Ngamu v R [2010] NZCA 3 (5 February 2010)

Last Updated: 16 February 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA654/2009

[2010] NZCA 3

BETWEEN KAREN ROWENA NGAMU
Appellant

AND THE QUEEN
Respondent

Counsel: N J Bioletti for Appellant
M J Inwood for Respondent

Judgment: 5 February 2010 at 4.45 pm

JUDGMENT OF O’REGAN J

The application for bail is dismissed.

____________________________________________________________________

REASONS

[1] The appellant was convicted after a jury trial in the District Court of 39 counts of using a document to obtain a pecuniary advantage. She was sentenced to an effective term of imprisonment of four years and nine months. A notice of appeal against conviction and sentence was received by the Court on 16 October 2009. The notice of appeal specified a particular ground of appeal and stated that further grounds of appeal would be filed on receipt of the case on appeal, including the summing up. There was some delays in compiling the case on appeal.
[2] Having considered the case on appeal counsel for the appellant has now filed a memorandum setting out a further ground of appeal which is to be pursued and seeking bail on her behalf pending the determination of her appeal pursuant to s 70 of the Bail Act 2000.
[3] 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. 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.
[5] The basis on which the application is advanced is that:

(a) The new ground of appeal has a strong chance of success;

(b) The appeal is unlikely to be heard for some time;

(c) The appellant would not constitute a flight risk;

(d) Release on bail would allow the appellant to care for her children, who facing some difficulties and would benefit from her involvement in their care.

[6] I will consider each of these in turn.

Strength of appeal

[7] The new ground of appeal is that there was a misapplication of the joint enterprise rule of evidence in the context of the trial, which has led to a miscarriage of justice. The argument is that there was confusion between the co-conspirator’s rule and the principle that evidence of what offender A said or did may be admitted against co-offender B as original evidence going to prove an element of B’s joint offence with A.
[8] It will be argued that these two principles are distinct and different, but that the jury was not given guidance on this with the result that the jury was misinformed as to the use to which certain evidence against co-offenders could be used in relation to the Crown case against the appellant.
[9] It is difficult to assess the strength of this ground of appeal at this early stage. Mr Bioletti assured me that he had researched the matter thoroughly and considered that the appeal based on this ground had a good prospect of success. Crown counsel, Ms Inwood, submitted that the appeal point was not, on its face, sufficiently compelling to render this an exceptional case warranting the grant of bail pending appeal. However, she accepted that only a preliminary assessment could be made at this stage.
[10] Ms Inwood also argued that the new ground of appeal would not jeopardise the convictions in respect of which the appellant was the principal offender. Mr Bioletti disputed this. He also argued that, even if Ms Inwood were correct, only a few convictions would remain and there could then be an issue as to whether imprisonment was the appropriate penalty. I do not have enough information to assess this point and will proceed on the basis that a possible outcome of the appeal is that the convictions are all set aside.
[11] I accept that there is an arguable appeal point, but I believe that the strength of the point must await the argument at the hearing of the appeal. I will treat the appeal as having a chance of success but not a demonstrably higher chance than any other appeal.

Delay

[12] A fixture is available for the hearing of the appeal on 4 May 2010, but Mr Bioletti informs me that he is unavailable on that date. However, it seems likely that a fixture sometime in the month of May will be able to be allocated. By that time the appellant will have been in prison for about eight months of her sentence of four years and nine months imprisonment. Perhaps a more relevant measure is the period of imprisonment which the appellant will face from the date on which she would be released on bail if this application were to succeed, which is about four months. I do not see this as a strong factor in favour of granting bail.

Flight risk

[13] Mr Bioletti said that the appellant had been on bail for a considerable period of time prior to trial and there had been no compliance issues. I accept, therefore, that there is no indication that she would be a flight risk if bail were granted.

Personal circumstances

[14] The information before me indicates that the appellant’s two teenage children and her eight year old grandchild who was under her care would benefit from resumed care on her part. While I accept that is so, it is an inevitable consequence of offending by a custodial parent that there will be difficult consequences for the children and I do not see that as justifying the grant of bail in the absence of other factors.
[15] Taking all these matters in the round, I am not satisfied that the onus on the appellant to justify the grant of bail pending the hearing of her appeal has been discharged. I therefore decline the application.

Solicitors:
Crown Law Office, Wellington for Respondent