The Queen v Lindsay James Tawairua Wilson

IN THE COURT OF APPEAL OF NEW ZEALAND

CA21/03

THE QUEEN

LINDSAY JAMES TAWAIRUA WILSON

Hearing:	18 February 2003
Coram:	Elias CJ Panckhurst J Paterson J
Appearances:	CP Comeskey for Appellant
AJF Perkins for Respondent
Judgment:	19 February 2003

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ

The appeal is brought under s66 Bail Act 2000 from a decision of the High Court declining bail. The appellant is a 49 year old man who is charged with 4 offences under the Misuse of Drugs Act 1975, 2 under the Arms Act 1983, and one offence of receiving under the Crimes Act 1961.
Because the appellant has a previous conviction for drug dealing, any bail application is required to be dealt with by the High Court. That requirement seems to have been overlooked initially. A defended bail application was at first entertained in the District Court. In the decision from which the appeal is brought the High Court Judge was alive to the fact that she had to exercise the jurisdiction de novo despite the fact that it had earlier been before a District Court Judge.
The decision from which the appeal is brought was the second occasion on which the question of bail had been considered by the High Court. On the first occasion the Judge commented adversely on the fact that there was nothing from the appellant in support of the application. That deficiency was remedied at the hearing which has led to the present appeal by affidavits by the appellant and his alleged co-offenders.
The 7 charges faced by the appellants are: permitting premises to be used knowingly for the commission of an offence against the Misuse of Drugs Act 1975 (in this case for the purpose of manufacturing of methamphetamine); manufacturing methamphetamine; possession of a prescribed substance used in the manufacture of methamphetamine; possession of a Class C controlled drug for supply; unlawful possession of a pistol; possession of ammunition; and receiving a stolen camera worth approximately $6,000.
The police case is that when they exercised a search warrant under the Misuse of Drugs Act 1975 at property occupied by the appellant, he tried to escape over the back fence together with his son and two associates, one of whom is a known methamphetamine “cook”. The other was Mr Wade. In one of the buildings on the property the police found a room apparently used for the manufacture of methamphetamine containing beakers, glass jars, a heating element and a number of chemicals. ESR scientists have now confirmed that the room has been used for the manufacture of methamphetamine using the apparatus found there, although further analysis is continuing.
The pistol which is the subject of the firearms charges was found by the police in the vicinity in which they apprehended the appellant and his associates as they tried to escape. It was loaded with 6 rounds of ammunition, 1 bullet being in the chamber. In an affidavit before the High Court a co-accused, Mr Wade, has said that the pistol was in his possession. The police case is that it was in the joint possession of the appellant and Mr Wade. The summary of facts indicates that the appellant’s wife (Ms Hetherington), acknowledged (when searching for a firearm the next morning in the place it was subsequently located), that the gun she expected to find belonged to the appellant. Mr Wade deposes that Ms Hetherington was searching for the pistol at his request. He acknowledges having the pistol on him and throwing it away because he did not want the police to find it. He says he had taken the pistol on to the property the night before but had not told anyone that he had it. Mr Wade also says he had taken the camera to the property and had sold it to the appellant’s son.
The appellant in his affidavit maintains that the room in which the methamphetamine lab was found was in a clubhouse on the property, not in the house occupied by him and his partner and their family as their home. The appellant maintains that the clubhouse was made available by him to Maori people, particularly those down on their luck and destitute. It was not, he says, his practice to be inquisitive of them. He says that he knew nothing about any manufacture of methamphetamine in the building. He explains his seeking to escape from the property at the time of the police exercise of the search warrant as being prompted by his experience that whenever the police visit his premises, he “cannot resist verbally intervening”. He therefore thinks it more sensible to absent himself whenever police arrive. The Crown case is that the premises occupied by the appellant and his wife are attached to the clubroom. A plan of the premises was in a locked bedroom in the house part of the building. Traces of methamphetamine were discovered and a pistol case matching the pistol was found. The property is surrounded by a secure fence, contains 3 large dogs and is protected by video surveillance cameras.
A second affidavit was sworn by a co-accused, Mr Sharpe, to confirm that the appellant had no knowledge of what was happening in the clubhouse building on the premises in which he was staying and in which the alleged methamphetamine laboratory was discovered. He says only the appellant’s son and he knew what was going on there. The police maintain that Mr Sharpe is the “cook”. The police statement of opposition reports a sharp smell of chemicals emanating from the room when they arrived. Mr Wade’s affidavit is that he and the appellant fled “from the inside of the rear main house together” when the police arrived.

