The Queen v Heslehurst

[2009] NZCA 256

IN THE COURT OF APPEAL OF NEW ZEALAND

CA320/2009
[2009] NZCA 256

THE QUEEN

v

MAXWELL JOHN HESLEHURST

Counsel:M B Meyrick for Applicant

S B Edwards for Crown

Judgment:19 June 2009 at 2.30 pm 

(On the papers)

JUDGMENT OF ELLEN FRANCE J

The application for bail is declined.

REASONS

[1]       The applicant was convicted after trial of 38 counts of obtaining or causing loss by deception under the Crimes Act 1961 and three additional offences under the Companies Act 1993.  On 19 May 2009, he was sentenced to a term of imprisonment of three years and nine months.

[2]       The applicant has appealed to this Court against his conviction.

[3]       The applicant has applied for bail pending the determination of his appeal pursuant to s 70 of the Bail Act 2000.  I personally have considered the application under s 393(2)(d) of the Crimes Act 1961.

[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 applicant to show cause why bail should be granted.

[5]       The bail application is brought on two grounds.  The first ground is that the appeal is a strong one and so it is contrary to the interests of justice for the applicant to serve more time in custody than is necessary.  The second ground relates to the applicant’s ill-health and the associated difficulties for him in obtaining medical treatment while in confinement.

[6]       The Crown opposes bail.

[7]       I deal first with the strength of the appeal (s 14(3)(a) of the Bail Act).  In this context, the applicant emphasises one of the four grounds of appeal.

[8]       The ground the applicant emphasises is the failure to discharge the jury after a “notice of conviction” was improperly distributed to the jury.

[9]       In relation to this ground it appears that, a week after the trial commenced, the Crown became aware that a letter which made reference to the fact that the applicant has a previous conviction was, by mistake, included in a bundle of exhibits distributed to the jury.  (It is not clear from the material I have whether this was a reference to one or more previous convictions.)

[10]     Ms Edwards for the Crown advises that at the time the mistake was discovered, the jury had not been referred to the exhibit and the witness who was to produce it had not been called.  The trial judge, Judge Singh, apparently issued a number of minutes dealing with the process he adopted to deal with the issue.  Ms Edwards also notes that one juror was dismissed as a result of the enquiries the Judge made, but the application for a mistrial was declined.

[11]     It is not possible at this stage to reach any definitive views on the merits of the grounds of appeal especially as the trial file is not yet available.  However, in terms of the ground relating to the material mistakenly provided to the jury, there is force in Ms Edwards’ submission that the Judge’s determination that it was not necessary to discharge the jury should be considered in light of the nature of the charges against the applicant.  In particular, the applicant faced three charges under s 382 of the Companies Act of being involved in the management of a company while prohibited from doing so because of previous convictions for dishonesty offences.

[12]     In terms of the applicant’s personal circumstances (s 14(3)(d) of the Bail Act), the applicant has provided a copy of a letter from the medical officer at Auckland Central Remand prison.  It appears from the material before the Court that the applicant has weight problems, poor circulation and has difficulty in walking.  Mr Meyrick says that the applicant is required to attend hospital appointments frequently and that his specialists are at Waikato Hospital.  The applicant currently is in Mt Eden prison.

[13]     In response, the Crown has provided an affidavit from Debra Gell, the Acting Regional Health Manager of Health Services for the Northern Prison Region of the Department of Corrections.  Ms Gell notes that according to the prison records, the nurses at the prison health centre are monitoring the applicant’s condition on almost a daily basis.  She advises that the prison medical officer last saw him on 10 June 2009.  Her evidence is that the applicant has a treatment plan in place which “covers all aspects of his health care needs and has an appointment scheduled with a cardiovascular specialist at Auckland Hospital shortly”. 

[14]     Ms Gell disputes the suggestion made by the medical officer in the letter provided by the applicant that the applicant has missed specialist appointments due to the unavailability of prison staff to escort him.  Ms Gell says it appears that this information came from the applicant and so was not a matter of the medical officer’s personal knowledge.  Finally, in terms of emergency care, Ms Gell states that if it is clinically indicated that the applicant needs to go to hospital, he will be transported there.  She concludes that the applicant’s ongoing need for access to external specialists and hospital care will be met whilst in prison. 

[15]     It is relevant in considering the impact of imprisonment on the applicant for present purposes that he has not appealed against his sentence.  More importantly, the evidence from Ms Gell strongly suggests that the applicant’s health needs are not such as to tip the scales in favour of the grant of bail. 

[16]     In all of these circumstances, I am not persuaded that the applicant has satisfied the onus of showing cause why bail should be granted. 

[17]     Obviously, the appeal should be heard promptly.  In that context, I understand from the Registrar that time would be available to hear the appeal in mid-August, subject to the availability of the trial file, if an early fixture was sought. 

[18]     The application for bail is declined.

Solicitors:

Crown Law Office, Wellington