The Queen v Topless - [2007] NZCA 327

IN THE COURT OF APPEAL OF NEW ZEALAND
CA166/07
[2007] NZCA 327
THE QUEEN
v
GLENDA MARY TOPLISS
Hearing:23 July 2007

Court:Wilson, Panckhurst and Venning JJ
Appearances: D J Taffs for Appellant

S B Edwards for Crown

Judgment:31 July 2007 at 10 am

JUDGMENT OF THE COURT

BAIL IS GRANTED TO THE APPELLANT PENDING DETERMINATION OF HER APPEAL AGAINST CONVICTION.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
BAIL PENDING A CONVICTION APPEAL
[1]       Following a trial in the District Court at Greymouth the appellant was found guilty upon 106 charges of false accounting and one charge of using a document with intent to defraud. On 11 April 2007 the trial Judge, Judge D J L Saunders, sentenced the appellant to 18 months imprisonment on each count, with leave to apply for home detention. Such sentence was deferred for a period of two months or until the Parole Board heard the application for release to home detention. On 24 May 2007 the appellant was granted home detention.
[2]       In the meantime this appeal against conviction was filed, together with an application for bail pending determination of the appeal. Hence, although the appellant is now living at home and caring for her three children, she still seeks bail, with the result that the sentence of home detention is deferred until determination of the appeal.
[3]       In the event the appeal raises two issues:
(a)whether there is jurisdiction to grant bail to an appellant in these circumstances, and
(b)whether it is in the interests of justice to extend bail to the appellant.

The issue of jurisdiction
[4] The general power to grant bail to an appellant pending appeal is contained in s 70 of the Bail Act 2000. Subsection (2) provides:
The Court of Appeal or the Judge who presided at the trial in the court below may, if it or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody only under the conviction to which the appeal relates.

The reference to “only under the conviction to which the appeal relates” excludes from the subsection an appellant who is subject to a term of imprisonment both with reference to the charge which is the subject of appeal, and another charge which is not under appeal. In the latter case bail is not available.
[5] Focusing on the requirement that the appellant must be “in custody” Ms Edwards drew our attention to two provisions of the Parole Act 2002, namely:
6(5) Home detention has the following characteristics:
(a)the offender is detained at a residence (rather than in a prison) on detention conditions imposed by the Board:
(b)the offender is not in custody, and his or her social welfare entitlements are the same as if he or she were not detained:

…
36(5) An offender on home detention-
(a)is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Topless

Details

AGLC: The Queen v Topless [2007] NZCA 327
Case: [2007] NZCA 327
Decision Date: 31 July 2007

CaseChat Overview and Summary

In the case of The Queen v Glenda Mary Topliss, the appellant, Glenda Mary Topliss, was found guilty of false accounting and using a document with intent to defraud in the District Court at Greymouth. The appellant was sentenced to 18 months imprisonment on each count, with the sentence deferred for two months or until the Parole Board heard the application for release to home detention. Topliss was granted home detention on May 24, 2007, and subsequently filed an appeal against her conviction and an application for bail pending the determination of the appeal. The Court of Appeal was required to decide whether it had jurisdiction to grant bail to the appellant in these circumstances and whether it was in the interests of justice to extend bail to the appellant.

The Court of Appeal found that the general power to grant bail to an appellant pending appeal is contained in section 70 of the Bail Act 2000. The Court determined that the appellant was in custody as required by section 70(2) and that home detention is a custodial sentence. The Court also found that the grounds of appeal, including the insufficiency of evidence, the overwhelming number of counts in the indictment, the potential bias of a juror, and the failure of trial counsel to obtain relevant company records, raised a serious issue for determination. The Court considered the likely duration of the sentence and the fact that the sentence of home detention would be substantially served by the time the appeal was determined. The Court concluded that bail was appropriate and directed that the appellant be readmitted to bail with the condition that the resumption of the sentence of home detention would be addressed in the appeal decision.

The Court of Appeal granted bail to the appellant pending the determination of her appeal against conviction, with the condition that the resumption of the sentence of home detention would be addressed in the appeal decision. The Court also directed that certain aspects of the appeal, including the filing of affidavits and obtaining a waiver of privilege from trial counsel, were to be attended to within two weeks of July 23. The Crown would then have two weeks within which to file anything required in reply.

Orders