Moeahu v Police HC Wellington CRI 2010-485-117

[2010] NZHC 1960

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-117

ZANE TEHIMA MOEAHU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 October 2010

Counsel:         M Bott for Appellant

K E Salmond for Respondent

Judgment:      29 October 2010

JUDGMENT OF SIMON FRANCE J

[1]      Mr Moeahu appeals the refusal to give him bail.  It is alleged he took part in the attempted theft of steel from an enclosed yard.  The goods were valued at around

$1,500.  The theft failed because the vehicle became incapacitated due to the weight of the steel.

[2]      At the time of the alleged offending Mr Moeahu was on bail for another alleged burglary a month earlier.  That factor appeared to mean that s 12 of the Bail Act 2000 applied.  This is the provision that shifts the onus to an accused.  However, before  the  District  Court,  and  again  on  appeal,  Mr Moeahu  challenges  the

applicability of s 12.

ZANE TEHIMA MOEAHU V NEW ZEALAND POLICE HC WN CRI 2010-485-117  29 October 2010

[3]      Section 12(1), as relevant, provides:

12       Further restriction on bail in certain cases

(1)      This section applies to a defendant if—

(a)      the defendant is of or over the age of 17 years and—

(i)       is charged with an offence under the Crimes Act

1961 that carries a maximum sentence of 3 or more years' imprisonment; and

(ii)      at the time of the alleged commission of the offence was remanded at large or on bail awaiting trial for another offence under the Crimes Act 1961 that carries  a  maximum sentence  of  3  or  more  years' imprisonment; (emphasis added) and

(iii)      has at any time previously received a [sentence of imprisonment (within the meaning of that term in section 4(1) of the Sentencing Act 2002)]; or

[4]      The aspect in question is s 12(1)(a)(ii), with the requirement that an accused be “awaiting trial”.  Mr Bott submits that this means the charge must have been laid indictably.

[5]      In support it is observed that trial is usually used to describe an indictable process.  The contrast is with “hearing” which is the common label for the summary process of determining charges.   There is no doubt that these terms are indeed commonly used in this way.  Support for this being a common usage can be found in the  Summary  Proceedings  Act 1957  which  consistently  refers  to  the  summary process as culminating in a “hearing”; conversely, it refers to the outcome of the former depositions procedure as being “committal for trial”.

[6]      In terms of taking support from the text of the Bail Act, Mr Bott refers to s 8(2)(f) which lists as a relevant bail consideration:

the likely length of time before the matter comes to hearing or trial.

It is submitted this is an example of the Act drawing this very distinction, and gives weight to the proposition that the word trial in s 12(1)(a)(ii) should be interpreted narrowly.

[7]      Finally, Mr Bott draws on the context of s 12 which is a provision dealing with liberty.   Section 12 reverses the onus and so represents an inroad into the presumption of innocence.  The word “trial” can be read narrowly so as to minimise its scope, and consistent with these principles should be.

[8]      The  Crown’s  submissions  are  reflected  in  the  following  discussion  and decision.  The starting point must be that there is no good reason, in terms of the purposes of the provision, why trial should be read this way.   The process under which the charge will be heard some months later can have no logical bearing on whether bail should be granted, or who should bear the onus.

[9]      It is often thought that the indictable process reflects the fact that the events in issue are serious.   However, in my view this is really illusory.   Many serious matters are tried by a Judge sitting alone, and comparatively minor matters may be the subject of election and jury trial.  Limiting s 12 to indictable charges would be a very ineffective and clumsy way to determine appropriate levels of seriousness.  In any event seriousness is otherwise addressed by the requirement in s 12 that the allegations in question must involve offences bearing a maximum penalty of at least three years.  Parliament has set the boundaries in this way, and it cannot be thought it was also trying to do so by using the word “trial”.

[10]     If one discounts the idea that the narrow meaning is a way of  ensuring sufficient gravity, there is no sensible reason to so interpret it, and indeed several contrary reasons.  First it would be an irrational criterion.  Second, “trial” can be and is used in the wider sense.   As Ms Salmond points out, the New Zealand Bill of Rights  Act 1990  uses  “trial”  in  a  context  plainly  covering  both  summary  and indictable procedures.   Third, I consider s 8(2)(f) explicable by “hearing” being a reference to depositions.   The Summary Proceedings Act 1957 used to call that process “a hearing”.

[11]     The  context  of  s 12(1)(a)(ii)  is  important.    There  are  three  requirements before the onus is reversed:

b)        already remanded on bail;

c)        has previously received a sentence of imprisonment.

[12]     The requirement in issue attaches to the second condition and mandates that the matter for which one is already on bail must likewise be a Crimes Act offence carrying at least a three year maximum.

[13]     Mr Bott’s interpretation would place a further restriction that is random and makes  no  sense.    The  decision  whether  to  lay  the  prior  charge  summarily  or indictably should not have any impact on a bail decision sometime later in relation to different offending.  Further the timing of the later offending could produce random outcomes if, for example, the accused had already elected jury trial on the first charge.

[14]     The presumptions to which Mr Bott refers must be considered consistently with the purposive approach to interpretation mandated by s 5 of the Interpretation Act 1999.  For these reasons, the submission as to the meaning of “trial” is rejected.

[15]     Mr Bott advanced reasons on the facts why Mr Moeahu should have received bail.  None reached the point of satisfying me that the District Court erred.  Indeed the opposite is so.  During 2009 alone Mr Moeahu was convicted of:

a)        breach of supervision conditions;

b)        breach of community detention conditions (x3);

c)        a third blood alcohol driving offence;

d)       driving while unlicensed;

e)        refusal to accompany an enforcement officer;

[16]     There was also a failure to answer bail late in 2008.  Now, whilst again on bail, Mr Moeahu finds himself implicated in further similar offending just one month after the initial grant of bail.

[17]     It  was  very  much  open  to  the  Court  to  conclude  that  the  likelihood  of Mr Moeahu reoffending or failing to answer bail could not be met by bail conditions. He is 24 years old and must bear the consequences of such persistent disregard of Court conditions.  I do not dismiss the concern about the length of time till trial, both in itself and as representing a period that might exceed any likely penalty.   Once those variables are clarified there may be a case for reconsideration if trial dates are too far removed.  At this point, however, I am not satisfied this risk outweighs these primary concerns about reoffending and breaching bail.

[18]     The  appeal  is  dismissed.    I conclude  by observing  that  in  my view  the outcome would be the same regardless of where the onus lay.

Solicitors:

M Bott, Barrister, Wellington

K E Salmond, Luke Cunningham & Clere, PO Box 10357, Wellington

Simon France J