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The Queen v Hayes [2006] NZCA 360 (20 December 2006)

Last Updated: 30 January 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA343/06

THE QUEEN

v

NICOLA BRONWYN HAYES

Hearing: 19 December 2006 (by telephone conference)

Counsel: D Hayes for Appellant
S B Edwards for Crown

Judgment: 20 December 2006 at 3 pm

JUDGMENT OF O’REGAN J

The application for bail is dismissed.

REASONS

Introduction

[1] The appellant is serving a term of imprisonment of two years and six months, having been convicted of 29 counts of using a document for the purpose of obtaining a pecuniary advantage. The offending related to the receipt of accident compensation payments over a period of about six years.
[2] Ms Hayes was convicted on 8 September 2006 and appealed against her convictions a week or so later. In late September she applied to this Court for bail, and her application was dealt with by Ellen France J. In a judgment dated 28 September 2006, Ellen France J declined to grant bail.
[3] Counsel for Ms Hayes filed a fresh application for bail on 15 December 2006. That application has been referred to me for decision and I have considered it personally under s 393(2)(d) of the Crimes Act 1961. I heard briefly from counsel for Ms Hayes and counsel for the Crown by telephone on 19 December 2006.
[4] The application is made under s 70 of the Bail Act 2000. 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 interest 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.
[5] Counsel for Ms Hayes argued that the situation had changed since the earlier bail application was dealt with by Ellen France J. He said that the transcript of the Judge’s summing up was now available, and he was now in a position to support his argument that there was a strong chance of success on the appeal. The transcript was not available at the time Ellen France J considered the matter, and she said it was difficult to assess the strength of the conviction appeal on the information that was before her. Now that the transcript is available, I accept that there may be an arguable case on the appeal, but I do not believe that it is possible, without effectively deciding the appeal itself, to give an accurate assessment of the chances of success of the appeal. Thus, in my view, the matter is not far advanced from the position it was in when first considered by Ellen France J.
[6] Another matter which has now become clearer is the date of the appeal. This was uncertain at the time Ellen France J considered the matter. We now know that the appeal is set down for hearing on 12 February 2007, which is less than two months away.
[7] The other matters which can be said in support of the application were canvassed in the decision of Ellen France J and counsel for Ms Hayes responsibly did not try to re-litigate those matters.
[8] Having considered all of the above matters, I have concluded that Ms Hayes has not satisfied me on the balance of probabilities that it would be in the interests of justice in this case to grant her bail pending the hearing of her appeal. In those circumstances the application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	The appellant is serving a term of imprisonment of two years and six months, having been convicted of 29 counts of using a document for the purpose of obtaining a pecuniary advantage. The offending related to the receipt of accident compensation payments over a period of about six years.
[2]	Ms Hayes was convicted on 8 September 2006 and appealed against her convictions a week or so later. In late September she applied to this Court for bail, and her application was dealt with by Ellen France J. In a judgment dated 28 September 2006, Ellen France J declined to grant bail.
[3]	Counsel for Ms Hayes filed a fresh application for bail on 15 December 2006. That application has been referred to me for decision and I have considered it personally under s 393(2)(d) of the Crimes Act 1961. I heard briefly from counsel for Ms Hayes and counsel for the Crown by telephone on 19 December 2006.
[4]	The application is made under s 70 of the Bail Act 2000. 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 interest 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.
[5]	Counsel for Ms Hayes argued that the situation had changed since the earlier bail application was dealt with by Ellen France J. He said that the transcript of the Judge’s summing up was now available, and he was now in a position to support his argument that there was a strong chance of success on the appeal. The transcript was not available at the time Ellen France J considered the matter, and she said it was difficult to assess the strength of the conviction appeal on the information that was before her. Now that the transcript is available, I accept that there may be an arguable case on the appeal, but I do not believe that it is possible, without effectively deciding the appeal itself, to give an accurate assessment of the chances of success of the appeal. Thus, in my view, the matter is not far advanced from the position it was in when first considered by Ellen France J.
[6]	Another matter which has now become clearer is the date of the appeal. This was uncertain at the time Ellen France J considered the matter. We now know that the appeal is set down for hearing on 12 February 2007, which is less than two months away.
[7]	The other matters which can be said in support of the application were canvassed in the decision of Ellen France J and counsel for Ms Hayes responsibly did not try to re-litigate those matters.
[8]	Having considered all of the above matters, I have concluded that Ms Hayes has not satisfied me on the balance of probabilities that it would be in the interests of justice in this case to grant her bail pending the hearing of her appeal. In those circumstances the application for bail is dismissed.