McLachlan v The Queen

[2014] NZCA 397

IN THE COURT OF APPEAL OF NEW ZEALAND

CA246/2014
[2014] NZCA 397

BETWEEN	SCOTT ANTHONY MCLACHLAN Appellant
AND	THE QUEEN Respondent

Telephone

conference:

12 August 2014

Counsel:

M W Ryan for Appellant
M D Downs for Respondent

Judgment:

15 August 2014 at 10 am

JUDGMENT OF ELLEN FRANCE J

The application for bail is dismissed.

____________________________________________________________________

REASONS

Introduction

1. The appellant was convicted of a number of dishonesty offences and sentenced to eight months home detention by the trial Judge, Judge Ronayne.[1]

   [1]R v McLachlan DC Auckland CRI-2011-004-7186, 10 April 2014.

2. The appellant has appealed to this Court against his conviction and also against sentence.

3. The appellant has applied for bail pending the determination of his appeal, pursuant to s 55 of the Bail Act 2000.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

4. The test to be applied in relation to the application is that set out in s 14 of the Bail Act.[2]  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.

The application for bail

[2]Din v R [2013] NZCA 610, [2014] 2 NZLR 445 at [17].

1. The application for bail is brought on several grounds.  First, it is said that the appeal has good prospects.  Secondly, given the length of the sentence imposed and the likely time to hearing the appeal, the appeal will be rendered nugatory if bail is not granted and the appellant’s home detention is not suspended.  Finally, the appellant relies on his personal circumstances.  He says he is unable to work whilst on home detention.  He explains that means his partner is having to work two jobs to make ends meet.

2. The Crown opposes bail.

3. For the reasons that follow, I am not satisfied it would be in the interests of justice to grant bail. 

4. It is premature to reach any firm views about the strength of the appeal at this stage.  In any event, the grounds of appeal are not yet fully particularised.  It appears that some emphasis will be placed on the Judge’s decision to prevent cross‑examination of the officer in charge about the propriety of the police not also charging another person for their part in the relevant events.  The Judge gave written reasons for his decision and nothing is raised at this point that is sufficiently compelling to make bail in the best interests of justice.

5. The concerns based on the impact on the appellant’s appeal rights of delay are met by the availability of a fixture to hear the appeal on 4 September 2014.

6. Finally, the appellant’s personal circumstances whilst unfortunate are no different from the usual consequences of the imposition of a sentence restricting an appellant’s liberty.

Result

1. Accordingly, the application for bail is dismissed.

2. The Registrar is to set the appeal down for hearing in Auckland at 9.30 am on 4 September 2014.

Solicitors:
Crown Law Office, Wellington for Respondent