Wilson v Police HC Auckland CRI 2005-404-63

[2005] NZHC 1712

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-000063

ROBERT JOHN WILSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 April 2005 Appearances: R Mansfield for Appellant

Y Yelavich for Respondent Judgment: 2 May 2005

JUDGMENT OF SIMON FRANCE J

Counsel:

Mr Ron Mansfield, Barrister, Auckland Solicitors:

Crown Solicitors, Auckland

WILSON V POLICE HC AK CRI 2005-404-000063 [2 May 2005]

[1]    Mr Wilson appeals the decision of the District Court of 1 February 2004 declining him bail. He faces a number of charges, being supply of methamphetamine, a related charge of possession of a loaded firearm which was found at the premises at the time, permitting premises to be used, possession of methamphetamine and utensils, attempting to escape custody (which occurred at the time of his apprehension on these charges), and possession of an explosive.

[2]    The appellant was caught in an undercover drug operation. The Police suspected that a particular address was being used as what is called an “Amp” house. I understand that this is the equivalent of a “tinnie” house, only the drug supplied from the premises is methamphetamine.

[3]    The facts as alleged are that an undercover officer went to the house on two occasions. On the first occasion the officer spoke to the appellant who said that he did not have any drugs but suggested other addresses where they could be obtained. He advised the undercover officer that if the undercover officer had any difficulties he could say that the appellant had sent him. On the second occasion when the undercover officer went to the address he was sold a point-and-a-half for $150.00. Shortly thereafter search warrants were executed at the premises. At the time the search warrants were executed the appellant fled the property and was arrested at a nearby property.

[4]    Found at the house was the usual paraphernalia associated with drug dealing, including cash, scales, weights, and pipe, together with 6.9 grams of methamphetamine.

[5]    Also found at the house was a loaded pistol, other ammunition, an ammunition belt and a holster. The appellant denies that the gun was his. However, two Police officers record different conversations with the appellant where he, at the least, acknowledges awareness that the gun was there. Depending on how one interprets the conversations, they could also be an acknowledgement that the gun was his. I see the fact that he was at least aware that the gun was there as a significant factor when one is talking about drug dealing.

[6]    The Police allege that the appellant has strong connections to a gang well- known in the drug industry. The appellant denies this. Ironically, the comment attributed to him concerning possession of the gun was that he had it to keep the particular gang members away. Mr Mansfield fairly points to the fact that this is rather contrary to the proposition that he had an association with the gang. Whilst that is so, it does not help him in that on the other hand it suggests that the gun was an integral part of a drug operation. It is difficult to see why else the gang would be sufficiently interested in the premises such that a gun was needed as a response.

[7]    Finally in this factual recital, it is appropriate to note that the police allege (and again, it is denied) that the appellant admitted to regular dealing and previous sales.

[8]    Bail was declined on the basis of the seriousness of the charges and the strength of the case, as it was known at that time. The decision under appeal does  not refer to the specific s 8(1) bail risks to which the matters are said to relate. There is no specific mention in the judgment of the likely period of remand prior to trial. I am advised that the trial is expected towards the end of this year.

Discussion

[9]    The proper approach to a bail appeal is set out in Police v B (No. 2) [2000] 1 NZLR 31 (CA). It is an appeal from an exercise of discretion and the Court appealed from must be shown to have erred in principle or to have been plainly wrong. The primary alleged error in the present case is that the learned District Court Judge placed excessive weight on the seriousness of the offences (and apparent strength of the case) and insufficient on the presumption of innocence.

[10]   I am satisfied, despite Mr Mansfield’s careful submissions, that the Judge was entitled to conclude that there is, at this point, a reasonably strong Crown case against the appellant and that that case would establish serious drug offending.

[11]I note:

a)the     appellant     admits     selling     on     the     particular     occasion methamphetamine to Police, who simply came to the door;

b)there was a further 6.9 grams of methamphetamine found at  the house;

c)there were also found all the usual trappings of drug dealing;

d)there was found at the house a loaded pistol, and ammunition.

[12]   Those facts alone place the accused in serious jeopardy. Admissions attributed to him, which he disputes, increase the jeopardy and the seriousness – I refer to the alleged admissions of past dealing, alleged admissions the gun was his, and alleged admissions of gang connections.

