Strickland v Police [2021] CKHC 34; CR 114-115 of 2021 (12 March 2021)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO’S 114-115/2021
112-113/2021
110-111/2021
108-109/2021

WALTER MONTGOMERY STRICKLAND,
TAMARII TEREMOANA KAIVANANGA,
RUTRIL MATAMARU ENOKA,
&
TEPINE IRIPA TETAVA TAMA

v

COOK ISLANDS POLICE

Hearing date: 12 March 2021

Counsel: Ms A Maxwell-Scott for the Crown

Mr N George for defendant (114-115/2021)

Ms L Rokoika for defendant (112-113/2021)

Mr M Short for defendants (118-109/2021; 110-111/2021)

Decision: 12 March 2021

DECISION OF HUGH WILLIAMS, CJ (re. Bail)

[4:39:26]

[1] On 5 February 2021, there were applications for bail dealt with by me in relation to the four persons currently charged with money laundering and selling or supplying cannabis.
[2] In the judgement issue that day the then state of the prosecution was reviewed. It was noted that the matters of that stage were still at a relatively early stage. There were much disclosure still to be accomplished. There was comment about the ineffective bail conditions, the ineffectuality of any bail conditions that might be opposed should bail be allowed.
[3] The conclusion towards at the end was that no case for bail had been made out in respect of any of the four accused. There was just cause to remand them in custody but the promise was made that the question of bail would be reviewed during the current sessions of the High Court. And today comprehensive submissions have been made on behalf of the Crown and on behalf of each of the four accused concerning bail.
[4] There had been significant changes since the matter been dealt with on 5 February. Principally by the filing of CRs 202 to 5/2021 filed today and alleging the selling or supplying of cannabis for the purpose of dealing against each of the four accused. Those charges are supplementary to the charges originally laid, which also included money laundering, but the significant difference is that each of the new information’s alleges ongoing offending on the part of each of the four accused in its terms between 24 December 2019 and 8 February 2021.
[5] Ms Maxwell Scott leading counsel for the Crown accepts that that latter date is incorrect as all four had been in custody since arrested on 28 January 2021 and the information’s will therefore need to be amended in that regard. But nonetheless it is a significant change to the nature of the prosecution that these four additional information’s have been made, essentially alleging ongoing offending by the four accused since, their being originally interviewed by the police in December 2019.
[6] In approaching the question of bail it is correct as Mr George submitted at the earlier hearing that Article 651F of the Constitution provides that; ‘All person charged with an offence have the right to reasonable bail except for just cause’. In New Zealand the criteria applying to a grant of bail have been codified by the Bail Act 2000 and it is accepted in the Cook Islands that the criteria set out in the Bail Act are relevant to bail issues in this country.
[7] In sections 9 to 13 of the Act Bail 2000 the matters listed include;

1. The likelihood that a person granted bail will fail to appear. In this case and in the present circumstances, that is not a significant factor given that exist from the Cook Islands is severely limited by the COVID pandemic.
2. The second criterion is that the persons granted bail may interfere with witnesses. In this case that is a factor of some significance but not over whelming significance in that most of the witnesses, the Crown will call at trial either police offices or institutional officers or bank officials, at producing text messages and banking records for the most part, and accordingly the chances of interference with those witnesses are slight. However Ms Maxwell Scott says that the Crown also intends to call some civilian witnesses who were persons who are alleged to have purchased cannabis from one or rather of the accused. And the capacity for interference with those witnesses is obviously a matter which needs to be (04:45:49 - border line)
3. The third New Zealand criterion is the likelihood of offending on bail. That is the major factor and alteration in considering the question of bail since 5 February 2021 because of the laying of these additional charges, which on their face and is yet untested suggest that all four accused continue or alleged to have continued to offend in ways similar to their part of their interview in December 2019, but in fact after that interview and for about a year onwards from that point.
4. The next criterion is the nature of the offences. This is the first time that accused persons have been charged with money laundering in the Cook Islands. It is an exceptionally serious offence with a maximum punishment on conviction of 20 years imprisonment and the Court needs to be mindful of the seriousness of the offence.
5. The next criterion is the strength of the evidence and the probability of conviction. In that regard the presumption of innocence, the each of the accused is entitled to the presumption of innocence. And it is important that being in remand in custody if that eventuates, should not put undue pressure on the accused to plead guilty to offences, to simply to bring the matters to an end or that end of period of any remand in custody should not be the equivalent of the jail term. There are of course ways in which following conviction, if jail is imposed as is highly likely on conviction on the money laundering charges, when held that the period in custody on remand can be taken into account, but nonetheless it is a serious issue to be considered in the balancing exercise as to whether bail should be granted.

