McQuillan v R [2014] NZCA 256 (18 June 2014)

Last Updated: 25 June 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA42/2014 [2014] NZCA 256
BETWEEN	KARL DEE MCQUILLAN Appellant
AND	THE QUEEN Respondent

Counsel:	J Moroney for Appellant J M Jelas for Respondent
Judgment: (On the papers)	18 June 2014 at 3 pm

JUDGMENT OF HARRISON J

The application for bail is dismissed.
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REASONS

[1] The appellant, Karl McQuillan, was sentenced in the Manukau District Court on 17 December 2013 to four years imprisonment following his conviction for one count of possessing 24.8 grams of methamphetamine for supply.^[1] He filed an appeal against his conviction on 24 January 2013. One of his primary grounds of appeal is that fresh evidence is now available which answers the Crown’s allegations against him.

[2] Mr McQuillan has applied for bail pending determination of his appeal,^[2] which I have personally considered.^[3] The test to be applied is well known.^[4] Bail is not to be granted unless I am satisfied on the balance of probabilities that it would be in the interests of justice in this case to do so. Mr McQuillan carries the onus of showing why bail should be granted and must show that his circumstances are exceptional.
[3] Mr Moroney advances two grounds in support of the application. The first is based upon what he says is the strength of Mr McQuillan’s appeal. As has been said frequently by Judges of this Court, it is neither necessary nor appropriate to carry out a detailed analysis of the merits of an appeal when determining a bail application. It is sufficient to observe that Mr McQuillan must show that his prospects of success are strong. He relies heavily upon the fresh evidence of two witnesses, Ms Williamson and Ms O’Brien. Having reviewed the brief affidavits filed by both witnesses, I am not satisfied that they show, at this preliminary stage, that the merits of Mr McQuillan’s appeal are strong.
[4] Second, Mr Moroney emphasises that there is a suitable address and family support available should Mr McQuillan be granted bail. This factor does not of itself carry any weight.
[5] The application for bail is declined.
[6] It is always open to Mr Moroney to request the Registry to allocate the first available fixture to hear Mr McQuillan’s appeal.

Solicitors:
Thode Utting & Co, Albany for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v McQuillian DC Manukau CRI-2010-057-2348, 17 December 2013 at [12].

^[2] Bail Act 2000, s 55. McGrath J in the Supreme Court has recently held that, where proceedings commenced before the Criminal Procedure Act 2011 came into force, the provisions of the Bail Act apply as they were prior to 1 July 2013: LM v R [2014] NZSC 64 at [3]. It appears, however, that pursuant to s 16 of the Bail Amendment Act 2011, the correct position is that the amended Bail Act provisions in fact apply in such a situation.

^[3] Crimes Act 1961, s 392(2).

^[4] Bail Act, s 14.