R v Goldberg CA446/03

[2004] NZCA 426

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA446/03

THE QUEEN

v

GLEN DALLAS GOLDBERG

Hearing:         11 February 2004 Coram:  Glazebrook J

Hammond J William Young J

Appearances: R M Lithgow for Appellant

A Markham for Crown Judgment:  11 February 2004

Reasons:         13 February 2004

REASONS FOR JUDGMENT OF THE COURT

Introduction

[1]    On 11 February 2004 Mr Goldberg’s appeal was heard. The appeal was against Baragwanath J’s decisions of 17 October 2003 and 24 November 2003 declining Mr Goldberg bail pending his retrial on a charge of sexual violation. The jury in Mr Goldberg’s first trial on that charge was unable to agree on its verdict.

R V GLEN DALLAS GOLDBERG CA CA446/03 [11 February 2004]

[2]    On 11 February 2004 Mr Goldberg’s application to adduce new evidence was granted but his appeal dismissed with reasons to be provided at a later date. These are those reasons.

Background

[3]    As indicated above, Mr Goldberg faces a retrial on a charge of sexual violation. Mr Goldberg had been on bail before the first trial and that bail had continued despite two bail breaches, the second at least of a relatively serious character (although Mr Goldberg claimed it was due to a misunderstanding on his part and this must have been accepted to some extent by Williams J who dealt with the breach).  During  his  trial,  which  took  place  from  13-16  December  2003,  Mr Goldberg was remanded in custody. This appears to be in response to the trial Judge, Baragwanath J, being informed that a threat had allegedly been made by Mr Goldberg to the complainant. At the conclusion of the trial bail was again applied for. Mr Goldberg was remanded in custody overnight and a bail hearing took place the following day.

[4]    At that hearing evidence was given by the complainant confirming a statement she had made to the police on 10 October 2003 that Mr Goldberg had made a telephone threat to kill her and had told her that she had better leave as he was coming over now. The Judge accepted her evidence saying he had no doubt whatsoever that she was telling the truth. In addition, there were two other witnesses who claimed to have been threatened. During trial a witness who had been subpoenaed had failed to appear. When he was brought in he was in considerable distress. He subsequently provided a statement that he had received a series of threats, not from the accused directly but which he attributed to the accused. The Judge recognised, however, that there was no specific evidence of the accused’s involvement with those making the threats. There was also hearsay evidence of threats to another witness but, in the absence of a statement from that witness, the Judge indicated that this was of little weight. Mr Goldberg denies making any  threats or arranging for any threats to be made.

[5]    We mention for completeness that Mr Goldberg has well over 100 previous convictions. There are numerous dishonesty offences, including forgery, impersonation and making false complaints and statements. Some of the forgery charges related to the forgery of the signatures of witnesses on certain criminal informations and supporting affidavits which he had caused to be filed in the District Court against two complainants who had obtained protection orders against him. He also has 2 convictions for attempting to pervert the course of justice. Further, there are some 29 convictions for breach of protection orders in relation to several women, 4 convictions for criminal harassment and 5 convictions for threatening. A large number of the convictions relate to offending while he was on bail.

[6]    The Crown says that Mr Goldberg suffers from a clinical condition known as erotomania (or de Clerambault’s syndrome). Erotomaniacs typically become fixated on an individual and convinced that they are involved in a romantic relationship with him or her, despite rebuffs.

Baragwanath J’s decision of 17 October 2003

[7]    Baragwanath J began by accepting  that  Williams  J’s  decisions  of  9  and 10 September granting Mr Goldberg bail after the bail breaches should be treated as a datum and that he should consider whether circumstances had altered materially as to justify the refusal of bail. Baragwanath J noted that Mr Goldberg falls within s12 of the Bail Act and thus comes under the reverse onus provisions of that section. He said, however, that, even without recourse to s12, he was satisfied that the case fell squarely within s8 on the basis of his findings in relation (in particular) to the threats to the complainant. Baragwanath J took into account that there may be no fixture available for the retrial until May 2004 but said that in his view “the present case possesses the very type of characteristics contemplated by Parliament in enacting the Bail Act, namely the need for protection of a prime witness”.

Judgment of Baragwanath J’s decision of 24 November 2003

[8]    A further application for bail by Mr Goldberg was refused by Baragwanath J on 24 November 2003. Mr Goldberg had put before Baragwanath J similar material

to that he now seeks to adduce before this Court – see below. It appears from Baragwanath J’s judgment that he suggested to counsel that, unless there had been a material change in circumstances, the appropriate forum to challenge the 17 October decision was the Court of Appeal. This appears to have been accepted by counsel and the further application for bail was dismissed.

Application to adduce new evidence

[9]    Mr Goldberg makes an application to adduce new evidence. There is an affidavit from Mr Darren  Vlasveld,  the  manager  of  a  Henderson  pawn  shop.  Mr Vlasveld deposes that a customer purchased a camera from him at his store on  10 October 2003. According to the till receipt annexed to the affidavit, the transaction took place at 4.02pm. The manager says that the customer was in the shop from approximately 3.45pm. Although Mr Vlasveld remembers the transaction he says that he could not identify the customer.

