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Olua v R [2012] NZCA 177 (8 May 2012)

Last Updated: 16 May 2012


IN THE COURT OF APPEAL OF NEW ZEALAND
CA205/2012
[2012] NZCA 177

BETWEEN DANIEL ONYEWUCHI OLUA
Appellant

AND THE QUEEN
Respondent

Hearing: 2 May 2012

Court: Stevens, Chisholm and Priestley JJ

Counsel: P J Kaye for Appellant
M J Lillico for Respondent

Judgment: 8 May 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] This is an appeal under s 66 of the Bail Act 2000 against a decision of Wylie J on 3 April 2012 refusing to grant bail.[1] The appellant, Mr Olua, seeks release on electronic monitored bail. The appellant is in New Zealand on an expired visitor’s permit and has been in custody since his arrest in May 2010. He faces a charge of importing methamphetamine and two charges of possession of methamphetamine for supply. His trial is set down for hearing on 2 July 2012.

Background facts

[2] The charge of importing methamphetamine relates to a parcel that entered New Zealand in May 2010. Customs officers detected that the parcel contained 444 grams of methamphetamine, a quantity that would have a street value of up to $440,000. The Crown alleges that the appellant, together with a co-accused, arranged for a third party to uplift this package for forwarding on to an unknown person.
[3] Later, the police executed a search warrant at the appellant’s address. Police located 132 grams of methamphetamine at that address.
[4] Police enquiries subsequently revealed that the appellant had opened bank accounts in the names of Reginald Aguocha, Joshua Nwosu and Daniel Olua. When applying for those accounts the appellant produced four different South African passports. The South African High Commission has advised that at least three of those passports are not authentic.

Bail history

[5] The appellant first applied for bail on 4 August 2010. This was declined by Judge Blackie on the grounds that the charges were very serious and there was a flight risk.[2] Courtney J upheld that decision on appeal.[3]
[6] An application for electronically monitored bail was lodged on 19 January 2011. Judge Blackie declined that application, holding that the flight risk could not be adequately dealt with by electronic monitoring.[4] Toogood J upheld that decision on appeal.[5]
[7] In December 2011 the appellant (together with his alleged co-offender) sought a stay of proceedings. Judge Johns declined to grant a stay.[6] The Judge held that a substantial delay had occurred resulting in a breach of s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), but she found that a stay would not be a reasonable and proportionate response to the delay.[7] Instead, the Judge suggested that the appellant should apply to the District Court to be released on electronic monitored bail. Such an application was made on 28 February 2012. Judge Winter apparently declined jurisdiction to hear the application because of the two previous High Court judgments on the question of bail.
[8] The matter then came before Wylie J in the High Court.[8] The Judge declined to grant electronic monitored bail. While he acknowledged that there was no concern that Mr Olua would interfere with witnesses or re-offend whilst on whilst on bail, the risk of flight was “significant”.[9] Wylie J concluded that the evidence suggested that Mr Olua “has the means to obtain travel documentation”, which could be used by Mr Olua to abscond from New Zealand.[10] He held that such risk could not be avoided by electronic monitoring.

Submissions

[9] Mr Kaye for the appellant made careful and comprehensive submissions contending that Wylie J should have put more weight on the fact that Judge Johns had found that an undue delay had occurred. Counsel submitted that Wylie J “should clearly have approached the matter from a somewhat different angle placing much more emphasis on the remedy that was obviously required”. He did not press the argument that the existence of a breach of NZBORA arising from a substantial delay would always demand a remedy. Counsel further submitted that Wylie J erred in taking account of the false passports and associated bank accounts. It is submitted that those documents “were of dubious evidential quality”.
[10] Finally, Mr Kaye noted that the appellant has no history of absconding nor any adverse criminal or bail history in New Zealand. Counsel submitted that with sufficiently tight terms of electronic bail that the appellant would not present a flight risk.
[11] Mr Lillico for the respondent submitted that the Judge did not err in exercising his discretion to decline to grant bail. He noted that the Judge considered all relevant factors as set out in s 8(1) and (2) of the Bail Act. In relation to delay, counsel submitted that the Judge could not be criticised in the present circumstances for failing to provide a remedy for the undue delay in the form of a grant of bail. Counsel accepted that where delay is very lengthy that may be a compelling, but not necessarily overwhelming, factor in favour of the grant of bail.[11] But here the palpable flight risk arose from a background of multiple false passports, a strong Crown case and a potentially lengthy prison sentence.[12] These factors were sufficient to mean that the delay factor was outweighed, so that a grant of bail (even if electronically monitored) would not be a reasonable and proportionate response. Other remedies would be available to respond to the breach.

Applicable legal principles

[12] The principles to be applied when considering an appeal against the grant of bail are set out in B v Police (No 2):[13]

[6] ... Someone who appeals a refusal of bail and is unable to point to a material change in the circumstances since the lower Court’s decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong. ...

To succeed in this appeal, therefore, the appellant must establish that Wylie J erred in at least one of these respects.

[13] Section 7(5) of the Bail Act sets out the overall test to be considered when granting bail:

Subject to sections 9 to 17, a defendant who is charged with an offence and is not bailable as of right must be released by a court on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention.

[14] Section 8 sets out the matters the Court must take into consideration when deciding whether there is just cause for continued detention:

Consideration of just cause for continued detention

(1) In considering whether there is just cause for continued detention, the court must take into account—

(a) whether there is a risk that—

(i) the defendant may fail to appear in court on the date to which the defendant has been remanded; or
(ii) the defendant may interfere with witnesses or evidence; or
(iii) the defendant may offend while on bail; and

(b) any matter that would make it unjust to detain the defendant.

(2) In considering whether there is just cause for continued detention under subsection (1), the court may take into account the following:

...

Relevant authorities

[15] Counsel referred us to two directly relevant authorities, with different outcomes. In Hereora v R,[14] this Court allowed Mr Hereora’s appeal against a refusal of bail. Mr Hereora was charged with a number of drug offences including conspiracy to manufacture methamphetamine, conspiracy to supply methamphetamine, and offering to sell cannabis and methamphetamine. By the time of trial he would have been in custody for nearly two and a half years. Mr Hereora had previously absconded whilst on bail and had failed on several occasions to report whilst on parole. However, it was not expected that he would be able to leave New Zealand. The case against Mr Hereora was not considered to be strong or overwhelming.
[16] In Dodd v R,[15] this Court dismissed the appeal against the refusal of bail. Mr Dodd was also charged with multiple drug offences including 20 charges of offering to sell or supply methamphetamine, three of supplying methamphetamine, and 10 of conspiring to sell methamphetamine. By the time of trial Mr Dodd would have spent two years and three months in custody. Mr Dodd had eight previous convictions for failing to answer District Court bail and one for failing to answer police bail. He also had 29 convictions for offences committed whilst on bail.
[17] In these decisions it was necessary for the Court to consider the relationship between NZBORA and the Bail Act. The discussion in Hereora provides a helpful exegesis of the approach to be applied in the present case:[16]

[16] The right to be tried without undue delay under s 25(b) of the NZBORA is an important right. ... [T]he existence of the right, coupled with the right under s 25(c) of the NZBORA to be presumed innocent until proved guilty, are important considerations in deciding whether bail ought to be granted. The right to be tried without undue delay is primarily to ensure an accused receives a fair trial, but it also underlines and supports the general policy reflected in s 7(5) of the Bail Act that an accused person must be released on reasonable terms unless there is just cause for continuing detention. In this respect, the Bail Act reflects s 24(b) of the NZBORA.

[17] This presumption recognises that long delay in custody pending trial for an accused who is presumed to be innocent is unfair and inappropriate unless just cause is shown. The ability of the Court to grant bail is a mechanism by which the right of the individual to be free from unfair or unreasonable detention pending trial can be recognised, subject to the protection of the public interest in eliminating or minimising the risks identified in s 8(1) of the Bail Act. Delay pending trial is explicitly recognised as a relevant consideration in s 8(2)(f) of the Bail Act, but it derives additional support from s 25(b) and (c) of the NZBORA. Generally speaking, the longer the delay, the more difficult it will be to find there is just cause for continued detention. Where the delay is very lengthy, it will often become a compelling, but not necessarily overwhelming, factor in favour of the grant of bail.

(Emphasis added.)

[18] Because of the finding of undue delay in this case (absent in both Hereora and Dodd), our focus, and the evaluation of the bail issue, arises in the context of possible relief for the breach. The observations of the Supreme Court in R v Williams provide guidance on the question of remedy:[17]

[18] The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory or even a usual remedy.[18] Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case,[19] the conviction may be set aside. Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy. If however, the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.

[19] In the course of its judgment the Supreme Court referred to art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms headed “Right to a fair trial”. It noted that part of art 6(1) in effect combines the s 25(a) guarantee of a fair trial and the s 25(b) right to trial without undue delay by providing that “everyone is entitled to a fair trial and public hearing within a reasonable time”. As to the appropriate remedy for breach of the entitlement to a hearing within a reasonable time the Supreme Court cited the observations of Lord Bingham of Cornhill in Attorney-General’s Reference (No 2 of 2001),[20] which were seen as equally applicable in New Zealand. Lord Bingham relevantly stated:[21]

The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.

[20] The appropriate remedies for breach were thus seen as including, “perhaps”, release on bail. Similarly in Hereora and Dodd, this Court indicated that a lengthy delay, although compelling, was “not necessarily overwhelming” as a bail factor. But whether such a remedy is to be granted in any particular case will depend on a balancing of the nature and extent of the delay against the other factors to be considered in assessing whether there is just cause for continued detention.

Our evaluation

[21] The first ground of appeal attacked the alleged failure of Wylie J to weigh properly the finding of substantial delay in the District Court. We do not consider that such criticism is warranted. Where undue delay has been established it is still necessary to consider that factor along with all the circumstances, including the stage of the proceeding at which the breach was established. Wylie J understood that the trial was scheduled to start on 22 July 2012.[22] The Judge was also well aware of the District Court proceeding in which the finding of undue delay was made and that the District Court Judge had concluded that the delay was “substantial and unacceptable”.[23] Although Wylie J did not repeat the existence of these conclusions in his analysis, he was plainly aware that bail for the appellant was being sought as a remedy for the undue delay. This is apparent from his summary of Mr Kaye’s submissions in which he specifically mentions delay and the argument that “a remedy is required”.[24] Similarly, when referring to the Crown submissions the Judge mentioned counsel’s suggestion that the appropriate remedy, in the event that Mr Olua is acquitted, would be “one of monetary compensation”.[25]
[22] Next we consider Mr Kaye’s argument that the evidence of the false passport documentation was of “dubious evidential quality”. The difficulty here is that the appellant was faced with findings in the High Court that needed to be answered. It would have been open to the appellant in this appeal to have sworn and filed an affidavit confirming that the alleged false passports in different names (and related bank accounts) were not his. He has not done so. There is nothing in this point.
[23] The question is whether the appellant has shown that the decision of Wylie J was in error in any of the ways referred to by this Court in B v Police (No 2).[26] We are satisfied that no such error has been demonstrated. The position now is that the trial is less than two months away. This Court should not lightly interfere with the judgment of the lower court if all relevant factors have been considered. Given that there is a serious flight risk arising from the strength of the Crown case, the likely penalty if the appellant is convicted and the evidence of false passports and access to ready funds in bank accounts in New Zealand (as well as the international aspect of the importing charge), we consider that the balance of the s 8 factors comes down against the grant of bail. The availability of electronic monitoring would not remove the risk of flight.
[24] We are of course fully cognisant that the substantial delay which has occurred (27 months from arrest to trial) raises the need for a possible remedy to be considered. But we note that the District Court Judge found that the delay was not “egregious”.[27] In all the circumstances of this case we are not satisfied that the delay should compel the remedy of release on bail. We consider, like Wylie J, that there is just cause for continued detention of the appellant under s 7(5) of the Bail Act.

Result

[25] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] Olua v New Zealand Police [2012] NZHC 642.
[2] Police v Olua DC Manukau CRI-2010-092-7088, 4 August 2010.
[3] Olua v New Zealand Police HC Auckland CRI-2010-404-393, 12 November 2010.
[4] Olua v Police DC Manukau CRI-2010-092-7088, 19 January 2010.
[5] Olua v New Zealand Police HC Auckland CRI-2011-404-81, 30 March 2011.
[6] Eze v R DC Manukau CRI-2010-092-7088, 7 February 2012.
[7] At [16].
[8] Olua v New Zealand Police [2012] NZHC 642.
[9] At [19].
[10] At [17].
[11] Citing Hereora v R [2011] NZCA 491.

[12] Counsel for the appellant acknowledged that a sentence in the range of 12 to 14 years imprisonment was realistic.

[13] B v Police (No 2) [2000] 1 NZLR 31 (CA). In Hereora v R this Court confirmed that these principles continue to apply under the Bail Act 2000 (at [19]).
[14] Hereora v R [2011] NZCA 491.
[15] Dodd v R [2011] NZCA 490.
[16] These remarks were repeated in Dodd at [23]—[24].
[17] R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 (emphasis added).

[18] The Court of Appeal in Martin v Tauranga District Council [1995] 2 NZLR 419 (CA) divided on the question of whether a stay is an automatic remedy for a breach of s 25(b): Cooke P thought at p 425 that it was; Hardie Boys J at 432, Casey J at 430 and McKay J at 434 considered that a range of remedies were available; and Richardson J at 427 declined to express a concluded view on the point.
[19] As, for example, in Darmalingum v The State [2000] 1 WLR 2303 (PC).
[20] Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 (HL).
[21] At [24] (emphasis added).
[22] At [10].
[23] At [6].
[24] At [9].
[25] At [10].
[26] B v Police (No 2) [2000] 1 NZLR 31 (CA) at [6].
[27] Eze v R DC Manukau CRI-2010-092-7088, 7 February 2012 at [16].

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