Peck v Police [2015] NZHC 23 (23 January 2015)

Last Updated: 19 February 2015

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2015-442-1 [2015] NZHC 23

SONNY WHERO STEVE PECK Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	22 January 2015 (via AVL)
Counsel:	C S Lawes and M J Vesty for Appellant E J Riddell for Respondent
Judgment:	23 January 2015

_{JUDGMENT OF BROWN J}

Background

[1] The appellant is charged with the following offences: (a) aggravated robbery;¹

(b) kidnapping (x3);²

_{(c) participates in an organised criminal group;}³

¹ _{Crimes Act 1961, s 235. Maximum penalty of 14 years’ imprisonment.}

² _{Section 209. Maximum penalty of 14 years’ imprisonment.}

³ _{Section 98A. Maximum penalty of 10 years’ imprisonment.}

PECK v NZ POLICE [2015] NZHC 23 [23 January 2015]

(d) aggravated robbery;⁴

(e) assault with intent to injure (x2);⁵

(f) injuring with intent to injure;⁶ and

(g) threatening to do grievous bodily harm.⁷

[2] The charges arise from an alleged home invasion by the appellant and three other persons on 6 October 2014. The summary of facts alleges that the appellant punched victim C several times in the face and that the appellant participated in a prolonged assault on victim A during which he punched victim A to the head on four to five occasions, forced him up against a wall, presented a knife to his throat and made threats to kill victim A.

Previous EM bail applications

[3] The appellant’s first application for EM bail came before Judge A A Zohrab on 11 November 2014. Because it is material to the argument advanced on behalf of the appellant, I note the observations of Judge Zohrab at [7] concerning the strength of the case against the appellant:

[7] The defendant is entitled, of course, to the presumption of innocence. Mr Lawes has taken issue with the tone of the EM bail assessor’s report, in particular comments such as statements which appear in a fairly sort of black and white way, that he was the person who carried out the assaults and threats on the night in question. Obviously, in terms of the assessment of the strength of the case, that is a factor to be taken into account and on the face of it, the case against the defendant is tolerably strong. Clearly there has been a serious incident, the issue is whether or not they can prove beyond reasonable doubt that it was this defendant applicant who was involved in it and, on the face of it, it is a tolerably strong case against the defendant.

⁴ _{Section 232(1)(a). Maximum penalty of 14 years’ imprisonment.}

⁵ _{Section 193. Maximum penalty of three years’ imprisonment.}

⁶ _{Section 189. Maximum penalty of 10 years’ imprisonment.}

⁷ Section 306. Maximum penalty of seven years’ imprisonment.

[4] However, given that the address that was then under consideration was technically suitable for EM bail, the Judge intimated that he would be minded to grant the application subject to confirmation that one of the residents, highlighted as an issue in the suitability report, was no longer living at the address.

[5] When the matter came before Judge Zohrab again on 25 November 2014, the Judge noted that there had been changes in circumstances including that one of the alleged victims of the offence was residing in Blenheim. The Judge declined the EM bail application but indicated that he would still be prepared to consider a further application to an address well out of the area or away from complainants such as in the North Island.

The judgment under appeal

[6] A further EM bail application in respect of an address at Tapawera was heard by Judge P R Grace on 22 December 2014. The Judge noted that s 12 of the Bail Act 2000 applied with the consequence that the appellant had the burden of satisfying the Judge on the balance of probabilities that he was not likely to commit an offence involving serious violence or a serious dishonesty offence.

[7] At the outset Judge Grace recognised that his perception of the matter was not on all fours with that of Judge Zohrab:

[4] Now the difficulty I have is that the Judge who dealt with you last time took the view that potentially you could satisfy the Court that you may be able to meet that criteria subject to a suitable address to which you could be bailed. I am not so sure that I would have adopted that approach because this was quite serious violence. It allegedly went on over a reasonably protracted period of time, and involved gang affiliations, and that is what is in the background to all of this.

[8] Judge Grace then proceeded to refer to the concerns expressed in the EM bail suitability report of 17 December 2014, the appellant’s contention that the location of the proposed address, being a 40 minute drive to Richmond, would provide sufficient protection from the appellant contacting any of the complainants and the fact that the Crown’s position had not changed from the opposition stance in November 2014. Noting that the primary thrust of the opposition was protection of the complainants

and the implications of s 12, Judge Grace declined the application essentially for the reasons at [12] and [13] of his decision:

[12] Now the factors here that concern me are these, Mr Peck. Firstly, there does appear to be an undisputed gang affiliation that you have here. You are a patched member of the Nomad gang. [That’s not true, eh, Your Honour] Never conceded. All right. Well, this has all the trappings of quite an organised group of people who carried out this offending. Now, I appreciate that there is some dispute raised by you as to you being present, but it would appear that, as Judge Zohrab said in his first minute of

11 November, there is a pretty strong case involving you.

[13] Now is that distance, and are those circumstances, going to protect the complainant, the possibility of you interfering with the witnesses and putting pressure on them to resile from their statements to the police? That is a fine balancing act. The people that you are proposing to stay with, I have to say, do raise some concern because they are not without involvement with the police for offending. You have your own involvement with the police for prior offending.