[10]   Mr Goldberg also seeks leave to file an affidavit in which he denies making or arranging any threats. With regard to the threat made to the complainant he confirms he was the customer involved in the Henderson transaction and says that, as he was dependent on public transport that day, it would have been physically impossible for him to have made the call. The affidavit also sets out Mr Goldberg’s personal circumstances which he asks the Court to take into account.

Submissions of Mr Goldberg

[11]   Mr Lithgow submitted first that there was no reason why the matter should not have been dealt with in the High Court but that, as it had not been, then this Court should consider all the evidence now before it. It was submitted that the approach should be to treat, as Baragwanath J did, the decisions of Williams J as a datum and consider what had changed.

[12]   Mr Lithgow submitted that, even if the new evidence did not disprove the  fact of the telephone call, it did provide an electronic record of the time of the purchase. It thus introduces a challenge to the evidence of the complainant as to

whether the telephone call was made. In any event, the complainant could have been mistaken as to the provenance of the telephone call and, in Mr Lithgow’s submission, this possibility was not fully considered by the Judge.

[13]   One of the other major matters that was not properly taken into account, in Mr Lithgow’s submission, was the fact that Mr Goldberg had been on bail before his first trial and largely without incident. There were two certified breaches of bail but, in Mr Lithgow’s submission, these were closely connected and relatively minor and it is significant that, after a detailed examination of the circumstances, Williams J had certified breach but had continued bail.

[14]   Mr  Lithgow  also  submitted  that  this  Court  should  take  into  account   Mr Goldberg’s personal circumstances as set out in his affidavit.  In his affidavit,  Mr Goldberg says that he has a medical problem with his back that cannot be properly attended to in custody. He also points to the fact that his current partner has just had a baby and needs his support.

Submissions of the Crown

[15]   In the circumstances, although in its written submissions it had challenged  the admissibility of the new evidence, the Crown did not at the hearing oppose the admission of the new evidence.

[16]   The Crown’s submission on that evidence, however, was that it does not amount to a material change in circumstances that would justify revisiting the question of bail.  In the Crown’s submission it is entirely possible for Mr Goldberg  to have made the call from the telephone box at about 3.30pm, before driving the short  distance  to  Henderson  to  make  the   camera  purchase   at  about  4pm.     Mr Goldberg’s former partner told police that he had a car available at that time. Moreover, in the Crown’s submission, even if the threatening call was not made by Mr Goldberg, the obvious inference is that he was instrumental in arranging it, as he was the only one with an interest in ensuring that the complainant did not attend  trial.

[17]   As to Mr Goldberg’s personal circumstances, the Crown points out that his partner (a 17 year old young woman) has taken out a protection order against him. According to the updated Opposition to Bail form, she has also received threatening letters and is fearful that Mr Goldberg may receive bail.

[18]   The Crown submitted that Mr Goldberg was very fortunate to have been granted bail in the first place, particularly in view of s12. Added to this are two separate, certified breaches of bail, and evidence of direct and/or indirect threats and intimidation of three Crown witnesses, the credibility of whom is strengthened considerably by Mr Goldberg’s history of similar patterns of conduct.

Discussion

[19]   With regards to the application to adduce fresh evidence we consider that, even though there is no express power in the Bail Act or the Court of Appeal (Criminal) Rules 2001 for this Court to receive fresh evidence on a bail appeal, there is inherent power to do so. Having said that, we accept the submission that generally it is preferable, where there is fresh evidence, for a further application to be made in the High Court, as indeed was done in this case. This is particularly the case where, as here, credibility findings have already been made. While, as conceded by counsel before Baragwanath J, there had not been a material change of circumstances since the bail decision of 17 October 2003, there was new evidence as to one of the circumstances upon which that decision had been based.

[20]   It was decided, however, that this matter should proceed by way of appeal and thus in the circumstances we consider it in the interests of justice to grant leave to adduce the further evidence. We are prepared to accept that the evidence now available is fresh evidence in the sense that it could not reasonably have been adduced at the hearing of 17 October 2003, given the timing of the bail hearing and Mr Goldberg’s incarceration during the trial.

[21]   Turning now to the appeal, we accept the Crown submission that the new evidence  provides  no  grounds   for   overturning   Baragwanath   J’s   decision.   Mr Vlasveld cannot identify the customer and we accept that it was in any event

physically possible for both the telephone call and the purchase to have been made by Mr Goldberg if he used a car (and it appears that he had access to a car at the relevant time). This must be seen against the background of a very strong credibility finding in favour of the complainant.

[22]   We also accept the Crown submission that there is nothing in the personal circumstances of Mr Goldberg that would justify disturbing Baragwanath J’s decision. Indeed, taking into account Mr Goldberg’s background, the previous breaches of bail, the provisions of s12 and the evidence of direct and/or indirect threats no other decision was possible in our view than that properly arrived at by Baragwanath J.

Solicitors:

Crown Law Office, Wellington