The Queen v Osborne [2008] NZCA 304 (13 August 2008)

Last Updated: 22 August 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA470/2008 [2008] NZCA 304THE QUEEN

v

JUSTIN JAMES OSBORNE

Counsel: G J Foley for Appellant
N P Chisnall for Crown

Judgment: 13 August 2008 at 4 pm

(On the papers)

JUDGMENT OF HAMMOND J

The application for bail pending appeal is dismissed.

REASONS

[1] Mr Osborne was convicted by a jury, presided over by Rodney Hansen J, in the High Court at Auckland on a single count of possession of methamphetamine for supply.
[2] On 7 August 2008 Mr Osborne was sentenced by the trial Judge to three years imprisonment.
[3] Mr Osborne has appealed to this Court against his conviction, and also his sentence.
[4] The appellant has applied for bail pending the determination of his appeal, pursuant to s 70 of the Bail Act 2000. I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.
[5] 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.
[6] The charge arose following a police search of Mr Osborne’s vehicle. A small bag containing scales and a quantity of powder (6.5 grams said ‘to contain methamphetamine’) was found under the driver’s seat of Mr Osborne’s car. Mr Osborne was the driver at the time. When questioned about the bag and powder Mr Osborne told police that he knew nothing of the bag or its contents and that a friend had recently borrowed his car. Plainly the jury must have rejected the explanation that this was not “his” methamphetamine.
[7] The conviction appeal point is straightforward. Certain written material got before the jury which included a reference to the fact that Mr Osborne had a bank account closed while he was “in jail”. The fact that the appellant had been in jail was supposed to have been edited out (and was) of the document. But it seems that, in error, it was the unedited version which got before the jury, after it had retired. The appeal point is that this is likely to have caused a substantial miscarriage of justice.
[8] I am required by s 14(3)(a) to consider the apparent strength of the grounds of appeal. The difference between the appellant and the Crown is of course that on the one side it is said that this fact was so significant as to have been likely to have led to a miscarriage of justice; the Crown contends to the contrary. The appeal point is an arguable appeal point. But it has to be set against the overall strength of the Crown case which, on the information available to me at this time (and in that respect I have the benefit of Rodney Hansen J’s sentencing notes) suggests a very strong Crown case.
[9] As to the sentence appeal, at sentencing a point had arisen as to whether the High Court could presume the purity of the powder found, for sentencing purposes. Mr Osborne’s complaint is that he was sentenced upon the basis of 60 percent or more purity when no analysis had been made, yet purity was in issue. I use the term “in issue” advisedly. This Court has held in R v Fatu [2006] 2 NZLR 72 at [28] - [30] that the Court can take notice of the “usual” purity of methamphetamine. But my appreciation is that there was no evidential basis for the proposition that this methamphetamine was somehow less than “usually” potent. This appeal therefore faces real difficulties.
[10] The Court should have regard to the length of sentence that has been passed and the likely length of time that will pass before the appeal is heard. This is a particularly straightforward appeal which could be got on relatively promptly. The length of sentence imposed is such that it is quite unlikely that a delay in obtaining a hearing will render the appeal nugatory.
[11] Finally, there is nothing in the material before me to suggest that Mr Osborne’s personal circumstances distinguish this case from the ordinary run of cases on appeal before this Court.
[12] The application for bail pending appeal is therefore declined.

Solicitors:
McVeagh Fleming, Auckland for Appellant
Crown Law Office, Wellington