[13]   The learned Judge assessed the bail application primarily in light of s 8(2) factors, namely s 8(2)(a), (b), and (c). What was not done was any attempt to translate these factors to any of the s 8(1) bail risks – flight, interference with witnesses, and re-offending.

[14]   I note from the discussion in Hall’s Sentencing (App IV8.5) that there apparently exists a conflict between members of the High Court over whether reference to s 8(1) is required. Put another way, and perhaps addressing a situation that may seldom exist, could bail be declined on s 8(2) factors even though there is no real risk of flight, interference or re-offending? The competing views are set out in Hall’s and I do not intend to traverse them. On its face, s 8 does not draw any distinction in pre-eminence between ss (1) and ss (2). However, for myself, I find it difficult to reconcile s 24(b) of the New Zealand Bill of Rights Act 1990 and s 7(5) of the Bail Act 2000 with the proposition that even though none of the s 8(1) risks are present, bail could be declined. That latter proposition, if correct, would mean  the Bail Act 2000 has effected a considerable shift from the previous law as set out in Police v B (No. 2) at para 8 where the Court of Appeal noted:

[8] The seriousness of the charge faced will not in itself provide a justification for refusal of bail. Refusal can be justifiable only when the prosecution demonstrates not merely that the charge is a serious one but also

that there is something additional which favours detention of the accused in the public interest, and that combination of factors is not outweighed by considerations favouring bail. The societal interest must be unable to be met by the granting of bail upon terms as to residence, reporting to police, curfew, non-association, travel restrictions and the like.

[15]   I prefer the view that s 8(2) considerations inform the primary bail risks set out in s 8(1). Approaching it from that standpoint, I consider that I should assess the present case not so much de novo, but rather on the basis of whether the considerations identified by her Honour engage s 8(1) concerns.

[16]   Serious drug dealing carries a recognised greater risk of flight/non- appearance. Addiction carries a recognised greater risk of re-offending. Possession of a loaded pistol as part of a drug dealing enterprise indicates a significant involvement and a dangerous level of commitment to the offending. Granting bail to someone with all these characteristics, as the appellant has, is not a step to be taken lightly.

[17]   In Mr Wilson’s favour, his prior offending is not significant. Since 1988 he has one assault conviction concerning which a sentence was not imposed. He is  open to the imposition of stringent bail terms, and professes a desire to move away from addiction.

[18]   As noted, the Police claim that he has affiliations with a gang that is known  to have involvement in drugs. They rely on alleged admissions by Mr Wilson plus their own information. Mr Wilson denies the links. Attributed comments made by him in relation to the firearm support that denial. I do not place weight on the gang link.

[19]   Ultimately, the question must be, appreciating the recognised ever present risks in drug dealing cases, what is my assessment of this applicant in relation to the s 8(1) risks?

[20]   Putting at the forefront the appellant’s entitlement to bail unless just cause for detention is shown, I conclude that just cause has been shown. The applicant’s  denial of the recognised risks is dependent on “maybes” and after the event

explanations – namely, a new-found desire to give up drugs, an intention to take work when none was seemingly present before, an “embarrassment” over escaping at the time of arrest, and a denial that statements were made when two Police officers, on separate occasions, say he said like things.

[21]   I place most weight on the re-offending risk, but am reinforced in my assessment by a lesser concern about non-appearance, although that is something I generally consider conditions could have met. The re-offending risk is most, but not exclusively, established by addiction and the admission of sale to an officer at the door in a situation where 6.9 grams was also found at the house.

[22]   Finally, I do not overlook the offer of a surety, but I do not consider that it addresses the re-offending risk. Nor do I ignore delay, but do not consider  11 months excessive, given the jeopardy he faces and the strength of the case at this point in time. Mr Mansfield based his delay argument on the reduced jeopardy Mr Wilson would face given the admissions that Mr Wilson was ready to make. Even  on this basis, remand custody of 11 months is not unduly troubling in terms of likely sentence. Assessing this factor against that level of lowest jeopardy is certainly giving full weight to the presumption of innocence. Many would see a reasonably strong chance of greater jeopardy.

[23]The appeal is declined.

Simon France J