Dalrymple v The Queen
[2015] NZCA 573
•25 November 2015 at 1.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA585/2015 [2015] NZCA 573 |
| BETWEEN | BARBARA JEAN DALRYMPLE |
| AND | THE QUEEN |
| Court: | Ellen France P, Stevens and Wild JJ |
Counsel: | E R Fairbrother QC for Appellant |
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.
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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 would require the prison manager to be properly informed of all the circumstances and the usual process undertaken for assessing Ms Dalrymple’s suitability under s 81A(1) of the Corrections Act 2004, including gathering information from relevant agencies and people.[6]
Application for admission to maternity unit
[6]Ms Dalrymple was asked to provide the information that she would be required to provide in support of an application for admission to a self-care unit and to consent to Corrections collecting the information it requires to assess her suitability.
Following the provision of information by Ms Dalrymple (including permitting Corrections to obtain information about her held by Child Youth and Family Services), the prison manager at Auckland Region Women’s Corrections Facility decided to allow Ms Dalrymple to be received into the prison’s Mothers and Babies Unit on an emergency basis.
On 12 November the prison manager wrote to counsel for Ms Dalrymple, Mr Fairbrother QC, advising of her decision. Further clarification was sought and counsel has now received confirmation that there are two houses in the Mothers and Babies Maternity Unit and security concerns at the ward have been able to be minimised. The prison manager’s intention is to allow emergency reception without delay, pending the consideration of a formal application for Ms Dalrymple’s admission to the maternity unit.
All other outstanding administrative issues have been resolved by agreement.
Determination of bail application
Counsel for both Ms Dalrymple and the respondent have consented to the appeal being dealt with on the papers without the need for a formal hearing.[7]
[7]Pursuant to s 329(3) of the Criminal Procedure Act 2011.
To dispose of the application, counsel have jointly proposed that the Court dismiss Ms Dalrymple’s application for bail pending appeal and order her 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.
Given the arrangements that have now been made by Corrections to permit the emergency reception of Ms Dalrymple and her baby into the maternity unit (pending consideration of the formal application under s 81A of the Corrections Act), we consider this is an appropriate outcome. We therefore make orders by consent to that effect.
The Court appreciates the efforts made by both counsel to resolve this important issue. The Court has also been assisted by the willingness of the prison manager at Auckland Region Women’s Correction Facility to facilitate the determination of the s 81A application.
Solicitors:
Crown Law Office, Wellington for Respondent
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