The Queen v Lester Edward Mounsey
[2000] NZCA 386
•13 December 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA397/00 |
THE QUEEN
V
LESTER EDWARD MOUNSEY
| Hearing: | 13 December 2000 |
| Coram: | Gault J Tipping J McGrath J |
| Appearances: | I M Antunovic for Applicant S P France for Crown |
| Judgment: | 13 December 2000 |
| JUDGMENT OF THE COURT DELIVERED BY GAULT J |
The appellant, Mr Mounsey, applies for bail pending the hearing and determination of his appeal.
He was convicted after trial before a judge and jury in the District Court at New Plymouth of sexual violation by unlawful sexual connection. He was sentenced on 20 October 2000 to imprisonment for 2½ years. A notice of appeal was signed the same day and filed in this Court on 27 October. An application for bail pending appeal was considered on the papers and the appellant was notified by letter to his counsel dated 23 November that it was refused. The appellant and his counsel were advised that the appeal could be dealt with by the Court prior to the Christmas vacation. That has not proved possible, it seems because of the commitments of counsel.
Counsel has asked to be heard on the application and has been heard in support of it this morning. The application is supported by an affidavit from the appellant. It is opposed by the Crown.
The grounds advanced in support of the application are that there will now be a delay before the appeal can be heard in early February 2001, that there are strong grounds on which it will be presented, that the sentence is comparatively short and the personal circumstances of the appellant.
It is to be emphasised that the lapse of time before the appeal can be dealt with is not of the Court’s making. It could have been easily accommodated this week. The period from 27 October until now was ample for the necessary preparation. Nevertheless, we must take into account the hearing will not now take place until February.
The grounds of appeal counsel now say will be advanced concentrate on the quality of advice given to the appellant prior to and during his trial by counsel then acting for him. While he has waived legal professional privilege, the Crown has not yet had time to obtain any evidence from trial counsel. It is, therefore, difficult to form any clear view of the likely strength of the appeal.
After conviction and sentence, bail pending appeal will be granted only in exceptional circumstances: R v Moananui (1984) 1 CRNZ 231, R v Ellis [1998] 3 NZLR 555, 560. The interests of justice must be evaluated in light of the fact that the applicant has been convicted.
Mr Antunovic in support of his written submissions took us through what he referred to as his strongest ground of appeal and the proposed new evidence to be presented. However, at this stage we have not been persuaded that the strength of the appeal is so overwhelming that, even with the other matters put forward, it constitutes the exceptional circumstances necessary to justify bail pending appeal.
The application, therefore, is refused.
Solicitors
I M Antunovic, Wellington, for Applicant
Crown Law Office, Wellington, for Crown.
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