Watchorn v The Queen - [2014] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND

CA385/2014
[2014] NZCA 353

BETWEEN	JAMES WINSTON WATCHORN Applicant
AND	THE QUEEN Respondent

Counsel:

S W Hughes QC for Applicant
C A Harold for Respondent

Judgment:

(On the papers)

25 July 2014 at 3.30 pm

JUDGMENT OF WILD J

The application for bail pending the hearing of the appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Watchorn applies for bail pending determination of the appeal he filed on 21 July. Sections 14 and 55 of the Bail Act 2000 and the now well established principles applying to those sections apply.[1]
[1]Particularly as set out in Ellis v R [1998] 3 NZLR 555 (CA) at 560.
Following a Judge-alone trial before Judge Roberts in the New Plymouth District Court Mr Watchorn was convicted on each of three charges of accessing a computer dishonestly and sentenced to two and a half years imprisonment.[2] He appeals against both those convictions and his sentence.
[2]R v Watchorn DC New Plymouth CRI-2012-043-3092, 14 July 2014.
I deal with the three considerations set out in s 14(3) of the Bail Act which are the focus of the submissions both for Mr Watchorn and the Crown.

The apparent strength of the grounds of appeal

Comprehensive grounds of appeal have been filed. Indeed, they are essentially in the form of submissions on appeal.
As this Court has many times said, it is not appropriate to delve too deeply into the merits of an appeal on a bail application.[3] That is for the obvious reason that it is a bail application and not the hearing of the appeal. I accept that the grounds of appeal against conviction are arguable. But none seems to me to have irresistible merit. Indeed, several face obvious difficulties. I take two instances. First, as Ms Hughes QC seems to accept, the evidence of the download on 31 July 2012 was admissible if it otherwise met the test for propensity evidence in ss 40 and 43 of the Evidence Act 2006: R v Mata, Solicitor-General v Rudd, S(CA514/2008) v R and Narayan v R.[4] The argument that the circumstances of the download on 7 June 2012 (Mr Watchorn still employed by TAG Oil but about to travel overseas on extended leave) are altogether different from those on 31 July 2012 (Mr Watchorn had tendered his resignation to join a competitor company) will be problematic given the underlying similarities in the two downloads. Secondly, the challenge to the rejection of an affidavit Mr Watchorn had sworn explaining why he made the 7 June 2012 download faces the obstacle of s 21 of the Evidence Act, because he did not give evidence.

The personal circumstances of the applicant’s family

[3]Ellis, above n 1, at 560.

[4]R v Mata [2009] NZCA 254 at [45]; Solicitor-General v Rudd [2009] NZCA 401 at [17]–[27]; S(CA514/2008) v R [2009] NZCA 622 and Narayan v R [2013] NZCA 24 at [8].

Affidavits in support have been filed by…

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 Watchorn v The Queen

Details

AGLC: Watchorn v The Queen [2014] NZCA 353
Case: [2014] NZCA 353
Decision Date: 25 July 2014 at 3.30 pm

CaseChat Overview and Summary

In the case of Watchorn v The Queen, the applicant, James Winston Watchorn, sought bail pending the determination of his appeal against convictions and sentence for accessing a computer dishonestly. The Court of Appeal of New Zealand was tasked with deciding whether Watchorn should be granted bail pending the hearing of his appeal. The central legal issues involved assessing the strength of the grounds of appeal, the personal circumstances of Watchorn's family, and the likely duration of the appeal process. The court examined the arguability of the grounds of appeal, noting that while they were arguable, none appeared to have irresistible merit. The court also considered the distressing circumstances of Watchorn's wife, who was managing the family's affairs without his assistance, but found that these circumstances were not exceptional enough to warrant bail. Finally, the court considered the potential timeline of the appeal process, noting that it was unlikely to extend beyond a few months, which did not significantly support the grant of bail. Based on these considerations, the Court of Appeal dismissed Watchorn's application for bail pending the hearing of his appeal.

Orders