R v Payne CA453/02 [2003] NZCA 377 (12 February 2003)

Last Updated: 1 January 2019

EXCEPT FOR THE FACT THAT THE APPEALS AGAINST THE REFUSALS OF BAIL HAVE BEEN DISMISSED, NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA453/02 CA14/03

THE QUEEN

V

MATTHEW NORMAN PAYNE
JOHN ARTHUR BURRETT

Hearing:	3 February 2003
Coram:	Keith J Tipping J Glazebrook J
Appearances:	N J Sainsbury and M W Snape for Appellant Payne J A Burrett Appellant in person K G Stone for the Crown
Judgment:	12 February 2003

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] Mr Burrett and Mr Payne are charged with conspiracies to kidnap to confine and for ransom, attempts to kidnap and related firearm offences. With a co-accused, they have been committed for trial in the High Court, with the trial scheduled for late April 2003. At depositions both accepted that they had cases to answer.
[2] Since they were arrested on 22 July 2002, they have been remanded in custody. Each has applied unsuccessfully for bail and had appeals dismissed in respect of those refusals. These appeals are against the refusals of further applications for bail by Hammond J on 12 December 2002.
[3] We should first deal with the question whether the inherent jurisdiction of the High Court to grant bail has been removed by s41(5) of the Bail Act 2000. This matter was not raised by counsel in the High Court, but Hammond J in considering, over night, the applications before him did address it. Given that he refused the applications on their merits, he did not have to resolve the matter. Mr Stone for the Crown, in the hearing before us, accepted that the High Court’s inherent jurisdiction remained and that this appeal was properly before us under s66 of the Bail Act. It follows that we have not had to consider the matter fully. We can say however that we agree with the decision of a full High Court in R v Lee [2001] 3 NZLR 858 in which it concluded that the High Court does have jurisdiction in cases such as this.
[4] Hammond J, having raised, but not resolved, the question whether he had jurisdiction and noting that the applicants had earlier been refused bail and that bail courts have been prepared to accept further applications, indicated a test of a relevant change of circumstances.

The only things that have changed since the [earlier] consideration are that the applicants have been committed for trial, a trial date has been set, and there has been some skirmishing over interlocutory or preliminary matters in advance of a trial. On this view these applications are simply an attempt to end-run the careful consideration already given to the bail issue in the first two hearings, without there having been a relevant change of circumstances. I have to say that is the view to which I incline.

[5] But in case he should be in error on that approach and in fairness to the applicants he looked to the merits afresh. The Crown had to demonstrate just cause for detention by reference to matters listed, non-exhaustively, in s8 of the Act. The applicants focussed on three matters – flight risk, essentially the ground on which bail was previously refused; the strength of the Crown case; and distinct prejudice to the applicants in attending to their defences. On the second, the Judge said that it certainly could not be said that the Crown case was entirely without merit. On the first, there was a proper base from which the inference of risk of flight could be drawn. On the third, the Judge considered that the preparation of the defences did not require intervention by the grant of bail. Other relevant matters were the position of the alleged victims, particularly as Mr Burrett had chosen to correspond with them, and Mr Burrett’s contact with the media. Having regard to all these factors, the Judge refused bail.
[6] Mr Sainsbury, for Mr Payne, proceeded on the basis of what this Court said in B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31:

[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. (Where there has been such a change in circumstances the better course is for a further application to be made to the lower Court, rather than the pursuit of an appeal.)

He accepted that this approach was not affected by enactment of the Bail Act.

[7] Mr Sainsbury and Mr Burrett, who presented his own appeal ably and comprehensively, contended that the Judge had erred in each of the three areas emphasised. He had also failed to address bail conditions which could meet the concerns about flight and the alleged victims – although as Mr Sainsbury recognised, conditions were not the subject of discussion at the High Court hearing.
[8] We begin with the principles stated in s7(5) of the Bail Act:

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.

[9] Section 24(b) of the New Zealand Bill of Rights Act 1990 is to the same effect:

Everyone who is charged with an offence

...

(b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention.

