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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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. 

6. 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 over that of the defence”.

7. In his submissions in reply, Mr Hannam (the appellant’s counsel for the appeal) commented that he would be seeking to add to this ground when the case on appeal is available.  But counsel fairly acknowledged that as he was not trial counsel he could not make any further submission at this stage about the strength of the appeal.  Added to this is the fact that the transcript of the Judge’s summing up is not yet available.

8. Accordingly, I have been unable to form a clear view on the strength of the appeal grounds.  All I can say at this stage is that the appeal is far from being clear cut;  nor is it obviously hopeless.

9. The second factor under s 14(3) is “the length of the sentence that has been imposed on the appellant”.  Obviously, it will be easier to get bail in circumstances where the sentence is very short.  The difficulty here is that the sentencing of the appellant has not yet occurred.  It is still a little over three weeks away.  But given the nature of the facts giving rise to the offending, imprisonment is plainly an available option.  There are seven female complainants ranging in age from 10 years to 38 years.  The offending took place in public places on six different occasions including at a school, in a store, in the street and at the beach.  On the bail application in the District Court the Judge indicated that he would need to be persuaded not to send the appellant to jail.[2]

   [2] At [3].

10. Should the Judge at sentencing impose a sentence of imprisonment, this Court would endeavour, in the normal course, to deal promptly with the appeal against conviction and/or sentence.  That addresses the third factor in s 14(3), namely “the likely length of time that will pass before the appeal is heard”.

11. A further relevant factor concerns the appellant’s personal circumstances.[3]  Counsel for the respondent submits that there are no particular personal circumstances raised in support of the application for bail.  While the appellant has a bail address, no history of breaches of bail and no significant history of criminal offending, I am satisfied that these matters on their own are not sufficient to enable the appellant to discharge the onus of showing cause why bail should be granted.

    [3]      Bail Act 2000, s 14(3)(d).

12. Although the Court may consider other considerations, none is advanced here.

13. Taking into account all these considerations, I have formed the view that the appellant has not satisfied the onus placed upon him.  On the balance of probabilities I do not consider that it would be in the interests of justice to grant bail pending the appeal against conviction.

Solicitors:
Crown Law Office, Wellington for Respondent