Zimmerman v The Queen
[2019] NZHC 2518
•3 October 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-418-000017
[2019] NZHC 2518
BETWEEN BRAD ALEXANDER ZIMMERMAN
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 October 2019 Counsel:
M Boyd for the Appellant
M McClenaghan for the Respondent
Judgment:
3 October 2019
ORAL JUDGMENT OF DOOGUE J
Introduction
[1] Brad Zimmerman is charged with sexual violation by rape.1 On 23 August 2019, Judge Farish declined Mr Zimmerman’s application for electronically monitored bail (EM Bail) in the District Court at Christchurch.2 Mr Zimmerman appeals that decision on the basis the Judge erred in her assessment of the support available to and required by him.
Background
[2] The Crown alleges that between 10 pm on 21 December 2019 and 1 am on 22 December 2019, Mr Zimmerman was at an address in Cobden, Greymouth with the complainant, whom he had met less than one week prior. It is alleged the pair were
1 Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty is 20 years’ imprisonment.
2 R v Zimmerman [2019] NZDC 16640.
ZIMMERMAN v R [2019] NZHC 2518 [3 October 2019]
in the living room with mutual friends and other acquaintances, and that cannabis and methamphetamine were smoked during this time.
[3] At around 1 am, the complainant went to bed in one of the spare bedrooms of the house where her 10-week-old baby was sleeping. Approximately half an hour later, Mr Zimmerman left the living room and went to the room in which the complainant was sleeping, opening her door. Upon one of the residents opening the living room door to see what he was doing, Mr Zimmerman is said to have closed the bedroom door and gone to the bathroom. A short time later, Mr Zimmerman returned to the living room and fell asleep.
[4] Sometime later, Mr Zimmerman woke up and again went to the room in which the complainant was sleeping. He is alleged to have got into bed with the complainant, pulled down her tights and underwear and inserted his penis into her vagina. The complainant says she woke up to Mr Zimmerman on top of her having sex with her. She tried to push Mr Zimmerman off but he is said to have pinned her down with his weight. She eventually managed to get him off and ran into the bathroom where she had a panic attack. She then took her baby and left the address in an emotionally distressed state.
[5] The complainant suffered skin splits to her vaginal area, an abrasion to her right arm and a bruise to her neck. When spoken to by the police, Mr Zimmerman said he woke up to find the complainant on top of him having sex with him.
The District Court decision
[6] The District Court Judge began by noting the seriousness of the charge and the reverse onus that applied under s 12(1)(a) of the Bail Act 2000 (the Act).3 In other words, it was for Mr Zimmerman to satisfy the Judge on the balance of probabilities that he was not likely to commit a violence or serious property offence (as that phrase is defined in s 12(6) of the Act) and that bail should be granted.
3 At [4].
[7] The Judge acknowledged a suitable EM Bail address had been proposed but expressed concerns that Mr Zimmerman would be left alone at the property for extended periods due to the nature of the property owner’s work.4 The Judge also noted the Crown’s opposition to EM Bail being granted on the grounds the occupant of a property to which Mr Zimmerman had been previously bailed revoked their consent due to Mr Zimmerman’s drug use.5 In addition, Mr Zimmerman had a history of mental illness and had threatened self-harm since being taken into custody.6 He also had an extensive history of offending, some of which had been committed while on bail.7
[8] Despite Mr Zimmerman’s efforts to rehabilitate himself while in custody as well as the fact the proposed EM Bail address was in Christchurch (some distance from the complainant’s place of residence in Greymouth), the Judge was not satisfied the risk of Mr Zimmerman offending on bail was sufficiently mitigated.8
Principles on appeal
[9] Mr Zimmerman is entitled to appeal the District Court decision as of right under s 44(1) of the Act. Section 44(6) provides that the appeal is by way of rehearing. It follows that this Court is required to carry out a full evaluative review of the District Court’s decision. Mr Zimmerman is entitled to judgment in accordance with the opinion of this Court even if it involves an assessment of fact and degree and entails a value judgment.9
[10] While this Court must form its own opinion as to the merits of the issue under appeal, Mr Zimmerman will still bear the onus of persuading the Court to reach a different conclusion.10 In discharging that onus, Mr Zimmerman must identify aspects of the District Court decision said to be in error.
