Dooley v R [2013] NZCA 127 (2 May 2013)

Last Updated: 7 May 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA107/2013 [2013] NZCA 127

BETWEEN DAVID ALAN DOOLEY Applicant

AND THE QUEEN Respondent

Counsel: Applicant in Person A Markham for Respondent

Judgment: 2 May 2013 at 4.00 pm

(On the papers)

JUDGMENT OF STEVENS J

The application for bail is dismissed.
____________________________________________________________________

REASONS

Introduction

[1] David Alan Dooley was convicted of one count of assault, one count of assault with intent to injure, one count of injuring with intent to injure (as a party) and one count of burglary. He was sentenced on 13 June 2012 by Judge Garland to three and a half years imprisonment. Mr Dooley has appealed against his conviction.
[2] In his notice of appeal (filed out of time on 21 February 2013) Mr Dooley raises a number of grounds including various complaints against trial counsel. These have not yet been included in affidavits as required by r 12A of the Court of Appeal (Criminal) Rules 2001 (the Rules). Neither has a waiver of privilege been provided.
[3] Mr Dooley claims that there are a number of witnesses whom he wishes to call to provide evidence in support of his appeal. He says that his lawyer was given the contact details for these witnesses, but apparently did not contact them “as he thought based on the evidence [led] by the Crown it was obvious I was innocent”. No affidavits relating to this ground of appeal have been filed. Neither has Mr Dooley provided the information required by r 12B of the Rules in relation to fresh evidence.
[4] Mr Dooley applies for bail pending the determination of his appeal under s 70 of the Bail Act 2000. The application was filed in this Court informally on 10 April 2013 and was referred to me this week. I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

Application for bail

[5] The application does not specify any particular grounds. One may infer from the notice of appeal that Mr Dooley considers that the witnesses he seeks to call to support his appeal will provide evidence that shows that he is innocent of the crimes of which he has been convicted. In addition Mr Dooley relies on his personal circumstances.[1]
[6] The Crown opposes bail.

Discussion

[7] 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 applicant to show cause why bail should be granted.
[8] In terms of the strength of the appeal, it is not possible or appropriate on the limited information I have to assess the strength of the grounds of appeal at this stage. This is particularly so in a case such as this where no waiver of privilege has been filed. Moreover, nothing has been raised to suggest that this is one of those exceptional cases in which bail pending appeal should be granted.[2] It is relevant to the analysis that there is no hearing date for the appeal. However this could not occur until Mr Dooley has provided in affidavit form the information required under r 12A and 12B of the Rules. Provision of this information, and the usual waiver of privilege, is in Mr Dooley’s hands.
[9] Mr Dooley relies on a number of matters in terms of his personal circumstances. The first is that he has a bail address and would be prepared to agree to electronic monitoring. Secondly, he says that he has employment with which to occupy himself if he can be released on bail. Finally, he wishes to visit his daughter who he has not seen since 2011.
[10] None of these factors is sufficiently compelling so as to mean bail is in the interests of justice. The loss of an employment opportunity is an unfortunate but not unusual consequence of conviction for offending of this nature. As the Crown submits, there is nothing presently available to suggest that this is one of those cases where bail pending appeal should be granted.
[11] For these reasons, the application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] Bail Act 2000, s 14(3)(d).
[2] Ellis v R [1998] 3 NZLR 555 (CA) at 560.