T v Police CRI-2010-404-66 HC Auckland

[2010] NZHC 1262

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-66

BETWEEN  T

Appellant

ANDPOLICE Respondent

Hearing:         16 March 2010

Counsel:         ChrisWilkinson-Smith for applicant

Ian Brookie for Police

Judgment:      16 March 2010

[ORAL] JUDGMENT OF HUGH WILLIAMS J [bail appeal]

The appeal against the District Court refusal to grant bail is withdrawn.

Solicitors:

Crown Solicitor, PO Box 2213 Auckland 1140

Email:               Ian[email protected]

Copy for:

Christopher Wilkinson-Smith, Level 1, General Building, 29 Shortland Street, Auckland 1010

Email:               [email protected]

Judge Clapham, District Court

Case Officer:                   Leroy[email protected]

T V POLICE HC AK CRI-2010-404-66  16 March 2010

[1]      When this application for bail came before the District Court on 25 February

2010 the appellant, Mr T  , was charged with counts of importing the Class a controlled drug, cocaine, and having cocaine in his possession for the purposes of supply.  He was charged jointly with his wife, Lucy-Anne Mason and his sister-in- law, Elizabeth Akeronga Williams.  Judge Clapham allowed Mr T  ’s co-accused bail but declined bail for Mr T  .

[2]      In a brief oral decision delivered that day, the Judge reviewed the possibility that Mr T   might be involved in what he called “serious and high level international drug offending involving considerable quantities of the drug”, an observation he supported by reference to mobile phone text messages on the appellant’s phone and the possibility of flight from New Zealand.    The Judge did say that he was unaware of any risk alleged by the Prosecution with witnesses, but he took the view that flight risk was a realistic possibility should the appellant be granted bail.

[3]      With respect to the Judge, that may have been an observation made during the course of a difficult bail list.    In the sense that Mr T   has no passport and has never been out of New Zealand, obviously enough, were he to be granted bail a condition of that bail would be that he surrendered his non-existent passport and, more importantly, did not apply for any further passport.  That would significantly reduce any flight risk.  But Mr Brookie for the Police says they still take the view that there might be the possibility of a passport being obtained in breach of the bail conditions and Mr T   leaving the country, given what are said to be his contacts with an international drug-dealing cartel.

[4]      That is a matter for further consideration on 31 March because, since the bail decision with which this judgment is concerned was delivered, Mr T   is to be charged with another nine counts of what may be broadly described as drug-dealing arising out of further shipments of cocaine which have arrived in New Zealand since his arrest.

[5]      The position is epitomised by the fact that the Caption Summary against the appellant and his two co-accused on which Judge Clapham dealt with the bail application on 25 February was a relatively brief document of some four pages.  The Caption Summary, however, which is applicable to the existing charges and those which  are  to  be  brought  against  Mr  T    is  a  much  more  comprehensive document.

[6]      In procedural terms, Mr Wilkinson-Smith recognised - once he became aware of the additional nine charges his client will face – that the bail appeal faced difficulties.   Although Mr T   has not yet been formally charged with those offences, this Court on appeal could not ignore their existence and take them into account   in   deciding   whether   the   appeal   should   be   allowed   or   dismissed. Realistically, too, Mr Wilkinson-Smith accepted that even were this Court to allow the appeal and grant Mr T   bail, he would remain in custody under the further charges and the whole question of bail would need to be re-considered by the District Court at the end of the month.

[7]      What Mr Wilkinson-Smith wishes to do however is to ensure, first, that the observations already made concerning Mr T  ’s flight risk are viewed in context and not subject to the fairly brief findings of Judge Clapham, and secondly, to ensure that when he applies for bail on all the charges Mr T   faces he is not met with the assertion that there has been a finding in either Court as to Mr T  ’s flight risk.

[8]      Because of that, it would be preferable, from the appellant’s point of view, that this appeal be abandoned rather than dismissed given that that would enable Mr Wilkinson-Smith to present the matter afresh to the District Court when his client comes back before the Court on 31 March.

[9]      It must be said, however, that the Police grounds for opposing bail form and the longer Caption Summary contain serious suggestions that Mr T   is an important link in an international drug-dealing cartel with cocaine and perhaps other drugs  being  imported  -  particularly  from  South  America  -  and  distributed  to  a number of countries.   Of course, whether or not those assertions are in any way

correct remains to be tested and, currently, Mr T   has the presumption of innocence in his favour, but the apparent seriousness of the offending – particularly that which he now faces – is a factor to be taken into account in considering whether the appeal should be allowed and whether Mr T   can demonstrate that Judge Clapham fell into error.

[10]     The Police certainly take the view that there is a risk that Mr T   might not appear in Court if granted bail notwithstanding any conditions imposed concerning his passport.  The Police also take the view that there is a chance - not so much that he might interfere with witnesses although one of his co-accused who has made limited admissions is his wife and the other his sister-in-law – that if their suspicions concerning Mr T   are in any way correct then he may be able to more easily to contact on bail persons outside this country and able to impede the ongoing prosecution against him.  Mr T   does, however, have in his favour that he has no previous convictions and accordingly the provisions of s 8(1)(c) cannot be brought to bear against him.

[11]     For the present, however, the preferable course and the one adopted by the Court is for the appeal to be withdrawn.  It is not dismissed, and the matter therefore remains at large for Mr T   to endeavour to persuade the District Court on his next appearance that bail should be granted.

.................................................................

HUGH WILLIAMS J.

16 March 2010