4 At [5].
5 At [6].
6 At [6].
7 At [8].
8 At [10]–[11].
9 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [62]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
10 Taipeti, above n 9, at [63].
Fresh evidence on appeal
Updated EM Bail report
[11] Since Mr Zimmerman’s bail appearance in the District Court, a further EM Bail suitability report has been filed. That report is not significantly different from the EM Bail report that was before the District Court, save for in two respects:
(a)The occupant of the proposed bail address has provided some clarification as to his ability to support Mr Zimmerman. While he is unable to provide Mr Zimmerman with constant support throughout the working week, he is prepared to leave work and come home should Mr Zimmerman require assistance.
(b)Mr Zimmerman is now considered a high risk of harm to the community were he to breach his EM Bail.
[12] On the basis of Mr Zimmerman’s conviction history, his poor compliance with bail, the nature of his alleged offending, his mental health issues and the new information in respect of the proposed EM Bail address, the report writer concludes that Mr Zimmerman is “not suitable for the purpose of EM Bail”.
Affidavit evidence
[13] Mr Zimmerman also seeks to adduce an affidavit, sworn by Christopher Evans on 3 October 2019. Mr Evans is the owner of the property at the proposed EM Bail address. Mr Evans reiterates he is able to provide Mr Zimmerman with emotional support and is of the view that if Mr Zimmerman were to be granted EM Bail, it would be a good start to his rehabilitation. Mr Evans also states that Mr Zimmerman “has always done better” with him.
[14] In respect of the property and its occupants, Mr Evans advises that he has placed a tenant in the main property (though it is proposed that Mr Zimmerman would stay in the converted sleep out). That tenant is apparently known to Mr Zimmerman. Further, Mr Evans states that his two teenage sons often stay with him but that he considers Mr Zimmerman as an uncle to them and therefore sees no risk in him being around his sons.
Analysis
[15] The admissibility of the updated EM Bail report brings into question the interpretation of s 334 of the Criminal Procedure Act 2011 (CPA), which outlines the powers of appeal courts to receive and hear evidence.
[16] In Wang v Police, Palmer J noted there existed conflicting authority on whether and when fresh evidence may be adduced on appeal of a bail decision.11 Palmer J preferred the approach taken in Seccombe v New Zealand Police where Toogood J was of the view that s 334 of the CPA permits this Court to consider new evidence when hearing a bail appeal “since subs (2) provides for an ability to rehear evidence and subs (3) is broadly expressed in terms of contemplating additional or different evidence, as well as the Court’s inherent jurisdiction.”12 Further, this interpretation is consistent with s 20 of the Act which entitles a court to receive as evidence any information it considers relevant, whether or not it is admissible.
[17] I agree with this approach and shall therefore consider both the updated EM Bail report and Mr Evans’ affidavit.
Relevant Bail Act provisions
[18] Section 7(5) of the Act provides that a defendant who is charged with an offence and is not bailable as of right must be released on reasonable terms and conditions “unless the Court is satisfied that there is just cause for continued detention”.
[19] In considering whether there is just cause for continued detention, the Court must take into account the risk the defendant may fail to appear in court, may interfere with witnesses or evidence, or may offend while on bail, and any other matter that would make it unjust to detain the defendant.13 The Court may also take into account any of the factors listed in s 8(2) of the Act.
11 Wang v New Zealand Police [2016] NZHC 3190 at [17], referring to Staples v Inland Revenue Department [2014] NZHC 500 and Seccombe v New Zealand Police [2014] NZHC 3380.
12 At [17]. See also Carr v Police [2015] NZHC 2853; and Singh v Crown Law Office [2015] NZHC 473.
13 Bail Act 2000, s 8(1).
Submissions
Mr Zimmerman’s submissions
[20] Ms Boyd, for Mr Zimmerman, submitted that the District Court Judge had placed too much weight on the psychological susceptibilities of Mr Zimmerman’s personality. She submitted that such a psychological profile was as a result of being assessed in a prison environment, and further that had he been assessed in a more stress-free environment, such a personality profile would be different. No fresh evidence was adduced to support this submission.
[21] Ms Boyd also submitted that the granting of EM Bail would enable Mr Zimmerman to properly be supervised by Mr Evans and that this would mitigate against any possibility of reoffending, interference with witnesses or flight.
Crown’s submissions
[22] Mr McClenaghan, for the Crown, opposes Mr Zimmerman’s appeal on the ground the there is no error in the Judge’s decision refusing to grant EM Bail. Mr McClenaghan submits the same arguments put forward before the District Court, namely that Mr Zimmerman’s history of offending, his personal circumstances, the seriousness of his offending, the strength of the case against him and the unsuitability of the proposed bail address all favour the appeal being dismissed.