Grounds of appeal

[9] The notice of appeal dated 5 January 2015 specified four grounds of appeal:

(a) that the Judge was wrong to conclude that there was a “strong case” against the appellant without giving reasons or identifying evidence where the Judge had no prior involvement with the proceeding nor evidence available to him;

(b) that the Judge was wrong to conclude that the appellant had an undisputed gang affiliation and was wrong to weigh this as a factor against the granting of electronically monitored bail;

(c) that the Judge failed to consider the restrictive operation of electronically monitored bail vis-à-vis the risk of offending whilst on electronically monitored bail;

(d) that the Judge was wrong to conclude that the proposed electronic bail address was unsuitable on account of the fact that two of the appellant’s relations lived there.

[10] The written submissions for the appellant raised a further and preliminary point that the refusal by Judge Grace to grant bail was wrong in light of the determination already reached by Judge Zohrab on the substantive aspects of the matter.

Approach to appeal

[11] Section 44 of the Bail Act 2000 governs the right to appeal to the High Court against bail decisions made in the District Court. Section 44(6) states that such an appeal is by way of rehearing.

[12] In Dodd v R⁸ the Court of Appeal affirmed the principles stated in B v Police

(No 2):⁹

Prior to the enactment of the Bail Act, this Court described the principles to be applied when considering an appeal against the grant of bail in B v Police (No 2) in these terms:

“[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).”

Counsel accepted that these principles continue to apply under the Bail Act. We agree and note that the Supreme Court has accepted that decisions under the Bail Act involve the exercise of discretion [Wong v R [2009] NZSC 64].

Decision

The preliminary point

[13] Mr Lawes’ argument was founded on para [19] of Judge Zohrab’s decision of

11 November 2014 which I consider it is desirable to set out in full:

[19] So, what I would propose is that I would sign off on the grant of electronically monitored bail on the conditions in the EM bail assessor’s report subject to confirmation that Mr McLean is no longer living at the

⁸ _{Dodd v R [2011] NZCA 490.}

⁹ B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31 (CA).

address. And so that is the basis on which I would be prepared to grant EM bail, so obviously it cannot be done today and it would involve some discussion as to when that is done, so I am not sure what you want to do, Mr Lawes, or whether we adjourn it through to tomorrow or we do not necessarily need to call it by way of AVL link, but just to confirm. And I am not sure whether he has a tenancy agreement or what the formality of the arrangement is.

[14] In reliance on that paragraph the appellant contended that the grant of bail was only subject to the conditions in the EM bail report and to the departure of one individual from the nominated bail address in Blenheim.

[15] In essence, the appellant’s argument involved transporting that indication on the part of Judge Zohrab to the new application which subsequently came before Judge Grace. Accordingly, the appellant’s written submission stated:

In terms of that new application it is submitted that the appellant has already shown, and can continue to show, that the onus under s 12 is discharged and that it is otherwise appropriate for bail to be granted.

[16] The difficulty with the appellant faces is that in his decision of

25 November 2014, Judge Zohrab dismissed the EM bail application which was then before him. He directed that the appellant would remain in custody pending any further EM bail application. The EM bail application which subsequently came before Judge Grace was a new application and the Judge was required to address the s 12 issue afresh. Indeed in the course of argument, Mr Lawes fairly acknowledged that Judge Grace was not bound by any conclusions which Judge Zohrab had reached and that, as Mr Lawes put it, the “discretion was not lost to” Judge Grace.

[17] Consequently I do not accept the argument that Judge Grace’s refusal to grant bail was wrong in the light of what the appellant described as the determination already reached by Judge Zohrab on the substantive aspects of the matter.

Ground one – Judge Grace was wrong to conclude that there was a “strong case”

against the appellant

[18] This argument focused on Judge Grace’s reference in [12]¹⁰ to Judge Zohrab having supposedly opined that there was a “pretty strong case involving [the appellant]”. The appellant drew attention to and contrasted Judge Zohrab’s actual description at [7]¹¹ as being on the face of it “tolerably strong”.

