Mitchell v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA675/2015
[2015] NZCA 634

BETWEEN	KERRYN MITCHELL Appellant
AND	THE QUEEN Respondent

Counsel:

Appellant in person
Crown Law Office for the Respondent

Judgment:

(On the papers)

21 December 2015

JUDGMENT OF HARRISON J
(Application for Bail)

The appellant, Kerryn Mitchell, was convicted in the District Court at Wellington on charges of attempting to contravene a protection order, threatening to kill and contravening a protection order. Judge Kelly sentenced her to a term of two years and three months imprisonment.
Ms Mitchell has appealed to this Court against her conviction and sentence.
Ms Mitchell has applied for bail pending determination of her appeal pursuant to s 70 of the Bail Act 2000, which I have considered pursuant to s 393(2)(d) of the Crimes Act 1961.
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 best interests of justice in the particular case. Ms Mitchell has the onus of showing cause why bail should be granted.
I note that Ms Mitchell’s notice of appeal recites that her counsel is Christopher Tennet. However, Ms Mitchell herself has filed the application for bail on 16 December 2015. The application does not provide any grounds in support. On 17 December a member of the Registry communicated a message to Ms Mitchell that any further submissions are to be filed in writing as soon as possible.
Ms Mitchell has advised the Registry that she has been deprived of access to facilities which would enable her to prepare written submissions. I am unable to comment on that allegation. The attention of the prison authorities is drawn to their statutory obligation to cooperate and make facilities available to prison inmates whenever they are reasonably requested.
For present purposes I record that Ms Mitchell has failed to satisfy her statutory onus and her application for bail pending determination of her appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The case of Kerryn Mitchell versus The Queen involves an appeal against a conviction and sentence handed down by the District Court at Wellington. Mitchell was found guilty of attempting to contravene a protection order, threatening to kill, and contravening a protection order. The sentence imposed was two years and three months imprisonment. Mitchell has appealed to the Court of Appeal of New Zealand, and in the interim, has applied for bail pending the determination of her appeal. The application was made under section 70 of the Bail Act 2000 and was considered by Justice Harrison.

The legal issues before the court were whether the applicant had satisfied the onus of demonstrating why bail should be granted under the Bail Act 2000, and if the court was satisfied on the balance of probabilities that it would be in the best interests of justice to grant bail. The court also needed to consider whether the applicant had been deprived of access to facilities necessary to prepare submissions in support of her bail application, and whether this impacted her ability to meet the statutory onus.

Justice Harrison found that Mitchell had failed to provide any grounds in support of her bail application. The court noted that while Mitchell's notice of appeal indicated that her counsel was Christopher Tennet, it was Mitchell herself who filed the application for bail. The court directed Mitchell to file further submissions, to which she responded that she lacked access to necessary facilities. While the court could not comment on this allegation, it did draw the attention of the prison authorities to their statutory obligation to cooperate and make facilities available to inmates. Ultimately, Mitchell did not satisfy her onus of showing cause why bail should be granted, and her application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established