Quinlan v R [2013] NZCA 168 (22 May 2013)

Last Updated: 29 May 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA270/2013 [2013] NZCA 168

BETWEEN MICHAEL MAURICE QUINLAN Applicant

AND THE QUEEN Respondent

Counsel: P J Davison QC for Applicant J Bond for Respondent

Judgment: 22 May 2013 at 10.00 am

(On the papers)

JUDGMENT OF STEVENS J

The application for bail is declined.
____________________________________________________________________

REASONS

Introduction

[1] The applicant was convicted (jointly with a Mr Bennett) after a jury trial of 16 representative counts of supplying equipment capable of being used for the cultivation of cannabis contrary to s 12A(1) of the Misuse of Drugs Act 1975. He was sentenced by the trial judge, Judge Wiltens, on 30 April 2013 to a term of imprisonment of four years and three months.[1] All sentences are to be served concurrently. The applicant appeals against his conviction and sentence. He applies for bail pending the determination of his appeal under s 70 of the Bail Act 2000. I have considered the application under s 393(2)(d) of the Crimes Act 1961.

The application for bail

[2] The application is brought on several grounds. First, it is said that the applicant will be prejudiced in his appeal if he is required to serve time in custody pending appeal because, to the extent that the appeal is upheld either as to conviction or sentence, the appeal will be rendered nugatory and ineffective to the extent of time served.
[3] The applicant also raises a number of personal factors. He says that he was remanded on bail prior to his trial and “complied faithfully” with all conditions. Further, he has an established residence and being bailed to a family situation would remove any flight risk.
[4] The Crown opposes bail on the basis that the applicant has not discharged the onus set out in s 14(2) of the Bail Act. The respondent has referred to the observations of this Court in Ellis v R:[2]

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.

Statutory test

[5] The test to be applied in relation to an application for bail is 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.

Strength of the appeal

[6] The grounds of appeal are similar to those raised by Mr Quinlan’s co-accused, Mr Bennett.[3] As indicated in that judgment it is not possible at this stage to attempt an extensive analysis of the merits of the appeal. This is because the grounds of appeal against conviction have not yet been particularised. The notice of appeal simply refers to: “such grounds as are apparent following receipt of the Court’s summing up to the jury and on examination of the Court file”. Clearly proper particulars will need to be presented in support of the appeal against conviction.
[7] The grounds for the appeal against sentence have more particularity. The applicant says that the sentence was manifestly excessive because the Court:

• (a) equated culpability for neglect with culpability for known offending under s 17 of the Misuse of Drugs Act;
• (b) attributed the criminality and culpability of staff members to the applicant when those issues did not logically inform the applicant’s culpability;
• (c) inappropriately attributed criminality relating to the activities of “secondary growers” (customers of the stores who were subsequently found to have cultivated cannabis) to the applicant; and
• (d) failed to give appropriate recognition to the prior good character of the applicant.

[8] In response counsel for the respondent has drawn attention to the observations of Judge Wiltens on sentencing. It is convenient to set out the submission made in full:

9. Point 8.1 suggests the applicant had no knowledge of the offending. To the contrary, at sentencing Judge Wiltens[4] said that, the applicant had sufficient involvement in the business to have knowledge of offending which had been going on. It is implicit therefore that when he later[5] states the jury had likely concluded the applicant was culpable on one of the bases under s 17 Misuse of Drugs Act 1975 that his consent, connivance or neglect was while having knowledge of the offending.
10. With regard to points 8.2 and 8.3, as mentioned above, Judge Wiltens was clear there was evidence that the applicant as the owner and director of the companies concerned had “sufficient knowledge of what was going on to be properly convicted by the jury”.[6] Judge Wiltens traversed the evidence demonstrating how the Switched on Gardener operated with a veneer of legitimacy, shielding illegal activity and indicative of it being “the place to go” to purchase materials and equipment for the cultivation and consumption of cannabis.[7] It is against the context that Judge Wiltens considered that the involvement of the Switched on Gardener in the cannabis growing set ups and cannabis plants found pursuant to search warrants at various addresses “was central and pivotal”.[8]

Discussion

[9] With respect to the strength of the appeal, the lack of particularity means that it would be inappropriate on the limited information available to date to assess the strength of the ground of appeal.[9] Certainly nothing raised at this stage is so compelling as to mean that bail is necessary in the interests of justice.
[10] So far as the sentence appeal is concerned, this raises matters of weight of the evidence (much of it from undercover police officers) and the sentencing Judge’s view of the overall criminality. It is premature to endeavour to make any attempt to assess such grounds at this stage.
[11] The applicant has raised possible delay in hearing the appeal as a relevant factor. There is no suggestion that there will be any particular delay. In many respects the matter is in counsel’s hands to promptly particularise the grounds of the conviction appeal. At best this is a neutral factor.
[12] Finally, there is nothing in the other personal circumstances of the applicant to support bail pending appeal. A history of compliance with bail conditions prior to trial is not a consideration that weighs heavily in favour of bail pending appeal.[10]
[13] I am not satisfied that the applicant has discharged the onus on him to show that it is in the interests of justice to grant bail. There are no exceptional circumstances to justify that course.

Result

[14] For the above reasons the application for bail is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Quinlan DC Auckland CRI-2010-004-202624 [sentencing notes].

[2] Ellis v R [1998] 3 NZLR 555 (CA) at 560, observations that were affirmed in Iti v R [2012] NZCA 307 at [7].
[3] Bennett v R [2013] NZCA 167.
[4] Sentencing notes at [12].
[5] At [20].
[6] At [12].
[7] At [8] to [11].
[8] At [15].
[9] R v De Bruin [2007] NZCA 76 at [9] citing Ellis v R [1998] 3 NZLR 555.
[10] R v Marsh [2009] NZCA 614 at [11].