McNeice v R [2012] NZCA 556 (3 December 2012)

Last Updated: 13 December 2012

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA217/2012 [2012] NZCA 556

BETWEEN GLENN RODERICK HOLLAND Appellant

AND THE QUEEN Respondent

Counsel: Appellant in person M R Davie for Respondent

Judgment: 28 November 2012 at 12.30 pm (On the papers)

JUDGMENT OF FRENCH J

The application for bail is dismissed.

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REASONS

Background

[1] The appellant was convicted after a Judge alone trial of an offence under ss 144A(1)(a) and (2)(c) of the Crimes Act 1961, namely doing an indecent act on a child under 12 years old while outside of New Zealand. That was count one of the indictment. The appellant had also pleaded guilty to a representative count of knowingly possessing an objectionable publication contrary to ss 131A(1) and 145A of the Films, Videos, and Publications Classification Act 1993 (count two).
[2] On 14 March 2012 the appellant was sentenced in the Auckland District Court to three years’ imprisonment.[1]
[3] The appellant has now appealed to this Court against both his conviction and sentence in respect of count one.
[4] The notice of appeal against conviction submits that the District Court Judge was wrong to admit certain propensity evidence against the appellant and that there was insufficient evidence to prove that the appellant was the photographer of the children.
[5] A further ground of appeal has been raised in the bail application which was filed by the appellant personally. It is contended that the allegations comprising count one do not disclose an offence because taking a picture of the victim could not amount to “doing an indecent act on a child”.
[6] As regards the sentence appeal, the grounds of appeal are that the Judge gave undue weight to the appellant’s prior convictions and insufficient weight to his personal circumstances.
[7] The appeal has been allocated a hearing date of 14 April 2013.
[8] The appellant has applied for bail in the meantime pending the determination of his appeal pursuant to s 70 of the Bail Act 2000.

Discussion

[9] I personally have considered the application under s 393(2)(d) of the Crimes Act.
[10] 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.
[11] The facts on which count one is based involved an allegation that while living in Moscow, the appellant took a photograph of his seven year old stepdaughter masturbating the penis of an adult male. The photograph was alleged to have been posed at the appellant’s direction. There is authority that a person taking photographs of a child on whom an indecent act is being done by someone else can support a charge that the photographer is a party to the other person’s offending.[2]
[12] As for the propensity evidence at issue, that consists of the objectionable images on which count two was founded. These included photographs taken by the appellant of young girls including his two stepdaughters in various states of undress. The evidence was admitted on the basis that it showed a propensity to take photographs of young girls in circumstances of indecency and that such a propensity bore on the issue of the identity of the photographer in count one.
[13] The notice of appeal does not specify why the evidence should not have been admitted other than to state that it “had no relevance other than to prejudice the Court against [the appellant]”.
[14] I am not satisfied that the merits of the proposed appeal are such as to depart from the usual position that a convicted offender sentenced to imprisonment must remain in custody until determination of the appeal. There is also little risk that the appeal will not be determined before the appellant would otherwise be released. Further, the appellant does not advance any personal circumstances warranting bail.
[15] The appellant has not satisfied me that it is in the interests of justice for bail to be granted.
[16] The application for bail is accordingly declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Holland DC Auckland CRI-2010-004-15660, 14 March 2012.
[2] R v SJM [2008] NZCA 193.