Bullen v Police
[2016] NZHC 1200
•7 June 2016
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2016-406-5 [2016] NZHC 1200
BETWEEN DENNIS EDWARD BULLEN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 June 2016 Counsel:
R M Gould for Appellant
S J Revell for RespondentJudgment:
7 June 2016
JUDGMENT OF CLARK J
Introduction
[1] Following a defended hearing in the Blenheim District Court on 2 June 2016
Mr Bullen was found guilty on one charge of possession of an offensive weapon1 and resisting arrest.2 Immediately after delivering his decision the Judge made an order that Mr Bullen be remanded in custody to Tuesday 7 June for a stand down report and sentence “with a view to imprisonment”. The Judge declined to hear
counsel for Mr Bullen (Ms Gould) on bail.
[2] An appeal was immediately lodged. Following an urgent hearing on 3 June
2016 I allowed the appeal with reasons to follow. These are my reasons.
Factual background
[3] Two Police officers were assisting Marlborough District Council Inspectors
on Mr Bullen’s property on the morning of 4 February 2016. Mr Bullen advanced
1 Crimes Act 1961, s 202A(4)(b): maximum penalty three years imprisonment.
2 Summary Offences Act 1981 s 23(a): maximum penalty three months imprisonment.
BULLEN v NEW ZEALAND POLICE [2016] NZHC 1200 [7 June 2016]
towards the officers with a raised wooden mallet. The police officers believed they were about to be assaulted. They reacted by arresting and eventually handcuffing a violently resisting Mr Bullen. He continued to be verbally abusive in the patrol car and spat blood inside the car saying he had Hepatitis C.
The appeal
[4] Two grounds are specified in the notice of appeal:
(a) the Judge was led into error by a presumption that the Police evidence was to be relied upon in all respects; and
(b) there was nothing in the circumstances of the case or the defendant’s
history to justify a remand in custody.
[5] Ms Gould further submitted that comments made by the Judge suggested he was influenced to a considerable extent by alleged behaviour subsequent to the offences for which he was charged. Ms Gould is referring to the incident described in the summary of facts in this way:
He also continued to be verbally abusive and while being transported back in the patrol car spat blood inside the car and said that he hoped that it got one of the officers as he had Hepatitis C. He remained aggressive and threatening throughout the remaining processes.
[6] Ms Gould makes the point that there were no charges relating to this aspect of the incident.
[7] A further ground of challenge was the Judge’s comment that a deterrent sentence was called for indicating, according to Ms Gould, that this was the reason for being remanded in custody. Ms Gould submits that deterrence is only one factor to be considered at sentencing and that it was premature to give such an indication.
Respondent’s submissions
[8] Although the respondent was only made aware of a possible appeal around
3.00pm on 2 June and was requested by the Court to file submissions by 7.00am on
Friday 3 June 2016 and notwithstanding the paucity of available information
Mr Revell was able to file helpful submissions.
[9] Mr Revell correctly identified s 13 of the Bail Act 2000 as applying because
Mr Bullen has been found guilty and is awaiting sentence.
[10] Mr Revell submitted that while the behaviour of the defendant in the Police vehicle was not the subject of a charge it formed part of the factual matrix for which the Judge could have regard in forming a view on sentencing options.
[11] Regarding the lack of a written bail decision Mr Revell submitted it would be logical and practical to consider the appeal at a later time. Recognising that Mr Revell is due to be sentenced on Tuesday 7 June following the long weekend he said Mr Bullen’s custody could be taken into account at sentencing or as a mitigating factor which might tip the balance in favour of a non-custodial sentence.
District Court Judge’s decision: an appealable decision?
[12] The first issue for determination is whether, given the apparent refusal to hear counsel on bail, there is an appealable decision. The question is relevant to the nature of the jurisdiction this Court is being asked to exercise. Two particular decisions bear on this issue.
[13] In Apuwai v Police it was submitted on behalf of the Police that in the absence of an application for bail there can be no right of appeal. Dobson J decided that a right of appeal did arise because in terms of s 41 of the Bail Act a right of appeal arises where the District Court refuses to grant bail and that is what happened in the case before him.3
[14] In Lum v Police Asher J disagreed with the view expressed in Apuwai that remanding a defendant in custody is a refusal of bail.4
3 Apuwai v Police HC Dunedin CRI-2009-412-1, 11 March 2009 at [3].
4 Lum v Police [2014] NZHC 1338 at [20]. Section 41 of course applies to appeals from decisions of Justices and Community Magistrates whereas Dobson J had before him an appeal from a decision of a District Court Judge to which s 44 applies. The reference to s 41 appears to be a typographical error.
In the absence of a consideration of the issue of bail, there is no refusal of bail.
[15] From my consideration of these two decisions each is explicable and each is correct when understood in light of its particular facts. They do not create uncertainty about the applicable principles.