[10] It is convenient first to deal with the points about the correspondence with the alleged victims and the press. Mr Burrett said to us that he would not take that action again. The Crown did not produce the letters to the alleged victims and to the press. And for the future the matter could, in any event, be dealt with by bail conditions. We give these matters no weight.
[11] We do, however, give major weight to the real strength, so far as it can be assessed at this stage, of the Crown case. Mr Burrett emphasised the requirement in s20(2) of the Bail Act that the assessment of the strength of the case under s8(2)(b) be made by reference to admissible evidence only. Mr Burrett has challenged the admissibility of certain of the Crown’s proposed evidence. That challenge has yet to be decided. As we understand the position, however, the bulk of the evidence is accepted by Mr Burrett and Mr Payne. It is the interpretation of that evidence which is challenged. The depositions now provide sworn evidence in support of the Crown case. We do of course recognise that some of the evidence, for instance about what the third co-accused allegedly said, may well not be admissible against the present appellants and other evidence may be ruled out in the pending challenge. Those matters are of no real consequence in the present appeals. To the extent appropriate at this stage, we have assessed the strength of the Crown’s case. In fairness to the accused and the overall process we should not spell out our reasons on that matter. We can say that the alleged offending is very serious and the Crown case does severely implicate the appellants, as Hammond J said. The appellants, or at least Mr Burrett, contend that it was all a sophisticated game. That will be a matter for the jury.
[12] At one point in his reasons Hammond J stated that:

It certainly cannot be said now that the Crown case is entirely without merit, to which view Mr Burrett attempted to persuade me.

Our view, at this stage in the proceeding, is that the Crown case is to be put more highly than that. It strongly implicates the appellants in serious alleged offending.

[13] That assessment of the strength of the case, a matter which may be considered under s8(2), is relevant as well to the assessment of the risk of flight, a matter which must be considered under s8(1). It is a commonplace that the greater the likelihood of conviction and of lengthy imprisonment the greater the risk of flight, a risk that may increase as the time of the trial approaches. There is force in the submissions made by the appellants that their circumstances may be seen as reducing that risk. Mr Burrett, a practising lawyer in his 50s, stresses that he wishes to face the charges and have them rejected. Mr Payne, a young man, like Mr Burrett with no criminal record, wishes to complete his commercial pilot qualification. Flight would destroy their careers. Both, they say, are prisoners of geography. They have no practical means of escape.
[14] But flight is possible. The appellants face very serious prospects in these trials. We have not been persuaded that the Judge erred in his determination based on risk of flight. Given the strength of the case, this risk weights heavily with us, and we do not see this ground of appeal as succeeding.
[15] That leaves the matter of prejudice to the preparation of their defences, a matter emphasised by s24(d) of the Bill of Rights:

Everyone who is charged with an offence

...

(d) Shall have the right to adequate time and facilities to prepare a defence.

[16] Mr Burrett, who is not represented by counsel, in particular claims that he is severely handicapped in the preparation of his case. He gives as an example the lack of legal texts and other sources relevant to the preparation of his forthcoming interlocutory hearings. He has already suffered delays in receiving copies of leading cases for which he could provide the references. There is very extensive evidentiary material which the defence is now, following the depositions, aware of. It includes lengthy audio tapes which require analysis. The indications are, he suggests, that the prison authorities are not in a practical situation to facilitate his preparation. On this matter, Hammond J did note that the two appellants had available to them, at the time of the applications before them, a court room to listen to certain audio tapes.
[17] This matter does concern us. It has not yet however taken a concrete form. There have not been, at least on the record before us, particular refusals which can be shown to create prejudice. The right under the Bill of Rights set out above is an essential one – essential to the rights of those charged and a fair system of justice overall. If proper arrangements cannot be made to satisfy those rights, a further bail application based on concrete circumstances and subject to proper safeguards might well have a better prospect of success. But that ground has not yet been made out.
[18] It follows that the appeals fail.
[19] During the hearing, we ruled that the matters stated in the course of the hearing were not to be published. We affirm that order and further order that there be no publication of this judgment until after the jury verdict, save for the fact that the appeals against the refusals of bail have been dismissed.

Solicitors
Richardson Chapman, Upper Hutt for Appellant Payne
Crown Law Office, Wellington