The Queen v Winn

[2006] NZCA 272

IN THE COURT OF APPEAL OF NEW ZEALAND

CA294/06

THE QUEEN

v

GRAHAM NEVILLE WINN

Hearing:12 September 2006

Court:Robertson, Arnold and Ellen France JJ

Counsel:S L Baigent for Appellant

S B Edwards for Crown

Judgment:27 September 2006 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       This is an appeal from the refusal of Allan J to grant the appellant bail pending his trial on drugs and firearms charges.

Background

[2]       The appellant was one of a large number who were arrested in July 2003 following a Police surveillance operation into the manufacture and supply of methamphetamine from a residential address.  Eighteen people were ultimately charged.

[3]       Following his arrest, the appellant was granted bail.  However, he failed to appear for a depositions hearing on 25 September 2003, and eluded the Police from then until he surrendered himself at a police station on 20 January 2006.

[4]       In the meantime, the appellant’s co-accused were dealt with.  Five entered pleas of guilty, eleven were found guilty at trial and one was acquitted.  Since the appellant surrendered himself in January 2006, his preliminary hearing has been completed, and he has been committed for trial on the drugs and firearms charges.  It is expected that his trial will occur towards the end of the first half of 2007.

[5]       The appellant applied for bail. Allan J rejected his application, on the basis that the Crown had established there was just cause for continued detention in terms of s 8 of the Bail Act 2000.  The appellant appeals from that refusal.

Discussion

[6]       The appellant accepts that as this is an appeal from the exercise of a discretion, he must demonstrate that the Judge below acted on a wrong principle, took account of irrelevant factors, omitted to consider relevant factors or was plainly wrong in his decision.

[7]       The appellant’s counsel, Mr Temm, filed written submissions in support of the appeal.  He was not able to attend the hearing and arranged for Ms Baigent to present the oral argument for the appellant.  We are grateful for her assistance.

[8]       In his written submissions, Mr Temm set out four grounds of appeal.  He argued that the Judge below:

(a)erred in finding that the onus under s 12(5) of the Bail Act was not satisfied;

(b)confused issues of past absconding and the risk of answering bail when considering the reverse onus under s 12(5);

(c)       failed to give adequate weight to the offer of sureties;

(d)overstated the risk of flight as a relevant consideration given the appellant’s voluntary surrender to the Police in January 2006.

[9]       The first two grounds can be dealt with shortly.  They are based on a misapprehension as to the basis on which Allan J refused bail.  While the Judge discussed the application of s 12 to the facts he did not determine the case under s 12.  Rather he determined it under s 8.  This is made clear at [31] of his judgment.  There the Judge says:

It is unnecessary given my finding that s 8 factors preclude the grant of bail, to review the question of whether [the appellant] has discharged the s 12 onus. 

[10]     Accordingly, we address the third and fourth grounds of appeal. 

[11]     Essentially, the appellant’s argument is that Allan J gave too much weight to the fact that the appellant had absconded in the past in reaching the view that the appellant was a flight risk.  The appellant emphasised his explanation for absconding, which was that he was not involved in the offending charged and was concerned that, if tried with his co-accused, he would be convicted unjustly.  He therefore decided to abscond, and then to surrender himself to police after his co‑accused had been dealt with by the courts.  In effect, he severed his trial from that of his co-accused.  Further, the appellant argued that Allan J did not give sufficient weight to the offer of sureties (which included a residential address to which the appellant could be bailed) in assessing the appellant’s flight risk.

[12]     We reject the arguments made on behalf of the appellant. 

[13]     First, it is clear from the judgment that the Judge considered the mandatory considerations set out in s 8(1) of the Bail Act and the discretionary considerations set out in s 8(2) and properly considered the onus of proof.  In relation to the mandatory “risk of flight” consideration (s 8(1)(a)), Allan J emphasised that the appellant:

(a)       had absconded before the first trial;

(b)had made the decision to abscond for his own strategic reasons (to avoid being tried with his co-accused);

(c)had evaded the police for over two years.

In light of this experience, the Judge considered that the appellant constituted a serious flight risk.

[14]     In this context, Allan J did consider the offer of sureties.  However, he considered that the appellant’s past conduct suggested that the existence of sureties was unlikely to dissuade him from flight if he considered flight was in his best interests at the time.

[15]     Further, when he considered the discretionary factors in s 8(2) the Judge concluded that some indicated that this was not an appropriate case for bail.  Among these were the seriousness of the charges, the strength of the Crown case and the appellant’s previous history. 

[16]     In reality, the appellant’s arguments go to weight, and that is not a basis on which an appellate Court will interfere with a Judge’s exercise of discretion.

[17]     The Judge did not apply a wrong principle, he turned his mind to the various considerations set out in s 8(1) and (2), and it cannot be said that his view was “plainly wrong”.  Indeed, we consider that the Judge was right.  The appellant took it upon himself to abscond because he considered it was not in his interests to stand trial with his co-accused.  This indicates that his assessment of his personal interests, as he sees them from time to time, is likely to determine his behaviour, rather than any obligation to appear for trial.  His affidavit evidence that he will answer his bail must be read in that light.  Similarly, while the offer of sureties from the father of the appellant’s partner and a friend must be given some weight, the appellant was bailed to the father’s residence on the earlier occasion and absconded despite that. This necessarily means that limited weight can be given to these offers in the assessment of flight risk. 

[18]     Finally, as the Judge found, many of the factors listed in s 8(2) indicate that bail should be refused. 

[19]     Overall, then, we consider that there was ample justification for the Court to be satisfied that there was just cause for continued detention.

Decision

[20]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington