Dalrymple v The Queen - [2015] NZCA 573

IN THE COURT OF APPEAL OF NEW ZEALAND

CA585/2015
[2015] NZCA 573

BETWEEN	BARBARA JEAN DALRYMPLE Appellant
AND	THE QUEEN Respondent

Court:

Ellen France P, Stevens and Wild JJ

Counsel:

E R Fairbrother QC for Appellant
J D Slankard for Respondent

Judgment:

(On the papers)

25 November 2015 at 1.00 pm

JUDGMENT OF THE COURT

AThe application for bail pending appeal is dismissed.
BMs Dalrymple is directed to present herself at the Auckland Region Women’s Corrections Facility between the hours of 8.00 am and 5.00 pm on 27 November 2015.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

On 5 August 2015 Ms Dalrymple was convicted on charges of aggravated robbery and accessory after the fact to wounding. She was remanded in custody pending sentence at the Auckland Region Women’s Correctional Facility. Ms Dalrymple was heavily pregnant at the time and, upon admission to the prison, made an application for a place in its maternity unit. Her application was declined by the prison manager on 14 August 2015.
On 20 August 2015, Thomas J granted bail on compassionate grounds, to enable Ms Dalrymple to give birth outside of the prison environment.[1] At the time of her sentencing Ms Dalrymple had been living with her baby at her mother’s address in Gisborne for a number of weeks.
[1]R v Dalrymple HC Gisborne CRI-2014-016-823, 20 August 2015 (bail decision of Thomas J).
On 1 October 2015 Lang J sentenced Ms Dalrymple to four years and six months’ imprisonment.[2] Later that day, the Judge was informed Ms Dalrymple intended to file an appeal against her conviction and sentence, and a bail application was made. Bail was opposed by the Crown on the basis that the criteria in s 14 of the Bail Act 2000 (the Act) had not been met. The Judge agreed bail would not ordinarily be allowed in the circumstances but decided “limited bail” on “humanitarian grounds” was appropriate.[3] Bail was granted subject to a further application being made to the Court of Appeal before 5 October 2015.[4]
[2]R v Dalrymple [2015] NZHC 2391.
[3]R v Dalrymple HC Gisborne CRI-2014-016-823, 1 October 2015 (bail decision of Lang J).
[4]At [10].
An application for bail was duly filed in this Court. Lang J directed that bail continue until disposition of that application.

The bail application

On 7 October 2015, the Judge responsible for the Criminal List asked counsel to consider:[5]
(a)how this application proceeding could be progressed efficiently; and
(b)how the question of the admission of Ms Dalrymple with her child to the maternity unit at Auckland Region Women’s Correctional Facility might be resolved.
[5]Dalrymple v R CA585/2015, 7 October 2015 (Minute of Stevens J).
Counsel for the parties later informed the Court that the Department of Corrections (Corrections) had confirmed that the prison manager was willing to provide an indication as to whether Ms Dalrymple would, if bail were revoked by this Court, be admitted to a self-care maternity unit with her baby. This…

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 Dalrymple v The Queen

Details

AGLC: Dalrymple v The Queen [2015] NZCA 573
Case: [2015] NZCA 573
Decision Date: 25 November 2015 at 1.00 pm

CaseChat Overview and Summary

In the appeal case of Dalrymple v The Queen, the Court of Appeal of New Zealand addressed the bail application of Ms. Barbara Jean Dalrymple, who was convicted of aggravated robbery and accessory after the fact to wounding. Ms. Dalrymple, who was heavily pregnant at the time of her conviction, sought bail pending appeal to give birth outside of a prison environment. The legal issues before the court were whether the criteria in section 14 of the Bail Act 2000 had been met and whether granting bail on humanitarian grounds was appropriate. The court considered the circumstances of Ms. Dalrymple's pregnancy and her need to give birth in a non-prison setting, as well as the willingness of the Auckland Region Women’s Corrections Facility to admit her to their maternity unit.

The Court of Appeal examined the arguments presented by both Ms. Dalrymple's counsel and the Crown. The court acknowledged the compassionate grounds for Ms. Dalrymple's bail application, which included the need for a suitable birthing environment due to her pregnancy. After considering the information provided by Ms. Dalrymple and the confirmation from the Department of Corrections that the prison was willing to admit her to the maternity unit, the court decided that the application for bail should be dismissed. Instead, the court ordered Ms. Dalrymple to present herself at the Auckland Region Women’s Corrections Facility on a specified date to facilitate her admission to the maternity unit. This decision balanced the need for humanitarian considerations with the requirements of the Bail Act.

In conclusion, the Court of Appeal dismissed Ms. Dalrymple's application for bail pending appeal and ordered her to present herself at the Auckland Region Women’s Corrections Facility on 27 November 2015. This decision was made in light of the arrangements that had been made to permit her emergency reception into the prison's maternity unit, pending a formal application under section 81A of the Corrections Act 2004. The court appreciated the cooperation of both counsel and the prison authorities in reaching this resolution.

Orders