Whitehead v The Queen
[2014] NZCA 428
•2 September 2014 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA300/2014 [2014] NZCA 428 |
| BETWEEN | WENDY MAREE WHITEHEAD |
| AND | THE QUEEN |
Telephone Conference: | 27 August 2014 |
Counsel: | E J Forster for Appellant |
Judgment: | 2 September 2014 at 10.30 am |
JUDGMENT OF WHITE J
AThe application for bail pending appeal is granted.
BThe sentence of home detention is suspended.
CBail is granted on the condition that the appellant is to reside at 1370 Motueka Valley Highway, Ngatimoti, Nelson.
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REASONS
Introduction
The appellant, Mrs Whitehead, was convicted following a jury trial in the Nelson District Court on one charge of using a document with intent to defraud and seven charges of dishonestly using a document. The offending related to her defrauding the Accident Compensation Corporation (ACC) over a seven-year period in the sum of $213,397.87. She was sentenced by Judge Zohrab on 12 May 2014 to 10 months’ home detention and 160 hours of community work.[1] She was also ordered to pay reparation of the full amount of the sum defrauded.
[1]R v Whitehead DC Nelson CRI-2011-042-4120, 12 May 2014.
Mrs Whitehead has appealed against her conviction and sentence. Her appeal has been set down for hearing on 15 October 2014.
Pending determination of her appeal, Mrs Whitehead has applied for bail under s 55 of the Bail Act 2000 and for suspension of the sentence of home detention under s 403A of the Criminal Procedure Act 2011. Her sentence of community work has been automatically suspended by her appeal.[2] She has paid the reparation.
[2]Criminal Procedure Act 2011, s 345(1).
The application for bail and suspension of the home detention sentence is opposed by the Crown.
Exercising the power given to a single Judge of this Court, I have personally considered the application.[3]
[3]Section 333(2)(d). The reference to bail must necessarily include suspension of home detention.
An application under s 55 is governed by s 14 of the Bail Act.[4] Section 14 generally creates a presumption against a grant of bail pending appeal.[5] The onus is on the applicant to demonstrate on the balance of probabilities that it is in the interests of justice that bail be granted.[6] When considering the interests of justice the Court may take into account the considerations set out in s 14(3):
(a)the apparent strength of the grounds of appeal;
(b)the length of the sentence that has been imposed on the appellant;
(c)the likely length of time that will pass before the appeal is heard;
(d)the personal circumstances of the appellant and the appellant’s immediate family;
(e)any other consideration that the court considers relevant.
[4]Din v R [2013] NZCA 610, [2014] 2 NZLR 445 at [15]–[17].
[5]Harris v R [2013] NZCA 611 at [12].
[6]Bail Act 2000, s 14(2).
The well-known authorities of this Court confirm that admission to bail pending appeal is unusual and only to be granted in exceptional circumstances.[7]
Factual background
[7]Ellis v R [1998] 3 NZLR 555 (CA) at 560; and Iti v R [2012] NZCA 307 at [7].
Mrs Whitehead’s husband suffered a fatal accident in 1987 while felling trees on a neighbour’s farm. They had been married for 12 years and had three children. The fatal accident was covered by ACC and Mrs Whitehead became entitled to weekly compensation. As was her entitlement, she also re-entered the workforce. Some 11 years later she met another man who took up residency in a house bus situated on her property. Mrs Whitehead continued to indicate in her annual ACC declarations that she was not in a de facto relationship.
The relationship between Mrs Whitehead and the other man was investigated by ACC who decided that it was a de facto one which had begun in 2003. By letter dated 14 December 2010 ACC advised Mrs Whitehead that she was not entitled to weekly compensation from 1 April 2005 because of her relationship and that she had received an overpayment totalling $213,397.87. Mrs Whitehead disputed ACC’s opinion on entitlement and lodged a review application against that decision under the Accident Compensation Act 2001. A review hearing was scheduled for May 2011. Shortly before the ACC review hearing, however, ACC applied for an adjournment on the basis that criminal charges might be laid. The review hearing was adjourned indefinitely.
