M v Police HC Christchurch CRI 2008-409-10
[2008] NZHC 10
•22 January 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008-409-000010
M
Appellant
v
POLICE
Respondent
Hearing: 22 January 2008
Counsel: M Zintl for Appellant
Z R Johnston for Police
Judgment: 22 January 2008
JUDGMENT OF FOGARTY J
[1] This is an appeal against a refusal of bail made in the District Court on
11 January last. The appellant is one of three people jointly charged with two burglaries. He is also charged with receiving some stolen goods allegedly taken from burglaries. He has pleaded guilty to two serious driving charges, one of reckless driving and the other of failing to stop for red and blue flashing lights.
[2] The defended hearing was set down for 11 January and prior to that date he was on bail but he had not adhered to all the conditions of bail. He had, however, presented himself for Court on the day. It was not his fault that the defended hearing
did not proceed.
M V POLICE HC CHCH CRI 2008-409-000010 22 January 2008
[3] The District Court Judge was of the view that there was a strong police case on the burglary charges and that upon conviction a lengthy term of imprisonment would be inevitable. This was because of a combination of that offending and his previous criminal history. The Judge reached that view after summarising the police case.
[4] The point taken on appeal is that the Judge was factually incorrect in his statements as to the police case which recorded that Mr M was placed by a witness in one of the two houses that were burgled. Mr Zintl said that there is no direct evidence that he was identified as being in the premises of either Roydvale Avenue or Greers Road. In the case of Greers Road, although the dog handler saw three males running through the house, one of those persons got away and essentially, as I understand, Mr Zintl is arguing that Mr M , who was picked up around the corner in Saffron Street where the car had been parked, was not one of those three males.
[5] Ms Johnston correctly argued that for this Court to reverse a decision of the District Court on the exercise of discretion under the Bail Act 2000 it needs to be shown that there was an error of fact which is significant or an error of principle.
[6] Neither counsel argued that there was an error of principle in the reasoning of the Judge. So it comes down to whether or not there was any significant factual error.
[7] Ms Johnston agreed that there was factual error in the Judge’s summation of the police case but that that error was not material because, nonetheless, with the error corrected the police case is strong.
[8] Essentially, the argument is that there is a strong case that Mr M was at the very least performing the role of the driver of the getaway vehicle and as such would be sentenced as a principal, that the argument that he was merely an accessory after the fact does not fit the detail of the police case.
[9] When he was apprehended he was found in the vehicle with keys removed from the premises of Roydvale Avenue and a laptop and a camera from Greers Road. That, combined with the clear evidence of a burglary at about the same time of these two other houses, satisfies me that there is a strong case against Mr M . It was agreed that if he is convicted of burglary that he will get a relatively long sentence, be it of imprisonment or of home detention. I am satisfied that the factual error in the judgment under appeal is not material and that the judgment as a whole stands nonetheless. This is not a case where there is a serious risk that the period of incarceration on remand will be disproportionate to the likelihood of conviction and the length of sentence upon conviction. I also keep in mind that the trial itself is coming up shortly in April.
[10] For these reasons this appeal is dismissed.
Solicitors:
B Pelham, Christchurch, for Appellant (Counsel: M Zintl) Raymond Donnelly & Co, Christchurch, for Crown
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