The decision in the High Court

In the judgment the subject of the appeal, the Judge took the view that the affidavits did not add anything that was helpful. They contained denials of involvement and an acceptance of responsibility by Mr Sharp but the Judge considered that “ultimately what weight is placed on that evidence, assuming it is given before a jury, will be for the jury”.
In the High Court Mr Comeskey for the appellant argued that the police evidence was insufficient to establish a prima facie case and that there would be a lengthy delay before the matter could be brought to trial.
The Judge acknowledged that the police case was based on circumstantial evidence but pointed out there were a number of inferences available from the conduct of the appellant and that such inferences were matters for the jury. The denials by Mr Wilson and the acknowledgements by his co-accused were, she considered, “matters for the jury to assess in the context of all the evidence presented at trial”. In addition to the laboratory found in the middle building, a small quantity of methamphetamine and deal bags had been found in the house where the appellant resided. The Judge considered that the strength of the case was not so inadequate that it could properly be relied upon as a ground for resisting bail.
The Judge considered the matters to be taken into account under s12 of the Bail Act 2000. Because of the previous offences of the appellant the presumption against bail contained in s12(1)(b) applies. Bail cannot be granted unless the court is satisfied it is appropriate. The court must take into account the risk of further offending while on bail and the safety of public and victims. The Judge noted that the appellant had been committing offences for 33 years and has 71 previous convictions. Five are serious offences. Others entail drug offending and firearm offending. The appellant has committed a number of offences while on bail although they do not appear to have been particularly serious. The Judge pointed out that in her view it was not appropriate to minimise the offending. Each case had to be looked at on its merits. She was of the view that the court “must be concerned in respect of an application for bail by a person who has 71 convictions over 33 years”. Although some of the offending had been relatively minor “it is persistent and there are some serious offences”.
The Judge rejected a submission that if the appellant is not released on bail he is likely to serve a period in custody which will exceed any sentence imposed upon him. The Judge accepted the Crown’s submissions that given the appellant’s previous convictions should he be convicted of both the methamphetamine manufacturing charge and possession of firearm, the court is likely to treat the offending very seriously indeed. Giving account to the likelihood of parole after one third of the sentence was served, an effective sentence longer than 18 months (the expected delay before trial) was likely to be imposed.

The appeal

Mr Comeskey criticises the Judge for being “surprisingly dismissive” of the affidavits of the appellant and the co-accused, in circumstances where the witnesses were not challenged by the Crown by cross-examination. He makes the submission that “it is not helpful nor useful to the ends of justice that the court start imposing a value judgment on unchallenged affidavits”. He submits the court should accept that which is deposed to unless it is tested by cross-examination. It is argued that much of the police material is sensational prejudice about methamphetamine and gang related offending, of no reliance.
The Judge is also criticised for being dismissive of the concern expressed about delay. It was indicated by Mr Comeskey that although a depositions hearing was scheduled for 20 February the defence would not consent to that date because ESR evidence was not available. He submitted that if depositions do not take place until mid-May 2003 (when the full ESR evidence is expected to become available), it is likely that the appellant will not be tried for 15 months from arrest. A period of custody of 15 months is said to be equivalent to a sentence of 4 years. It is submitted that it is not just for the appellant to remain in custody for that period. It is a sentence before trial. Mr Comeskey reiterates the submission made that most of the previous offending committed by the appellant is not serious. There are no breaches of bail and offending on bail was relatively minor. The submission is made that the presumption of innocence confirmed by s23 of the New Zealand Bill of Rights Act 1990 was not properly considered and should have been the starting point.

