Goodall v Police - [2017] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-007 [2017] NZHC 92

IN THE MATTER
of an appeal against refusal to grant bail

pending sentence

BETWEEN

PHILLIP MARK GOODALL Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2017

Appearances:

K J Gray for Appellant
C J Bernhardt and B Hawes for the Respondent

Judgment:

8 February 2017

JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST REFUSAL OF BAIL PENDING SENTENCE)

This appeal

[1] The appellant has pleaded guilty to three charges, one of assault under the Summary Offences Act 1981,1 one of male assaults female under the Crimes Act 1961,2 and one of breaching a protection order.3 The charges resulted from an incident on Christmas Eve last year, when the appellant assaulted a former partner, in whose favour there is a protection order, and a male.

[2] On 4 January 2017, His Honour Judge Walsh remanded the appellant on bail without plea, after his application had initially been refused. Following the guilty plea, His Honour Judge O’Driscoll refused the appellant’s application for bail
pending sentence. The Judge’s main reason for refusing the application was that this

1      Summary Offences Act 1981, s 9; maximum penalty 6 months’ imprisonment or $4000 fine.
2      Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.
3      Domestic Violence Act 1995, s 49(3): maximum penalty 3 years’ imprisonment.

GOODALL v NZ POLICE [2017] NZHC 92 [8 February 2017]

is the appellant’s twelfth breach of a protection order and a sentence of imprisonment was highly likely.

[3] The appellant appeals against the refusal to grant bail pending sentence. For the reasons below, the appeal is dismissed.

Jurisdiction and principles on appeal

[4] The appellant has a right of appeal against the Judge’s refusal to grant bail,4 which proceeds by way of re-hearing.5 Where there has been no significant change in circumstances, the appeal is conducted on the basis of the record of the District Court.6

The approach on appeal is that articulated in B v Police (No 2),7 where the Court identified what is involved as essentially a challenge to the exercise of judicial discretion:8

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.)

[5] This approach has been affirmed by the Supreme Court in Wong v R.9

Law

[6] Where a defendant pleads guilty, the Court must not grant bail unless it is satisfied on the balance of probabilities that it…

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.

Continue reading Goodall v Police

Details

AGLC: Goodall v Police [2017] NZHC 92
Case: [2017] NZHC 92
Decision Date: 8 February 2017

CaseChat Overview and Summary

Phillip Mark Goodall has appealed against the refusal to grant him bail pending sentence. Goodall has pleaded guilty to three charges: assault under the Summary Offences Act 1981, male assaults female under the Crimes Act 1961, and breaching a protection order. The appeal concerns the refusal of bail by Judge O’Driscoll, who considered that a sentence of imprisonment was highly likely due to Goodall’s previous breaches of the protection order. The appellant argued that bail should be granted in the interests of justice, but the court dismissed the appeal.

The primary legal issue was whether the refusal of bail was contrary to principle, or whether the judge failed to consider all relevant matters or took into account irrelevant matters. The court found that the judge had considered all relevant factors and did not consider any irrelevant factors. The judge was justified in coming to the conclusions that he did, and therefore the appeal was dismissed.

Goodall’s argument was that bail should have been granted in the interests of justice. The court found that the appellant had not provided sufficient evidence to warrant bail being granted. The court found that Goodall’s personal circumstances were not exceptional, and that his past drug addiction was not supported by the fact that the present offending occurred while he was drug free. The court also found that the victim’s safety concerns were reasonable, given the repeated nature of the protection order breaches, and that it was likely that Goodall would offend again while on bail.

The court dismissed the appeal, finding that the judge did not err in the exercise of his discretion in refusing to grant bail. The judge considered all relevant factors and did not consider any irrelevant factors. The judge was justified in coming to the conclusions that he did.

Orders