The Queen v Robert John Harris
[2000] NZCA 290
•17 October 2000
NO PUBLICATION UNTIL AFTER TRIAL
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA361/00 |
THE QUEEN
V
ROBERT JOHN HARRIS
| Hearing: | 17 October 2000 (at Auckland) |
| Coram: | Tipping J Anderson J Fisher J |
| Appearances: | K C Bailey for Appellant A R Burns for Crown |
| Judgment: | 17 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
This appeal is from an order of the District Court refusing the appellant, Robert John Harris, bail pending his trial on drugs charges. Those charges are manufacturing a class A drug, namely heroin; possession of a class B drug, namely cannabis resin for the purposes of supply; possession of a class B drug, cannabis oil; and possession of a class C drug, cannabis. Of those charges the two which are of particular moment are possession of the cannabis resin for supply and the possession of a class C drug, cannabis. The others, involving heroin and the cannabis oil, are of relatively trivial compass in the overall picture.
The police discovered the relevant material when they searched Mr Harris' house and environs. In fact they carried out two searches on separate days. On the first they found two utensils consistent with heroin production together with a syringe in trousers belonging to Mr Harris. They also found two bottles said to contain cannabis oil. On the second search the items found were approximately 56 grams of cannabis resin said to have a street value of about $11,000 and some 195 grams of cannabis plant. Mr Harris has denied possession, saying in effect that everything belonged to others or was the responsibility of others.
The appellant has a substantial history of drug offending. In 1984 he was sentenced to 2 years imprisonment for possessing cannabis plant for supply. In 1997 he was sentenced to 5 years imprisonment (or 5½ years, it is not entirely clear) for a variety of cannabis dealing and firearm charges. He cannot have been released for long from that sentence when he was apprehended on the present matters. Indeed Mr Bailey has confirmed that he was and still is on parole.
The question of bail was first considered in the District Court on 19 September 2000. The Judge then sitting gave reasons for his refusal of bail at that stage, although it must be said that the judgment was more to the effect that the matter should be deferred rather than that bail should be absolutely refused. The matter was revisited on 25 September when a second Judge also declined bail for broadly similar reasons. It is not necessary to traverse those reasons in any detail. We note that they included the appellant's extensive drug offending in the past, his recent release from imprisonment, the evidence of further offending, and the likely sentence if convictions were entered. There was also some concern about the finding of the barrel of a recently sawn-off shotgun and what the police contended were the appellant's gang connections. At the time of both earlier decisions full analyses of the substances alleged to be illicit drugs or drug residues had not been done, and the Judges considered that the bail determination should await that information; the second Judge effectively saying that he did not think bail should be finally determined one way or the other for another six weeks.
The grounds advanced in favour of bail in the District Court were essentially the presumption of innocence and the time which would elapse before a trial might take place. We have been advised this morning that a reasonable prospect for the hearing date is sometime in April, May or June 2001, so that is 6 months hence. The apparent acceptance by a third party of some responsibility for the drugs was also relied on in the District Court but the police have expressed doubt about the genuineness of that third party's statements.
Mr Harris has sworn an affidavit in support of his appeal. He outlines his defences. As to the cannabis plant, he says he was unaware of it and his nephew has acknowledged it belongs to him. As to the cannabis oil, he contends the substance is very unlikely to be cannabis oil. He denies producing heroin and ascribes responsibility to a person who looks after his children and who is a registered addict. She is said to have accepted responsibility but she is the person whose credibility the police do not accept. As to the cannabis resin (hashish), the appellant denies any involvement, saying that while he was in jail from early 1997 to late 1999 a well known drug offender, whom he names, discarded drug related items just outside his home on the road-side during a police chase. He, that is Mr Harris, also contends the hashish was very old.
In addition to these matters the appellant endeavours to discount the force of his record, he denies involvement with the Black Power gang, he says he has always answered bail in the past, and he gives the following further information to support his appeal:
He is the sole father of three children aged 16, 14 and 6.
He owns his own property at Orminston Road, Tuakaka valued at $100,000 equity.
He is prepared to comply with a 24-hour curfew to be broken only for court appearances and consultation with counsel, and medical personnel.
He is prepared to report to the police as often as required.
He suffers from serious injuries and is presently confined in the medical wing of Mt Eden prison. He is prescribed strong pain killers namely doloxyne and DiHydrocodine.
He has no travel documents.
In his succinct argument Mr Bailey contended that no good reason had been shown for continuing the remand in custody; the allegations were not so serious or the case so strong it was argued as to justify that course; there were defences which ought to be heard; a considerable time would elapse until trial, a matter already mentioned; and the public interest could be protected he argued by suitable conditions. It was also pointed out that there was no demonstrated risk of not answering to bail.
We have taken into account Mr Burns' submissions in support of the decision under appeal. We consider, with respect, that the Judge erred in two respects. We refer first to the Judge's statement in paragraph 6 of his reasons:
Having considered the matter afresh, I am satisfied that although the Crown has not provided all of the information that His Honour previously indicated might have been of assistance to the Court in making its decision, that on balance I have got to say that with the small amount of additional information provided, that tips the balance in my view, in favour of the application being declined. As I say I take into account all the other matters that the learned District Court Judge took into account last time.
The Judge there said that on balance he had to say that it was the small amount of additional information provided that tipped the balance in his view in favour of the bail application being declined. It is not easy to identify what this additional information was which could logically, in the context of the way in which the bail application had developed, be said to have tipped the balance in favour of declining bail.
Second, we consider that the Judge gave insufficient weight to the factor of delay. It may be that we have been given more and better information than he was on this aspect. Aligned with that approach is the circumstance that, in our view, sufficient sanctions for non compliance with bail can be imposed to protect the relevant public interests. We are therefore of the view that the appeal should be allowed, and it is allowed accordingly. Bail is granted to the appellant on the following terms:
His own recognisance in the sum of $50,000 to be secured to the satisfaction of the Registrar of the High Court at Whangarei. Without limiting the Registrar's discretion, an unregistered mortgage supported by a caveat in respect of the appellant's residential property situated at Orminston Road, Ruakaka would be a sufficient security.
The appellant is to be under a 24 hour curfew to remain within the said residential property, save for:
(a) necessary attendances at court
(b) necessary attendances for legal purposes
(c) reporting to the police as hereinafter provided
(d)complying with parole conditions
(e) necessary attendances for bona fide medical purposes.
Inherent is the right to travel from his residence to the relevant destinations by the most direct route.
The appellant is to report to the police at Whangarei each Friday between 9am and 2pm.
Solicitors
Crown Solicitor, Auckland
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