The Queen v Waha Saifiti

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

43/02

THE QUEEN

WAHA SAIFITI

Hearing:	17 April 2002
Coram:	Gault J Keith J Anderson J
Appearances:	M S Gibson for Appellant J M Jelaś for Crown
Judgment:	17 April 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT J

This is an appeal against a decision of Williams J in the High Court delivered on 5 February 2002 at Auckland effectively revoking the appellant’s bail pending trial by remanding him in custody following his arrest for apparent breaches of conditions of bail.
The appellant, with others, is charged with a series of drug offences being the manufacture and supply of a class B controlled drug methamphetamine, conspiracy to manufacture and supply methamphetamine and conspiracy to supply Ecstasy. His trial is scheduled for September of this year.
Appeals to this Court under the Bail Act 2000 are provided for in s66 of that Act. The section does not expressly give a right of appeal against a decision of a Judge of the High Court made under s59(4)(a) remanding the defendant in custody on the ground of breach of a condition of bail. However, we consider that the refusal to continue bail following arrest reasonably can be regarded as falling within s66(1)(a) and we accept jurisdiction to entertain the present appeal.
There is a considerable history of appearances in the High Court on bail matters since the appellant was originally charged. His original application for bail came before Anderson J on 10 November 2000. The application then was adjourned for more information. It was dealt with by Chambers J on 17 November 2000. He granted bail on conditions, including the condition that the appellant abstain from alcohol and illegal drugs and undertake full blood and urine drug screens twice a week with a drug counsellor. In his written decision Chambers J warned the appellant in these terms: “Any back sliding will be a breach of bail and will almost certainly lead to revocation of bail”.
On 19 February 2001 the appellant came before Baragwanath J following an alleged breach of a non-association condition. The Judge continued bail but repeated the warning given by Chambers J.
On 23 November 2001 the bail conditions were varied to exclude that relating to the provision of blood samples. It appears that this had never been implemented in any event. Of significance, however, was that the bail conditions were also varied to the extent of requiring the regular urine samples to be taken under the supervision of a named doctor. Almost immediately following this variation requiring closer supervision of the sampling, problems started to arise. Tests for the presence of methamphetamine carried out on 3 and 17 December 2001 were reported to the Crown as having proved positive. As a result, on 17 and 18 December 2001 Fisher J heard evidence on an application by the Crown for revocation of bail. The appellant in evidence sought to account for the positive samples as resulting from use of an inhaler but the Judge did not believe his evidence. However, he reserved judgment on the revocation of bail to enable counsel to have checked the validity of the tests. The application was adjourned to a hearing to be held on 22 January 2002. In the meantime fresh bail was granted essentially on the same conditions although they included the obligation to refrain from using any inhaler other than one authorised by the police. It may be fair to say that the Judge indicated that if the breaches of bail were established he was inclined to make an order revoking bail. It subsequently emerged that the sample taken on 29 November and tested on 3 December was not available for verification but counsel for the appellant accepted that the sample taken on 15 December and tested on 17 December had proved positive.
The appellant failed to attend for the provision of a sample on 3 January 2002. He was again arrested and brought before the Court. The matter was heard by Williams J. He heard the appellant’s explanation and was prepared to continue bail on the previous conditions bearing in mind the long period of compliance since arrest. The appellant was, however, warned of the need to strictly comply with his bail conditions.
After it emerged that the urine samples taken on 15 and 20 December 2001 had proved positive, the appellant was again arrested and appeared before Randerson J on 8 January 2002. The Judge noted that the reliability of the testing was being investigated and that the earlier application for revocation of bail had been adjourned until 22 January. Accordingly, he allowed bail to continue until that date, imposing by consent additional conditions relating to urine testing. He again warned the appellant of the risk of having his bail revoked.
The hearing fixed for 22 January did not take place but the matter came before Glazebrook J on 30 January. That Judge reviewed the background of breaches to that point but was persuaded to continue bail on the same terms while adding a “very very severe” warning as to the consequences of further breaches. Glazebrook J appears to have been influenced to a considerable extent by the submission that since the positive test on samples taken in December there had been a month of negative samples over January. However, shortly after that it emerged that a test on 22 January 2002 proved positive for methamphetamine. The appellant was brought before Williams J on 5 February 2002. After reviewing the history of the matter Williams J made the order for revocation of bail now under appeal. He said:
