[1] On 17 December 2009 Mr Connolly was sentenced to two years’ imprisonment by French J following his conviction on a charge of inducing consent by threat contrary to s 129A of the Crimes Act 1961.
[2] Mr Connolly filed an appeal against his conviction and sentence. He sought bail pending the appeal, under s 70 of the Bail Act 2000. After an urgent telephone hearing, we announced that the application would be declined and we now give reasons.
[3] The identified grounds of appeal against conviction are that there was a miscarriage of justice because:

(1) the learned trial Judge erred in refusing to accept the appellant’s plea of autre fois acquit and/or to find that the prosecution was an abuse of process;

(2) the guilty verdict is unreasonable and is not supportable by reference to the evidence;

(3) the guilty verdict in relation to count 2 is inconsistent with the not guilty verdicts in relation to counts 1 and 3 of the indictments to be faced.

[4] In respect of sentence, the appeal is advanced on the basis that the Judge declined to impose home detention although she had the jurisdiction to do so.
[5] It was common ground that s 14 of the Bail Act applies and the onus is on the appellant to show cause why bail should be granted: s 14(2).
[6] An application for bail was initially made to French J. She indicated that, without consent, the matter should be considered by the Court that would be hearing the appeal. The Crown did not consent.
[7] It is neither necessary nor appropriate to enter into a detailed consideration of the conviction challenge. It is sufficient to note that, in September 2008, Panckhurst J discharged Mr Connolly pursuant to s 347 of the Crimes Act on a count alleging an offence against s 16 of the Prostitution Reform Act 2003. Immediately following that, the charge upon which Mr Connolly was eventually convicted was laid on the basis of the same facts.
[8] There was an autre fois acquit argument heard pre-trial which was declined.
[9] A further aspect of the appeal is the contention that, in the trial, although the jury was directed that they had to consider each count on its own, at no stage was there any substantial difference in the Crown case between counts 2 and 3 on which the jury returned different verdicts. It is to be argued that the conviction on count 2 is not safe in light of the not guilty verdicts on counts 1 and 3.
[10] At the heart of the sentence appeal is the contention that the Judge should have imposed a sentence of home detention. As this Court cannot hear the substantive appeal until 2 March 2010, it is submitted that the benefits of such a sentence would be rendered nugatory if Mr Connolly is denied bail in the meantime.
[11] The applicant is a 31 year old ex-police officer who has no previous convictions. It is inevitable that a former police officer in custody is at risk. It appears to be heightened in this case as there have been actual threats made against Mr Connolly prior to and during the trial with charges laid.
[12] In response the Crown says that although the applicant’s grounds of appeal against conviction could be arguable, each can be met and answered by the Crown. In respect of the appeal against sentence, the Crown submits the appeal is without merit, and that the Judge was correct to refuse the application for home detention on the basis such a sentence would fail to denounce the behaviour involved in Mr Connolly’s offending. The two year sentence had factored into it allowance for all personal mitigating circumstances including the difficulties of a former police officer in serving a full time custodial sentence.
[13] Consideration of a bail application is a balancing exercise with a presumption against the grant of bail.
[14] We were not satisfied that the applicant met the onus on him to prove that it is in the interests of justice for bail to be granted. A fixture is available for hearing this matter on 2 March 2010. Although jurisdictionally Mr Connolly could have been sentenced to home detention, the reasons of French J for refusing to do so are fairly compelling.
[15] The issues which underpin the challenge to the conviction have all been subject to careful evaluation and considered judgment. Nothing advanced by Mr Eaton suggested that the appeal would inevitably succeed.
[16] We did not overlook the fact that Mr Connolly has no previous convictions and had adhered to strict terms of bail for more than two years. However, he has now been convicted at the end of a thorough trial process and the statutory presumption against bail is not displaced.
[17] The application for bail was declined.

Solicitors:
Crown Law Office, Wellington

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