Dodd v R

JurisdictionNew Zealand
JudgeRanderson,Harrison JJ
Judgment Date28 September 2011
Neutral Citation[2011] NZCA 490
CourtCourt of Appeal
Docket NumberCA468/2011
Date28 September 2011

[2011] NZCA 490

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Chambers, Randerson and Harrison JJ

CA468/2011

BETWEEN
Kelly Dodd
Appellant
and
The Queen
Respondent
Counsel:

H D M Lawry for Appellant

M D Downs for Respondent

JUDGMENT OF THE COURT
  • A The appeal against the refusal of bail is dismissed.

  • B Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction
1

The appellant Mr Dodd is to be tried in the High Court at Whangarei on 7 February 2012 on multiple charges of alleged drug offending. Mr Dodd has made two unsuccessful applications for electronically monitored (EM) bail since his arrest in late October 2009. By the time of his trial he will have been in custody for two years and three months.

2

Bail was initially refused by Venning J on 4 August 2010. 1 At that time it was anticipated that his trial, along with seven co-accused, would proceed in May 2011. As a result of a revised defence estimate of the time required, the fixture in May was vacated and the new date set for February 2012.

3

On the basis of that change in circumstances and a new bail address, Mr Dodd made a renewed application for EM bail. His application was refused by Wylie J on 25 July 2011. 2

4

The grounds of appeal advanced by Mr Lawry on behalf of Mr Dodd against Wylie J's decision are that the Judge failed to give appropriate weight to Mr Dodd's rights guaranteed to him by ss 24(d) and 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA). It was submitted that the lengthy delay before trial and the difficulties being experienced in preparing Mr Dodd's defence while in custody should have resulted in bail being granted.

The decision under appeal
5

In a closely considered decision, Wylie J noted that Mr Dodd was facing 20 charges of offering to sell or supply methamphetamine; three of supplying methamphetamine; 10 of conspiring to sell methamphetamine; one charge of supplying cannabis; and two of cultivating cannabis. The Judge recorded that the proposed EM bail address was a property in Whangarei occupied by Mr Dodd's sister. The sister had filed an affidavit confirming that Mr Dodd enjoyed both her

support and that of a strong family network. She would ensure that he abided by any bail conditions imposed. The EM bail report found the proposed bail address technically suitable.
6

The Judge noted that s 12(1)(b) of the Bail Act 2000 applied to Mr Dodd since he had been charged with a number of offences carrying a maximum sentence of three or more years imprisonment; he had previously received more than 14 sentences of imprisonment; and he had been convicted of an offence committed while he was remanded on bail. It followed that the onus was on Mr Dodd to satisfy the Court that bail should be granted. 3

7

The Judge acknowledged that the delay in Mr Dodd's trial was “by any measure, lengthy”. He accepted that continued detention of an accused person where there was such a lengthy delay increased the burden on the Crown in asserting that the accused should continue to be remanded in custody.

8

Addressing the matters the Court was obliged to consider under s 8(1) of the Bail Act, the Judge observed that Mr Dodd had eight previous convictions for failing to answer District Court bail and one for failing to answer police bail. The most recent of these was in 2006. He also had six convictions for breach of periodic detention and two for breach of conditions imposed upon his release from prison.

9

The Judge acknowledged that Mr Dodd was entitled to the presumption of innocence but considered the charges to be serious, accepting a submission made on behalf of the Crown that the scale of Mr Dodd's alleged involvement was significant. The Judge said the seriousness of the charges might not, of itself, provide justification to refuse bail. But if there were additional risks favouring the detention of the accused in the public interest, then the seriousness of the alleged offending was properly a matter to be taken into account.

10

As to the strength of the prosecution case, this was largely based on intercepted text and telephone communications. The Judge recorded Mr Lawry's

acceptance that the strength of the evidence varied from charge to charge and that the evidence was stronger on some than on others.
11

The Judge considered that the seriousness of the charges and the likelihood that Mr Dodd would face a substantial term of imprisonment if convicted, highlighted the risk he might seek to abscond. An associated matter was that Mr Dodd either was at the time (or had been) a member of the Tribesmen motorcycle gang. In that respect, Mr Lawry told the Judge Mr Dodd was no longer a gang member.

12

The Judge accepted that EM bail would go some way towards minimising the risk that Mr Dodd might abscond. It would provide a reliable and prompt warning to the police in the event that Mr Dodd tried to leave the premises. However, it would not entirely remove the flight risk.

13

The Judge then dealt with the risk that Mr Dodd might offend while on bail. He noted that Mr Dodd had 29 convictions for offences committed while on bail, the Crown alleging that nine of the current charges Mr Dodd was facing were committed while he was on bail for driving at a dangerous speed. The Judge considered this position to be aggravated by a suggestion made in the police EM bail report that the Corrections Department had identified Mr Dodd as a drug user as a result of a positive drug test for cannabis in December 2010 and a report from prison staff that Mr Dodd obtained cannabis and was smoking it while at the Whangarei court cells. The Judge concluded that Mr Dodd could continue to offend in relation to drug dealing if bail were granted, even while subject to a 24 hour curfew. He noted that, on the police case, Mr Dodd had offended in the past by using a landline and a cellphone.

14

In summarising his view of the application, the Judge said:

25
    Having considered these various matters in the round, Mr Dodd has not satisfied me that bail should be granted to him. I am concerned that there is a significant risk, first, that he would abscond were he to be granted bail and secondly, that he would reoffend were he to be granted bail. [26] I am concerned at the delay in this matter and at the length of time that Mr Dodd will be in custody, but in the circumstances, I am not satisfied that bail should be granted.
The case for the appellant
15

Mr Lawry emphasised the importance of the lengthy delay between the appellant's arrest and trial date by reference to the decision of this Court in B v Police (No 2), 4 the judgment of Harrison J in Chergui v Police5 and a decision given by Brewer J granting bail on EM terms to Mr Dodd's brother who is a co-accused. 6 While accepting that s 12 of the Bail Act applied to Mr Dodd, and that the Judge had considered factors relevant to s 8 of the Bail Act, Mr Lawry submitted that the Judge had failed to balance those factors against the delay, particularly the right to be tried without undue delay under s 25 of NZBORA, and the right to adequate time and facilities to prepare a defence in terms of s 24(d).

16

In this respect, Mr Lawry said there had been some co-operation with the prison authorities at Ngawha but Mr Dodd is currently held in Auckland where he does not have access to the extensive disclosure made by the prosecution, particularly the transcripts of the intercepted conversations relied upon. He did not know when or if Mr Dodd would be transferred to Ngawha.

17

As to the strength of the prosecution case, Mr Lawry accepted that the evidence relating to the cannabis offending was stronger than the evidence on the methamphetamine charges. In respect of the latter, the prosecution relied, Mr Lawry submitted, on inferences to be drawn from the intercepted conversations. Mr Lawry agreed that a sentence in the range of four to five years was reasonably available for the cannabis offending and that, if there were a conviction on the methamphetamine charges, a sentence of not less than 10 years imprisonment was likely.

18

In these circumstances, Mr Lawry accepted he could not advance the proposition that the time in custody would...

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8 cases
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    ...by rehearing. It has now been made clear by the Court of Appeal that appeals on bail decisions are governed by the May v May test. In Dodd v R 26 the Court of Appeal confirmed that those who appeal bail decisions face the difficulty that they are challenging a Judge's exercise of their disc......
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