R v Sami CA126/01 [2001] NZCA 416 (27 April 2001)

Last Updated: 4 June 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/01

THE QUEEN

V

LATCHMAN SAMI

Hearing:	23 April 2001
Coram:	Thomas J Keith J Blanchard J
Appearances:	C Harder, N M Baruch for the Appellant F E Guy for the Crown
Decision:	23 April 2001
Reasons:	27 April 2001

REASONS FOR THE JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] Mr Latchman Sami was convicted on 21 November 2000 of rape following a jury trial in the District Court in Wellington. Last Thursday he was sentenced to eight years imprisonment. On 23 April 2001 he filed his notice of appeal against conviction and sentence and sought bail. On that day the Court made a fixture for the substantive appeal to be heard next Tuesday, 1 May 2001 and dismissed the application for bail. Reasons for the refusal of bail were to be given later.
[2] The conviction under appeal followed a second trial and a jury disagreement on the particular charge. At the earlier trial the appellant had been acquitted of the other two charges which were also sex offence counts involving the same complainant.
[3] The grounds of appeal against conviction relate to two principal matters. The first is the complainant’s lack of credibility based, among other things, on the contradictions between the evidence she gave at the two trials, statements recorded in her victim impact statement, and evidence given at a separate but related depositions hearing after the verdict. The second set of grounds are abuse of process arguments relating to the way the earlier trial was referred to (the jury may have been left with the impression that the appellant had been convicted rather than acquitted) and the reference in the Papadopolous direction given after seven hours to the prospect of a further trial when, it is said that the trial Judge knew that that was not a likely prospect. Mr Harder contended that the grounds were very strong.
[4] We must begin with the fact of the conviction and the sentence. Following a trial, the jury convicted the accused, and, after a lengthy delay fixed in part, we were told, to enable the appellant to attend to the carrying on of his business, a long sentence of imprisonment was imposed, as was of course inevitable given the conviction for this offence and its circumstances.
[5] Under s14(1) of the Bail Act 2000 the Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. The onus is on the appellant to show cause why bail should be granted (subs (2)) and the court may, in considering the interests of justice, take account of the following considerations (subs (3)):

When considering the interests of justice under subsection (1) the court may, instead of the considerations in section 8, take into account the following considerations:

(a) the apparent strength of the grounds of appeal:

(b) the length of the sentence that has been imposed on the appellant:

(c) the likely length of time that will pass before the appeal is heard:

(d) the personal circumstances of the appellant and the appellant’s immediate family:

(e) any other consideration that the court considers relevant.

The elements in paras (a)-(d) were all referred to in the course of argument. Before the new Act was passed this Court has consistently made it clear that the grant of bail pending appeal is unusual and is to be granted only in exceptional circumstances. While the concern is for the overall interests of justice, the statutory point is that the applicant has been found guilty and sentenced; see R v Ellis [1998] NZCA 233; [1998] 3 NZLR 555, 560 and R v Thomas (CA71/00, 8 March 2000).

[6] The interests of justice, Mr Harder contended, required release on bail. The grounds of appeal are, he said, very strong. The appellant’s business would be destroyed if he were held in custody. On the latter point, the appellant has already had six months on bail since his conviction to put his business in order as far as he can, and there is no affidavit from him to indicate any additional jeopardy caused by a short period of imprisonment at this time.
[7] On the grounds of appeal themselves, Ms Guy for the Crown submitted that the case turned essentially on the complainant’s credibility. There was nothing unusual about it. Whether that is so or not will of course be the subject of detailed submissions on the substantive hearing next week. The grounds have already been the subject of unsuccessful applications under s347 of the Crimes Act 1961.
[8] In the circumstances, including the early availability of a fixture at which the substantive appeal can be dealt with, we refused bail.

Solicitors
Crown Law Office, Wellington.