W v Police HC Whangarei CRI 2007-488-67

[2007] NZHC 1237

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-67

W

Appellant

v

THE POLICE

Respondent

Hearing:         9 November 2007

Appearances: D J Blaikie for appellant

N Dore for respondent

Judgment:      9 November 2007

JUDGMENT ON BAIL APPEAL OF ALLAN J

Solicitors:

Crown Solicitor Whangarei

D J Blaikie, PO Box 382, Kaikohe

W V POLICE HC WHA CRI 2007-488-67 9 November 2007

[1]      This is an appeal by Mr W   against a decision of Judge Ingram in the District  Court  at  Kaikohe  on  26  September  2007,  in  which  the  learned  Judge declined to grant Mr W   bail.

[2]      The appellant was before the court at that time, in consequence of having been arrested in the following circumstances:   on 21 September 2007 he was apprehended when driving out of the carpark at McDonalds restaurant at Kerikeri.  A search of the car revealed that the appellant was in possession of some 21 cannabis tinnies, together with a substantial amount of cash, some $4,500, of which a significant quantity was in $20 bills.  The appellant was subsequently charged with being in possession of cannabis for the purpose of sale.

[3]      In the District Court, Judge Ingram considered that there was a substantial risk of flight and that the appellant would offend whilst on bail.  The Judge indicated however, that an application for electronic bail might stand some chance of success and that the court might well review the matter afresh in the light of electronic bail information.

[4]      Mr Blaikie tells me that inquiries as to the availability of electronic bail were made and the appellant re-appeared before Judge de Ridder on 1 November 2007. But it had been ascertained that the proposed electronic bail address, namely the appellant’s parents’ farm, was not suitable because no adequate signal could be sustained there.  Moreover, Mr Blaikie says that electronic bail is really unsuitable in this case because one of the purposes for which the appellant seeks bail is to enable him to carry out heavy farm work on his parents’ farm.  The restrictions of electronic bail would rule out such activity.  Accordingly, Judge de Ridder declined to grant bail.

[5]      I have the advantage of significantly more information than was available in the District Court.   I now have two lengthy affidavits, one sworn by the appellant and one by his mother.  Two primary topics are covered in these affidavits.  The first relates to the defence which is to be advanced at the trial of this matter in the District Court.   Mrs W   confirms the evidence of the appellant.   She says that the

money found in the appellant’s possession had been withdrawn by her from the national Bank in Kaikohe just a few days prior to the appellant’s apprehension, and that that can be confirmed by the production of banking records.  Mr Blaikie says it is  proposed  to  call  the  bank  teller,  who  recalls  having  handed  the  cash  to Mrs W   on the day in question.

[6]      The evidence of both the appellant and his mother is to the effect that she gave him the money concerned for the primary purpose of enabling him to make various payments to various creditors in the ordinary course of business.

[7]      Although Mr W   accepts he was in possession of cannabis, he says it was for his own use, and the cash with which he was found has an innocent explanation along the lines I have just outlined.

[8]      Accordingly, there is significantly more information available to this court that was available to Judge Ingram about the nature of the defence that is to be run to this charge.  On the face of it, the defence has some realistic prospect of success, notwithstanding the burden of proof which will rest upon the appellant at his jury trial some time next year.

[9]      The other major topic covered by the affidavits, is that of the reason why the appellant wishes to be granted bail.  For himself, he says he would be prepared to accept a further remand in custody, but he is concerned about his ageing parents, who run a large dry stock farm.   His father is unwell, having had major heart surgery, and is incapable of carrying out heavy work on the farm.   The appellant appears to be the primary source of heavy labour for his parents, and wishes to return to the farm to carry out such active farm work as is necessary.  In doing so, he says the risk that his father might attempt something which is beyond him will be greatly diminished.

[10]     A  third  topic  covered  in  the  two  affidavits  relates  to  the  appellant’s association with alcohol.  Both the appellant and his mother confirm that although he was a heavy user of alcohol until about five years ago, he is now a total abstainer and

has been so for the past few years.   That is a matter of relevance to which I will return in a moment.

[11]     In my view, the additional material now available to this court, justifies me in considering afresh the factors relevant to the question of whether the appellant ought now to be released on bail.

[12]     The major factors which motivated Judge Ingram to decline bail were flight risk and the risk of offending whilst on bail.  I accept Mr Blaikie’s submission that the learned Judge may have somewhat over-stated that risk.   There is indeed a history of failing to comply with court orders, as is manifest from this man’s somewhat depressing history of previous convictions.  There are a number of blood alcohol convictions and of driving while disqualified.  There is also one conviction for escaping from police custody, although that was some 24 years ago and appears to have resulted from a relatively minor incident in the light of what I have been told by Mr Blaikie.

[13]     What is of great significance in my view, is that Mr W  ’s offending appears to have stopped at about the time his consumption of alcohol stopped.  There are no convictions for some five years.  Further, Mr Blaikie tells me and I accept it as it is within his personal knowledge, that there was a matter in about 2002 or 2003 which culminated in the appellant’s acquittal, but which was preceded by a period of some 18 months on bail on relatively stringent conditions, which were complied with by the appellant without any breach at all.  In my view, it is a proper inference that the appellant has turned over something of a new leaf over the past few years.

[14]     That inference is supported by the evidence of Mrs W  , who says that the appellant, now aged 44 years, is leading a somewhat spartan life on the farm.  He lives in what she calls a “hut” adjacent to the main farmhouse, spends most of his time on the farm either in his hut, or carrying out farm work, and is developing a reputation in the community of being something of a hermit.  That being so, I do not think there is a real and significant flight risk, that of course being the test the court must now impose, consequence on the amendment to s 8(1), which came into effect on a date following Judge Ingram’s decision.

[15]     Likewise, the risk of offending while on bail is limited.  There is a history of offending while on bail, but the same considerations apply to this aspect as applies to flight risk.  Mr W   appears to have turned over a new leaf, to be living quite a different lifestyle, and accordingly is not to be saddled with a past history which is now becoming somewhat out of date.  Such risk as might exist can be coped with by the imposition of appropriate conditions.

[16]     The discretionary factors in s 8(2) are of some relevance, and in particular s 8(2)(e) which deals with the history of offending whilst on bail, which I have already touched upon.  But it is to be noted that that factor is to be taken into account only to the extent to which it raises real and significant risk of offending while on bail:  see s 8(3).

[17]     The other discretionary factor which I take into account is the length of time before the matter comes to trial.  As I understand it, counsel are agreed it is unlikely that the trial will take place until about the middle follow next year.   If bail is declined the result will be the appellant will be in custody for about nine months pre- trial.   If he is acquitted, then of course that is time served which will prove to be completely undeserved.  If he is convicted, than that period in custody will constitute a significant proposition of the sentence eventually imposed.  That is not to minimise this offending, which like any drug offending must be regarded as serious, but this particular offence and the circumstances attending it, do not suggest that it is in the more serious category of drug offending.

[18]     Taking that factor into account, along with the view I have formed about the mandatory considerations in s 8(1), I conclude that this is a case in which it is appropriate to grant bail.   The appeal is accordingly allowed.   I have discussed appropriate conditions with counsel.

[19]     The following conditions are imposed:

a)        The appellant is to reside at his parents’ farm at Ngapipito Road, RD1

Kawakawa:  Rapid No. 1583

b)The appellant is to report twice weekly on Mondays and Thursdays between 8 am and 4 pm at the Kawakawa police station.

c)        He is to abstain from the consumption of alcohol or any drugs unless prescribed by a medical practitioner.

C J Allan J