Gowing v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/2017
[2017] NZCA 26

BETWEEN	NIGEL FRASER GOWING Applicant
AND	THE QUEEN Respondent

Counsel:

N M Dutch for Applicant
M L Wong for Respondent

Judgment:

(On the papers)

24 February 2017 at 4.30 pm

(BAIL) JUDGMENT OF WILD J

The application is dismissed.

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REASONS

This is an application for bail pending appeal. Sections 14 and 55 of the Bail Act 2000 apply, as does s 343 of the Criminal Procedure Act 2011.
Having been convicted on a charge of injuring with intent to injure, on 20 January Mr Gowing was sentenced to six months home detention. He filed a notice of appeal in this Court on 17 February and today, 24 February, applied for bail pending the hearing of that appeal.
The nub of the appeal is in paragraph 4 of Mr Dutch’s memorandum dated today:
A delay in hearing will effectively render the sentence aspect of the appeal nugatory. By the time of hearing the appellant is likely to have served much of his home detention sentence.
The short answer to this application is to bring the appeal on for hearing promptly. Time is available in Auckland on Thursday 9 March and I have pencilled this appeal in with an estimated hearing time of one hour.
Quite apart from the ability to hear the appeal promptly, I would not have granted bail. I cannot see here the exceptional circumstances that this Court has held are required,[1] and the fact that Mr Gowing’s sentence of home detention might have been largely completed by the time the appeal was heard (even if it were the case) is not sufficient to justify bail pending appeal.[2]
[1]Whitehead v R [2014] NZCA 300 and Iti v R [2012] NZCA 307.
[2]Hoffman v R [2016] NZCA 531 at [9].
For those reasons the application is dismissed.
Mr Dutch should contact this Court’s Registry to firm up the 9 March fixture and agree urgent timetabling of submissions with the Crown.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The appeal in Gowing v The Queen involved the applicant, Nigel Fraser Gowing, who sought bail pending the hearing of his appeal against his conviction and sentence. Gowing had been convicted on a charge of injuring with intent to injure and was sentenced to six months home detention. The applicant filed a notice of appeal and subsequently applied for bail pending the appeal. The legal issues in this case centred on whether the applicant was entitled to bail while awaiting the hearing of his appeal. The court had to determine whether exceptional circumstances existed that would justify granting bail pending appeal, given the potential for the sentence to be largely served by the time of the appeal hearing.

The court considered the relevant legal principles and authorities, including the Bail Act 2000, the Criminal Procedure Act 2011, and previous case law on bail pending appeal. The court noted that the appeal related to the sentence aspect, and a delay in hearing the appeal might render it nugatory. However, the court held that the fact that the applicant's sentence might be largely completed by the time of the appeal hearing was not sufficient to justify granting bail. The court found that exceptional circumstances were required for bail to be granted in such cases, and these were not present in this matter. The court also scheduled the appeal to be heard promptly, on 9 March, and directed the applicant's counsel to firm up the fixture and agree on urgent timetabling of submissions with the Crown.

In conclusion, the Court of Appeal dismissed the applicant's application for bail pending appeal. The court found that exceptional circumstances were not present and that the potential for the sentence to be largely served by the time of the appeal hearing was not sufficient to justify granting bail. The court scheduled the appeal to be heard promptly and directed the applicant's counsel to firm up the fixture and agree on urgent timetabling of submissions with the Crown.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established