Keefe v The Queen
[2004] NZCA 155
•22 July 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA162/04
CA187/04THE QUEEN
v
WHATA AUGUST KEEFE
RICHARD JAMES RYMERHearing:20 July 2004
Coram:McGrath J
Goddard J
Heath JAppearances: R G Glover for Appellants
M F Laracy for Crown
Judgment:22 July 2004
JUDGMENT OF THE COURT DELIVERED BY HEATH J
Introduction
[1] Mr Keefe and Mr Rymer each appeal against bail decisions made in the High Court at Christchurch. The appeals arise out of Operation Crusade, a Police operation undertaken in Christchurch targeting alleged offending by members and associates of the Christchurch chapter of the Mongrel Mob.
[2] While the appeals raise discrete issues they were argued together and it is convenient to deal with them in a single judgment.
Background
[3] There are 49 counts in the Indictment. Those counts allege criminal activity between July 2002 and September 2003. In total, 26 Mongrel Mob members or associates have been charged.
[4] Mr Keefe faces four charges: participation in an organised criminal group, conspiracy to sell a Class C controlled drug (cannabis), possession of a firearm for an unlawful purpose and possession of explosives for an unlawful purpose.
[5] Mr Rymer faces five charges. In addition to the four charges brought against Mr Keefe, the Crown alleges that Mr Rymer was in possession of a Class C controlled drug (cannabis) for the purpose of sale.
[6] The firearm alleged to be in the possession of each accused is a sawn-off single barrelled .22 calibre rifle. In each case the explosives consist of ammunition for firearms.
[7] The trial is due to take place in the High Court at Christchurch. It is scheduled to commence on 6 September 2004.
The appeals
(a) Mr Keefe
[8] Mr Keefe appeals against refusal of bail. Initially he was granted bail with one of the conditions of bail requiring him to be at an address between 10pm and 7am unless working night shift at the Lyttleton Port.
[9] On 25 March 2004, at 5.30am, Mr Keefe was located by the Police in a nightclub. He had in his possession, when found, a pipe used for smoking metamphetamine.
[10] When Mr Keefe was brought before the Court on 26 March 2004, Chisholm J revoked his bail. Bail was reconsidered by Panckhurst J on 2 April 2004. Bail was refused.
(b) Mr Rymer
[11] Mr Rymer was originally granted bail. His terms of bail required him to be at a specified address in Rangiora between 10pm and 10am.
[12] On 26 April 2004, Mr Rymer applied for an order varying the terms of bail to delete the curfew condition. That application came before Panckhurst J on 7 May 2004. His application was successful to a limited extent. While Panckhurst J was not prepared to revoke the term he did vary the hours of curfew. The amended curfew condition required Mr Rymer to be present at the nominated address from 11.30pm to 5am. An appeal was lodged against that decision.
[13] Subsequently (in June 2004) Mr Rymer breached conditions of bail. He was brought before the High Court on 18 June 2004. Again, he came before Panckhurst J. The Judge noted that this was the third occasion on which there had been problems with bail. In para [4] of that judgment he said:
In August [2003] he was not at home when a check was made and therefore he was in breach of a curfew condition. In October [2003] he was arrested for some other breach which Mr Rymer has told me was inadvertent failure to comply with a non-association clause.
[14] Nevertheless, the Judge decided to readmit Mr Rymer to bail. In granting bail, the Judge varied the condition as to residence and maintained the amended curfew terms.
[15] The appeal before us is against the Judge’s decision not to revoke the term of bail imposing a curfew.
General principles
[16] The Bail Act 2000 (the Act) codifies much of the law relating to bail. Part 1 of the Act contains provisions of general application.
[17] In general terms, a person charged with an offence, but who 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”: s7(5) of the Act. That provision gives added effect to s24(b) of the New Zealand Bill of Rights Act 1990:
24 Rights of persons charged
Everyone who is charged with an offence—
…
(b)Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
….
[18] In determining whether there is “just cause for continued detention” or on what “reasonable terms and conditions” an alleged offender ought to be released on bail, there are three mandatory considerations to take into account. Those three considerations involve assessment of risk of flight, risk of interference with witnesses or other evidence and risk of reoffending: see s8(1). Further discretionary factors are set out in s8(2). Particular factors relevant to specific offences are also stated: eg s8(4).
[19] Thus, the first inquiry is whether the Court is satisfied of the need for continued detention. If it is not so satisfied, the Court must determine the “reasonable terms and conditions” on which an alleged offender ought to be released on bail.
[20] In determining what terms of bail are “reasonable” the Court must balance the likely restrictions on an alleged offender’s liberty (on the one hand) against the interests of the community in ensuring that alleged offenders do not flee, interfere with evidence or re-offend while awaiting trial (on the other). Viewed in that way “reasonable terms and conditions” of bail can be seen as part of a process of managing the risks of flight, interference with evidence and re-offending. Terms of bail should reflect the least restrictive outcome possible consistent with the community’s expectation that adherence to bail terms will be properly monitored.
[21] Although the law on bail has largely been codified, the position with regard to appeals under the Act remains as it was previously. Generally, see, R v Payne [Burrett’s Case] [2003] 3 NZLR 638 (CA) applying the pre Act decision in B v Police (No. 2) [2000] 1 NZLR 31 (CA). See, in particular, Burrett’s Case at para [6].
[22] Burrett’s Case confirmed that a challenge on appeal to a bail decision is characterised as an appeal against the exercise of a discretion. Thus, an appellant must demonstrate that the Judge
a)made an error of principle, or
b)failed to take into account all relevant matters, or
c)took into account irrelevant matters, or
d)was plainly wrong.
See also R v Ben-Abu (CA209/03, 5 August 2003), para [8].
Differences between Mr Keefe and Mr Rymer
[23] Mr Rymer
Keefeis a person to whom s7(5) of the Act applies. Thus, in determining whether bail ought to be granted it is necessary to consider whether the Crown has proved just cause for continued detention.[24] On the other hand, it is agreed that Mr Keefe
Rymeris a person to whom s12 of the Act applies. Section 12 is one of a number of exceptions to the general proposition that the Crown must prove just cause for continued detention: see also ss10 and 13. On an originating application for bail by a person to whom s12 of the Act applies, it is necessary for the alleged offender to satisfy the Judge that bail ought to be granted. Thus, the onus is reversed: see s12(4),(5) and (7) of the Act. The approach to be adopted to cases to which s12 applies was summarised in G v Police [2003] 3 NZLR 244 at 247-248, paras [14]-[19].Mr Keefe’s appeal
[25] Mr Keefe complains that Panckhurst J ought to have readmitted him to bail on 2 April 2004. The appeal is brought under s66(1)(a) of the Act which provides:
66 Appeal from decision of High Court relating to bail
(1) Subject to subsection (4), this section applies to any decision made (whether under any enactment or rule of law or otherwise) by a High Court Judge to—
(a) grant or refuse bail to a defendant; or
….
[26] As Mr Keefe was brought before the Court for breach of bail under s58 of the Act the Judge was required to reconsider the question of bail: s58(3) of the Act. Any person arrested under s59
8is, after that arrest, “bailable only at the discretion of the Judge”: s598(4). An entirely fresh decision as to bail is made.[27] Mr Keefe was found in a nightclub at 5.30am on 25 March 2004. His excuse was that he went there “to participate in a birthday celebration”. That breach was quite properly regarded, both by Chisholm J (before whom Mr Keefe was brought on 26 March 2004) and Panckhurst J as “blatant in nature”.
[28] Further, that was not the only problem that Mr Keefe had had while on bail. In December 2003 he was arrested on charges of assault and threatening to kill, but his then partner, the complainant, declined to give evidence in support of the charges
dand they were withdrawn.[29] On appeal, Mr Glover, has sought to demonstrate that the Judge erred in refusing to admit Mr Keefe to bail. That task was a difficult one given that the decision was discretionary in nature and the Judge cannot be shown to have considered irrelevant factors or failed to take account of relevant factors.
