R. v. Pitcher, 2012 NLCA 58

Date: 20120906 Docket: 12/57 Citation: R. v. Pitcher , 2012 NLCA 58 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: ROBERT JAMES PITCHER APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: White J.A. Court Appealed From: Provincial Court of Newfoundland & Labrador, Grand Bank and Clarenville Application Heard: September 5, 2012 Decision Rendered: September 6, 2012 Reasons for Decision by White J.A. Counsel for the Appellant: Stephen Orr Counsel for the Respondent: Robin Fowler White J.A.:

[1] This is an application for judicial interim release pending appeal. [2] Mr. Pitcher was convicted of break and enter, and theft; possession of break-in instrument; breach of recognizance; breach ofprobation; and mischief. The offences arose from the theft of an automated teller machine (ATM) from the Lion’s Club in Arnold’sCove. [3] Mr. Pitcher has been in custody since his arrest in the early hours of May 9, 2012. His trial took place on June 7 and June 19,2012. The convictions were entered on June 22 with sentence imposed on August 15.

The total sentence imposed was 12 months, aftertime served, and probation of one year. He did not seek judicial interim release until immediately after filing his appeal with this Courton August 21, 2012. There are approximately 11 months remaining in the sentence. [4] In order to be considered for release on bail pending appeal, the applicant must satisfy the court that all three requirements ofsubsection 679(3) of the Criminal Code can be met. These are: (

a) the appeal or application for leave to appeal is not frivolous, (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. [5] The applicable law is set out in paragraphs 8-14 of the Crown’s Memorandum of Fact and Law. The same statement of thelaw was adopted by Rowe J.A. in R. v. Phelan, 2012 NLCA 57 at para. 5 and will be applied in this decision. [6] In Phelan, Rowe J.A. noted at paragraph 6: The court must always be mindful of the possibility that someone who is serving a term of imprisonment may be successful on appeal ofconviction.

It would be contrary to the ends of justice for such a person to have been held in custody for a significant period pendingtheir appeal, such that a successful appeal would lack meaningful effect. [7] That said, the onus remains on the bail applicant to meet all three prerequisites of

section 679. [8] In respect of paragraph 679(3)(

a) counsel for Mr. Pitcher argued that the trial judge misapprehended critical evidence in a casewhich is based on circumstantial evidence. In particular he refers to paragraph 22 of the trial judge’s decision: It is clear from the photograph provided by Mr. Lockyer that when in operating condition, the ATM in the Lion’s Club had beenequipped with a white plastic illuminated sign on top, with red letters marking it as an ATM. While Mr. Lockyer opined that the ATMsign was one-sided only, that evidence is not supported by the photograph.

Instead, it is clear that the illuminated sign was made up ofthe two white signs with red lettering, one having been found in the red Dodge pickup truck at 2:00 a.m. by Cst. Bourden, and the otherhaving been found in the Southern Harbour gravel pit at 4:00 a.m. by Cst. Crummey.

Here I remind myself that it is an error of law tomake a finding of fact for which there is no evidence, and draw a distinction between a case where there is no evidence, and the presentcase, where the photograph clearly contradicts the viva voce evidence. [9] While it is open to the trial judge to prefer the photograph over the viva voce evidence, Mr. Pitcher will argue on appeal thatno viewing of the photograph can possibility lead to a finding of fact that there are two ATM signs shown.

This is important, counselargues, because two ATM signs were found – one in the back of the pick-up truck used in the offence and one on the ATM discovered ina gravel pit. This being so, it is argued that the sign found in the pick-up truck (connected to Mr. Pitcher by other evidence) cannotpossibly have come from the ATM found in the gravel pit. [10] It is certainly “arguable” that there could not be proof beyond a reasonable doubt if, on hearing of the appeal, Mr.

Pitcher canestablish that the trial judge erroneously found that there were two signs on the ATM, where more careful scrutiny of the photographicevidence would establish that he was wrong in finding there was one. [11] I am satisfied that the threshold under paragraph 679(3)(

a) has been met. As stated by Marshall J.A. in R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (Nfld. C.A.), the appellant need only establish that his or her appeal “rests on someground rational enough to evoke the possibility that the appeal may be allowed ” (paragraph 11). [12] Accordingly, I conclude that the appeal is not frivolous in the sense that there is no arguable case. [13] I will consider together, as did both counsel, paragraphs (

b) and (

c) of subsection 679(3). Crown counsel acknowledged that hewas principally relying on these paragraphs in opposing this application. [14] Mr. Pitcher is 30 years old. He has a very extensive criminal record. Notably, there are 14 convictions for break and enter,numerous convictions for breaches of probation and breaches of an undertaking and four convictions for failure to attend court. [15] Mr. Pitcher gave evidence at the hearing. He says he is a changed man who did not commit the offence now under appeal, noran offence in January of 2012 for which he has not yet had his trial.

He says he can find work as a roofer and prior to his presentincarceration had his own roofing and construction company employing three other workers. If released he says he will have work withanother roofing company. He is anxious to parent his eight year old son. He would live with his mother, father and four children andyoung adults at her home. [16] Mrs. Carolyn Pitcher, mother of Mr. Pitcher also gave evidence. She would allow him to live with her and is prepared to post acash surety. She indicated that there is approximately $100,000 equity in her home and that she owns her own vehicle.

She provided asurety for her son in relation to a previous bail application but withdrew it as he was not following conditions. Nevertheless, she says shewould be willing to post security again.

[ 17 ] Crown counsel argues that Mr. Pitcher has had ample opportunity to reform. His extensive history of not attending court, breaches of probation and undertakings, and many convictions for breaking and entering show both that he has not discharged the onus that he will surrender into custody if released and that, as a multiple offender in relation to breaking and entering, his detention is necessary in the public interest. I agree. [ 18 ] While Mr. Pitcher is exercising his right to appeal his conviction, he has been lawfully convicted and has not met two of the three prerequisites for release pending appeal.

While I have concluded that the appeal is not frivolous, I cannot (despite the good will of his mother in offering to post surety and take him into her home) overlook the legitimate concern, based on his history, that he would not surrender into custody, and the public interest in that there is a strong likelihood he would re-offend while on bail. [ 19 ] I deny the application for judicial interim release. Both counsel agreed that, were I to do so, they would take all reasonable measures to have the appeal heard at the earliest possible time. It was also agreed that I would order that the transcript of Mr.

Pitcher’s trial be prepared on an expedited basis. I so order. _________________________ C.W. White J.A.