Gollan v The Queen - [2012] NZCA 586

IN THE COURT OF APPEAL OF NEW ZEALAND

CA580/2012
[2012] NZCA 586

BETWEEN JAMES PATRICK GOLLAN
Applicant

AND THE QUEEN
Respondent

Hearing: 7 December 2012

Court: Arnold, Ellen France and White JJ

Counsel: Applicant in person
M D Downs for Respondent

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…

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 Gollan v The Queen

Details

AGLC: Gollan v The Queen [2012] NZCA 586
Case: [2012] NZCA 586
Decision Date: 13 December 2012

CaseChat Overview and Summary

James Patrick Gollan appealed against his conviction and sentence, seeking bail pending the appeal. The Court of Appeal of New Zealand, consisting of Arnold, Ellen France and White JJ, dismissed the application for bail. Gollan was convicted of assault with a weapon and threatening to do grievous bodily harm. He was sentenced to 12 months imprisonment. He argued that bail was necessary for him to prepare his appeal and that the merits of the appeal were strong. The Crown opposed the bail application, stating that Gollan had not discharged the onus in the Bail Act to show that bail was in the interests of justice.

The court considered the application for bail under s 14 of the Bail Act. It noted that prison managers have obligations to assist prisoners in preparing an appeal, and Gollan could raise any concerns about the adequacy of facilities with the prison authorities. The court also noted that Gollan had represented himself in the District Court and was familiar with the facts. However, the court found that Gollan would have to persuade it to overturn credibility findings, which was not compelling at this stage. The court also found that Gollan's personal circumstances, such as the financial impact on his family, did not justify bail. Therefore, the court was not satisfied that bail would be in the interests of justice.

The Court of Appeal dismissed the application for bail and ordered that the appeal against conviction and sentence be set down for hearing on 14 February 2012. The Crown Law Office, Wellington, represented the respondent.

Orders