Wilson v The Queen - [2012] NZCA 554

IN THE COURT OF APPEAL OF NEW ZEALAND

CA725/2012
[2012] NZCA 554

BETWEEN TREVOR JOHN MOMO WILSON
Appellant

AND THE QUEEN
Respondent

Counsel: S J Zindel for Appellant
A Markham for Respondent

Judgment: 28 November 2012 at 10.30 am

(On the papers)

JUDGMENT OF FRENCH J

AThe application for bail pending appeal is granted.
BThe appellant is released on bail until further order of the Court subject to the following conditions:
(a)to reside at 84B Russell Street, Nelson;
(b)to observe a daily curfew from 10 pm to 6 am and present at door to police;
(c)not to contact directly or indirectly Grant Hayward or Chelsea Mortimer;
(d)passport to be surrendered to the custody of the High Court at Nelson.

_______________________________________________________________

REASONS

Background

On 10 August 2012 the appellant pleaded guilty to five drug related offences, namely supplying LSD, conspiring to sell party pills, selling cannabis, conspiring to sell cannabis and possession of LSD.
The charges arose out of a covert police investigation into the activities of a Nelson based motorcycle gang. Code named Operation Explorer, the investigation involved the use of an undercover police officer.
Having pleaded guilty, the appellant was sentenced in the High Court on 13 September 2012 to two and a half years’ imprisonment on the charge of supplying LSD.[1] The sentencing judge imposed concurrent terms of imprisonment for one year on the other charges.
[1] R v Wilson [2012] NZHC 2356.
The appellant had been charged with 20 other co-accused and was the only one to plead guilty.
The other co-accused applied to the High Court for a stay of the prosecution on the grounds that the actions of the police during the investigation were so contrary to proper and acceptable practice that they amounted to an abuse of process necessitating a stay of proceeding. Of particular concern was the actions of the police in initiating a fake criminal prosecution in the District Court against the undercover officer in order to give him credibility with the gang.
The stay application was heard on 10 July 2012 and 24 August 2012. In a reserved judgment delivered on 24 October 2012,[2] Simon France J granted the application and ordered that “[a]ll prosecutions of the twenty one accused, who are listed in the intitulment in relation to charges fairly said to flow from the Operation Explorer investigation, are hereby stayed by order of the Court”.
[2] R v Antonievic [2012] NZHC 2686.
By the time that decision was delivered, the appellant had commenced serving his sentence.
On 6 November 2012 the appellant filed an appeal against his conviction.
The grounds of his appeal are that a miscarriage of justice will otherwise occur if he is to continue serving a prison sentence while the other co-accused, many of whom are accused of having committed more serious offences, walk free.
The appeal has not yet been given a hearing date.
The appellant has applied for bail in the meantime pursuant to s 70 of the Bail Act 2000.
I…

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 Wilson v The Queen

Details

AGLC: Wilson v The Queen [2012] NZCA 554
Case: [2012] NZCA 554
Decision Date: 28 November 2012

CaseChat Overview and Summary

Trevor John Momo Wilson, the appellant, appealed against his conviction and sentence for multiple drug-related offences, arguing that a miscarriage of justice would occur if he were to continue serving his prison sentence while other co-accused, many of whom faced more serious charges, were free. The appeal was filed before the other co-accused's stay application was decided, which resulted in the stay of all related prosecutions. The Crown opposed the bail application and argued that the appeal lacked merit. The court was required to decide whether bail should be granted pending the appeal under section 70 of the Bail Act 2000. The court assessed the strength of the appeal grounds and found it more than arguable that should the stay decision be upheld on appeal, it would be a miscarriage of justice for the appellant to be denied the benefit of that decision. The court considered the appellant's history of being on bail without issues and granted bail with the same conditions as previously applied, subject to a change of address.

The Court of Appeal of New Zealand granted the appellant bail pending the appeal, subject to specific conditions. The court found that the appeal had merit and that it was in the interests of justice for the appellant to be on bail while awaiting the appeal hearing. The court also noted that the appellant had been on bail without any problems for over a year and a half before sentencing. The appeal will be closely monitored and, if the Crown's appeal proceeds, it will be heard simultaneously with the appellant's appeal. The court's decision highlights the importance of considering exceptional circumstances when deciding on bail pending an appeal, especially when the entire prosecution is affected by the stay decision.

Orders