[8] The next matter is the seriousness of the maximum offence that has been dealt with. The other issues relate to character, previous history and previous convictions of the defence. And the significant part of the submissions made in support of the bail applications today has consisted in the tendering of testimonials by various members of the accused family, members of the community, employers and the like in support of a submission that bail should be granted.
[9] The testimonials read much as if convictions have been entered into and the Court was involved in sentencing. Even in that arena testimonials have a limited part to play but in connection with, the question is to whether bail should be granted, they have also no relevance. It is accepted that an automatic consequence of a remand in custody is that such an order will occasion considerable hardship to families, children, partners and other members of the family. And the remand in custody will also bring about significant financial hardship to the families and others involved with the accused.
[10] That is most unfortunate but it is an inevitable consequence if a remand in custody is what is to follow.
[11] The other issue in the Bail Act and the matter of significant concern in relation to the current applications is the time which must elapse before the accused guilt or innocence can be determined at trial. At this early stage of the matter it is impossible to make more than an educated guess as to how long a trial might take, whether there will be one trial or two. And the nature of the evidence in the sense of whether all issues are contested or whether there is a measure of agreement in submission of say the banking records and the text messages with intent behind them still being at large.
[12] Whatever that situation turns out to be, the trial or trials are likely to occupy several weeks of the jury and the courts time. And in the current that concern is exacerbated in the current situation when jury trials have not been possible in the Cook Islands for some 15 months or so. A backlog has of course built up in that time and although measures are in place to try to overcome that backlog, on any reading of the situation in respect of these four accused it will be a number of months, perhaps a significant number of months before their trial can be heard. That is a matter of major importance as far as the current applications are concerned.
[13] Turning to the individual cases Mr George for Mr Strickland put before the Court as did other counsel, a significant number of letters of support for his client, now his only client in this matter, testifying to the support that he derives from and contributes to the community and emphasising the family and financial hardship which stems from Mr Strickland’s remand in custody, now 44 days in duration. And Mr Strickland also has medical concerns which require treatment, although no doubt he has been receiving those whilst in custody.
[14] In the Crown’s submission Mr Strickland is the hub of the alleged conspiracies to launder money in this matter. The evidence of the text messages so far disclosed is highly persuasive and he too, like the others, has now been charged with further offending following the initial police interview.
[15] On that face of it Mr Strickland although the evidence is not yet tested, here is alleged by the police to have continued to offend following the police intervention and interview in ways almost identical for that which is alleged to have preceded the police involvement.
[16] In terms of the Bail Act criteria there is therefore a considerable concern that if granted bail he may continue to offend in a way which mirrors the offending alleged against him to date.
[17] Mr George made other submissions including relating to the foundation for the charges and the fact that as yet disclosure is incomplete. He submitted that this matter has received sufficient publicity in the Cook Islands, that were Mr Strickland to be granted bail, members of the community would be guarantees of his good behaviour and his not offending further.
[18] Turning to Mr Kaivananga, Ms Rokoika too submitted a number of testimonials and letters in support. She made the point that of the witness statements disclosed to date, one by Mr Kaivananga’s nephew would appear on its face to go some way to undermining the charge of selling or supplying cannabis. And she says that her client is not identified in the other material so far disclosed. She relies on her client’s lack of previous convictions.
[19] As far as Mr Enoka is concerned, Mr Short too put in his submissions the significant effect on Mr Enoka’s family, financially and in terms of relationships and he too drew attention to that client’s lack of previous convictions.
[20] Similar submissions, similar (04:57:43) submissions were made by Mr Short on behalf of Mr Tama. His family too is suffering significant hardship in terms of their relationships and their financial position.
[21] All counsel submitted that were bail to be granted that conditions could be imposed which would go far to satisfying the criteria set out in the Bail Act. But against that it must be dealt as to the effectiveness of any conditions that could be imposed in a small community such as Rarotonga and there must be doubts too as to the practicality of those conditions in terms of the four accused employment requirements and the like.
[22] It is difficult to see how the authorities could police any non-contact or non- association clause and observations were made in the 5 February 2021 judgement as to the difficulties that might accrue should the bail conditions of the removal of cell phones or the like.
[23] The three criteria which are most significant in this case are the seriousness of the offence and the almost inevitable jail sentence which will follow should conviction on money laundering occur. The duration of the amount of time that must pass before a trial can be organised and the question of whether the accused might offend again if granted bail.
[24] In reality those three criteria rendered down to two, the question of delay before trial, if remanded in custody is to follow and the question of whether there is possibly a propensity to continue to offend while on bail.
[25] The second of those is the governing criterion in this case. As things currently stand it appears that all four accused were taxed with the offending throughout 2019 which forms the basis of the original set of information’s’. That interview occurred in December 2019.
[26] In the face of the latest information’s however untested they may be at the moment, it would appear that the police have information and data available to them which suggest that all four accused offended in similar ways in 2020 into the beginning of 2021 as they are alleged to have offended throughout 2019.
[27] That is a major concern and of itself is sufficient to decline all four applications for bail, notwithstanding the hardship that that decision will wreak on the accused families and partners and their associates.
[28] There is however the last criteria namely the amount of time which must elapse before a trial can take place. Disclosure in relation to the original set of information’s remains incomplete and disclosure in respect of the most recent information’s has scarcely barely started.
[29] Counsel are entitled to receive such disclosure as rapidly as possible and given the opportunity to analyse the same, it is only then that a reasoned estimate will be able to be made of the possible duration of the trial or trials and the amount of time that must elapse before those trial or trials can be heard.
[30] In those circumstances, because I am here for another fortnight, what I intend to do is to decline the applications for bail at the present time, but review these positioned in a fortnight’s time, to have a look at the position of disclosure, delay, duration and all those issues before I leave Rarotonga.
[31] If too much delay and unreasonable delay, a delay of which is roughly equivalent to a possible jail term appears to be inevitable, then at that point that will strengthen the four accused cases for bail. But at the present time the possibility of their heavy offending whilst following the police interview some 15 months ago is the militating factor which leads to the declining of all four applications for bail at this point.

_______________________
Hugh Williams, CJ