Devereux v The Queen

[2004] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

CA318/04

THE QUEEN

v

WILLIAM JOSEPH DEVEREUX

Appearances:  Appellant in person

B J Horsley for Crown

Judgment:30 September 2004 

JUDGMENT OF McGRATH J ON APPLICATION FOR BAIL

[1]       The appellant, Mr Devereux, was convicted of assault with intent to commit sexual violation by a Judge of the District Court sitting without a jury.  He was sentenced on 15 July 2004 to 18 months imprisonment.  He has appealed against his conviction and sought bail.

[2]       In this decision I am exercising the power I have as a Judge of the Court of Appeal to determine an application for bail under s393(2) of the Crimes Act 1961.  The Court’s power to grant bail to a person who is in custody consequent on conviction and sentence, and who is appealing to this Court is given by s70 of the Bail Act 2000. 

[3]       The appellant’s notice of appeal against conviction and sentence, together with his application for bail, was received by the Court on 13 August 2004.  At present he is acting for himself in these matters.  On 8 September 2004 O’Regan J gave him the opportunity to make submissions in support of the application for bail, directing his attention to s14 of the Bail Act which states the basis on which the Court must exercise its discretion to grant bail. 

[4]       Submissions have now been received from the appellant who reiterates that the deceased complainant did not make a statement supporting her complaint and that he has been convicted as a result of a fabricated statement.  He makes a number of allegations against the police and a witness giving evidence against him.  He complains that the police have treated him with contempt for their own purposes.  He points out that he is aged 60 years with no prior record of sexual offending and that he was on bail for 15 months prior to trial.  It is plain that he considers he has good grounds for appeal.

[5]       The Crown through Mr Horsley has opposed bail and argued that here is no merit in the appeal against conviction or sentence.  Crown points out that the current offending occurred while the appellant was on bail for assaults on the same victim.  Mr Devereux makes the point that no-one has pursued complaints he had made against the victim.  The victim herself died prior to the trial. 

[6]       Section 14 directs me not to grant bail unless satisfied, on the balance of probabilities, that it would be in the interests of justice to do so in this case.  It is for the appellant to show why bail should be granted.  This reflects a presumption under s14 that the appellant having been convicted at a trial and sentenced to imprisonment his continuing custody is appropriate pending the outcome of his appeal.  The appellant can however show that there are circumstances which displace that presumption.  In this case the particular circumstances most relevant to the interests of justice are those stipulated in s14(3) of the Act.

[7]       The appellant’s submissions do not persuade me that there is apparent strength in his grounds of appeal although I am conscious that this impression may change in the course of the hearing of the appeal.  I am informed by this Court’s registry that it is likely that the appeal will be heard in November this year which does not involve undue delay, having regard to the dates of conviction and sentence and when the appellant is eligible for consideration of parole.  His age and hearing disability do not amount to circumstances that significantly add weight to the bail application.  In summary I am not persuaded that the presumption that his continuing imprisonment under the conviction and sentence that are subject of appeal is appropriate, has been displaced.

[8]       As the decision amounts to a refusal to exercise a power conferred on a single Judge the appellant is notified that he may apply to the Registrar to have his application reviewed and determined by three other Judges of the Court (s393(3)) of the Crimes Act.

Solicitors:
Crown Law Office, Wellington