heroin.   He was also on bail for possession of an offensive weapon,  and receiving  stolen property (11 counts).   If on bail,  even  subject to restrictive conditions, he could continue to deal with and use drugs, and he is admittedly an addict.  I reject Mr Stevens’ submission that personal use should not be regarded as a significant barrier to bail.

[6]      The police case rests on physical evidence, surveillance, and informant-based information.  Mr Stevens’ vigorous submissions notwithstanding, the case appears to be a substantial one.   It is highly likely that, if convicted, Mr Smith will face a substantial term of imprisonment.

[7]      The  police  also  express  some  concern  that  Mr  Smith  may  harm  the informant;   although it does not seem likely that he will interfere with witnesses. Before me, however, Ms Murdoch does not say that there is reason to suppose he will identify the informant.  Accordingly, I discount that consideration.   I am also prepared to accept that there is no significant risk of flight.

[8]      It is a matter of concern that the trial may not be until next year of having regard to the time taken to assemble such cases for trial.  Nonetheless I am satisfied that there is just cause for continued detention.

[9]      The application for bail is dismissed.

Miller J

Solicitors:

Fanselows, Wellington for Appellant

Crown Solicitor’s Office, Wellington for Respondent