[23] Mr McClenaghan acknowledges that the updated EM Bail report suggests the proposed bail address is technically suitable and that Mr Evans has provided more detail as to his ability to support Mr Zimmerman despite being away from the property for most of the day. Nevertheless, Mr McClenaghan submits that given Mr Zimmerman’s criminal history, his propensity for bad choices and his mental health issues, “a more intensive and fortified set up is required”.
Analysis
[24] I see no error in the District Court Judge’s decision. First, I note that in addition to the reverse onus in s 12(1)(a) that applied to Mr Zimmerman, the reverse
onuses in ss 10 and 12(1)(b) also apply. This is because the offence with which Mr Zimmerman is charged:
(a)is a specified offence for the purposes of s 10(2), and he has previously been convicted of another specified offence (injuring with intent contrary to s 189 of the Crimes Act 1961) and received a sentence of imprisonment; and
(b)carries a maximum sentence of more than three years’ imprisonment, and Mr Zimmerman has previously received 14 or more sentences of imprisonment and has been convicted of an offence that was committed while he was on bail and that also carried a maximum sentence of more than three years’ imprisonment.
[25] Both ss 10(6) and 12(7) provide that, in deciding whether to grant bail to a defendant to whom either section applies, the need to protect the safety of the public and, where appropriate, the safety of any victim of the alleged offending are primary considerations.
[26] While the simultaneous operation of ss 10 and 12 does not increase the threshold of any one of the reverse onuses individually, I consider it provided a sound foundation for the Judge’s concerns about Mr Zimmerman’s risk of offending on bail. Mr Zimmerman has an extensive criminal history predominantly comprising dishonesty, drug and violent offending. Of particular concern, however, is the fact he has committed 12 offences while on bail, including burglary and robbery. I also consider the Judge was correct to note the ineffectiveness of the only other instance where Mr Zimmerman was subject to EM Bail.
[27] In any case, Mr Zimmerman has shown a complete disregard for Court orders. He has failed to appear on two occasions, breached release conditions on two occasions, and has breached sentences of community work on six occasions. While some of these instances span back to 2008, the most recent breach occurred in 2016.
[28] Turning to the two EM Bail reports, while the proposed address is deemed technically suitable for EM Bail, the updated EM Bail report does not consider Mr Zimmerman suitable for EM Bail. However, even the EM Bail report that was
before the District Court cannot be characterised as a particularly positive report for Mr Zimmerman. Both reports note — and the Judge acknowledged — that Mr Zimmerman has had mental health issues in the past and that these issues have manifested recently as threats of self-harm. In combination with the fact Mr Zimmerman would be alone at the proposed EM Bail address for large portions of the day, I agree with the Judge that this is cause for concern and outweighs the technical suitability of the proposed address. It also outweighs whatever prosocial influence the reports note in respect of Mr Evans. Mr Zimmerman can scarcely benefit from such an influence if he is not exposed to it for the majority of the time he is at the property.
[29] In this regard, I note that Ms Boyd submits the Judge erred in her assessment of the support available to and required by Mr Zimmerman. I disagree. Mr Zimmerman’s history of offending and his particular mental health issues necessitate an elevated level of supervision and support.
[30] Mr Evans says that he is available during the week to support Mr Zimmerman, if required. In such a case, it would take Mr Evans approximately 15 minutes to get back to the property. While I acknowledge Mr Evans’ willingness to assist Mr Zimmerman and his efforts to be as flexible as possible with his work arrangements, I do not consider the proposed bail address — even when combined with an EM condition — provides the necessary supervision and support both in respect of the risk of Mr Zimmerman offending on bail as well as Mr Zimmerman’s personal safety.
[31] Turning to the discretionary factors in s 8(2) of the Act, they too do not favour granting EM Bail to Mr Zimmerman. The Crown’s case is strong with multiple witnesses supporting what the Crown says occurred. The alleged offending is also very serious and, if convicted, Mr Zimmerman is likely to receive a lengthy sentence of imprisonment.
[32] Taking all these factors into account, Mr Zimmerman has not satisfied me the Judge erred in her decision. On the contrary, I agree with the Judge’s assessment that
the nature and strength of the Crown’s case against Mr Zimmerman as well as his personal circumstances do not support his application for EM Bail.
Result
[33]The appeal is dismissed.
Doogue J
Solicitors:
Crown Law Office, Christchurch
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