R v Trudy Annita Nunn

[2003] NZCA 250

IN THE COURT OF APPEAL OF NEW ZEALAND

CA359/03

THE QUEEN

v

TRUDY ANNITA NUNN

Hearing:30 October 2003

Coram:Blanchard J
Goddard J
William Young J

Appearances:  D A Ewen for Applicant

M F Laracy for Respondent

Judgment:30 October 2003 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

[1]       The appellant is currently serving a sentence of two years imprisonment imposed in July this year on a number of charges including burglary, arson and fraud.  She is appealing to this Court against conviction.  A fixture date for that appeal has yet to be allocated but we note that an appeal by her co-accused is to be heard in the week commencing 24 November.  The appellant’s appeal could presumably be heard during that week.

[2]       The appellant has applied to this Court for bail.  This application was initially dealt with by a single Judge of this Court under s393, Crimes Act 1961 and declined.  She has required a reconsideration by the Court of her application.

[3]       The application falls to be determined by reference to s14, Bail Act 2000.  It is fair to say, however, that bail is seldom granted pending appeals to this Court.  Indeed, it is common ground that, on ordinary principles, the appellant would not be released on bail pending her appeal.

[4]       The real issue raised by the application relates to home detention.

[5]       The trial Judge granted the appellant leave to apply for home detention.  This application was not determined until 20 October.  The result was that the Parole Board directed the appellant’s release on home detention with effect from 24 November.

[6]       There are two aspects of this decision which are of concern to the appellant:  first the fact that she must remain in prison until 24 November and secondly that she may not in fact be able to take up the grant of home detention as, by 24 November, she will probably have nowhere to go.  It is the latter of these two concerns which is of more moment (although, of course, a grant of bail now would subvert the decision of the Board that she remain in prison until 24 November).  The fundamental problem for the appellant is that the accommodation currently available for her (which has been approved by the Parole Board) will not continue to be available to her unless she is released today; this for reasons explained to us by Mr Ewen who appeared for the appellant.  If she is released on bail, she will be able to obtain a social welfare benefit and thus retain her present accommodation.  Mr Ewen told us that if this accommodation is not able to be retained, the consequence may be that she will not be able to be released from prison until July next year (assuming, of course, that her appeal against conviction is not allowed).

[7]       The written submissions on behalf of the appellant were entirely addressed to the home detention issue.  This was very much to the theme of Mr Ewen’s oral submissions to this Court.  Indeed he treated this application as if it were an application to the High Court for interim relief in the context of judicial review proceedings in relation to the Parole Board’s decision of 20 October, a decision which he described as perverse.  He expressly accepted that this appeal was in effect a collateral attack on the decision of the Parole Board. So the reality is that the appellant is inviting this Court, by a grant of bail, to smooth out what she contends are rough edges in the home detention regime and in particular in the application to her of that regime.

[8]       We have no doubt that the invitation should be declined.

[9]       We are not well placed to review the decision of the Parole Board.  We do not have the Board’s decision or the background material available to the Board. 

[10]     Further, we are not in a position to evaluate the contention that, if unable to retain her existing accommodation, the appellant will not be able to arrange other accommodation given the assistance which may be available to her from the state or charitable organisations.

[11]     This leads us to a more general consideration.  On orthodox principles, the statutory power to grant bail pending appeal against conviction should be exercised for the purpose for which it was conferred and it would be a misuse of that power to use it to supplement (and arguably deviate from) the very specific regime which the legislature has provided in relation to home detention.

[12]     The application is dismissed.

Solicitors:
Crown Law Office, Wellington