R v Perica Ca37/2000

[2000] NZCA 434

SUPPRESSION ORDER UNTIL VERDICT OR EARLIER RESOLUTION OF THE CASE

IN THE COURT OF APPEAL OF NEW ZEALAND  CA 37/2000

THE QUEEN

V

JAMES RUPERT PERICA

Hearing:

15 February 2000

Coram:

Richardson P

Heron J

Panckhurst J

Appearances:

J R Billington QC for Appellant

K G Stone for Respondent

Judgment:

17 February 2000

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1]      James Perica appeals against a decision in which he was refused bail in the High Court.  He is charged that on 16 November 1999 at Lower Hutt he committed aggravated robbery, attempted murder, and unlawfully got into two motor vehicles which had been converted for the purposes of the robbery.   The issue of bail has been twice considered in the High Court on 14 December 1999 and 4 February 2000, and once on appeal in this Court on 16 December 1999.   This further appeal is against the most recent High Court decision.

[2]      A few minutes after 11 am on Tuesday 16 November 1999 two armed and disguised men robbed employees of a security firm of the sum of $477,693.  They left the scene in a converted motor vehicle.  A witness to the robbery followed that vehicle and saw the offenders abandon it in favour of what proved to be a second converted motor vehicle.   At this point the offenders, aware that the witness had them under observation, fired two shots at him.   This gave rise to the attempted murder  charge.     Despite  the  obvious  danger  the  witness  continued  to  keep observation and saw the second vehicle drive to the vicinity of premises which contained a video store to the front and a gymnasium to the rear.  It is the police case that the offenders then abandoned the second car and decamped in a Range Rover which had earlier been left at the gymnasium.

[3]      A witness whom we shall refer to as “M” observed the two occupants of the Range Rover both as they parked it earlier in the morning and upon their return in the second converted car until their final departure in the Range Rover.  M initially supplied the police with a description of the two men, but some days later identified the appellant as the larger of the two men, being someone he had met on a number of previous occasions.   M’s identification evidence is of central importance to the prosecution case.

[4]      The police established road blocks in an endeavour to locate the occupants of the Range Rover.  At about 12 noon constables positioned at Waikanae observed a Range Rover which answered the relevant description.  They obtained its registration number and endeavoured to speak to the occupants but it made off.  Subsequently the vehicle was recovered, abandoned, and in a burnt out condition.

[5]      In light of M’s identification of the appellant the police wished to speak to him.  He could not be located until 2 December, when he was found at Taupo at a property belonging to his employer, one Duncan Macfarlane.   The appellant’s appearance had changed.  He was in possession of a bag similar to one used in the course of the robbery.   The appellant was arrested that day and has remained in custody since then.

[6]      Unusually the strength of the case against the appellant does not fall to be assessed against the prosecution evidence alone.  In the context of the December bail application extensive affidavits were filed in relation to an intended alibi.  The gist of the alibi is that the appellant was occupied during the morning of 16 November on certain driving duties on behalf of his employer..  It is said that the appellant, in the company of another man who happens to be closely associated with the gymnasium mentioned earlier, drove Macfarlane and his solicitor to a meeting in central Wellington.   This was shortly after 10 am.   At the conclusion of that meeting Macfarlane made a cell phone call to the appellant, timed at 10.44 am, which was received on the appellant’s cell phone in the Petone area.  As a result of the call the appellant and his companion immediately returned to Wellington and uplifted Macfarlane and his solicitor sometime after 11 am.  The appellant then spent time at Macfarlane’s  office  where  he  was  seen  by  a  number  of  the  prospective  alibi witnesses.  On the basis of this evidence counsel contended the prosecution case was seriously called into question, which in turn impacted with reference to bail.

[7]      We have not endeavoured to describe the detail of either the police case or of the  alibi  material.    The  above  summary  is  sufficient  to  indicate  their  essential features.  However, we think it necessary to mention some further aspects.  Inquiries relevant to the registration number of the Range Rover resulted in the police making early contact with its previous owner in Christchurch.   He had recently sold the vehicle to Macfarlane.   On the afternoon of 16 November the former owner endeavoured to contact Macfarlane, whose cell phone was answered by his solicitor. At that point the solicitor made a complaint on behalf of his client to the police that the Range Rover had been unlawfully taken on the night of 15–16 November. Subsequent police inquiries revealed that the appellant was in possession of this vehicle on Monday 15 November, indeed that he obtained a new certificate of fitness for it in Wellington.   The witness M had not seen the Range Rover prior to his observations of it on the morning of 16 November.  Until then, he had no reason to associate it with the appellant.

