HARPER V THE NEW ZEALAND POLICE HC AK CRI-2009-404-0058 [2009] NZHC 309 (13 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                   CRI-2009-404-0058



                           CALEB EDWARD HARPER
                                  Appellant



                               
           v



                          THE NEW ZEALAND POLICE
                                 Respondent



Hearing:       13
March 2009

Counsel:       M Hislop for the Appellant
               W P Cathcart for the Respondent

Judgment:      13 March 2009


                 ORAL JUDGMENT OF JOSEPH WILLIAMS J



[1]    The appellant Mr Harper appeals against a refusal in the District
Court to
grant him bail in February this year.          I am advised by counsel that because
Mr Harper has pleaded guilty to charges
of excess breath alcohol and driving whilst
disqualified, and is due to be sentenced on those charges in April in addition to the
impending trials at the end of April and early May, I must consider s 13 of the Bail
Act as well as s 8.


[2]    The effect of s
13 is to create a presumption against bail unless it would be in
the interests of justice to grant bail. Under that section, I am
to give consideration to
the likely length of any prison sentence. There has been argument before me as to


HARPER V THE NEW ZEALAND
POLICE HC AK CRI-2009-404-0058 13 March 2009

the exact nature of the current EBA charge given that Mr Harper has been convicted
of this offence on seven previous occasions.          Mr Cathcart, counsel for the
respondent, points to a recent judgment of the
Court of Appeal in R v Stoves
CA264/06, 7 November 2006, in which the Court upheld a prison sentence of
18 months where the appellant
had been convicted of EBA on only five previous
occasions. Mr Hislop, counsel for the appellant in this case, argues that the actual
charge does not refer to any earlier offending making the possible upper penalty less
than that contemplated by the Court of Appeal
in R v Stoves.


[3]    Nonetheless, it appears to me on the strength of the appellant's previous
convictions that a prison sentence
is almost inevitable, and that it will (at the very
least) approach the length of his current remand in the order of six months,
and may
well exceed it. And that is before he confronts the current charges he is defending.


[4]    In a sense, this is by way
of background because if I apply the tests in s 8, I
essentially come to the conclusion that bail is not an arguable outcome for
the
appellant even without the s 13 presumption. Under s 8, I must weigh three issues in
making a bail decision:


       (a)   
 First, the likelihood of flight;


       (b)     Second, the likelihood of further offending; and


       (c)     Third, the possibility
of interference with evidence or witnesses in the
               case.


[5]    As Mr Hislop argued cogently, the appellant is entitled
to the benefit of the
cherished right to be presumed innocent until proven guilty. That right is, as he has
said, enshrined in the
Bill of Rights. But, the previous behaviour of this appellant
must on any reading eclipse that right.


[6]    According to the information
before me, Mr Harper has been convicted of 35
offences while on bail. Only four of those offences, on my view of it, were bail

related ­ that is, failure to appear or breach of bail conditions. All others were
independent criminal activities.


[7]     To
be fair to Mr Hislop, he says (on his analysis) the correct number is 21 not
35. But in the end that cannot matter. There is a consistent
history of offending
while on bail all the way up to June 2008.


[8]     If that were not enough, Mr Harper has proved a consistent
flight risk. He
has failed to appear on a number of occasions and appears to have evaded capture for
a lengthy period. Mr Hislop
says that was due to a misunderstanding about Court
dates, and perhaps he is right, but in the absence of any cogent evidence about
why
he failed to appear, the record suggests that Mr Harper has absconded while on bail.
I am bound to read the facts as they are provided to me on the file.


[9]    
It probably does not matter in the final analysis because either consistent
flight or consistent reoffending while on bail would
have been enough on their own
to override the otherwise extraordinarily important presumption of innocence. I am
bound therefore
to dismiss this appeal.




                                                               "Joseph Williams J"

Solicitors:
Martin
Hislop, Barrister, PO Box 210, Auckland