Douglas v The Queen

[2014] NZCA 427

IN THE COURT OF APPEAL OF NEW ZEALAND

CA447/2014
[2014] NZCA 427

BETWEEN	PAUL RICHARD DOUGLAS Appellant
AND	THE QUEEN Respondent

Counsel:

Appellant in person
BCL Charmley for Respondent

Judgment:

(On the papers)

29 August 2014 at 3 pm

BAIL JUDGMENT OF WILD J

The application for bail pending the hearing of this appeal is dismissed.

____________________________________________________________________

REASONS OF WILD J

1. By application filed on 21 August the appellant applies for bail pending the hearing of this appeal.  The application, which Mr Douglas handwrote, is expressed to be under s 393(2)(d) of the Crimes Act 1961.  As that provision was repealed with effect from 1 July 2013, I treat the application as made in reliance on ss 14 and 55 of the Bail Act 2000.

2. Mr Douglas’ appeal, which he filed on 15 August, is only against his conviction.  In setting out the grounds on which he seeks bail, Mr Douglas states that the sentence he is presently serving is a “completely erroneous sentence” and one “so far off appropriate”.  So I signal to Mr Douglas that if he intended to appeal also against his sentence, he should make that clear to the Court and the Crown without delay.

3. At trial Mr Douglas was convicted on charges of possession of equipment capable of being used to manufacture methamphetamine, possession of material capable of being used for the same purpose and possession of precursor substances used in the manufacture of methamphetamine.

4. In considering where lie the interests of justice in respect of bail pending the hearing of the appeal, I work through the considerations set out in s 14(3) of the Bail Act:

The apparent strength of the grounds of appeal (s 14(3)(a) of the Bail Act) 

1. Mr Douglas’ grounds of appeal allege error on the part of his trial counsel, in particular in not submitting “my full defence evidence”, irregularity on the part of the police and prosecution and the admission of propensity evidence which “led to an unfair trial”.  At this very early stage of the appeal, I cannot accurately assess the merits – or lack of merits – of these allegations. 

2. In its memorandum opposing bail, the Crown submits the conviction appeal does not appear to be strong.  It points out that the equipment, material and substances which led to the charges were found at Mr Douglas’ residential address.  And the propensity evidence that Mr Douglas contends was wrongly admitted was of convictions entered against him in 2008 for similar drug offending at the same address. 

3. There is nothing in any of this to suggest the level of merit that might found the granting of bail pending appeal.

The length of the sentence imposed (s 14(3)(b)) 

1. Mr Douglas is sentenced to two years four months imprisonment.  As the Crown points out, this Court has described a sentence of two and a half years as “middling” and therefore a neutral factor on an application for bail pending appeal.  Mr Douglas will be eligible for parole in May 2015.

Likely length of time before appeal is heard (s 14(3)(c))

1. This Court is currently in a position to hear criminal appeals promptly once they are ready for hearing.  So this factor is not one favouring the grant of bail pending appeal.

Personal circumstances (s 14(3)(d)) 

1. Mr Douglas contends he cannot properly prepare his appeal from prison.  Mr Douglas is in the situation of every appellant against a sentence of imprisonment.  Legal aid is available to assist Mr Douglas in exercising his right of appeal.  Complaints about inadequate facilities in prison or the inadequacy of legal aid should be directed, not to this Court, but to the prison authorities and the Legal Services Agency respectively.

Any other considerations (s 14(3)(e))

1. Mr Douglas points to the fact that he was on bail pre-trial and then again between his conviction and sentencing without breach of his bail conditions.  The Crown is correct in responding that this is irrelevant at this stage.  Now that Mr Douglas has been sentenced to imprisonment, there is a presumption against granting bail pending the hearing of the appeal.  Section 14(2) places the onus “to show cause why bail should be granted” firmly on Mr Douglas.  The Court must not now grant bail:  “… unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so”.[1]

   [1]Section 14(1) of the Bail Act.

2. I am not satisfied that the interests of justice probably require the grant of bail to Mr Douglas pending the hearing of his appeal.  Consequently, I dismiss his application.

3. Justice is best served by Mr Douglas getting his appeal ready for hearing as rapidly as he can.

Solicitors:
Crown Law Office, Wellington for Respondent