Wilson v The Queen
[2012] NZCA 554
•28 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA725/2012 [2012] NZCA 554 |
| BETWEEN TREVOR JOHN MOMO WILSON |
| AND THE QUEEN |
| Counsel: S J Zindel for Appellant |
| 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 personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.
The test to be applied in relation to the application is that set out in s 14 of the Bail Act. Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.
The Crown opposes bail and submits the proposed appeal lacks merit.
The Crown is seeking to appeal Simon France J’s stay decision and says that in any event even if the stay decision were to be upheld on appeal that would not be grounds for vacating the appellant’s guilty plea and quashing his conviction. The Crown contends that the situation does not fall within any of the categories identified in R v Le Page[3] and that the appellant did not have a clear defence to the charges. The plea was a tactical decision on his part made in the full knowledge that a stay application was pending. The Crown further submits that staying the appellant’s prosecution would be wrong in principle because it would be to treat the entry of the guilty plea as itself an abuse of process, and because it would confer retrospective effect on Simon France J’s ruling. The guilty plea was ultimately founded on an acceptance of guilt.
[3] R v Le Page [2005] 2 NZLR 845 (CA).
In support of those arguments, counsel referred me to the decision of Faulkner v Crown Solicitor at Auckland.[4] In that case, a prisoner sought to vacate his guilty plea on the grounds that after he had pleaded guilty, a co-accused had successfully challenged the admissibility of certain prosecution evidence. The High Court refused to vacate the plea.
Discussion
[4] Faulkner v Crown Solicitor at Auckland HC Auckland T116-121/94, 27 July 1995.
The first consideration is the apparent strength of the grounds of appeal. Commonly, judges determining bail applications post conviction are unable to assess the merits of an appeal with any degree of accuracy. However, this is a rather unusual case where it is possible to make a provisional assessment.
As regards the merits, I accept that it is only in exceptional circumstances that this Court will entertain an appeal against conviction following a guilty plea.
However, the categories are not closed and it is in my assessment more than arguable that should Simon France J’s 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 situation is capable of being distinguished from that in Faulkner. In this case, the entire prosecution is affected, not just one aspect of the evidence.
The appeal has merit and with the hearing date likely to be some considerable time away it is in the interests of justice that the appellant should be on bail pending the appeal. In coming to that decision, I have also taken into account the fact that the appellant was on bail prior to sentencing for over a year and a half without there being any problems.
Bail is accordingly granted on the same conditions as previously applied subject only to a change of address.
The conditions are:
(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.
The appeal will need careful monitoring to ensure it stays on track. I will refer the file to the Criminal List Judge with a request for it to be heard at the same time as the Crown appeal should the latter proceed.
Solicitors:
Zindels, Nelson for Appellant
Crown Law Office, Wellington for Respondent