The Queen v Topless [2007] NZCA 327 (31 July 2007)

Last Updated: 21 August 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA166/07

[2007] NZCA 327

THE QUEEN

v

GLENDA MARY TOPLISS

Hearing: 23 July 2007

Court: Wilson, Panckhurst and Venning JJ

Appearances: D J Taffs for Appellant
S B Edwards for Crown

Judgment: 31 July 2007 at 10 am

JUDGMENT OF THE COURT

Bail is granted to the appellant pending determination of her appeal against conviction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

Bail pending a conviction appeal

[1] Following a trial in the District Court at Greymouth the appellant was found guilty upon 106 charges of false accounting and one charge of using a document with intent to defraud. On 11 April 2007 the trial Judge, Judge D J L Saunders, sentenced the appellant to 18 months imprisonment on each count, with leave to apply for home detention. Such sentence was deferred for a period of two months or until the Parole Board heard the application for release to home detention. On 24 May 2007 the appellant was granted home detention.
[2] In the meantime this appeal against conviction was filed, together with an application for bail pending determination of the appeal. Hence, although the appellant is now living at home and caring for her three children, she still seeks bail, with the result that the sentence of home detention is deferred until determination of the appeal.
[3] In the event the appeal raises two issues:

(a) whether there is jurisdiction to grant bail to an appellant in these circumstances, and

(b) whether it is in the interests of justice to extend bail to the appellant.

The issue of jurisdiction

[4] The general power to grant bail to an appellant pending appeal is contained in s 70 of the Bail Act 2000. Subsection (2) provides:

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.

The reference to “only under the conviction to which the appeal relates” excludes from the subsection an appellant who is subject to a term of imprisonment both with reference to the charge which is the subject of appeal, and another charge which is not under appeal. In the latter case bail is not available.

[5] Focusing on the requirement that the appellant must be “in custody” Ms Edwards drew our attention to two provisions of the Parole Act 2002, namely:

6(5) Home detention has the following characteristics:

(a) the offender is detained at a residence (rather than in a prison) on detention conditions imposed by the Board:

(b) the offender is not in custody, and his or her social welfare entitlements are the same as if he or she were not detained:

...

36(5) An offender on home detention-

(a) is not in custody while on home detention; and

(b) is liable to recall until the offender’s statutory release date.

Hence, argued Ms Edwards, there is no jurisdiction to grant bail because the appellant is not in custody as required by s 70(2).

[6] We do not accept this submission. The Parole Act subsections are plainly of specific import. Section 6(5)(b) is directed to ensuring that an offender released on home detention is not denied social welfare benefits to which he or she is otherwise entitled. To that end, the offender is in effect deemed not to be in custody. Likewise, s 36(5) is obviously to preserve the ability to recall an offender to prison at any time up until the offender’s statutory release date, should cause for a recall arise. Again, therefore, the offender is deemed not to be in custody while on home detention.
[7] The very existence of the subsections confirms that home detention is a custodial sentence. Otherwise there would be no need for them. Hence these provisions do not remove the jurisdiction under s 70(2) to grant bail to a person who is serving a sentence of imprisonment on home detention. Clear words are required to oust the jurisdiction to grant bail, given that the liberty of a subject is at stake. The Parole Act subsections referred to above are the antithesis of provisions having that effect.

Is bail in the interests of justice?

[8] Section 14 of the Bail Act 2000 governs the exercise of the discretion to grant bail pending appeal. The decision-maker must be satisfied, on balance, that it would be in the interests of justice in the particular case to extend bail: s 14(1). The appellant is subject to an onus to show cause why bail should be granted: s 14(2). Instead of the considerations in s 8, the Court may take into account five considerations, being the apparent strength of the grounds of appeal, the length of the sentence, the likely delay before the appeal is heard, the personal circumstances of the appellant (and his or her immediate family) and any other consideration that the Court considers relevant: s 14(3).
[9] Here, the grounds of appeal are that the evidence was insufficient to sustain the guilty verdicts, that the jury was overwhelmed on account of the “sheer prolixity of the counts in the indictment”, that at least one juror was afflicted by interest (through association with the complainant company) and that counsel at trial did not obtain disclosure of relevant company records which tended to contradict the Crown case, save for a limited number of documents which were only obtained during the course of trial and in circumstances which inhibited the appellant’s ability to instruct counsel concerning their full significance.
[10] The gist of the Crown case was that the appellant, while employed as the office manager of an engineering company, made false computer entries with reference to the hours worked by herself and her husband and thereby fraudulently obtained a considerable sum. It is said that available company documents not obtained through disclosure would have demonstrated that the entries were not false, because the hours for which payment was made were in fact worked, or at least that any discrepancy was not such as to demonstrate fraudulent intent.
[11] It appears that the ground of appeal based on trial counsel’s alleged failure to obtain full disclosure is perhaps the most substantial ground of appeal. At this distance we consider it is difficult to assess the apparent strength of the argument. That said, we are at least satisfied that this ground of appeal raises a serious issue for determination. Absent the documentation, further assessment of the merits of the appeal is difficult.
[12] The 18 month sentence commenced to run on 24 May 2007, with the result that the expiry date of the sentence is likely to be 24 February 2008. At this point the case does not have a date of hearing, but we anticipate that a fixture will be available within two or three months. It follows that the sentence of home detention is likely to have been substantially served by the time the appeal is heard and a decision delivered.
[13] The appellant’s personal circumstances are no longer a consideration of particular moment. Previously the appellant was concerned that, if home detention was not granted, her husband would have been required to cease work in order to assume the care of the three children, but this concern has passed. Nor are there other considerations to be placed in the balance.
[14] Largely on account of the fact that the likely duration of the sentence is nine months, and that this term will be substantially served by the time the appeal is determined, we consider that bail is appropriate. Accordingly, we direct that the appellant be readmitted to bail on the condition that the resumption of the sentence of home detention will, if required, be addressed in the appeal decision.

Appeal directions

[15] Mr Taffs indicated an intention to seek leave to file affidavits referable to certain of the grounds of appeal and to obtain a waiver of privilege from trial counsel. We direct that these aspects are to be attended to within two weeks of 23 July. Thereafter the Crown will have two weeks within which to file anything required in reply.
[16] In light of these directions a date for the appeal hearing may now be given.

Solicitors:
Crown Law Office, Wellington