Wood v The Queen
[2013] NZCA 123
•24 April 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA643/2012 [2013] NZCA 123 |
| BETWEEN KENNETH CHARLES WOOD |
| AND THE QUEEN |
| Hearing: 18 and 19 April 2013 (by phone conference) |
| Counsel: Applicant in person |
| Judgment: 24 April 2013 at 10.00 am |
BAIL JUDGMENT OF WHITE J
The application for bail is declined.
____________________________________________________________________
REASONS
Introduction
The applicant, Mr Wood, pleaded guilty after being given a sentencing indication[1] to possession of cannabis for sale. Mr Wood subsequently sought leave to vacate his guilty plea, but this was declined.[2]
[1] R v Wood DC Whangarei CRI-2010-088-3488, 24 February 2011.
[2] R v Wood DC Whangarei CRI-2010-088-3488, 20 July 2012.
Mr Wood was then sentenced by Judge DJ McDonald to 25 months’ imprisonment.[3]
[3] R v Wood DC Whangarei CRI-2010-088-3488, 7 February 2013.
Mr Wood has appealed against the refusal of the application to withdraw his guilty plea and against his conviction. He claims a miscarriage of justice has occurred because the presiding Judge and the Crown displayed apparent bias and denied him due process.
Basis of application
Mr Wood submits that he should be granted bail pending the hearing of his appeal on the grounds that:
(a)his appeal raises important issues relating to the ongoing abuse of executive power in New Zealand society and his entitlement to a fair hearing;
(b)he is entitled to represent himself, but this means that he will face considerable difficulties in preparing for his appeal if he is required to remain in prison;
(c)he will effectively be denied access to justice; and
(d)he has been in prison since 7 February 2013 and is concerned that his farm property is not being adequately maintained in his absence.
In response to my questions Mr Wood advised that while he could afford legal representation he has chosen to represent himself, as he is entitled to do.
For the Crown, Mr Lillico has filed a memorandum opposing Mr Wood’s application. He submits that the grounds put forward in the application are not sufficiently exceptional to displace the statutory presumption against bail pending determination of the appeal. He points out that:
(a)The appeal against conviction in this case will effectively have to consider whether Mr Wood ought to be permitted to withdraw his guilty plea. Such cases must inevitably deal with the credibility of the defence to the charge.[4]
[4] R v Pira HC Rotorua S 3/90, 11 April 1990.
(b)There is no reasonably arguable defence to the current charge given that:
(i) Mr Wood admitted the cannabis was his;
(ii)Mr Wood was aware of the number of packages of cannabis found and the weight of the cannabis in each one of those packages.
(iii)the cannabis weighed 662.2 grams, many times over the specified quantity above which a person in possession of controlled drugs is presumed to possess the drugs for the purpose of supply or sale;[5]
(iv) the cannabis was packed into 20 individual bags;
(v)there was more than $1000 in cash found in Mr Wood’s vehicle and on his person; and
(vi)Mr Wood admitted that he would have sold some of the cannabis if he had been asked.
(c)The length of the prison sentence imposed on Mr Wood is not so short that a declined bail application would render the appeal academic.
(d)The fact that Mr Wood is representing himself and has raised some difficulties with preparing his appeal while in custody points towards bail being granted, but would not in itself meet the “exceptional circumstances” threshold set by Ellis v R.[6] It remains open for Mr Wood to retain counsel to assist him.
Discussion
[5] Misuse of Drugs Act 1975, s 6(6).
[6] Ellis v R [1998] 3 NZLR 555 (CA).
I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.
Section 14 of the Bail Act 2000 sets out the relevant test. It provides:
14 Exercise of discretion when considering bail pending appeal
(1)If a person is in custody under a conviction and is appealing the conviction or sentence, or both, 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.
(2)The onus is on the appellant to show cause why bail should be granted.
(3)When considering the interests of justice under subsection (1) the court may, instead of the considerations in section 8, take into account the following considerations:
(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.
As can be seen, the onus is on Mr Wood to show cause why bail should be granted. In my view he has not done so.
First, it is not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail.[7] That said, as Mr Lillico points out, Mr Wood’s grounds of appeal do not appear to be particularly strong.
[7] R v De Bruin [2007] NZCA 76 at [9], citing Ellis v R, above n 6.
Second, as I am advised by the Registry that Mr Wood’s appeal is to be allocated a hearing date for Wednesday 10 July 2013 in the Auckland Criminal Appeal Division, the appeal will not be rendered nugatory and no injustice will arise from Mr Wood remaining in custody pending its determination.
Third, Mr Wood has not shown that the consequences of imprisonment pending appeal will be unduly harsh or damaging, or that there are any other relevant considerations for the Court.
The fact that Mr Wood may face some difficulties in preparing for his appeal if he decides to remain self-represented is not a decisive factor. There are various obligations on prison managers to assist prisoners in the applicant’s position. In particular, reg 193 of the Corrections Regulations 2005, which applies to any prisoner who is appealing against conviction, provides that the prison manager must:
(2) ... as far as is reasonably practicable in the circumstances, –
(a)ensure that the prisoner is provided with adequate facilities to do so, to the extent that this is consistent with the maintenance of safety and security requirements; and
(b)facilitate contact between the prisoner and any advisor or assistant (other than another prisoner) helping the prisoner to do so.[8]
[8]That subclause is subject to cls 4–7 of sch 4 of the Corrections Regulations 2005, which allow for certain visitors to be prohibited.
This regulation is in addition to the various provisions in the Corrections Act 2004 that cover matters such as access to private visitors, the ability to send and receive mail and to make outgoing telephone calls.[9]
[9] Corrections Act 2004, ss 69, 73, 76 and 77.
If there are issues about the adequacy of the facilities, Mr Wood will have to pursue this further with the prison authorities.[10]
[10]R v Greer CA161/03, 15 June 2006; leave to appeal refused by Greer v R [2006] NZSC 76, [2006] 3 NZLR 740; and R v Greer CA179/06, 21 December 2006.
I recognise Mr Wood’s concern about the maintenance of his farm property while he is in prison, but he proffered no evidence to suggest that serious difficulties had arisen and in any event any hardship of this nature is an inevitable consequence of a prison sentence and will not on its own justify bail.
As there are no other considerations relevant to the decision on bail, I am not satisfied that bail would be in the interests of justice.
Decision
Mr Wood’s application for bail pending appeal is therefore declined. The Registrar is to set the appeal down for hearing on Wednesday 10 July 2013.
Solicitors:
Crown Law Office, Wellington for Respondent
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