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WILLIAMS v R [2005] NZCA 6 (16 February 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 24/05

THE QUEEN

v

DALE ARTHUR WILLIAMS

Hearing: 14 February 2005

Bench: Glazebrook, Robertson and Doogue JJ

Counsel: R A Harrison for Appellant
M F Laracy for Crown

Judgment: 16 February 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Doogue J)

[1] This is an appeal against a fourth refusal of bail in the High Court at Auckland. Dale Arthur Williams is charged with four offences relating to the Class B drug methamphetamine. He was remanded on bail to trial which was due to commence on 6 September 2004. He failed to surrender to bail. Ultimately he was arrested on the afternoon of 8 September 2004.
[2] On 20 September 2004 Heath J refused bail. He noted that the appellant made a conscious and deliberate decision not to attend his trial. He could not be confident that the appellant would not do the same in respect of any subsequent trial date.
[3] A similar decision was reached by Keane J on 12 October 2004. By this time the appellant had offered a surety, which Heath J had indicated might have affected his approach to the matter. However, the surety was the appellant’s partner and she had no means to fulfil the role of a substantial surety.
[4] The third application for bail following the appellant’s decision not to appear voluntarily was dealt with by a judgment of Goddard J of 1 December 2004. The appellant offered a more substantial surety but one which gave rise to difficulties of enforcement. However, regardless of the offer of the substantial surety, Goddard J was of the view that the Court simply could not responsibly run the risk a second time that the appellant would fail to attend his trial. In particular she noted and relied upon the fact that the appellant was but one of 13 accused involved in a trial likely to take eight weeks. She echoed the view of Heath J in stating:

The consequences of Mr Williams conscious and deliberate decision not to attend his trial must be (as Heath J intimated) determinative of any future decision about the grant of bail to him. Even the most stringent of bail conditions must be deemed insufficient in the face of such demonstrated determination not to stand trial. Thus there was just case as to why Mr Williams’ detention should be continued until his trial is concluded.

[5] Subsequent to that decision the appellant changed his counsel and a fourth application for bail subsequent to the original trial date was made. This application was dealt with by Priestley J and determined by him on 22 December 2004. It is his refusal of bail which is the subject matter of the present appeal. Two particular grounds were advanced in support of the renewed application for bail, namely, to assist counsel’s preparation for trial and an assertion that for the first time the appellant appreciated the full consequences of the directions made by Heath J prior to trial, namely that the trial could proceed in the absence of the appellant. The appellant made it clear that he wished to be present at his trial and did not wish to abandon that right. It was also put to Priestley J that in addition to the earlier surety offered the appellant now had a satisfactory bail address and was willing to abide by a 24 hour curfew, other than when seeing his counsel or attending Court. Priestley J found, however, that such fresh information as was before him fell short of neutralising the concern expressed by Heath J as to the likelihood of the appellant attending trial. He was not satisfied that the risk of the appellant not attending trial could be averted by the bail regime suggested. He expressed the view that as the new trial date was only just over three months away, as in December last, continued detention in terms of the policy and provisions of the Bail Act until trial was justified.
[6] We are informed that the new trial date is in fact 6 April 2005.
[7] The appeal was advanced upon the basis that the appellant’s ability to prepare a defence is compromised by the facility in which he is incarcerated. It is submitted that this is in conflict with the appellant’s rights under s 24 of the New Zealand Bill of Rights Act 1990 that:

Everyone who is charged with an offence (d) shall have the right to adequate time and facilities to prepare a defence.

[8] The written submission was made upon the basis that the appellant was at the Auckland Prison Paremoremo at Albany and that it was not possible for his counsel to have easy access to him or for the appellant to listen to the taped conversations which form part of the Crown case.
[9] However that submission was met by evidence from the Crown that the appellant will be held in the Auckland Central Regional Prison, which is the remand prison, next to Mt Eden Prison or at the Mt Eden Prison. The appellant, at the present time, is not at the Auckland Prison but is at the Mt Eden Prison and there is no intention to return him to the Auckland Prison. The evidence is that the position of the appellant is no different from any other remand prisoner in Auckland and that there will be no difficulty in counsel having access to him. In addition provision can be made for tape recordings to be played to the appellant and his counsel.
[10] As a result of this change in position a further application for bail was made to the High Court at Auckland and dismissed by Keane J on 11 February.
[11] In these circumstances the factual basis for the appeal as presented on the papers falls away and it has no substance.
[12] As a result it has been pursued orally upon the basis that the appellant’s deliberate decision to breach bail in respect of the trial date does not justify the continued refusal of bail given that he now has a stable address in Auckland and is prepared to accept stringent conditions of bail, including a security bracelet.
[13] The appeal is formally from a discretionary decision of Priestley J but we were asked to look more widely at the issue including the 11 February decision of Keane J. It has not been shown that any decision was wrong, let alone clearly wrong. Nor has it been shown that a High Court Judge has failed to take into account relevant considerations or has taken into account irrelevant considerations. Each decision of all the Judges that are before us, dealt with the situation as it was presented to that Judge without error and with a result open to each Judge.
[14] On any basis his decision was one open to the Judge and, indeed, almost inevitable given the earlier decisions traversed. When the appellant made a deliberate decision not to attend Court for his original trial date and was seen by the Judges who have dealt with him as being of a volatile disposition it was almost inevitable that any subsequent application for bail would be refused unless dramatically different circumstances could be put before the High Court. Bail conditions and changes of circumstances do not meet the concern expressed by the Judges. The appellant has shown he is prepared to deliberately absent himself from his trial if he takes it into his head to do so. Given that, it is impossible to say that a decision to refuse him bail is clearly wrong.
[15] We note that trial is now less than two months away. It is clear the Appellant’s right to prepare for trial is acknowledged and will be met. In the event of there being any particular difficulty in that regard then, as the High Court has made clear, the issue can be revisited there.
[16] However the appeal is approached it must be, and is, dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	This is an appeal against a fourth refusal of bail in the High Court at Auckland. Dale Arthur Williams is charged with four offences relating to the Class B drug methamphetamine. He was remanded on bail to trial which was due to commence on 6 September 2004. He failed to surrender to bail. Ultimately he was arrested on the afternoon of 8 September 2004.
[2]	On 20 September 2004 Heath J refused bail. He noted that the appellant made a conscious and deliberate decision not to attend his trial. He could not be confident that the appellant would not do the same in respect of any subsequent trial date.
[3]	A similar decision was reached by Keane J on 12 October 2004. By this time the appellant had offered a surety, which Heath J had indicated might have affected his approach to the matter. However, the surety was the appellant’s partner and she had no means to fulfil the role of a substantial surety.
[4]	The third application for bail following the appellant’s decision not to appear voluntarily was dealt with by a judgment of Goddard J of 1 December 2004. The appellant offered a more substantial surety but one which gave rise to difficulties of enforcement. However, regardless of the offer of the substantial surety, Goddard J was of the view that the Court simply could not responsibly run the risk a second time that the appellant would fail to attend his trial. In particular she noted and relied upon the fact that the appellant was but one of 13 accused involved in a trial likely to take eight weeks. She echoed the view of Heath J in stating:

