Mead v R [2011] NZCA 37 (1 March 2011)

Last Updated: 10 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA779/2010 [2011] NZCA 37

BETWEEN REBEKAH ALICE MEAD Appellant

AND THE QUEEN Respondent

Counsel: I M Antunovic for Appellant K A L Bicknell for Respondent

Judgment: 1 March 2011 at 4 pm (On the papers)

JUDGMENT OF GLAZEBROOK J

The application for bail is declined.

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REASONS

Introduction

[1] Ms Mead was convicted of aggravated burglary and sentenced to three years and three months imprisonment. She has appealed to this Court against her conviction on the grounds of counsel error at trial.
[2] Ms Mead applies for bail pending the determination of her appeal, pursuant to s 70 of the Bail Act 2000. I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

Legal test

[3] 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 best 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. As stated in R v Ellis:[1]

Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.

[4] In R v Thomas, the Court repeated the statement from Ellis that admission to bail pending appeal is unusual and only to be granted in exceptional circumstances,[2] and stated that “[w]e do not consider the new Act [the Bail Act 2000] requires any significantly different approach”.[3]
[5] In R v De Bruin, this Court noted (as did the Court in Ellis[4]) that in considering the apparent strength of the grounds of appeal, it is neither necessary nor appropriate for the Court to attempt an extensive analysis of their merits.[5] Nevertheless, the appellant normally needs to show more than an arguable case for the interests of justice test to be met.[6]

Grounds of application

[6] The application for bail is made on the grounds that the fixture for the appeal is 15 June 2011. By the time the appeal is heard, Ms Mead would have been in custody for approximately ten months or nearly a third of her sentence of imprisonment.
[7] It is also noted that Ms Mead has a two and a half year old son, currently being cared for by a friend. Further, it is submitted that the grounds of appeal are strong as her trial counsel accepts that he erred and Ms Mead has filed a full affidavit in support of her appeal.

Crown submissions

[8] The Crown opposes the granting of bail pending appeal. It submits that Ms Mead’s case does not appear strong in face of the complainant’s clear evidence of her presence and participation in the offending. Certainly, in the Crown’s submission, the grounds of appeal are not so compelling as to render this an exceptional case warranting the displacement of the statutory presumption against bail.
[9] The Crown submits that, while Ms Mead is the mother of a young son, there is no evidence that he is receiving inadequate care or suffering hardship. Ms Mead has not provided any evidence of her personal circumstances or those of her immediate family distinguishing her case from the ordinary run of cases before this Court.
[10] In addition, the Crown submits that there is no great delay at issue as the appeal is set down to be heard on 15 June 2011.

My assessment

[11] It is not possible to assess the strength of the grounds of appeal at this stage but I accept the Crown submission that the grounds do not appear to be so compelling that they warrant bail being granted. I also accept the Crown submissions on the issue of Ms Mead’s son and the delay in hearing the appeal. However, it might be that the appeal can have an earlier hearing date – see below at [17].
[12] It follows that Ms Mead has not met the onus of showing that bail should be granted and the application is declined.

Procedural matters

[13] On 23 December 2010, counsel for Ms Mead filed a memorandum setting out the details of the grounds of appeal relating to counsel error. This was accompanied by an affidavit from Ms Mead and a waiver of privilege.[7] It appears that there may also be an application to adduce new evidence. I note that the application and the details of that evidence will be filed and served by 31 March 2011.
[14] It makes sense for the Crown response to await the application for new evidence. The Crown therefore is to file and serve any material in reply 15 working days after the application to adduce new evidence is filed (or 15 working days after the date of confirmation that there will be no new evidence).
[15] Any further material in reply must be filed and served by Ms Mead 15 working days after the Crown material is filed.
[16] If the application for new evidence (or confirmation that no application to adduce new evidence is to be filed) is filed and served earlier than 31 March it may be that an earlier fixture date could become available. If that is the case, then the Registrar can set a timetable for submissions.
[17] An earlier hearing date may become available (particularly if any application to adduce further evidence is filed quickly). If that occurs and the parties accept an earlier hearing date, the Registrar should set a revised timetable for submissions.

Solicitors:
I M Antunovic, Wellington for Appellant
Crown Law Office, Wellington for Respondent

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[1] Ellis v R [1998] 3 NZLR 555 (CA) at 560.

[2] R v Thomas CA71/00, 22 February 2001 at [4]. This statement was also repeated by this Court in R v Vautier [2009] NZCA 285 at [13].
[3] R v Thomas at [5].
[4] Ellis v R at 560.

[5] R v De Bruin [2007] NZCA 76 at [9]. This statement was also repeated by this Court in R v Vautier at [9].
[6] R v Huata CA411/05, 15 December 2005 at [7].

[7] This memorandum and affidavit was not before Randerson J when he issued his minute of 8 February 2011. I confirm that the material filed complies with r 12A of the Court of Appeal (Criminal) Rules 2001.