Bailey v The the Queen - [2022] NZCA 335

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA596/2020
[2022] NZCA 335

BETWEEN	THEODORE ANTHONY BAILEY Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2022
Court:	Clifford, Venning and Moore JJ
Counsel:	D P H Jones QC for Appellant M R L Davie for Respondent
Judgment:	26 July 2022 at 10.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The application to adduce further evidence is granted.

C The appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Theodore Bailey pleaded guilty to a charge of aggravated assault,[1] namely assault on a constable with intent to obstruct the constable in the execution of his duty.
[1]Crimes Act 1961, s 192(2).
Judge Paul declined Mr Bailey’s application for a discharge without conviction and sentenced him to 80 hours’ community work.[2] Mr Bailey appeals the refusal to discharge him without conviction.
[2]R v Bailey [2020] NZDC 9699 [Judgment under appeal].
Such appeals are characterised as an appeal against conviction and sentence.[3]
[3]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8]; and Criminal Procedure Act 2011, ss 229 and 244.
The appeal was filed six months out of time as Mr Bailey mistakenly filed the initial appeal in the High Court. The Crown does not oppose an extension of time. The time for filing the appeal is extended accordingly.

Background

On 1 March 2019, when Mr Bailey was 20, he was at a dance event held at the Ferguson Bar on the Massey University campus at Albany. A team policing unit was present given that approximately 1,500 persons were in attendance. In total nine or 10 officers were at the scene. At approximately 11.30 pm bar security staff ejected Mr Bailey from the bar as he was intoxicated. He was trespassed from the venue. The police became involved. Constables Bailie and Murphy walked Mr Bailey backwards towards an area where taxis and Ubers were operating from. On their evidence, at some point Mr Bailey stopped walking and said “I’m not leaving”, pushed both constables in the chest and sought to go past them to re-enter the venue.
Constable Bailie arrested Mr Bailey. That involved putting him to the ground to restrain him and applying handcuffs. Mr Bailey did not co-operate. He refused to allow himself to be handcuffed. He thrashed his arms and legs about in an attempt to break free. Constable Govinder and Senior Constable Wilson came to assist the arresting officers.
During the course of the officers’ attempt to apply handcuffs to Mr Bailey, Mr Bailey punched Senior Constable Wilson to the face knocking him backwards. As a result of Mr Bailey’s punch Senior Constable Wilson suffered a fractured nasal socket, swelling and a broken tooth. He was taken by ambulance from the scene, required hospital treatment overnight and was unable to return to work for a week as a result of his injuries.

District Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bailey v The the Queen

Details

AGLC: Bailey v The the Queen [2022] NZCA 335
Case: [2022] NZCA 335
Decision Date: 26 July 2022 at 10.30 am

CaseChat Overview and Summary

In Bailey v The Queen, the Court of Appeal of New Zealand considered an appeal by Theodore Anthony Bailey against the refusal of the District Court to discharge him without conviction following his guilty plea to aggravated assault on a police officer. Bailey argued that the District Court had erred in several respects, including by failing to properly weigh mitigating factors and considering the effect of his conviction on his ability to travel to Australia. The Crown did not oppose an extension of time for filing the appeal as Bailey had mistakenly filed the initial appeal in the High Court. The Court granted the application for an extension of time and the application to adduce further evidence but dismissed the appeal.

The appeal raised questions about the District Court's assessment of the gravity of the offence, the consequences of conviction for Bailey, and whether those consequences were out of proportion to the gravity of the offending. The Court of Appeal found that the District Court had erred in accepting unverified material from the Police National Intelligence Application (NIA) database to conclude that Bailey was not of good character. The Court also found that while Bailey's youth and rehabilitation efforts were mitigating factors, the overall gravity of the offence remained moderately serious due to the unprovoked assault on police officers and the serious injury caused to Senior Constable Wilson. The Court further found that the consequences of conviction for Bailey were low, particularly regarding his ability to travel to Australia, as his recent experience suggested that it was unlikely he would be denied entry. The appeal was dismissed as the consequences of conviction were not out of proportion to the gravity of the offending.

The Court granted the application for an extension of time to appeal and the application to adduce further evidence but dismissed the appeal.

Orders