Carol Margaret Down v The Queen
[2011] NZSC 41
•19 April 2011
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 35/2011 [2011] NZSC 41 |
| CAROL MARGARET DOWN |
| v |
| THE QUEEN |
| Court: Tipping, McGrath and William Young JJ |
| Counsel: A D Banbrook for Applicant |
| Judgment: 19 April 2011 |
JUDGMENT OF McGRATH J ON BAIL APPLICATION
A The application for bail is dismissed.
BIf the applicant is not presently in custody, she must comply with the Court of Appeal’s order forthwith.
REASONS
Ms Down has applied to this Court for leave to appeal against a judgment of the Court of Appeal[1] given in relation to her conviction by a jury in the District Court on four charges of using a document with intent to obtain a pecuniary advantage dishonestly (s 228(6) Crimes Act 1961). She was sentenced in that Court to concurrent terms of one year eleven months imprisonment.[2] The Court of Appeal dismissed her appeal against conviction and sentence and she seeks leave to appeal against that Court’s judgment.
[1]Down v R [2011] NZCA 138.
[2]R v Down DC Auckland CRI-2009-004-7739, 16 July 2010.
The matter presently before the Court is an application for bail pending the determination of the leave application or resulting appeal. The Court of Appeal directed that the applicant resume her sentence of imprisonment by 8 April 2011. Her bail application must accordingly be considered in light of s 14 of the Bail Act which requires her as a convicted person in custody to show cause why bail should be granted pending determination of an appeal. As well, the Court must not grant bail unless satisfied that it is in the interests of justice to do so having regard to the considerations in s 14(3) of the Act. They are the apparent strength of the grounds of appeal, the length of the sentence, the time until the appeal is heard, personal circumstances and other relevant considerations.
Mr Banbrook’s main submission for the applicant is that the finding that she used certain invoices that a co-accused had prepared and despatched was wrong and has led to a miscarriage of justice. The Crown case at trial was that the knowledge and experience of the applicant, coupled with her active involvement in the company, pointed to her knowing participation in the fraud. That reasoning is challenged because of her minimal commercial experience, her personal circumstances and the controlling role of the co-accused. Mr Banbrook has also referred to potential difficulties over getting legal aid for the leave application and the applicant’s personal circumstances. The applicant was granted bail after her sentence in the District Court which ended following the Court of Appeal judgment.
Against these matters, I must consider both the statutory policy and that the jury’s adverse verdict reflects its assessment that the applicant knew of the fraudulent nature of the loans, and that the Court of Appeal has also expressed the view that the applicant must have known of the dishonest basis of the transactions in issue which resulted in advances. The material so far provided to the Court does not demonstrate apparent material error or miscarriage of justice, although that might change when submissions on the application for leave are received. Neither the length of the sentence or other personal circumstances (including potential legal aid problems) provide strong reasons for granting bail.
Applying the statutory provisions, I am not satisfied at this point by the applicant’s submissions that it is in the interests of justice in the circumstances of this case to grant her bail. The application is dismissed. A further application can be submitted if the applicant obtains leave to appeal.
Solicitors:
C K Lyon, Auckland for Applicant
Crown Law Office, Wellington
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