Watchorn v The Queen

[2014] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND

CA385/2014
[2014] NZCA 353

BETWEEN	JAMES WINSTON WATCHORN Applicant
AND	THE QUEEN Respondent

Counsel:

S W Hughes QC for Applicant
C A Harold for Respondent

Judgment:

(On the papers)

25 July 2014 at 3.30 pm

JUDGMENT OF WILD J

The application for bail pending the hearing of the appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

1. Mr Watchorn applies for bail pending determination of the appeal he filed on 21 July.  Sections 14 and 55 of the Bail Act 2000 and the now well established principles applying to those sections apply.[1]

   [1]Particularly as set out in Ellis v R [1998] 3 NZLR 555 (CA) at 560.

2. Following a Judge-alone trial before Judge Roberts in the New Plymouth District Court Mr Watchorn was convicted on each of three charges of accessing a computer dishonestly and sentenced to two and a half years imprisonment.[2]  He appeals against both those convictions and his sentence. 

   [2]R v Watchorn DC New Plymouth CRI-2012-043-3092, 14 July 2014.

3. I deal with the three considerations set out in s 14(3) of the Bail Act which are the focus of the submissions both for Mr Watchorn and the Crown. 

The apparent strength of the grounds of appeal

1. Comprehensive grounds of appeal have been filed.  Indeed, they are essentially in the form of submissions on appeal.

2. As this Court has many times said, it is not appropriate to delve too deeply into the merits of an appeal on a bail application.[3]  That is for the obvious reason that it is a bail application and not the hearing of the appeal.  I accept that the grounds of appeal against conviction are arguable.  But none seems to me to have irresistible merit.  Indeed, several face obvious difficulties.  I take two instances.  First, as Ms Hughes QC seems to accept, the evidence of the download on 31 July 2012 was admissible if it otherwise met the test for propensity evidence in ss 40 and 43 of the Evidence Act 2006:  R v Mata, Solicitor-General v Rudd, S(CA514/2008) v R and Narayan v R.[4]  The argument that the circumstances of the download on 7 June 2012 (Mr Watchorn still employed by TAG Oil but about to travel overseas on extended leave) are altogether different from those on 31 July 2012 (Mr Watchorn had tendered his resignation to join a competitor company) will be problematic given the underlying similarities in the two downloads.  Secondly, the challenge to the rejection of an affidavit Mr Watchorn had sworn explaining why he made the 7 June 2012 download faces the obstacle of s 21 of the Evidence Act, because he did not give evidence.

The personal circumstances of the applicant’s family

[3]Ellis, above n 1, at 560.

[4]R v Mata [2009] NZCA 254 at [45]; Solicitor-General v Rudd [2009] NZCA 401 at [17]–[27]; S(CA514/2008) v R [2009] NZCA 622 and Narayan v R [2013] NZCA 24 at [8].

1. Affidavits in support have been filed by Mr Watchorn and by his wife.  These, particularly the latter, describe the distressing situation Mrs Watchorn finds herself in with her husband in prison.  Without the support of any family in New Zealand, she is having to care for two daughters (aged 13 and 14), a rural property and all the family finances and affairs without her husband’s help and support.  While her account would tug at the heartstrings of any Judge, it is a situation far from uncommon following imprisonment of an offender.  I cannot detect anything exceptional in Mrs Watchorn’s situation supporting the grant of bail pending the hearing of the appeal. 

The length of the sentence and the likely length of time that will pass before the appeal is heard

1. The most persuasive point advanced is that Mr Watchorn’s eligibility to be released on parole may precede the hearing of his appeal against sentence, potentially rendering that appeal nugatory.  I have asked this Court’s Fixtures Manager about that.  Providing the appeal can be readied in time, it may be possible to hear it in Auckland on 12 August (depending on confirmation that an appeal set down for that day is abandoned) and it can be heard in Wellington on 3 or 4 September.  If the time lapse from sentence to hearing is only around two months, then that really cannot be called in aid of a bail application.

Result

1. Mr Watchorn has not discharged the onus s 14(2) places on him of showing cause why bail should be granted pending determination of his appeal.  His application for bail is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent