HAARHAUS V NZ POLICE HC AK CRI-2007-404-000308 [2007] NZHC 1403 (7 December 2007)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                       CRI-2007-404-000308



                                 ROBERT HAARHAUS
                                     Appellant



                          
                     v



                               NEW ZEALAND POLICE
                                    Respondent



Hearing:
      7 December 2007

Appearances: C Wilkinson-Smith for Appellant
             D J McNaughton for Respondent

Judgment:      7
December 2007


                           JUDGMENT OF HARRISON J




Solicitors:    Meredith Connell, P O Box 2213, Auckland
  
            Fax: [phone] ­ D McNaughton

Counsel:       C Wilkinson-Smith, Parkview Towers, 28 Davies Avenue, Manukau
    
          Fax: [phone]


HAARHAUS V NZ POLICE HC AK CRI-2007-404-000308 7 December 2007

[1]     Mr Robert Haarhaus faces a
range of serious drug-dealing charges, including
supply and possession for supply of methamphetamine. The scale of his alleged
offending
is reflected in a submission made by Mr David McNaughton for the
Crown this morning that, if convicted, Mr Haarhaus will face a sentence
with a
starting point of 10 years imprisonment. Mr McNaughton says the Crown case is
strong, a view already endorsed by Rodney Hansen
J in this Court on 15 September
2007.


[2]     Mr Haarhaus has been remanded in custody since late August 2007. He has
made two
applications for bail in the District Court. His first was rejected by Judge
Hubble following a defended hearing. Rodney Hansen J
dismissed the appeal. I
shall return to his judgment shortly.


[3]     Mr Haarhaus then made a new application for bail on the ground
that there
was a change of circumstances, namely the availability of electronic monitoring or
e-bail. Again that application was
dismissed by Judge Hole in the District Court
following a defended hearing. Mr Haarhaus now appeals.


[4]     In   a comprehensive
and        compelling     written   submission,    skilfully
supplemented today by oral argument, Mr Haarhaus's new counsel, Mr Christopher
Wilkinson-Smith, has expanded the grounds for challenge. Originally he described
the appeal as a fresh application given the availability
of two sureties. However, on
analysis, it is effectively an appeal against Judge Hole's decision but on the ground
of changed circumstances
to take account of the availability of sureties. The burden
of proving that Judge Hole erred in law, was plainly wrong or took into
account
irrelevant considerations or failed to take account of relevant considerations still lies
on Mr Haarhaus.


[5]     Some
further background is necessary. The police allege that Mr Haarhaus
was the centre of a substantial drug-dealing operation. He was
arrested after a covert
investigation. Mr Haarhaus was bankrupted in 2002. He came to the notice of the
police, however, following
the deposit by his then partner of a cash sum of $250,000
with a law firm in 2004. The money was applied towards the purchase of
a house.

Mr Haarhaus also purchased a Mercedes motor vehicle worth $230,000 which was
upgraded to one valued at $270,000 in July
this year.


[6]    The essence of the police case is that Mr Haarhaus was earning substantial
amounts estimated at between $20,000
and $100,000 weekly from the sale of
methamphetamine alone. The essence of Mr Haarhaus's defence is that the assets he
acquired were
derived from the proceeds of successful dealing in motor vehicles.
However, Mr McNaughton says a preliminary forensic accountant's
report shows a
small loss rather than any profit in Mr Haarhaus' motor vehicle dealing over the last
five years.


[7]    After reviewing
all the statement of facts and related documents Rodney
Hansen J was, as I noted earlier, satisfied that the Crown case was strong.
This
factor is relevant in two specific respects. One is to the clear and significant risk of
re-offending while on bail. The other
is to the risk of flight.


[8]    I must record Rodney Hansen J's conclusion as follows:

       [20]    I accept, of course, that Mr Haarhaus
is entitled to the presumption
       of innocence but the police evidence can legitimately be taken into account
       for the
purpose of assessing the risk of re-offending. In my view, it
       establishes that the risk of re-offending could not be adequately
managed by
       conditions of bail, no matter how strict. When added to the risk that Mr
       Haarhaus would leave the country,
I consider there is just cause for his
       continued detention.

[9]    Earlier the Judge had said this:

       [17]    In my
view, the Judge was right to give weight to the risk that Mr
       Haarhaus may abscond. It may be that he was factually incorrect
to say that
       the majority of Mr Haarhaus' contacts are Australian but I think the
       conclusion he reached is justified
on other grounds. Apart from his
       relationship with his girlfriend, there is no information before the Court to
       indicate
that Mr Haarhaus wuld have any particular incentive to remain in
       New Zealand. If the police case is as strong as it appears
to be, any property
       he has in New Zealand will be confiscated. He faces a lengthy term of
       imprisonment. He has a powerful
incentive to leave the country and, so far
       as can be ascertained, no particular reason to remain.

[10]   Judge Hole, as he
was bound, followed Rodney Hansen J's conclusions on
the existence of those real and substantial risks of flight and re-offending.
He

considered that the risk remained to the same extent even if Mr Haarhaus was
granted e-bail.


[11]   In support of this appeal
Mr Haarhaus has sworn an affidavit. He refers to
the availability, which I accept, of two sureties to a total of $100,000. He also
refers
to the fact that he was born in Holland 42 years ago. He moved to New Zealand
with his mother when he was 14 years. He has
a half-sister living here. His only
relatives outside of New Zealand with whom he has contact are his mother and
stepfather in Australia.
  He refers to a permanent relationship with Ms Jemma
Watson. His own father died in 2003.


[12]   Mr Haarhaus has not returned
to Holland since leaving in 1980. He is a New
Zealand citizen. He says that all his business dealings and commercial networks are
here. He does not hold any travel documents. He does not own any property outside
of New Zealand. All this evidence was tendered
to answer the conclusions reached
by Rodney Hansen J on the flight risk.


[13]   However, today Mr McNaughton has tendered a copy
of a statement given by
Mr Haarhaus' mother, Mrs Irene Haarhaus, to Detective Sergeant Sowter. In it Mrs
Haarhaus admits giving false
evidence in a previous affidavit. She deposed to
having provided her son with $350,000 in cash. That was untrue. The affidavit was
used in a property relationship dispute with Mr Haarhaus' former partner, Ms
Yolande Botha. The inference I draw from this event
is that Mr Haarhaus was
directly complicit in obtaining a false affidavit from his mother to support a claim
being argued in court.
The existence of her admission reflects adversely on the
credibility of any assurances Mr Haarhaus might now seek to give.


[14]
  The problem faced by Mr Haarhaus on this appeal is that Rodney Hansen J
and two experienced judges in the District Court have expressed
conclusions of
satisfaction of real and significant risks of flight, re-offending and even interference
with witnesses if Mr Haarhaus
was granted bail.         No appeal was filed against
Rodney Hansen J's decision. Mr Wilkinson-Smith acknowledges that another judge
of this Court cannot sit in review of Rodney Hansen J's decision, or of his reasoning.

I must take account of the Judge's emphatic
statement that no conditions, however
strict, might manage the risk of re-offending.


[15]   I accept the provision of sureties
might reduce the risk of flight. However, the
amounts offered would have to be very much greater than a total of $100,000 if this
option was to be taken seriously. I repeat
my scepticism about the weight to be
given to Mr Haarhaus' statements on oath given his mother's admission to Detective
Sergeant
Sowter. What remains plainly is the risk of re-offending if granted bail.
Judge Hole was influenced by that factor in refusing bail.
The other judges had
likewise given it substantial weight.


[16]   Mr McNaughton, very fairly, has acknowledged that one condition
might be
available to reduce that risk, namely a limitation or prohibition upon visitors. Mr
Wilkinson-Smith suggested that Mr Haarhaus'
bail be granted on condition that he
has no visitors other than his partner with whom he would live.


[17]   This proposal has caused
me to reflect carefully. However on balance, given
the conclusions already reached by Rodney Hansen J and the two experienced
District
Court Judges, I am not satisfied that such a prohibition would remove either
of the risks. Among other things, it would be impossible
to monitor effectively
without 24-hourly supervision.          Nor am I satisfied that conditions such as
prohibitions on use of
cellphones would be effective.


[18]   Mr Wilkinson-Smith has referred to two other factors; both are relevant.
One, considered
by Rodney Hansen J was the availability of appropriate facilities in
prison to enable Mr Haarhaus to prepare his defence. This is
a problem faced by
many prisoners. Of itself it cannot be decisive. However, Mr Wilkinson-Smith has
already taken steps to deal with
the prison authorities on it.


[19]   The other relevant factor is delay. Depositions are not due to be heard until
April 2008.
   There are 10 accused.        Unless some plead guilty before or after
committal for trial, the hearing will have to take place
in Courtroom 12. That facility
is unavailable until early 2009. Mr Wilkinson-Smith advises that all other accused
have been granted
bail.

[20]   The factor of delay is important but is not yet decisive. It may assume
greater importance, however, immediately before
or after depositions are taken.
Mr Wilkinson-Smith will then be in a better position to evaluate the strength or
otherwise of the
Crown case. I would add though that any further applications for
bail will have to be strictly circumscribed given the findings now
made by two
Judges in this Court upholding two in the District Court.


[21]   Accordingly I dismiss Mr Haarhaus' appeal against
Judge Hole's refusal in
the District Court to grant bail.




                                                     __________________________
                                                     Rhys Harrison J