The Queen v Wright [2008] Nzca 554

[2008] NZCA 554

IN THE COURT OF APPEAL OF NEW ZEALAND

CA653/2008
[2008] NZCA 554

THE QUEEN

v

DAVID STEPHEN WRIGHT

Counsel:C P Comeskey for Applicant

A Markham for Crown

Judgment:

(on the papers)     15 December 2008 at 10.30 am 

JUDGMENT OF ARNOLD J

The application for bail is denied.

REASONS

1. The applicant entered guilty pleas to three counts of supplying a class A controlled drug, namely methamphetamine.  He supplied a total of 12.6 grams to three individuals on different occasions, in the knowledge that the drugs were intended to be provided to an inmate at Mt Eden Prison.  The applicant was sentenced to two and a half years imprisonment by John Hansen J and has appealed against that sentence.

2. His appeal was to have been heard on 20 November 2008.  At his request, that hearing was adjourned and the appeal will now be heard on 16 February 2009.  The applicant now seeks bail pending the hearing of his appeal. 

3. In submissions dated 5 December 2008 but received by the Court on 12 December 2008, Mr Comeskey for the applicant raises three grounds:

   (a)The strength of the appeal;

   (b)Delay before the appeal is determined;

   (c)Injustice to the applicant.

4. Ms Markham for the Crown opposes the application.  She submits that the appeal has no merit, and raises concerns about the circumstances in which the adjournment was granted.

5. Section 14(1) of the Bail Act 2000 provides that in cases such as the present the Court must not grant bail “unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so”.  Under s 14(2), the onus is on the applicant to show cause why bail should be granted.  Section 14(3) provides that the Court may take into account, among other things, the apparent strength of the grounds of appeal, the length of the sentence that has been imposed and the likely length of time that will pass before the appeal is heard.   As I have said, it is these grounds that the applicant relies upon.

6. I am not satisfied that it would be in the interests of justice to grant bail to the applicant.  There are two reasons for this.

7. First, the sentence appeal is not a strong one.  On the appeal the applicant proposes to argue that the sentence is manifestly excessive, that there is an issue of disparity and that his counsel acted incompetently in certain respects.  The applicant will apparently argue that a sentence of home detention should have been imposed.  On the face of it, the “manifestly excessive” and “home detention” grounds seem weak.  The Judge adopted a starting point of three and a half years, and reduced that to two and a half years to reflect the applicant’s guilty plea, his efforts at rehabilitation and his co-operation with the police.  On the face of it, this appears to be within range.  Similarly, the case for home detention is not strong, and the disparity argument does not seem strong either, given that the Judge addressed the point.  I am not in a position to make any assessment, even a preliminary one, of the “counsel incompetence” ground.

8. Second, the concern which the Crown has raised about the circumstances in which the adjournment of the earlier fixture was granted are, in my view, justified.  The applicant alleges that his trial counsel, Ms Dyhrberg, acted incompetently in certain respects.  He has filed an affidavit to that effect (which I have not seen, but understand to be dated 30 October 2008).  To pursue such an argument, he must provide a waiver of privilege to enable the Crown to lead evidence from Ms Dyhrberg.  No waiver of privilege was supplied with the affidavit.  Accordingly, Crown counsel wrote to Mr Comeskey on 5 November 2008 requesting a waiver and indicated that it needed to be broad enough to cover other matters on which Ms Dyhrberg was acting so that she could explain the background to the alleged incompetence.  No waiver of any kind was provided prior to the 20 November fixture.  The request for the adjournment of that fixture was based on the fact that Ms Dyhrberg had sought the wider waiver, but that does not explain why a waiver was not provided initially.  Accordingly, the delay in the present case has arisen primarily from the applicant’s failure to provide a waiver in a timely fashion, leading to the need to seek the adjournment.  If there is any injustice as a result of delay, the applicant is primarily responsible for it.

9. The application for bail is denied.

Solicitors:

Crown Law Office, Wellington