Wilson v Police HC Christchurch CRI 2007-409-172

[2007] NZHC 2134

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000172

RICHARD BRENT WILSON

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 August 2007

Appearances: V A Walsh for Applicant

Z R Johnston for Respondent

Judgment:      21 August 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This is something of a hybrid original application for bail to this Court. There is a quite convoluted background to the case.

[2]      In March of this year Mr Wilson was charged with offences of assaulting a female, threatening to kill and assault with a weapon.  He was also charged with two breaches of a protection order.  He was bailed with reference to these charges, all of which pertained to a single complainant, a female partner of the applicant.

[3]      In early April some further charges were laid being burglary and breach of a protection order and there was also a breach of curfew, at least one noted on the

RICHARD BRENT WILSON V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000172 [21 August

2007]

court file.  This resulted in a custodial remand until 10 April when there was a full bail hearing.  Bail was granted on fairly stringent terms.

[4]      Coincidentally, that same day, charges were laid against the appellant of manufacturing morphine and, (subsequently), possession of a precursor substance. These charges related to events which had occurred in February/March of 2007. With reference to these Mr Wilson was summonsed to appear on 17 April and a short while later he was admitted to bail with reference to the fresh drug charges, although in error.   Error arose because Mr Wilson has a 1998 conviction in this Court for manufacturing heroin.  This being a drug dealing offence, s16 of the Bail Act 2000 applied and accordingly he was only bailable with reference to the morphine charge by a Judge of this Court.  Nonetheless, through oversight, bail was granted in the District Court.

[5]      The error was perpetuated in June when, following a preliminary hearing, Mr Wilson was committed for trial on the drug related matters.  In July there was a further preliminary hearing with reference to the violence charges.   Again he was committed and bailed.

[6]      What, then, brought matters of which I have just spoken to light?  On 9, 12 and 14 August the applicant was considered to be in breach of bail, in particular of his curfew clause.  On two occasions the police called at the address at which he resided but could not verify his presence in the house.  The same thing happened on

14 August.  In relation to the first two occasions the applicant’s explanation is that he was present but not called to the door by his flatmates, or the doorbell was not heard by anyone inside.  On the last occasion the applicant maintains that he was at the emergency department of the hospital having suffered some form of collapse.

[7]      Accordingly, since about 15 August, the appellant has been in custody.  The error in relation to his being extended bail on the drug matters came to light and for that reason an originating application to this Court has been made.

[8]      If all of this isn’t enough there is the added complication that s12(1)(b) of the

Bail Act 2000 applies with reference to the violence charges.  That is, the appellant

has the requisite number of past convictions and sentences, and is facing fresh violence charges which carry the requisite maximum penalty, so that an onus is upon him to demonstrate that if granted bail it is probable that he will not commit serious property or violence offences.

[9]      Ms Johnston realistically indicated that s12 may be robbed of some of its sting in this case given that Mr Wilson has been on bail with reference to the violence matters since April, effectively without incident, at least in relation to the complainant.  Although there were problems early on, over the last four months or so there do not seem to have been any problems in relation to the complainant.  Hence the real question is whether bail is appropriate with reference to the drug dealing offences given the full background to which I have already referred.

[10]     I have seen the summary of facts for the morphine charge.   In essence the police visited the premises and located a kit for manufacturing morphine from medications containing codeine phosphate.   There were two or three people associated with the relevant address.  Text messages which passed between them in February/March suggest an interest in the manufacture of controlled drugs.   I understand that all three have records with reference to drug use.  The indications are that morphine was being manufactured by persons at the address for sharing amongst them, that is for their own use rather than on a commercial basis.

[11]     In relation to both sets of charges the applicant is awaiting trial in the District Court.  Trial dates have not been set.  He is due to appear at a pre-trial conference in the near future.  Unless there are pleas of guilty the charges will not be resolved for an extended period.

[12]     I must say that I view with some scepticism the explanations advanced with reference to the curfew breaches.    Against  that,  the  appellant  has  now  been  in custody for about a week on account of those breaches.  In all the circumstances I am of the view that he should be readmitted to bail but on strict terms similar to those which applied previously.  It need not be said that any further breach is unlikely to be viewed as benevolently.

[13]     The bail conditions will be:

[a]     he is to reside at 2 Nursery Road, Christchurch,

[b]     he is subject to a curfew between 11.00 pm and 7.00 am daily,

[c]     he  is  to  present  himself  at  the  door  of  the  address  when requested to do so by the police,

[d]he is not to have contact with either the complainant or his alleged co-offenders in relation to the morphine offending,

[e]     he  is  not  to  enter  Elm  Grove  (being  the  street  where  the complainant resides).

Solicitors:

Vicki Walsh Barrister, Christchurch for Applicant
Raymond Donnelly & Co, Christchurch for Respondent