Apuwai v Police
[16] Mr Apuwai pleaded guilty to charges for which he was to be imprisoned. Without any application for bail being made the District Court Judge simply recorded on entering the pleas that “in light of the sentence of imprisonment being imposed on these matters, you will be remanded in custody.” Dobson J found the Judge had implicitly proceeded on the basis of the statutory considerations in s 13 governing bail on entry of convictions. Dobson J then assessed the appeal against
that decision of the District Court Judge.5
Lum v Police
[17] The defendant had been arrested and charged. He was remanded in custody. Because his counsel took the view that there were valid grounds for opposing bail no application was made at the time. A few days later an application for bail was filed but when the matter was called and a plea of not guilty was entered spectators disrupted proceedings and the Judge was obliged to temporarily withdraw. Counsel decided to withdraw the bail application and pursue it in the High Court. There was a later appearance but bail was not raised or dealt with. The Judge had noted the file: “no bail application made”. Asher J declined to deal with the application before him as an appeal because the District Court Judge had neither turned his mind to nor
determined bail.6 Next, Asher J considered the inherent jurisdiction of the
High Court to consider bail applications made to it. He decided:7
…when a case is proceeding in the District Court and will be heard there, a defendant should not be able to arbitrarily decide in which court an application for bail should be advanced. The role of this Court in relation to
5 Bail Act 2000, s 13.
6 Lum v Police, above n 4 at [19].
7 At [26].
those sorts of cases is in an appellate role, and it will be rare for it to consider an application.
[18] The obvious difference between Apuwai and Lum is that in Apuwai Dobson J found an inarguable refusal to grant bail whereas in Lum the application for bail had been withdrawn from the District Court. No bail decision having been made, no appeal rights arose.
[19] The question is whether there has been in substance a decision as to bail. Turning to Mr Bullen’s circumstances I have concluded that what transpired in the District Court was an effective refusal to grant bail. When the Judge remanded Mr Bullen in custody Ms Gould stood and asked to be heard on bail. The Judge declined. Ms Gould then asked the Judge, through the Registry, whether she could be heard at 2:15pm and was again declined. Nevertheless Ms Gould appeared at
2:15pm and sought clarification from the Judge who confirmed Mr Bullen was remanded in custody for a stand down report. Even if he did not expressly refuse bail the Judge must have turned his mind to Ms Gould’s requests and, at the very least, he indicated an unwillingness to grant bail.8 Accordingly there has been a refusal and s 44 applies.
Principles applicable to appeal under Bail Act 2000
[20] Appeals under s 44 of the Bail Act 2000 are appeals against the exercise of the Judge’s discretion9 and are to be conducted by way of rehearing.10 The principles are settled. The appellant must establish that the Judge considered irrelevant matters or did not consider relevant matters, or that the decision was contrary to principle or was plainly wrong.11
Decision
[21] Applying these principles I have determined that the decision to refuse bail was in error.
8 Likewise see Lum v Police, above n 4, at [18].
9 Wong v R [2009] NZSC 64.
10 Bail Act 2000, s 44(6).
11 Dodd v R [2011] NZCA 490 at [27]; and Hereroa v R [2011] NZCA 491 at [19].
[22] Although s 13 of the Act places the onus on Mr Bullen to show cause why bail should be granted it also imposes obligations on the Court. Bail must not be granted unless the Court is satisfied, on the balance of probabilities, that it would be in the interests of justice to do so. Accordingly the Court must consider the circumstances bearing on the interests of justice.
[23] The matters in s 13(3) will be relevant to a consideration of whether bail is in the interests of justice as may some of the factors in s 8.12 Whether the defendant is likely to receive a sentence of imprisonment is a relevant consideration. The Judge appears to have turned his mind only to this factor. The record of hearing bears the following notation:
…for stand down PAC with a view to imprisonment.
[24] Given Mr Bullen’s extensive criminal history one can have some sympathy for the view taken by the Judge that imprisonment was to be expected. But the authorities do not support the likelihood of that outcome on these charges. Extensive though Mr Bullen’s history is it does not indicate imprisonment on these charges is a
“real or substantial possibility”.13
[25] Mr Revell responsibly advised that the Police would not have sought remand in custody and indicated that the sentence to be sought will depend on the range of options available.
[26] I conclude that the refusal to grant bail was in error in three respects:
(a) Mr Bullen was given no opportunity to be heard and no opportunity to attempt to discharge the onus on him to show why bail should be granted. Matters relevant to that onus (his medical conditions and health for example) were therefore not considered by the Judge
contrary to the legislative expectation in s 13(1).
12 R v Leone [2009] NZCA 325, (2009) 24 CRNZ 231 at [6].
13 This is the manner in which Judges are to approach the question of likelihood of imprisonment:
R v Leone [2009] NZCA 325 at [7].
(b)To the extent that the Judge turned his mind to the likelihood of imprisonment and based his decision on that consideration alone it is not supported by sentencing decisions for these charges.
(c) That a sentence of imprisonment is unlikely must count against the defendant being remanded in custody.14
Result
[27] The appeal is allowed.
Karen Clark J
Solicitors:
R M Gould, Blenheim for Appellant
Crown Solicitor, Nelson for Respondent
14 Bail Act 2000, s 13(4).