[30] In our view, there was no error in principle. Further, it cannot be said that the Judge was plainly wrong. The Judge was entitled to form a judgment that bail ought properly to be refused because of an unacceptable risk of further offending stemming from the following considerations:
a)The problems arising from the earlier incident in December 2003 involving Mr Keefe’s partner.
b)The “nightclub” issue.
c)The finding of a “blatant breach” of terms of bail.
d)Mr Keefe’s criminal history, including examples of offending while on bail, and
e)The imminence of trial.
[31] In this case the Judge was entitled to regard Mr Keefe’s past behaviour as the best predictor of his likely future behaviour. We are not prepared to disturb the Judge’s discretionary decision.
Mr Rymer’s appeal
[32] Jurisdiction to appeal against a Judge’s refusal to vary terms of bail can be found in s66(1)(b)-(d) of the Act. That provisions states:
66 Appeal from decision of High Court relating to bail
(1) Subject to subsection (4), this section applies to any decision made (whether under any enactment or rule of law or otherwise) by a High Court Judge to—
…
(b) impose or substitute or revoke or vary any condition of bail; or
(c) refuse to impose any condition of bail or any particular condition of bail; or
(d) refuse to vary or revoke any condition of bail.
[33] Originally, bail was granted to Mr Rymer on terms. Those terms included residential and curfew conditions. The residential condition required him to be at his residence between 10pm and 10am each day.
[34] Mr Rymer did not appeal against those original terms of bail but, instead, applied to vary the conditions of bail under s57 of the Act. Section 57(1) of the Act provides:
57 Variation of conditions of bail
(1) Subject to subsection (3), if a defendant is granted bail by the High Court, a High Court Judge may, on the application of the prosecutor or the defendant, make an order varying or revoking any condition of bail or substituting or imposing any other condition of bail.
[35] That application was made on 26 April 2004 and came before the High Court on 7 May 2004. Mr Glover’s primary point is that the Judge fettered his discretion by adopting uncritically a Crown submission that curfew conditions ought to be imposed on all accused. In that way, Mr Glover argues that the Judge failed to consider Mr Rymer’s decision on its individual merits.
[36] We reject that submission. The fact that the Judge considered Mr Rymer’s position individually is apparent from his note on the application relaxing the curfew condition and requiring him to be present at his residence between 11.30pm and 11am each day. As the decision was made in the midst of a complex case management conference, no reasons for judgment were given. Neither were any sought.
[37] Alternatively, having regard to the nature of the Crown case, including an allegation that Mr Rymer participated in an organised criminal group (s98A Crimes Act 1961) it would have been permissible for the Judge to have considered bail issues in the context of the alleged group involvement.
[38] There were further developments after the lodgment of an appeal against Panckhurst J’s refusal to revoke the curfew as a condition of bail.
[39] Mr Rymer was arrested for breach of bail and brought before the Court on 18 June 2004. In our view, Mr Rymer can think himself fortunate to have been readmitted to bail at that time with only an alteration to the residence condition, requiring him to live in Christchurch. Panckhurst J said, in para [8] of the decision:
The curfew is not going to be varied. Indeed, if anything, there is less need now for the generous curfew. That is because you are no longer residing at Rangiora.
[40] No appeal was brought against Panckhurst J’s judgment of 18 June 2004. Because that decision effectively superseded his decision of 7 May 2004, we accept Ms Laracy’s submission that s67(2) of the Act operated to deem the appeal against the decision of 7 May 2004 to have been dismissed for non-prosecution. Section 67(2) provides:
67 Procedural provisions relating to appeal under section 66
…
(2) An appeal under section 66 that is not heard before the date on which the decision appealed against ceases to have any effect lapses on that date, and is deemed to have been dismissed by the Court of Appeal for non-prosecution.
[41] It follows, therefore, that there is no jurisdiction to entertain the appeal from Panckhurst J’s decision of 7 May 2004. Although, strictly, there is no extant appeal against the decision of 18 June 2004, having heard submissions we indicate that we would have dismissed any appeal from that decision on the grounds that it was well within the Judge’s discretion to vary the residence condition and to maintain the amended curfew provision.
Result
[42] For the reasons we have given, both appeals are dismissed.
Solicitors:
Crown Law Office, Wellington
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