Criminal charges were eventually laid based on the alleged de facto relationship which Mrs Whitehead had not declared. The issue at the jury trial in the District Court related to the alleged de facto relationship. The jury found her guilty on all charges.
Mrs Whitehead’s application for bail and suspension of the home detention sentence is based on the grounds referred to in s 14(3)(a)–(d) of the Bail Act.
Strength of the appeal against conviction
Mrs Whitehead’s grounds of appeal against conviction are:
(a)The jury were misdirected as to what a de facto relationship is under the Act.
(b)ACC created a false impression in the evidence about the finality of the determination that the applicant was not entitled.
(c)It was an abuse of process to not require resolution of the ACC dispute prior to trial.
(d)The Crown led improperly obtained evidence at the trial that was not determined admissible under s 30 of the Evidence Act 2006.
(e)The jury were misdirected about what the Crown were required to prove regarding mens rea.
In this context it is neither necessary nor appropriate to attempt an extensive analysis of the merits of an appeal when determining an application for bail.[8] Mr Downs submits that the merits of the appeal are not more than arguable and that none is self-evidently a “knockout” blow.
[8]R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R, above n 7.
At the same time, however, Mr Downs acknowledges that the grounds of appeal do raise an overarching issue about the propriety of proceeding with the criminal trial against Mrs Whitehead before the determination of her ACC application for review and that this issue involves a real bona fide question of law. The Crown did not accept that Mrs Whitehead’s appeal on this issue would be successful, but recognised that it was at least arguable.
While not expressing any view on the merits of this argument, I do take into account the nature and potentially wider significance of the issue raised in this case and the fact that it cannot be said the appeal is without merit.
Strength of appeal against sentence
If the appeal against the convictions is unsuccessful, I do not consider that any particular weight should be given to the strength of the sentence appeal when considering the present applications.
The length of sentence
In view of the payment of reparation and the automatic suspension of the community work sentence, I agree with Mr Forster that there is no compelling community interest reason why the sentence of home detention should necessarily continue to be served before the appeal is due to be heard by this Court on 15 October 2014.
The length of time that will pass before the appeal is heard
In the circumstances of this case I consider that the fact that by 15 October 2014 half the sentence of ten months’ home detention will have been served is a factor favouring the grant of bail. In view of the Court’s practice of not delivering oral judgments and the potentially wider implications of the Court’s decision in this case, there is every likelihood that the decision will not be delivered until a later date. With a relatively short sentence of home detention, there is therefore a real risk in this case that Mrs Whitehead’s appeal would be rendered largely nugatory if bail is not granted and the sentence not suspended.[9]
Appellant’s personal circumstances and the circumstances of her immediate family
[9]Rodrigo v NewZealand Police [2013] NZCA 683 at [8].
I take into account that Mrs Whitehead was on bail from 2011 to 2014 awaiting trial and that she complied with all bail conditions in that period. I also recognise that she has complied with the home detention sentence to date and with the order of reparation.
In respect of the other factors relating to Mrs Whitehead’s personal circumstances, I agree with Mr Downs that they are not particularly remarkable.
Conclusion
In the circumstances of this case I am satisfied on the balance of probabilities that it would be in the interests of justice to grant Mrs Whitehead bail pending the hearing of her appeal on 15 October 2014 and to make an order suspending her sentence of home detention.
In reaching the conclusion that this is an exceptional case, I have taken into account the cumulative effect of the following factors: the nature and potentially wider significance of the question of law raised by the grounds of appeal; the payment of reparation in full; the real risk that with a relatively short sentence of home detention Mrs Whitehead’s appeal may be rendered largely nugatory if bail is not granted and the sentence not suspended; and Mrs Whitehead’s previous history of compliance with her bail conditions.
Result
The application for bail and for an order suspending the sentence of home detention is granted. Bail is granted on the condition that the appellant is to reside at 1370 Motueka Valley Highway, Ngatimoti, Nelson.
Solicitors:
Crown Law Office, Wellington for Respondent
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