[8]      The presumption and principles which are relevant to bail decisions were recently  reconsidered  by  this  Court  in  R  v  Blaikie,  CA  386/99,  judgment  27

September 1999.  It is not necessary to restate them for the purpose of this case.

[9]      Mr Billington advanced at the forefront of his submissions a criticism that the learned Judge who heard the further bail application on 4 February approached it as if it were an appeal from the December decision, rather than a fresh application.  In this regard both counsel referred us to different portions of the judgment under appeal.  Given the way the case was presented before him, we think it was natural for the Judge to consider matters against the background of the December decision.  In essence the appellant’s further application was presented on the footing that, whereas at the first hearing the prosecution case was assessed to be compelling, in light of materials since discovered such could no longer be said to be the case.  This invited a before, and after, approach.  But in addition Mr Billington argued that even if the learned Judge had considered the further application afresh, irrelevant matters were brought to account and relevant considerations given no or insufficient weight, such that the discretion was exercised in error.

[10]     In the result we are of the view that it is preferable and necessary for this Court to further consider and come to its own view on the matter.  Passages of the High Court judgment are perhaps consistent with the learned Judge having adopted an appeal-like mode of approach.  Moreover, in the course of this hearing we sought and obtained further significant information concerning the likely disposition of the case.  The availability of this new information dictates that the Court reconsider the discretion afresh.   The adoption of this approach in this unusual case does not derogate from the general principle that bail appeals ordinarily involve examination of the exercise of a discretion and all which that entails.

This Case

[11]     The seriousness of the two principal charges faced by the appellant is self- evident.           Aggravated  robbery  carries  a  maximum  penalty  of  fourteen  years

imprisonment,  as  does  attempted  murder.    The  amount  of  money  stolen,  the offenders’ possession of firearms, and the attempted shooting of a witness position this case as a very serious one of its kind.  As the learned Judge rightly put it : “the stakes are high”.

[12]     The seriousness of the charges alone cannot of course be determinative.  The strength of the prosecution case must be considered.   Here, that presents an acute problem.  It would neither be appropriate nor desirable for this Court to endeavour to consider the competing evidence in any detail.  It is sufficient to say that on the basis of M’s evidence the police case is a substantial one.  Aspects of the alibi evidence, as foreshadowed in the various affidavits, afford grounds for disquiet.

[13]     In addition to the seriousness of the charges, we think it essential to consider the general flavour of the case.  The aggravated robbery itself has the hallmarks of a carefully planned criminal activity.  After the event, when the police had failed in an endeavour to speak to the occupants of the Range Rover, the vehicle was set alight. The appellant was afforded refuge at a holiday home in Taupo, and could not be located for interview.   None of the stolen money has been recovered.   The most unusual course of filing extensive affidavits in support of an intended alibi has been taken.  Certain of the deponents who support such alibi have a close connection with the very vehicle allegedly used immediately after the aggravated robbery was committed.  One of the same persons is said to have been present when witness M was threatened in relation to his giving evidence against the appellant.  This pattern of factors, in our judgment, tells against a grant of bail to the appellant.   The organisation which attended the crimes themselves and their aftermath does not suggest it is an appropriate course to allow bail.   The risk of flight, we think, is substantial.

[14]     Mr  Billington’s  submissions  concerning  imposition  of  terms  designed  to effect a home detention or of other terms designed to secure the appellant’s attendance, have not been overlooked.  However, for reasons already given it is our assessment that a remand in custody is the only appropriate course at this time.

[15]     Subsequent to the hearing we received by memorandum better information concerning the likely disposition of the case.   This information should have been provided as a matter of course.  Almost three months had passed since the offences were committed and ten weeks since the arrest of the appellant.  Accordingly there had been adequate time for preparation of the police case to at least the point where the dates for a preliminary hearing and, assuming a committal, a trial could be foreshadowed.

[16]     In any event the best assessment is that a preliminary hearing is attainable commencing 22 March or 13 April.  It is anticipated a trial in the High Court should be able to be accommodated a reasonable period after committal.  The next step is a pre-depositions conference at the end of next week, on 25 February, in advance of which discovery will be completed and witness statements provided save for an ESR report.  This will enable the District Court to ensure the case is accorded due priority, given the appellant’s remand status.

[17]     For those reasons the appeal is dismissed.

Solicitors:

Crown Solicitor’s Office, Wellington