Hosking v R - [2012] NZCA 263

IN THE COURT OF APPEAL OF NEW ZEALAND

CA317/2012
[2012] NZCA 263

BETWEEN DARREN GEORGE HOSKING
Appellant

AND THE QUEEN
Respondent

Counsel: J C Hannam for Appellant
M H Cooke for Respondent

Judgment: 22 June 2012 at 3.00 pm

(On the papers)

JUDGMENT OF STEVENS J

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

____________________________________________________________________

REASONS

Introduction

The appellant, Darren George Hosking, was found guilty by a jury in the District Court at New Plymouth of seven counts of wilfully doing an indecent act in a public place under s 125(1) of the Crimes Act 1961. Following the trial the appellant was convicted by Judge Roberts on 21 May 2012. He is to be sentenced by the Judge on 16 July 2012.
The appellant, through his trial counsel, Mr Laurenson, applied for bail pending sentence. In an oral decision the Judge declined the application and remanded the appellant in custody.[1]
[1]R v Hosking DC New Plymouth CRI-2011-043-1099, 21 May 2012.
The appellant has appealed to this Court against his conviction on the seven charges. He has applied for bail pending the determination of his appeal pursuant to s 70 of the Bail Act 2000. The Crown opposes the application. I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961. Counsel has not sought an oral hearing. I have therefore determined the application on the papers and on the basis of the written submissions filed by the parties.
The test to be applied on this application for bail is set out in s 14 of the Bail Act. Under s 14(1), I am not to grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in this case to do so. Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.
Subsection (3) sets out matters the Court should take into account when applying the interests of justice test. The first of those grounds is “the apparent strength of the grounds of appeal”. This is an important factor. The more likely it is that the appeal will be granted, the stronger, all other things being equal, is the case for bail. Conversely, if the appeal seems meritless, it is unlikely that bail would be in the interests of justice. The prospects of success on appeal need to be very strong before this factor can go in the balance on the side of granting bail.
Often, judges determining bail applications post-conviction find it difficult to assess the merits of the appeal: there can be little information available to assess the merits with any degree of accuracy. That is the case here. The notice of appeal against conviction simply states that the Judge “did not provide a balanced summing up”. Specifically, it is said that the Judge “did not provide a balanced account of defence and prosecution cases in that he favoured the prosecution case…

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 Hosking v R

Details

AGLC: Hosking v R [2012] NZCA 263
Case: [2012] NZCA 263
Decision Date: 22 June 2012

CaseChat Overview and Summary

Darren George Hosking has appealed against his conviction on seven counts of wilfully doing an indecent act in a public place under s 125(1) of the Crimes Act 1961, following his trial in the District Court at New Plymouth. He has applied for bail pending the determination of his appeal pursuant to s 70 of the Bail Act 2000. The Crown opposes the application, and the Court has considered the application on the papers and written submissions of the parties.

The primary legal issue was whether it was in the interests of justice to grant bail pending the appeal against conviction. The Court considered the apparent strength of the grounds of appeal, the length of the sentence that has been imposed on the appellant, the likely length of time that will pass before the appeal is heard, and the appellant's personal circumstances. The Court found that the appellant had not satisfied the onus placed upon him to show cause why bail should be granted.

The Court concluded that the appeal was not obviously hopeless but was also not clear cut. The sentencing of the appellant had not yet occurred, and imprisonment was plainly an available option. The Court considered that it would endeavour to deal promptly with the appeal against conviction and/or sentence should the Judge at sentencing impose a sentence of imprisonment. The Court took into account all these considerations and formed the view that it was not in the interests of justice to grant bail pending the appeal against conviction.

The Court dismissed the application for bail pending the hearing of the appeal against conviction.

Orders