[19] The appellant’s submission was that both the context and the words used by Judge Zohrab were very different to the characterisation given to them by Judge Grace, it being contended that it was wrong to equate Judge Zohrab’s conclusion with the view expressed by Judge Grace that there is a pretty strong case involving the appellant. The submission was that the mischaracterisation of the strength of the case against the appellant (and the failure to properly consider and identify any evidential support underpinning any strength to the case at all) when relied on so greatly (as one of only two primary reasons for declining bail) made the decision to refuse bail wrong.

[20] For the Crown Ms Riddell suggests that Judge Grace’s summary of the alleged offending at [4] implies that he had read the summary of facts. She also makes the point that the Judge’s comment in the final sentence of [12] was made in the context of recognising that there was some dispute raised by the appellant as to his presence at the alleged home invasion. The issue of the appellant’s involvement was the matter to which Judge Zohrab was alluding in the final sentence of [7]¹² and Ms Riddell argued that Judge Grace’s reference to Judge Zohrab’s assessment was in the context of that particular issue.

[21] Ms Riddell made the further point that it is always a difficult exercise to make assessments of the strength of the prosecution case at such an early stage and that it is common for judges to rely on the Summary of Facts to assess the strength of the evidence. She submits that the evidence itself and the Summary of Facts suggest

_{at least a reasonably strong Crown case.}

¹⁰ _{At [8] above.}

¹¹ At [3] above.

[22] I agree with Ms Riddell’s submission on this point. It is apparent that both Judge Zohrab and Judge Grace were weighing the factors in s 8(2)(a) and (b) which the Court may take into account in considering whether there is just cause for continued detention of a defendant. I do not consider that there was any error by Judge Grace within the Dodd categories in his assessment, having regard to the Summary of Facts, that there was a “strong case” against the appellant.

Ground two – gang affiliation

[23] The appellant argues that Judge Grace was wrong to consider and determine in absolute terms an allegation (namely gang affiliation) that is denied and not proven. Secondly, it is submitted that the Judge was wrong to place any weight on the allegation at all, without expressing a basis in evidence to support his conclusion.

[24] Ms Riddell responds that the Judge did not conclude there was an undisputed gang affiliation, drawing attention to the appellant’s intervention and the Judge’s acknowledgement recorded at [12].¹³

[25] I accept the submission that Judge Grace took heed of the appellant’s words during the course of delivery of the Judge’s decision. I also accept the respondent’s submission that there is strong evidence of gang affiliation as referred to in the Summary of Facts. I further note Ms Riddell’s submissions about the content of the formal statements, forming the basis of the Summary of Facts, referred to in her written submissions. In my view the Judge made no relevant error of the nature alleged in ground two.

Ground three – electronic bail and the risk of re-offending

[26] The appellant contends that the Judge did not explain why the combination of the distance from “civilisation” and electronic monitoring was not sufficient to address any risks that might exist. He argued that the nominated address is completely out of the locality and the constraints on the appellant’s movements imposed by electronic monitoring at the address more than adequately addressed any residual concerns that might exist.

[27] Ms Riddell’s submission, that Judge Grace’s primary concern was that the proposed bail address in Tapawera was only a 40 minute drive from where some of the main complainant’s family members live in Richmond, is supported by the Judge’s observations at [9]. It was common ground that the Judge’s understanding recorded at [10], that the main complainant was no longer living in the Richmond area, was in fact incorrect.

[28] I agree with the respondent’s submission that the proximity of the proposed EM bail address to Richmond was a matter which the Judge was entirely correct to be concerned about. The Judge made no error of the Dodd type.

Ground four – unsuitable occupants

[29] This ground of appeal was advanced in reliance on the Judge having noted at [5] the objection taken in the EM bail suitability report to the presence at the proposed address of children said to be vulnerable, fragile and dysfunctional. That said, the appellant recognised that the Judge did not place great weight on this factor and that on its own it would not have been sufficient to justify declining bail, it being described at [13] as a matter of “some concern”.

[30] In my view the Judge was entitled to have regard to this factor, albeit I accept that it was in no way determinative of the application.

Disposition

[31] For the reasons explained above, I do not consider that Judge Grace erred in any of the ways referred to in Dodd. The Judge was determining what he described at [13] as “a fine balancing act”. No basis is demonstrated for this Court reconsidering the exercise of the Judge’s discretion. Consequently, the appeal

_{against his decision is dismissed.}

Solicitors:

M J Vesty, Nelson

O’Donoghue Webber, Crown Solicitors, Nelson

Brown J