The Queen v Clive Owen Jordan

[2002] NZCA 291

IN THE COURT OF APPEAL OF NEW ZEALAND CA 253/02

THE QUEEN

V

CLIVE OWEN JORDAN

Hearing:	19 November 2002
Coram:	Anderson J Williams J Baragwanath J
Appearances:	S D Cassidy for Appellant J C Pike for Respondent
Judgment:	19 November 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

1. This is an application pursuant to s70 of the Bail Act 2000 for bail pending the hearing and determination of an appeal to this Court.  The applicant was convicted in a trial in the District Court in July this year on 18 counts of using a document with intent to defraud.  The counts related to the preparation and filing of GST returns.  On 19 July this year the applicant was sentenced to four years imprisonment.  Some four days later he filed his present Notice of Appeal against conviction only.  The sole ground of appeal is expressed as a legal point in these terms:

   In respect of each of the counts of using a document with intent to defraud on which the appellant was convicted the relevant document was not a document capable of being used to obtain a pecuniary advantage in that it was not the property of any person other than the appellant and that his use of the document did not affect the property rights of any person.

2. In August the appellant was transferred from Paremoremo Prison to Kaitoke Prison near Wanganui.  In support of the present application for bail he has sworn an affidavit, originally prepared in August but sworn in September, stating that in addition to the ground raised in the Notice of Appeal the applicant intends to instruct his counsel to investigate other grounds of appeal.  Those grounds seem to be in the nature of possible fresh evidence directed to the credit of a key Crown witness and the alleged existence of persons claimed by the prosecution at trial to be wholly fictional.  The affidavit is spare in its detail.  Counsel for the applicant, consistent with his duty to the Court, has indicated that such inquiries as he has been able to make pursuant to his instructions do not allow him to submit to this Court that there may be something of concern in relation to fresh evidence.  We were entitled to assume that in any event from the scarcity of the information provided at this stage.

3. Although the jurisdiction to entertain the application is contained in s70 of the Bail Act 2000 the criteria for the exercise of that jurisdiction are contained, aptly in this case, in s14 of the Act.  Subsection (2) of that section casts the onus on the appellant as a person in custody under a conviction to show cause why bail should be granted.  The criteria which this Court may adopt in preference to s8 criteria are contained in subsection (3).  Referring to those seriatim:

   (a)  There is nothing before us to indicate the apparent strength of the grounds of appeal except the instructions to counsel relating to possible fresh evidence which have apparently stalled; and the legal grounds stated, which may or may not have some weight but are not demonstrated at this stage to have any particular cogency.

   (b)  The length of the sentence is relevant in that the sentence will not have been served or almost served by the time the appeal is heard so as to render the appeal nugatory. 

   (c)  We note that the date presently scheduled for the hearing of the appeal is 3 December, only a few weeks away.

   (d) There is nothing in the personal circumstances of the appellant or his immediate family relevant to the exercise of the Court’s power.

   (e)  The court may take into account any other consideration and under this head must be advanced, as it is on behalf of the applicant that the physical distance between counsel’s area of practice and Kaitoke Prison as well as the custodial constraints make it very difficult to get instructions.  A cross-reference to s8(g) of the Bail Act is expedient.

4. In respect of that last matter we note that present counsel was counsel at the trial and will be generally familiar with the nature and appropriate weighting to be given to aspects of evidence appearing on the record.  Furthermore, the sole ground effectively advanced at this stage is a legal point which scarcely requires close liaison with a lay client.

5. To some extent the application, which was prepared some months ago, has been overtaken by events.  Recently counsel has received a grant from the Legal Services Agency to attend his client at Kaitoke Prison.  A hearing date for the appeal is now imminent, as we have noted.

6. The appellant falls far short of discharging the onus cast on him by s14(2).  The application is dismissed.

Solicitors

Crown Law Office, Wellington