Gollan v The Queen
[2012] NZCA 586
•13 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA580/2012 [2012] NZCA 586 |
| BETWEEN JAMES PATRICK GOLLAN |
| AND THE QUEEN |
| Hearing: 7 December 2012 |
| Court: Arnold, Ellen France and White JJ |
| Counsel: Applicant in person |
| Judgment: 13 December 2012 at 10.30 am |
JUDGMENT OF THE COURT
The application for bail pending appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
James Gollan was convicted after a trial before a Judge alone of two counts of assault with a weapon and two counts of threatening to do grievous bodily harm.[1] He was sentenced by the trial Judge, Judge Ruth, to a term of 12 months imprisonment.[2] He has appealed to this Court against his conviction and against sentence.
[1] R v Gollan DC Hamilton CRI-2011-019-2337, 17 August 2012.
[2] R v Gollan DC Hamilton CRI-2011-019-2337, 11 October 2012.
Mr Gollan applied under s 70 of the Bail Act 2000 for bail pending his appeal. Randerson J declined to grant bail.[3] Mr Gollan made a further application for bail. We have considered that application afresh.[4]
Factual background
[3] Gollan v R CA580/2012, 15 November 2012 (Minute of Randerson J).
[4] Crimes Act 1961, s 393(3).
The offending related to events occurring on 30 March 2011. The first of the two complainants was a repossession agent who went to Mr Gollan’s home with his brother, the second complainant, to repossess a motor vehicle. The Crown case was that Mr Gollan approached both men, threatening to use a shotgun, and swinging a baseball bat at the two men. Mr Gollan denied the complainants’ account and gave and called evidence supporting his version of events. His position was that he was acting in defence of moveable property with a claim of right.[5] The Judge rejected the defence.
[5] Crimes Act 1961, s 53.
It was a part of the defence case that the two complainants were trespassers because of issues over the legality of the repossession. Judge Ruth found against Mr Gollan on this point. The Judge said that the two complainants were acting under documentation they were entitled to view as legitimate. But, in any event, Judge Ruth went on to find that even if the two men were trespassing, the force used by Mr Gollan was not reasonable.
The application for bail
The application for bail is brought on two grounds. First, Mr Gollan says bail is necessary to enable him as a self-represented litigant to adequately prepare his appeal. Secondly, Mr Gollan submits that the merits of his appeal are strong.[6]
[6] Bail Act 2000, s 14(3)(a).
The Crown opposes bail on the basis that Mr Gollan has not discharged the onus in the Bail Act to show that bail is in the interests of justice.
Discussion
The test to be applied in relation to the application is that set out in s 14 of the Bail Act. Under s 14(1) bail is not to be granted unless the court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the applicant to show cause why bail should be granted.
We deal first with the ability to prepare for the appeal.
The initial point we make in respect of this aspect is that there are various obligations on prison managers to assist prisoners in the applicant’s position. In particular, reg 193 of the Corrections Regulations 2005, which applies to any prisoner who is appealing against conviction, provides that the prison manager must:
(2) … as far as is reasonably practicable in the circumstances, –
(a)ensure that the prisoner is provided with adequate facilities to do so, to the extent that this is consistent with the maintenance of safety and security requirements; and
(b) facilitate contact between the prisoner and any advisor or assistant (other than another prisoner) helping the prisoner to do so.[7]
[7]That sub-clause is subject to cls 4–7 of sch 4 of the Corrections Regulations 2005, which allow for certain visitors to be prohibited.
This regulation is in addition to the various provisions in the Corrections Act 2004 that cover matters such as access to private visitors, the ability to send and receive mail and to make outgoing telephone calls.[8]
[8] Corrections Act 2004, ss 69, 73, 76 and 77.
Mr Gollan says that despite the efforts of the Corrections officers, adequate facilities are not able to be provided for him at the prison. His right to equality of arms is therefore infringed. However, if there are issues about the adequacy of the facilities, Mr Gollan will have to pursue this further with the prison authorities.[9]
[9]R v Greer CA161/03, 15 June 2006 leave to appeal refused by Greer v R [2006] NZSC 7, [2006] 3 NZLR 740; and R v Greer CA179/06, 21 December 2006.
Secondly, as we shall discuss, the issues on the conviction appeal are essentially factual. Mr Gollan demonstrated he is familiar with the facts. His grasp of the factual material is consistent with the fact that he represented himself in the District Court over the course of a four day trial. He is also clear about the matters he wishes to raise on appeal. In these circumstances, Mr Gollan’s concerns about the impact of being in prison on his ability to prepare the appeal are not decisive on the question of bail.
In terms of the strength of the appeal, the conviction appeal raises a number of issues. However, it appears Mr Gollan’s main focus will be that he was using reasonable force to remove trespassers from his property.[10] To succeed on this basis will require reconsideration of the Judge’s findings that, in general, the accounts of the prosecution witnesses, particularly the two complainants, were credible and largely supported by the transcript of the contemporaneous 111 call. Associated with that, Mr Gollan will have to challenge the Judge’s finding that even if the two complainants were trespassing on Mr Gollan’s property, the force used to remove them was not reasonable.
[10]Mr Gollan relies on the approach taken in R v Hills (1999) 16 CRNZ 673 (CA) dealing with the ability of an occupier to use reasonable force to prevent trespass.
It is not appropriate on the limited information before us at this stage to reach any concluded view on the merits. However, it appears that Mr Gollan will have to persuade this Court to overcome the reluctance, absent error, to overturn credibility findings on an appeal. There is nothing compelling about this aspect of the application for bail. We reach the same conclusion about the sentence appeal. The focus of that part of the appeal will be on whether home detention should have been granted. The Judge has addressed this issue and gave reasons for his decision. We agree, however, with Dr Downs’ submission that the hearing of Mr Gollan’s appeal should be given priority. An early fixture is available.
In his initial application for bail, Mr Gollan also referred to his personal circumstances, particularly, the financial impact on him and his family of his custodial sentence.[11] This was not a matter pursued in oral argument but, in any event, nothing raised goes beyond the hardship that unfortunately often falls on a defendant’s family as a result of conviction for criminal offending. Such consequences on their own will not justify bail.[12] There are no other considerations relevant to the decision on bail.
[11] Bail Act 2000, s 14(3)(d).
[12] For example, Ngamu v R [2010] NZCA 3.
For these reasons, we are not satisfied that bail would be in the interests of justice.
Result
The application for bail is dismissed. The Registrar is to set the appeal against conviction and sentence down for hearing on Thursday 14 February 2012.
Solicitors:
Crown Law Office, Wellington for Respondent
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