O'Sullivan v The Queen

[2014] NZHC 143

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-39

CRI 2013-441-40 [2014] NZHC 143

BETWEEN  ADAM JAMES O'SULLIVAN and JESSE RAYMOND ELLMERS

Appellants

ANDTHE QUEEN Respondent

Hearing:                   5 February 2014

Counsel:                  P J Jensen for Appellants

C Walker for Respondent

Judgment:                13 February 2014

JUDGMENT OF THE HON JUSTICE KÓS

[1]      A drag race, ending in a death.  Mr Ellmers and Mr O’Sullivan were involved in the organisation of the race.  Mr O’Sullivan sounded the horn to start the race.  At the end of the race one of the drivers, Mr Lawrence, lost control.  A passenger in his car, Ms Schafer, died.

[2]      Messrs Ellmers and O’Sullivan pleaded guilty to being party to the operation of a motor vehicle in a race resulting in death.1    Mr O’Sullivan, who had tried to persuade witnesses not to tell the police that he had sounded the horn, also pleaded guilty to attempting to pervert the course of justice.  Judge Rea sentenced each to 18 months’ imprisonment on the principal charge, and Mr O’Sullivan to 12 months on the perversion charge.  Home detention was refused.

[3]      Appeals against sentence were filed in mid-December 2013.  They were due to be heard on 5 February 2014.  Then, on 31 January 2014, notices of appeal against

1      Land Transport Act 1998, ss 22A and 36A(3).

O'SULLIVAN and ELLMERS v R [2014] NZHC 143 [13 February 2014]

conviction were filed by Mr Jensen, newly-appointed counsel for both appellants. The essence of the appeals is alleged counsel error by those formerly representing the appellants.

Appeals adjourned

[4]      The  appellants  evinced  optimism  that  all  this  could  be  addressed  on

5 February 2014.  The Crown applied for adjournment, given the need for evidence to be obtained from former counsel, and for the Crown to be able to respond to it. Cross-examination is likely to be required.

[5]      On 4 February 2014 I issued a minute directing that the appeals (against both sentence and, now, conviction) would be adjourned.  The only question was on what basis. That is, whether bail would be granted.

[6]      On  5  February  2014  I  formally  adjourned  the  appeals  to  2.15  pm  on

Wednesday 2 April 2014. The following directions were made:

(a)      Any further defence affidavits (including in respect of former counsel)

to be filed by 27 February 2014.

(b)      Any Crown affidavits to be filed by 13 March 2014.

(c)      Any defence affidavits strictly in reply, to be filed by 20 March 2014. (d)      Any application for cross-examination to be filed by 20 March 2014. (e)      Appellants’ submissions to be filed by 20 March 2014.

(f)      Crown submissions to be filed by 27 March 2014.

(g)      Callover to take place before Brown J on or about 31 March 2014

(to be advised by the Registry).

Bail

[7]      The appellants applied for bail pending the hearing of the appeals.  They are of course presently in prison.  The Crown opposed.  On 5 February 2014 I declined bail, with reasons to follow.

[8]      Section 14(1) of the Bail Act 2000 provides that the Court must not grant bail in these circumstances unless satisfied on the balance of probabilities that it would be in the interests of justice to do so.  Section 14(3) directs the Court to either the general  considerations  in  s  8,  or the following specific  considerations:  apparent strength of appeal grounds, length of sentence, time before the hearing of the appeal, personal and family circumstances and any relevant other considerations.

[9]      It will be remembered that the appellants pleaded guilty.  It is exceptional, but not impossible, for an appeal against conviction to be allowed in such a case. Similarly it is exceptional, but not impossible, for an appeal against conviction to be allowed on the basis of counsel error.  What former counsel have to say about their advice, and instructions, is not yet known.  Mr Jensen sought to articulate the advice he would have given.   In essence it would have been to defend on the basis that Mr Lawrence’s actions at the end of the race did not form part of the joint enterprise. It cannot be said on the account given by Mr Jensen that the defence is compelling, or  necessarily  strong.     Mr  Lawrence’s  actions  leading  to  loss  of  control  – accelerating to pass at the race end point – occurred within the agreed racing zone, even if they were inadvisable or, perhaps, unexpected.

[10]     If the present sentences of imprisonment are substituted with home detention, the appellants will still have time to serve, albeit at home, as at 2 April 2014.  They have served three months’ imprisonment, and might then have six months’ home detention to complete any substituted equivalent sentence.  They will not be eligible for parole until they have served nine months’ imprisonment.

[11]     The appeal will be heard in less than two months.  The appellants’ personal circumstances are neutral considerations.  Accordingly I am not satisfied that these appellants, as convicted and imprisoned offenders on their own pleas, have met the onus under s 14(1).

Result

[12]     Applications for pre-appeal bail refused.

Stephen Kós J

Solicitors:

Crown Solicitor, Napier for Respondent