Halaoui v R [2011] NZCA 518 (4 October 2011)

Last Updated: 12 October 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA615/2011 [2011] NZCA 518

BETWEEN MOHAMMED HALAOUI Applicant

AND THE QUEEN Respondent

Counsel: R McKelvin for Applicant M Lillico for Respondent

Judgment: 4 October 2011 at 4.00 pm

On the papers

JUDGMENT OF STEVENS J

The application for bail is dismissed.
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REASONS

Introduction

[1] The applicant, Mohammed Halaoui, was convicted at trial for offending relating to the neglect of, and violence towards, his son. In particular the applicant was convicted of charges of wounding with intent to wound, assault with intent to injure (3 counts), cruelty to a child (5 counts) and assault with a weapon (4 counts). On 24 June 2011 the applicant was sentenced by Judge McNaughton to three years imprisonment.[1]
[2] The applicant has filed a notice of appeal against conviction and sentence. The conviction appeal is based on an affidavit sworn by the victim allegedly recanting his evidence.
[3] The applicant applies for bail pending the determination of his appeal under s 70 of the Bail Act 2000. In support of the bail application the applicant has filed an affidavit of his son, Malek Halaoui, and a memorandum of counsel in support of leave to appeal out of time. Initially there was no memorandum in support of the application for bail.
[4] Counsel for the respondent filed a detailed memorandum opposing bail. The applicant’s counsel then filed a detailed memorandum in reply dated 29 September 2011.
[5] The file was then referred to me for consideration. I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

Applicable law

[6] Section 14 of the Bail Act creates a presumption against granting bail pending appeal. The onus is on the applicant to show that it is in the interests of justice to grant bail. This Court must not grant bail unless it is satisfied that it would be in the interests of justice in the particular case to do so.[2]

The respective cases

[7] Counsel for the applicant submits that a key witness (here the victim) recanting his original story should lead to a grant of bail pending appeal on the basis that it is in the interests of justice to do so.
[8] For the respondent, counsel accepts that, in the context of a case of child neglect and violence, if the victim has recanted their evidence that would, on the face of it, lend considerable weight to an appeal against conviction. It might, depending on the circumstances of the case, warrant a grant of bail in the interests of justice. However, the respondent submits that the test is not met in the circumstances of this case.
[9] Counsel supports that submission by noting that the victim has provided alternative explanations for only three of the offences in his affidavit. Moreover, the victim has some difficulty with his memory. It remains the case that there is no explanation provided for all 13 convictions against the applicant. Further, there is corroborating medical evidence in relation to the charges in 2006 and November 2009. There is no basis at this stage for demonstrating that the medical evidence is unreliable.
[10] The respondent submits that at the trial the applicant admitted using force against the victim for the incident in 2006 and argued that he was using reasonable parental discipline at that time. The affidavit evidence of the victim is inconsistent with this evidence. Such inconsistency between the applicant and the victim may be indicative of the affidavit lacking credibility.
[11] Finally, counsel for the respondent submits that the victim was a school boy (at intermediate level) in 2006 and is now in his late teens. There is a real possibility that he is being put under pressure by members of the family sympathetic to the applicant, if not the applicant himself. Such an explanation is more likely when it is appreciated that the victim has recanted allegations against the applicant on previous occasions. Accordingly, viewed at its highest for the applicant, it is simply arguable that he might succeed on appeal. Counsel submits that an appeal that was simply arguable does not mean that a grant of pre-hearing bail should follow.
[12] In reply, counsel for the applicant submits that it would be in the interests of justice to grant bail. Various responses are offered and precedents in other cases referred to. The affidavit of the victim is strongly relied upon.

Discussion

[13] As stated above, the test to be applied in relation to the application is that set out in s 14 of the Bail Act. In terms of the strength of the appeal, counsel for the applicant emphasises the high prospects of success if the affidavit recanting the earlier evidence at trial holds up on appeal. But it is not possible or appropriate on the limited information before me to assess the strength of the grounds of appeal. It is highly likely that the circumstances in which the victim has sworn his affidavit and how it was prepared will need to be explored at the appeal. There may well need to be cross-examination of the victim and an examination of why he has recanted on allegations against the applicant on previous occasions.
[14] I accept that the recantation of evidence by a victim might, depending on all the circumstances, mean that it was in the interests of justice to grant bail. However, here there are countervailing factors which raise serious questions about the veracity and reliability of the recanting evidence. The points made by counsel for the respondent demonstrate that the matter will clearly need to be assessed in detail at the appeal.
[15] It is relevant to the analysis that the appeal can be heard within a reasonably short timeframe. I have checked with the Fixtures Registrar and have been informed that, if counsel for the applicant wishes to avail himself of the time, the appeal could be heard on Thursday 3 November 2011. Accordingly the likely length of time before the hearing of the appeal is minimal.[3]
[16] Accordingly, I am satisfied that, despite the affidavit of the victim, this is not one of those cases in which bail pending appeal should be granted. The applicant has not discharged the onus of showing that it would be in the interests of justice to grant bail.

Disposition

[17] For these reasons, the application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Halaoui DC Auckland CTI-2009-004-27695, 24 June 2011.
[2] Bail Act 2000, s 14(1).
[3] See s 14(3)(c) Bail Act.