Kawiti (aka Brown) v R [2013] NZCA 324 (19 July 2013)

Last Updated: 25 July 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA203/2013 [2013] NZCA 324
BETWEEN	MITAI PARAONE KAWITI (AKA MITAI ROBIN BROWN) Applicant
AND	THE QUEEN Respondent

Telephone Conference:	12 July 2013
Counsel:	Applicant in Person K-T Brown assisting Applicant J Mildenhall for Respondent
Judgment:	19 July 2013 at 11:30am

JUDGMENT OF WHITE J

The application for bail is declined.
____________________________________________________________________

REASONS

[1] The applicant, Mitai Paraone Kawiti (also known as Mitai Robin Brown) and three other men, Jason Tua, Stephen Brown, and Maihi Paraone, were tried together on charges of cultivating cannabis, manufacturing cannabis oil and possession of cannabis for supply. Mr Kawiti was convicted of all three charges and sentenced on 15 January 2013 by Judge Callander in the District Court at Whangarei to three years and six months’ imprisonment. He appeals against his sentence.
[2] Mr Kawiti applies for bail pending determination of his appeal under s 70 of the Bail Act 2000. He has filed a written application and a supporting affidavit from Kenneth-Tana Brown who also appeared for him at the telephone conference to make further supporting submissions after Mr Kawiti had offered a prayer in Te Reo.
[3] Bail is opposed by the Crown.
[4] I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.^[1]

Relevant principles

[5] 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 applicant to show just cause why bail should be granted.
[6] Section 14(3) sets out a number of considerations which may be taken into account when determining what is in the interests of justice. In this case, the applicant relies upon the apparent strength of his grounds of appeal and his personal circumstances.^[2]

Discussion

[7] It is not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail.^[3] That said, there is nothing sufficiently compelling in the matters raised by the appeal to mean bail is in the interests of justice.
[8] The grounds for the sentence appeal are not yet particularised, but are described in the notice of appeal as: “point of fact, point of common law, point of constitutional law and Tikanga Maori”.
[9] At the telephone conference on 12 July 2013, which was held to enable Mr Kawiti and his agent Mr Brown to respond to the submissions made for the Crown, the focus of Mr Kawiti’s application was not so much on the strength of his grounds of appeal as on the claimed “exceptional circumstances” arising from practical difficulties faced by Mr Kawiti and Mr Brown in preparing for his appeal when Mr Kawiti is in prison. In particular, it was suggested that they needed to be able to meet outside the prison environment in order to prepare the submissions for Mr Kawiti and that no injustice would occur if he was granted bail for four weeks because there would be no danger of him absconding from his whānau.
[10] As far as Mr Kawiti’s ability to prepare for his appeal is concerned, I note that there are various obligations on prison managers to assist prisoners in his position. In particular, reg 193 of the Corrections Regulations 2005, which applies to any prisoner who is appealing against any conviction, order or sentence,^[4] provides that the prison manager must:

(2) ... as far as is reasonably practicable in the circumstances, –

(a) ensure that the prisoner is provided with adequate facilities to do so, to the extent that this is consistent with the maintenance of safety and security requirements; and

(b) facilitate contact between the prisoner and any advisor or assistant (other than another prisoner) helping the prisoner to do so.^[5]

[11] This regulation is in addition to the various provisions in the Corrections Act 2004 that cover matters such as access to private visitors, the ability to send and receive mail and to make outgoing telephone calls.^[6]
[12] In light of these provisions, adequate facilities should be able to be provided to Mr Kawiti for him at the prison. If there are issues about the adequacy of the facilities, he will have to pursue them further with the prison authorities.^[7]
[13] The other factor relevant to the assessment of the interests of justice in this case is that, while no fixture has yet been allocated for the hearing of Mr Kawiti’s appeal, it is to be expected that a relatively early date for the hearing of the appeal will be able to be allocated.
[14] When these considerations are all taken into account, I am not satisfied that it is in the interests of justice to grant Mr Kawiti bail pending the appeal. No exceptional circumstances have been made out.^[8]

Result

[15] The application for bail is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] I note that pursuant to s 397(2) of the Criminal Procedure Act 2011, this proceeding continues in accordance with the law as it was before the commencement date. This accords with the general principles of ss 7 and 18 of the Interpretation Act 1999.

^[2] Bail Act 2000, s 14(3)(a) and (d).

^[3] R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R [1998] 3 NZLR 555 (CA).

^[4] Corrections Regulations 2005, reg 193(1)(a).

^[5] That sub-regulation is subject to cls 4–7 of sch 4 of the Corrections Regulations, which allow for certain visitors to be prohibited: see also sch 4, cl 1.

^[6] Corrections Act 2004, ss 69, 73, 76 and 77.

^[7] R v Greer CA161/03, 15 June 2006 leave to appeal refused by Greer v R [2006] NZSC 76, [2006] 3 NZLR 740 and R v Greer CA179/06, 21 December 2006.

^[8] Compare Iti v R [2012] NZCA 307 at [7].