Michell v The Queen

[2005] NZCA 239

IN THE COURT OF APPEAL OF NEW ZEALAND

CA327/05

THE QUEEN

v

KERRYN MITCHELL

Hearing:11 October 2005

Court:Glazebrook, Ronald Young and Doogue JJ

Counsel:V C Nisbet for Appellant

M F Laracy for Crown

Judgment:17 October 2005 

JUDGMENT OF THE COURT

APPLICATION FOR BAIL REVIEW DISMISSED.

REASONS

(Given by Ronald Young J)

[1]       This is an application for bail review pending hearing of an appeal against conviction and sentence on one charge of injuring with intent to injure and two charges of assault with a weapon.  The appellant was convicted before a jury in the District Court at Wellington on 23 August 2005.  An application for bail was made before this Court on 21 September and considered and refused by O’Regan J.

[2]       The offending involved a sudden attack on a police officer and a security guard.  The officer suffered serious injury to her knee and the officer and security guard were pepper sprayed.  The sentencing Judge remarked on the appellant’s long history of violence towards police officers and imposed a sentence of eight months imprisonment refusing leave to apply for home detention.  That refusal is the primary focus on the sentence appeal.

[3]       The earlier application for bail and this review is based on the proposition that the appellant may serve her sentence before her appeal can be heard.  At the bail hearing of 21 September it seemed probable that a hearing date would not be available until late November.  Counsel for the appellant also emphasised the appellant’s personal circumstances and in particular that because of her psychiatric diagnosis her time in prison was extremely difficult.

[4]       Since filing that memorandum, counsel has been advised that there are hearing dates available to consider the conviction and sentence appeal on either 19 or 25 October.  Counsel for the appellant is to advise the Court within the next one to two days which of the two October dates is the most suitable.

[5]       Section 14 of the Bail Act provides that 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 to grant bail.  The onus (by virtue of s 14(2)) is on the appellant to show cause why bail should be granted.

[6]       Given the early fixture now able to be allocated to the hearing of this appeal, there is no danger that the appellant will have served her sentence before her appeal is properly heard.  In those circumstances, we are satisfied that she has not discharged the onus placed on her to establish that it is in the interests of justice to grant bail. 

[7]       The bail review is therefore refused.

Solicitors:
Crown Law Office, Wellington