McQuillan v The Queen

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.

____________________________________________________________________

REASONS

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.

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

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.
[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.
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.
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.
The application for bail is declined.
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

CaseChat Overview and Summary

Karl McQuillan sought bail pending the determination of his appeal against a conviction for drug supply. McQuillan's appeal hinged on the assertion that fresh evidence was available to exonerate him, and his counsel argued that his prospects of success were strong. The Court of Appeal, however, found that the affidavits provided by the proposed witnesses were not sufficiently persuasive to warrant bail at this preliminary stage. McQuillan's application was ultimately dismissed.

The court had to determine whether McQuillan's prospects of success on appeal were strong enough to warrant the granting of bail pending appeal. The Court of Appeal noted that it was neither necessary nor appropriate to delve into a detailed analysis of the merits of the appeal at this stage. Instead, the court needed to ascertain whether there was a strong likelihood that McQuillan's appeal would succeed. The court also considered whether McQuillan's circumstances were exceptional enough to warrant bail.

The Court of Appeal held that McQuillan had not met the burden of showing that his prospects of success were strong. The affidavits provided by the proposed witnesses did not demonstrate, at least at this preliminary stage, that the appeal was likely to succeed. The court was not persuaded by the mere existence of fresh evidence without a more compelling demonstration of its significance. Furthermore, the availability of suitable accommodation and family support did not carry sufficient weight to warrant bail. The application for bail was dismissed.

The Court of Appeal dismissed the application for bail. It is open to McQuillan's counsel to request the Registry to allocate the first available fixture to hear his appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established