Bullen v Police - [2016] NZHC 1200

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1200
Decision Date: 7 June 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Blenheim Registry, the case of Bullen v Police was heard by Clark J on 3 June 2016. The appellant, Dennis Edward Bullen, appealed against his conviction in the Blenheim District Court where he was found guilty of possession of an offensive weapon and resisting arrest. The appellant's counsel argued that the District Court Judge was led into error by a presumption that the Police evidence was to be relied upon in all respects and that there was nothing in the circumstances of the case or the defendant's history to justify a remand in custody. The respondent argued that the appellant's behaviour in the Police vehicle, although not charged, formed part of the factual matrix for which the Judge could have regard in forming a view on sentencing options.

Clark J held that the refusal to grant bail was in error in three respects. Firstly, the appellant 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). Secondly, 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. Lastly, that a sentence of imprisonment is unlikely must count against the defendant being remanded in custody.

The appeal was allowed and the decision of the District Court was quashed. The appellant was to be released on bail on terms and conditions to be determined by the District Court.

Orders