The Queen v Butler

[2007] NZCA 592

IN THE COURT OF APPEAL OF NEW ZEALAND

CA546/07
CA614/07
[2007] NZCA 592

THE QUEEN

v

ROBERT BENJIMAN BUTLER

Hearing:19 December 2007

Court:William Young  P, Robertson and Ellen France JJ

Counsel:Applicant in person

S B Edwards for Crown

Judgment:21 December 2007 at 9 am

JUDGMENT OF THE COURT

THE APPLICATION FOR BAIL IS REFUSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       Mr Butler has applied for bail pending the hearing of two appeals listed in this Court on 5 March 2008.

[2]       The application was initially heard on the papers and refused by O’Regan J pursuant to s 393(2)(d) of the Crimes Act 1961.  Mr Butler applied for a review.

[3]       On 21 February 2007, following a hearing before Judge J E Macdonald in the District Court at Dunedin on 10 January 2007, Mr Butler was found guilty on one count of damage to property contrary to s 269(2)(a) of the Crimes Act.  On 16 March 2007, he was sentenced to two years’ imprisonment and declined leave to apply for home detention.

[4]       An appeal against this conviction was not filed until 20 November 2007 (CA614/07).

[5]       In addition, on 17 August 2007, Mr Butler was sentenced by Judge Phillips to a cumulative term of imprisonment of nine months on nine counts of offending under the Companies Act 1993.  He appealed against that sentence (but not against conviction) on 9 October 2007 (CA546/07).

[6]       In each case an extension of time is required.

[7]       There is now an issue as to the reasons for the delay in the filing of the appeals.  Mr Butler asserts that counsel, who appeared in both cases in the District Court, is culpable.

[8]       Only in the last day or two has a waiver been filed, together with an affidavit from Mr Butler as required by r 12A of the Court of Appeal (Criminal) Rules 2001.  This covers the circumstances relating to his representation by trial counsel and matters relating to the instructions to appeal.

[9]       Former counsel has not had an opportunity to comment and we treat those factors as being neutral in the meantime.

[10]     Mr Butler, although only 28 years of age, has an unenviable list of previous convictions, the overwhelming majority of which are for offences involving fraudulent activity. 

[11]     Section 14 of the Bail Act 2000 applies.  Mr Butler is not to be granted bail unless the Court is satisfied, on the balance of probabilities, that it would be in the interests of justice in a particular case to do so.  The onus is on Mr Butler.

[12]     Some issues are raised with regard to Mr Butler’s domestic situation, the circumstances of his partner, the health of his stepmother and his grandmother, but none can be of substantial influence.

[13]     The matter realistically comes down to an assessment of the merits of the appeal.  It appears that Mr Butler is asserting that he should be granted leave to call new evidence because there is alibi evidence that he could not have been at the address where the intentional damage occurred at the time the damage was done.  His absence of any explanation, either to the police or in Court, especially after an unsuccessful s 347 application, are factors.

[14]     The merits are for later consideration, but on the basis of the totality of the evidence available in the District Court, although it was a circumstantial case, the conclusion reached by Judge Macdonald was virtually inevitable.  We do not accept that this is an appeal with clear merit.

[15]     The matter is complicated by reason of the fact that the second sentence is cumulative on the first.  The total sentence is in excess of two years and therefore a different regime applies to Mr Butler’s ability to obtain early release.  In light of Mr Butler’s history, we are not persuaded that the Parole Board would necessarily be attracted to this occurring at the first available opportunity.  There has been one hearing where that assessment has been confirmed.

[16]     The sentence imposed in respect of the Companies Act offending was stern, but that is explicable as against the applicant’s criminal history.

[17]     A substantive hearing of both these appeals is set down to be heard in just over ten weeks.  We are not satisfied that it would be in the interests of justice in this case to grant bail. 

[18]     Mr Butler has a grant of legal aid.  He can obtain alternative counsel if he wishes to do so, but the case that he wishes to present on the appeal is not complex.  The inquiries with regard to the alibi evidence relating to his being at a car sales yard on the other side of Dunedin would not require extensive investigation.  We are not satisfied that there is anything out of the ordinary which would impede preparation for his appeal, whether he chooses to do it on his own or with new counsel.

[19]     Mr Butler has not satisfied the onus which the statute places upon him and the application for bail is accordingly refused.

Solicitors:
Crown Law Office, Wellington