THE QUEEN v ALAN GORDON THOMAS [2001] NZCA 31 (22 February 2001)

IN THE court of appeal of new zealand

ca71/00

THE QUEEN

V

ALAN GORDON THOMAS

Hearing:	22 February 2001
Coram:	Gault J Robertson J Potter J
Appearances:	P C Dacre for Applicant M A Treleaven for Crown
Judgment:	22 February 2001

judgment of the court DELIVERED BY GAULT J

[1] The appellant seeks bail pending the hearing of his appeal tentatively fixed for 29 March 2001.There has been in the course of argument on the present application a suggestion that yet another adjournment may be sought in respect of that fixture and we make clear that very strong grounds indeed will be necessary for such an adjournment to be granted.
[2] The substantive appeal is against conviction on 24 counts of using a document to obtain a pecuniary advantage (s229 Crimes Act 1961).The appellant was sentenced on 1 March 2000 for imprisonment for three years on each count.
[3] The Bail Act 2000 came into force on 1 January 2001.Relevant provisions are as follows:
Section 70(1) and (2) provide:
70. Granting of bail to appellant and custody pending appeal -
(1) This section applies if a person is in custody under a conviction and is appealing the conviction or sentence, or both, to the Court of Appeal.
(2) The Court of Appeal or the Judge who presided at the trial in the court below may, if it or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody only under the conviction to which the appeal relates.
Section 14 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:
Special provision as to bail of young persons remanded or committed for trial or sentence.
[4] In R v Ellis [1998] 3 NZLR 555, 560 prior to the enactment of the new Bail Act this Court made it clear that admission to bail pending appeal is unusual and is to be granted only in exceptional circumstances.The concern is for the overall interests of justice.But the starting point is that the applicant has been found guilty and sentenced.
[5] We do not consider the new Act requires any significantly different approach.
[6] Certain grounds of appeal have been foreshadowed but we have not been provided with sufficient information to make any sensible assessment of whether those grounds have strong prospects of success.
[7] The primary points advanced in support of the application for bail are the comparatively short sentence (the applicant will be eligible for parole at the end of February) and the need to be at large in order to properly prepare for the appeal.
[8] A material factor is that the applicant has been recalled from pre-parole home detention, seemingly because of unsatisfactory living arrangements initially but also because of a desire on behalf of the Prison Board to receive the assistance of a psychiatric assessment.
[9] The other relevant factor is that, although not in any way prolonged by the Court processes, it is almost a year since sentencing and 14 months since conviction, suggesting that there has been ample time for preparation of the appeal.But in elaboration of this second ground Mr Dacre submitted that the case is a complex one and he explained to the Court that when the appellant was detained in Rimutaka Prison prior to the home detention he had the use of his computer which enabled him to store and analyse documentation for the purpose of assisting counsel with the preparation of the appeal.It is clear that the applicant is anxious to do all he can in that respect.However, he is now detained at Mt Eden Prison and the Prison authorities have denied him access to his computer.We were invited to consider that the appropriate means for alleviating his position is to grant bail in the face of the prospect of yet further delay in having the substantive appeal dealt with.However, we do not see access to the computer as a bail issue, although we have no doubt that it does raise a significant issue of the applicant's rights under the New Zealand Bill of Rights Act.
[10] Everyone charged with a criminal offence is, under that Act, entitled to adequate facilities for the preparation of a defence.We have no doubt that the spirit of that right extends to appeals.For that reason we invite the Prison authorities to reconsider, without delay, their denial to the applicant of use of his computer particularly having regard to the fact that he has a hand injury, is unable to write and needs the facilities of the voice activated software he uses.
[11] That aside, we have not been persuaded that this is a case appropriate for bail.The Parole hearing can proceed without in any way being prejudiced by the fact that the appeal has not been disposed of.
[12] Accordingly, the application is dismissed.
Solicitors
Crown Solicitor, Auckland