[5]	Subsequent to that decision the appellant changed his counsel and a fourth application for bail subsequent to the original trial date was made. This application was dealt with by Priestley J and determined by him on 22 December 2004. It is his refusal of bail which is the subject matter of the present appeal. Two particular grounds were advanced in support of the renewed application for bail, namely, to assist counsel’s preparation for trial and an assertion that for the first time the appellant appreciated the full consequences of the directions made by Heath J prior to trial, namely that the trial could proceed in the absence of the appellant. The appellant made it clear that he wished to be present at his trial and did not wish to abandon that right. It was also put to Priestley J that in addition to the earlier surety offered the appellant now had a satisfactory bail address and was willing to abide by a 24 hour curfew, other than when seeing his counsel or attending Court. Priestley J found, however, that such fresh information as was before him fell short of neutralising the concern expressed by Heath J as to the likelihood of the appellant attending trial. He was not satisfied that the risk of the appellant not attending trial could be averted by the bail regime suggested. He expressed the view that as the new trial date was only just over three months away, as in December last, continued detention in terms of the policy and provisions of the Bail Act until trial was justified.
[6]	We are informed that the new trial date is in fact 6 April 2005.
[7]	The appeal was advanced upon the basis that the appellant’s ability to prepare a defence is compromised by the facility in which he is incarcerated. It is submitted that this is in conflict with the appellant’s rights under s 24 of the New Zealand Bill of Rights Act 1990 that:

[8]	The written submission was made upon the basis that the appellant was at the Auckland Prison Paremoremo at Albany and that it was not possible for his counsel to have easy access to him or for the appellant to listen to the taped conversations which form part of the Crown case.
[9]	However that submission was met by evidence from the Crown that the appellant will be held in the Auckland Central Regional Prison, which is the remand prison, next to Mt Eden Prison or at the Mt Eden Prison. The appellant, at the present time, is not at the Auckland Prison but is at the Mt Eden Prison and there is no intention to return him to the Auckland Prison. The evidence is that the position of the appellant is no different from any other remand prisoner in Auckland and that there will be no difficulty in counsel having access to him. In addition provision can be made for tape recordings to be played to the appellant and his counsel.
[10]	As a result of this change in position a further application for bail was made to the High Court at Auckland and dismissed by Keane J on 11 February.
[11]	In these circumstances the factual basis for the appeal as presented on the papers falls away and it has no substance.
[12]	As a result it has been pursued orally upon the basis that the appellant’s deliberate decision to breach bail in respect of the trial date does not justify the continued refusal of bail given that he now has a stable address in Auckland and is prepared to accept stringent conditions of bail, including a security bracelet.
[13]	The appeal is formally from a discretionary decision of Priestley J but we were asked to look more widely at the issue including the 11 February decision of Keane J. It has not been shown that any decision was wrong, let alone clearly wrong. Nor has it been shown that a High Court Judge has failed to take into account relevant considerations or has taken into account irrelevant considerations. Each decision of all the Judges that are before us, dealt with the situation as it was presented to that Judge without error and with a result open to each Judge.
[14]	On any basis his decision was one open to the Judge and, indeed, almost inevitable given the earlier decisions traversed. When the appellant made a deliberate decision not to attend Court for his original trial date and was seen by the Judges who have dealt with him as being of a volatile disposition it was almost inevitable that any subsequent application for bail would be refused unless dramatically different circumstances could be put before the High Court. Bail conditions and changes of circumstances do not meet the concern expressed by the Judges. The appellant has shown he is prepared to deliberately absent himself from his trial if he takes it into his head to do so. Given that, it is impossible to say that a decision to refuse him bail is clearly wrong.
[15]	We note that trial is now less than two months away. It is clear the Appellant’s right to prepare for trial is acknowledged and will be met. In the event of there being any particular difficulty in that regard then, as the High Court has made clear, the issue can be revisited there.
[16]	However the appeal is approached it must be, and is, dismissed.