Decision

The starting point in the consideration of bail is the Bail Act 2000. The appellant has more than 71 previous convictions. They include offences of violence and drug offending. On seven separate occasions the appellant has been sentenced to terms of imprisonment, receiving 19 sentences of imprisonment altogether.
Because of the number of the appellant’s previous convictions, s12(1)(b) of the Bail Act applies. Accordingly, under s12(4) the appellant may not be granted bail unless he “satisfies the Judge that bail or remand at large should be granted”. The matters about which the Judge must be satisfied are not limited but specifically include a requirement under s12(5) that the applicant:
must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit:
(a) any offence involving violence against, or danger to the safety of, any other person: or
(b) burglary or any other serious property offence.
Because these considerations are not exclusive, it is proper to take into account in appropriate cases the risk of offending while on bail. The Judge is required by s12(7) to make the need to protect the safety of the public a primary consideration.
It is only if the Judge is satisfied on these scores and in particular the safety of the public, that s7(5) of the Act applies. That is the section which requires release unless the court is satisfied that there is “just cause for continued detention”.
The submissions advanced on behalf of the appellant come down to four main matters of complaint, as counsel for the respondent identified. The first is criticism of the insufficient weight attached by the Judge to the affidavits by the appellant and co-accused. The second is a criticism that the Judge gave insufficient weight to the effect of delay in bringing the matter on for trial. The third is a submission that the Judge has emphasised the appellant’s prior convictions too much and not placed them in context. Finally, it is submitted that the Judge failed to apply the presumption of innocence in considering bail.
In our view the Judge was entitled to treat the self-serving assertions of the appellant and the co-accused with caution. Such caution is prompted not only by the fact that bail hearings are inevitably unsatisfactory forums in which to establish the issues of guilt or innocence which are for trial. Such statements also have to be assessed in context. It is a material circumstance that the appellant has a substantial criminal record and that the other deponents are his alleged co-offenders. The accused has 71 previous convictions for a range of criminal activities indicating a criminal lifestyle going back some 30 years. The persistence of the conduct, as the Judge held, is significant. Some of the offending is minor but some is not. It includes offences of violence, for drug dealing, and firearms related. It is not apparently in contention that a methamphetamine manufacturing laboratory was on premises controlled by the appellant. His statement and those of the others apprehended are that he did not know of the activity needs to be viewed in the context of his claims of control (he seems to be the person who invites others to use the club premises). The appellant’s assertions also need to be assessed in the context of his running away from the police in the company of someone who acknowledges possession of a loaded pistol and knowledge of what was occurring in the building in which the laboratory was located. The indication of noticeable chemical smell at the time of the police arrival is also relevant, as is the protection of the premises. Against this background, the Judge was not obliged to take the appellant’s explanation for his actions in running away at face value.
The affidavits were material considered by the Judge. She was entitled to treat them with caution and to find that they ultimately placed the onus on the appellant.
The likely length of time before the matter comes to trial is a matter the court is directed to take into account in considering whether there is just cause for continued detention under s8 of the Bail Act 2000. It is not clear whether there will be substantial delay in bringing the matter on for trial. Depositions are scheduled for this week. Mr Comeskey indicates the appellant will not consent to their proceeding until the full ESR report is to hand. That approach is difficult to understand. The affidavits suggest there is no real dispute about whether methamphetamine was manufactured in the premises. The issue is whether the appellant had knowledge of or participated. Depositions will provide a more satisfactory less speculative basis for assessment of the strength of the prosecution case than is available at the moment. Questions of bail can then be reconsidered should there be a lengthy delay before trial (if the appellant is committed), a fresh application for bail can be made in the knowledge of the extent of the delay At the moment, questions of delay are conjectural.
We do not accept that the Judge is shown to have been wrong in the weight given to the appellant’s previous convictions. The legislature requires these to be given weight, as the shift in the onus of proof under s12 makes clear in the case of someone with the number of previous convictions of this appellant. As indicated, the previous convictions show significant and persistent criminal activity, even if some are relatively minor. The offences include one conviction for supplying LSD while on bail and a firearms offence. They bear directly upon the question of public safety and the risk of further offending while on bail for alleged drug and firearm offending. The court is specifically required to take them into account under s12(5) and (7).
The presumption of innocence is not eroded by the principles of public protection to be found in the Bail Act. Determinations of bail do not pre-determine guilt on the substantive charges. The question for the court is whether the appellant should be at liberty pending such determination of guilt or innocence. The presumption of innocence is recognised in the general requirement that a defendant must be released on reasonable terms and conditions unless the court is satisfied there is just cause for continued detention (s7(5)). Given the appellant’s previous convictions the Parliamentary purpose to be discerned from s12 is protection of the public. The onus is on the appellant to satisfy the High Court Judge that he will not while on bail commit any offence involving violence against or danger to the safety of another person. The safety of the public is a primary consideration. Here, the substantial criminal record of the appellant, including his offending while on bail, can give no confidence that he will not re-offend. This court has had occasion to comment before upon the dangerous mixture of drug dealing and manufacturing and firearms. The firearm found in the area to which the appellant and the co-accused had run when the police arrived at the property was loaded. Other circumstances suggestive of ongoing organised criminal activity include the digital camera said to have been stolen in a burglary a few weeks before worth $6,000 and sums of money in the possession of the appellant’s co-accused, including his wife. There is also the security system in place on the property.
In all the circumstances we are satisfied that the High Court Judge is not shown to have acted other than properly in declining bail. Should matters alter following depositions a further application can be made. The appeal is dismissed.

Solicitors: CP Comeskey, Auckland for Appellant
Crown Solicitor, Auckland for Respondent

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[2003] NZCA 3

19 February 2003