The Queen v Hayes

[2006] NZCA 266

IN THE COURT OF APPEAL OF NEW ZEALAND

CA343/06

THE QUEEN

v

NICOLA BRONWYN HAYES

Hearing:27 September 2006

Counsel:D Hayes for Appellant

S B Edwards for Crown

Judgment:28 September 2006     at 11 am

JUDGMENT OF ELLEN FRANCE J

The application for bail is dismissed.

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REASONS

[1]       The appellant was convicted after trial of using a document for the purpose of obtaining a pecuniary advantage (29 counts) and sentenced to 2 years and 6 months imprisonment.  The offending related to the receipt of accident compensation payments over a period of some six years. 

[2]       The appellant has appealed to this Court against her conviction.

[3]       The appellant has applied for bail pending the determination of her appeal, pursuant to s 70 of the Bail Act 2000.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961 and heard briefly from counsel by telephone on 27 September 2006.

[4]       The test to be applied in relation to the application is that set out in s 14 of the Bail Act.  Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.

[5]       On behalf of the appellant, Mr Hayes submits that the point of law in support of the appeal against conviction is a strong one.  He says that the guilty verdicts were based on a misdirection by the trial Judge as to the meaning of capacity to work.  If the appellant is right about this, Mr Hayes says there was no pecuniary advantage acquired by her.

[6]       The appellant also relies on personal circumstances.  She is the mother of two teenage children aged 14 and 16.  The children were living with their father, the appellant’s ex-husband, and his partner.  These arrangements were said to be unsatisfactory and it now appears the children will have to live with the appellant’s brother. 

[7]       Finally, the appellant emphasises the likely time before her appeal can be heard, and the relative length of her sentence. 

[8]       On behalf of the Crown, Ms Edwards opposes bail.  She contests the claim the appeal raises questions of law rather than fact given the Judge’s sentencing remarks indicate the defence case at trial was based on the appellant’s denial that she worked over the various time periods and/or her assertion that her cognitive abilities were impaired to an extent that warranted her acquittal.  In any event, Ms Edwards questions the strength of the legal case raised by the appellant.

[9]       As to the appellant’s personal circumstances, the Crown’s position is that those circumstances appear to be no more than the usual adverse consequences arising from the imprisonment of a parent.

[10]     It is difficult to assess the strength of the conviction appeal on the basis of the information presently before the Court.  At best, at this point there is a legal argument.  It is not immediately apparent that the argument will be the same as that in R v Donaldson CA80/04 8 December 2004 on which the appellant relies.  In any event, it cannot be said the matter is such as to outweigh the presumption against bail. 

[11]     Nor are the personal circumstances relied on by the appellant such as to displace the statutory presumption.  They are, unfortunately, fairly commonplace in the circumstances.  Finally, as to the likely length of time before the appeal can be heard, the sentence is not so short that the right of appeal is likely to be rendered nugatory. 

[12]     Once the Judge’s summing up is available, a telephone conference can be scheduled to establish a timetable for the filing of submissions so that the appeal can be heard at short notice if time becomes available.  Both counsel agreed the matter could be dealt with at short notice.

[13]     In all the circumstances, I am not satisfied that the appellant has shown cause why bail should be granted.  In terms of s 14(1) I am not satisfied on the balance of probabilities that it would be in the interests of justice in this case to grant bail.  The application is dismissed.

Solicitors:
Crown Law Office, Wellington