The Queen v Black

[2009] NZCA 22

IN THE COURT OF APPEAL OF NEW ZEALAND

CA601/2008
[2009] NZCA 22

THE QUEEN

v

SHARN BLACK

Hearing:9 February 2009

Counsel:Q Duff for Appellant

A Markham for Crown

Judgment:18 February 2009 at 4.00 pm

JUDGMENT OF O’REGAN J

Bail is granted until the District Court callover on 3 March 2009.

[1]       In a judgment delivered yesterday, the Court allowed Mr Black’s appeal against conviction for burglary, quashed the conviction and ordered a retrial: R v Black [2009] NZCA 13.

[2]       As we noted in that judgment at [16], Mr Black had completed the sentence of imprisonment imposed on him in respect of the conviction prior to the hearing of the appeal. 

[3]       In view of the impending retrial, the Registrar has prepared a warrant for the detention of Mr Black pending his new trial: s 72(1) of the Bail Act 2000.

[4]       I did not consider it appropriate to direct Mr Black’s detention in circumstances where he has served his sentence.  At my request the Registrar contacted Mr Black’s counsel who, not surprisingly, argued that detention of Mr Black would be seen by him as exacerbating a miscarriage.  He submitted that (as we noted in our judgment) it was unclear whether the Crown would wish to proceed with the retrial.  He proposed that no action be taken to detain Mr Black until the first callover at the District Court on 3 March 2009, at which time the Crown could be asked to indicate whether a retrial will occur.

[5]       I agree with what counsel proposes.  Under s 72(2) of the Bail Act, the Court may grant bail to a person in Mr Black’s position.  The effect of granting bail is to suspend the warrant for detention: s 72(4) of the Bail Act.  Under s 393(2)(d) of the Crimes Act 1961, a single judge may exercise this power of the Court.

[6]       In order to achieve what counsel proposes I treat counsel’s submission as an application for bail.  I am satisfied it is in the interests of justice to grant bail in the circumstances of this case.

[7]       I therefore grant Mr Black bail until the District Court callover on 3 March 2009.  I do not require Mr Black to attend at the callover (but leave open whether the District Court will require his appearance, in which case he should appear), and if a retrial is to proceed then the question of bail pending that retrial can be dealt with by the District Court on 3 March 2009.  I do not impose any conditions of bail. 

Solicitors:
Duff Legal, Auckland for Appellant
Crown Law Office, Wellington