In the view this Court takes of the matter, Mr Saifiti has run out of time in relation to breaches of bail. He has now been brought before the Court on at least four occasions over the past 2½ months for alleged breaches of bail in the sense of positive results for methamphetamine being found in the required urine samples or, in the 3 January matter, a failure to provide the required urine sample. On each occasion that Mr Saifiti has been before the Court the Judges who have extended his bail have warned him clearly that any breach may well result in revocation. Whilst it is true that Mr Saifiti has complied with onerous terms of bail now for some 15 months since it was originally granted, whilst it is true that if his bail is revoked he is likely to be in custody until his trial currently expected to start in September of this year and whilst it is true, as Mr Gibson submits, that Mr Saifiti is almost certainly not a flight risk, in this Court’s view the position has now been reached where Mr Saifiti has disregarded the warnings repeatedly given to him by Judges of this Court. He is continuing to breach the terms of his bail. There is strong evidence that he is committing further offences in the sense of obtaining possession of methamphetamines and taking them. And he is therefore to be regarded now not merely as one who is complying as best he can with all the conditions of his bail, but one who is flouting the orders made by this Court in granting and extending his bail, and disregarding the warnings given to him by myself and other Judges. The terms of his bail were designed to ensure that he did not involve himself in further offences involving the taking of drugs. It is clear now that on a number of occasions over the past few weeks Mr Saifiti has breached that condition. In this Court’s view he has forfeited any possibility of leniency or any possibility of the extension of his bail by his own conduct. In those circumstances the Crown’s application is granted and Mr Saifiti’s bail is revoked forthwith. He is remanded in custody to the next Callover, the date of which will be advised to him or his counsel.
The notified grounds of appeal were as follows:
The imposition of a condition requiring the appellant to submit to a twice-weekly blood test was contrary to a longstanding principle against self-incrimination (nemo tenetur se ipsum prodere).
Her Honour Justice Glazebrook gave the appellant a “very very severe warning” in respect of past breaches but nevertheless extended bail. Since the date of Her Honour’s decision all samples analysed have confirmed a negative result. The alleged breach that gave rise to the revocation occurred on 22 January 2002 (the Police report was not sent to the Crown Solicitor until 5 February 2002). The breach predated the decision of Her Honour and was not a breach that arose following the Court’s decision.
The breaches are against a background of compliance for a period of 15 months from when the appellant was originally granted bail on 17 November 2000. Additional tests subsequently undertaken since revocation all confirm a negative result. These tests were taken on 24 January, 29 January, 31 January and 5 February 2002.
The negative results appear to suggest that the appellant is not addicted to the drug and it is not contended that he is a flight risk. The trial date is not until 9 September 2002.
Counsel for the appellant sought leave to adduce by way of further evidence an affidavit from the appellant exhibiting test reports on samples collected on 24, 29 and 31 January and 5 February 2002 showing that no drugs were detected.
The first notified ground of appeal rightly was not pursued at the hearing. We note that the conditions of bail applicable at the time of the various breaches did not include the obligation to submit to blood tests so the point is irrelevant. In any event, it was imposed by consent. We would add, however, that we accept the Crown submission of privilege against self-incrimination does not extend to the provision of body samples.
The fourth ground notified is inconsistent with information now before the Court from the drug counsellor with whom the appellant has been involved throughout.
For the Crown, Ms Jelaś drew attention to the nature of the appeal being one against a discretionary decision. It was submitted that the decision to revoke bail was well within the discretion of Williams J in the circumstances. We agree. We have not been satisfied that the Judge proceeded on any wrong principle or that it could be said his decision is plainly wrong. The history of breaches fully justified the decision reached. Indeed the leniency previously shown seems to have enabled the appellant to flout the conditions imposed and the law.
The fact that Glazebrook J was prepared to continue bail on a date subsequent to the breach which gave rise to the revocation can carry little weight. It seems tolerably clear that if Glazebrook J had known of the further breach in January she would have been much less inclined to continue bail.
The claimed period of 15 months during which there was said to have been full compliance must be considered against the fact that the non-compliance emerged almost immediately after closer supervision in the provision of samples was introduced. That, and the instances of unreliability of the appellant which emerged in the course of the hearings respectively before Fisher J and Glazebrook J in the High Court, suggest that little weight should be accorded this factor.
We have taken into consideration the further evidence tendered showing subsequent negative results. There is also further material indicating opportunities for some treatment prior to trial and a community involvement. But these new matters cannot eliminate the fact that there have been five instances of breach of bail conditions by a person for whom the grant of bail was clearly marginal from the outset. We are not persuaded that we should interfere with the exercise of the discretion of the Judge in the High Court made after clear warnings given to the appellant over a period.
The appeal is dismissed.

Solicitors
Crown Law Office, Wellington

[2002] NZCA 71

17 April 2002