Brady v The Queen

[2013] NZCA 126

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/2013
[2013] NZCA 126

BETWEEN  TIMOTI MARTIN BRADY
Applicant

AND  THE QUEEN
Respondent

Telephone conference: 17 April 2013

Counsel:  J Corby for Applicant
             M J Lillico for Respondent

Judgment

(On the Papers):           1 May 2013 at 10.00 am

JUDGMENT OF FRENCH J

The application for bail is dismissed.

____________________________________________________________________

REASONS

Introduction

1. Following a jury trial, Mr Brady was convicted of two counts of sexual violation by unlawful sexual connection and one count of sexual violation by rape.  He was sentenced on 14 February 2013 to nine and a half years’ imprisonment.[1]

   [1]      R v Brady [2013] NZHC 199.

2. On 21 February 2013 Mr Brady filed an appeal against his conviction in this Court.  He now seeks bail pending the determination of his appeal under s 70 of the Bail Act 2000.  He has been in custody since 7 December 2012, that being the date of the guilty verdicts.

3. I have considered the application under s 393(2)(d) of the Crimes Act 1961.

Grounds of the application for bail

1. The application is brought on the ground that the proposed appeal points are so compelling that it would be in the interests of justice for Mr Brady to be granted bail.

2. The appeal points are that:

   (a)fresh evidence exists which casts doubt on the credibility of the complainant;

   (b)the Judge wrongly admitted certain propensity evidence; and

   (c)the jury verdicts are inconsistent and were the product of the Judge wrongly forcing the jury to continue deliberating against its wishes.

3. In support of the bail application, counsel has filed submissions identifying alleged weaknesses in the complainant’s evidence.  The fresh evidence is said to emerge from the statement of Ms Sky Green obtained on 31 January 2013.  The statement is said to directly contradict what the complainant told the jury about an encounter with Mr Brady that took place a week after the alleged assaults. In a conference call, Mr Corby told me that he has been unable to obtain a sworn affidavit from Ms Green because she appears to have “gone on the run”.

4. The Crown opposes bail being granted.

Discussion

1. The test to be applied 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.

2. As noted in Ellis v R, admission to bail pending an appeal is unusual and only to be granted in exceptional circumstances.[2] The concern is for the overall interests of justice, the starting point being that the applicant has been found guilty and sentenced.

   [2]      Ellis v R [1998] 3 NZLR 555.

3. I have carefully considered the submissions made on Mr Brady’s behalf.  However I am not persuaded that it would be in the interests of justice to grant bail.

4. First, the grounds of appeal are not well defined in relation to why the verdicts are inconsistent and why the propensity evidence should not have been admitted.

5. Secondly, as submitted by the Crown, the complainant’s credibility was a central issue at trial and canvassed at length.  In particular, substantially the same points about her credibility now being advanced in support of the bail application were also put to the jury in closing.  As for the fresh evidence of Ms Green, the extent to which it contradicts the complainant’s evidence is debatable.

6. It is well established that it is not the Court’s role on a bail application to attempt an extensive analysis of the merits of an appeal. Certainly nothing raised at this stage is in my view so compelling as to mean that bail is in the interests of justice.

7. For completeness, I should add that in view of the length of the prison sentence, this is not a case where declining bail would render the appeal academic. Nor are there any relevant personal circumstances.

Outcome

1. The application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent