The Queen v Colin David Piper

ORDER PROHIBITING PUBLICATION OF REASONS UNTIL FINAL DETERMINATION OF TRIAL OF APPELLANT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 88/00

THE QUEEN

COLIN DAVID PIPER

Hearing:	17 April 2000
Coram:	Gault J Doogue J Goddard J
Appearances:	S J Hembrow for appellant S P France for the Crown
Judgment:	18 April 2000

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

This is an appeal against the refusal of bail in the High Court.
The appellant has been charged with conspiring to supply a class B controlled drug and a class C controlled drug. As he has a previous conviction for a drug dealing offence, he had to apply for bail to the High Court. His application was heard and refused on 15 March 2000.
In the High Court evidence was given by a police officer with a full knowledge of the file relating to the prosecution of the appellant. He said the principal reason for the police opposing bail was possible interference by the appellant “with witnesses and influence that could be brought to bear over co-offenders and associates who have made statements”. He said that the police based this reason on interviewing a number of people who had expressed concern about speaking to the police because of repercussions for them if the appellant discovered that they had made statements concerning the matter. The officer spoke of the reasons for the belief of the police that the appellant had an ability to carry out any threat made by him. He expressed the opinion that the appellant’s ability to intimidate either witnesses or co-accused was less if he was in custody than on bail. The police saw the appellant as the principal offender in the particular network which was alleged to be involved in very substantial offending. There is some specific evidence pointing to the appellant’s involvement. The police are aware that the appellant has a gang association or affiliation. The officer was cross-examined. He accepted that a remand in custody would not prevent the appellant from arranging interference with witnesses and co-accused but felt it made it less likely. During the course of the cross-examination he noted that the appellant had offended in the past whilst on bail. He conceded the appellant had no relevant personal history of violent offending. The witness was not challenged over the principal matters upon which the Police relied for opposing bail.
The Judge in refusing bail referred to the appellant’s previous drug offending but noted that there was no earlier offending as serious as the present allegations against him. He took the view, on the basis of the police officer’s evidence, that the case against the appellant was a substantial one and that the appellant was the principal alleged offender. He noted that it was likely to be a couple of months before a preliminary hearing could be conducted and the trial would be some considerable time after that. (We are informed a deposition hearing has been set for 6 June 2000.) In expressing his views for declining bail, the Judge said this:
As counsel has mentioned, for the present the applicant is entitled to the presumption [of innocence]. I have endeavoured to balance all of these competing factors. In my view the issue for the moment is bail until the preliminary hearing, or until materials are available which substantively indicate the true strength of the police case. At that time it may be appropriate for the issue to be revisited. I am satisfied that bail should be declined at this stage. The principal reason for that is that the operation appears to have been a sophisticated one involving a number of persons at different levels. Detective Johnson has expressed the view that the applicant’s presence in the community, at this stage, when the investigation is still at a comparatively early point, and against the background that concern has been expressed by some of those interviewed about their well-being, would not be appropriate. As best I can tell that assessment of the situation is justified. [Para 10, p 14]
We note from the appellant’s criminal record that he is 40 years old. In the last 10 years he has been before the court regularly on a spasmodic basis. The offending has primarily related to drugs, but there have been minor offences of assault and of possession of an offensive weapon. The maximum sentence imposed for any particular offence has been six months’ imprisonment for possession for supply of cannabis oil.
The points of appeal for the appellant largely rely upon the Judge having made an incorrect evaluation of the strength of the police opposition to bail before him. It is not so long ago that this Court made clear in R v Blaikie (CA 386/99, 27 September 1999) matters relevant to bail applications and appeals. In the course of that judgment the Court said:
Someone who appeals a refusal of bail and is unable to point to a material change in the circumstances since the lower Court’s decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong. (Where there has been such a change in circumstances the better course is for a further application to be made to the lower Court, rather than the pursuit of an appeal). [para 6]
The Court went on to traverse ss 25(c) and 24 of the New Zealand Bill of Rights Act 1990 and noted that the seriousness of the charge faced will not in itself provide a justification for refusal of bail. As the Court said:
Refusal can be justifiable only when the prosecution demonstrates not merely that the charge is a serious one but also that there is something additional which favours detention of the accused in the public interest, and that combination of factors is not outweighed by considerations favouring bail. The societal interest must be unable to be met by the granting of bail upon terms as to residence, reporting to police, curfew, non-association, travel restrictions and the like. [para 8]
The Court went on to say:
Matters which will provide grounds for not granting bail when the accused faces an apparently strong case are the likelihood that the accused:
[a]       will offend while on bail (past criminal history, including any previous breach of bail, being the focus of attention along with anything known about the accused’s criminal associations); or
[b]       will abscond or otherwise fail to answer to bail at trial or when earlier required to make a further appearance; or
[c]       will seek to interfere with witnesses in the case with a view to deterring them from giving evidence or otherwise influencing their testimony. [para 10]
The first substantive ground of appeal is that the Judge erred in concluding that the police officer’s assessment of the risk to witnesses and co-accused could not be met by appropriate terms of bail. It was clearly open to the Judge to accept that the police concerns as to possible interference with witnesses and co-accused were appropriately based in the absence of cross-examination indicating otherwise. The Judge was entitled to take the view those concerns would not be met by appropriate conditions relating to bail. It was understandable that at least until depositions were taken the balance should favour the protection of witnesses. There is nothing in this ground of appeal by itself which would justify a reconsideration of the Judge’s view.
The second substantive ground of appeal is that the Judge erred in not giving the presumption of innocence sufficient weight to tip the balance in favour of bail when the police had difficulties in satisfying the Judge of the strength of their case. It is submitted that in the light of the presumption of innocence bail on terms should have been granted. Reference was made to other circumstances consistent with such an outcome. This is again an attack on the Judge’s evaluation of the case rather than any error in the exercise of the Judge’s discretion. The Judge was satisfied the case was “substantial” and there was adequate evidence to support such an evaluation. The Judge made plain that the matter may well stand to be further evaluated after depositions, as is commonly the case, but that he was persuaded on the material before him to refuse bail. Bail evaluations will commonly have to be taken when there is less material than might be preferable. The Judge has to reach an appropriate balance between the undoubted rights of the applicant and the public interest evaluated in accordance with the types of issues identified in Blaikie. The material now before the Court satisfies us the Judge was not only entitled to reach the conclusions he did but that the Crown position is perhaps stronger than he was aware.
Before a bail appellant can be successful, something more is required than a re-evaluation of a Judge’s decision. Here the appellant has been unable to point to any clear error by the Judge in the exercise of his discretion and has been unable to show that the Judge’s decision is plainly wrong. The appeal must therefore be dismissed.

Solicitors

Young Hunter, Christchurch, for appellant
Crown Law Office, Wellington, for respondent

[2000] NZCA 280

18 April 2000