Keane v R [2014] NZCA 464 (23 September 2014)

Last Updated: 29 September 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA446/2014 [2014] NZCA 464
BETWEEN	JOLENE KEANE Appellant
AND	THE QUEEN Respondent

Counsel:	J A G Moroney for Appellant M L Wong for Respondent
Judgment: (On the papers)	23 September 2014 at 3.00 pm

JUDGMENT OF STEVENS J

The application for bail pending the hearing of this appeal is dismissed.
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REASONS

Introduction

[1] The appellant was convicted in the Auckland District Court following trial by jury on one charge of permitting premises to be used for the manufacture of methamphetamine. On 26 June 2014 the appellant was sentenced to two years’ imprisonment by Judge Ronayne.^[1]
[2] The appellant has appealed to this Court against her conviction and against sentence.
[3] The appellant has applied for bail pending the determination of that appeal, pursuant to s 55 of the Bail Act 2000 (the Act). 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 this application is 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. Section 14(3) of the Act sets out a range of permissive considerations in relation to applications for bail pending appeal.
[5] As this Court stated in Ellis v R:^[2]

Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.

The present application

[6] The appellant’s application is brought on several grounds, as follows:

• (a) the strength of the appeal in the grounds set out in the notice of appeal;
• (b) the length of sentence that has been imposed;
• (c) the length of time that will pass before the appeal is heard; and
• (d) the personal circumstances of the appellant; in particular, that there is a suitable address and family support available, and there are suitable bail conditions that would alleviate any concerns held by the Court.

[7] The Crown opposes bail.

Analysis

[8] As to the strength of the grounds of appeal, it is neither necessary nor appropriate to attempt an extensive analysis of the merits of an appeal when determining an application for bail.^[3] Further, in Hosking v R it was held that “the prospects of success on appeal need to be very strong before this factor can go in the balance on the side of granting bail”.^[4]
[9] At this stage, the grounds of appeal against conviction have not been fully particularised; to place weight on the apparent strength of that appeal would be speculative. With respect to the ground advanced in the notice of appeal relating to alleged incompetence of trial counsel, the appellant’s present counsel has yet to obtain the trial file and other relevant materials and there is no evidence a waiver of privilege has been provided.
[10] In relation to the sentence appeal, it appears that will be advanced on the basis the Judge should have imposed a community-based sentence. In order to succeed, the appellant must persuade this Court the sentencing Judge erred in the exercise of his discretion. The focus there is on the identification of error.^[5] The appellant has not, however, identified an error in the sentencing Judge’s decision.
[11] On the basis of the information currently available, the merits of the appeal do not appear to be strong.
[12] With respect to the time that will pass before the appeal will be heard, the appellant claims her co-offender, Mr Rex Tukuafu (who is her husband) may also appeal against conviction and this Court will likely consider whether both appeals should be heard together. The appellant submits therefore her appeal will not likely be heard before she has served her sentence. However, it is not yet known whether Mr Tukuafu will appeal against conviction. He has not yet been sentenced because he failed to appear for sentencing. The Crown advises that there are active warrants for his arrest and he is yet to be located. I am satisfied this is not a factor that should be taken into account in relation to the present application for bail. There is nothing to suggest the two appeals (if indeed Mr Tukuafu files one) need to be heard together.
[13] I have made inquiries of the Fixtures Manager, who advises a date for the hearing of the appeal would be available on 19 November 2014.^[6] If the appellant is ready to proceed with her appeal, it would mean a relatively short time would elapse. This would meet concerns based on the delay in the exercise of the appellant’s appeal rights in relation to her sentence.
[14] Finally the appellant’s personal circumstances are not of such significance as to weigh in favour of a grant of bail.

Result

[15] For the above reasons I am not satisfied it would be in the interests of justice to grant bail.
[16] The application for bail is dismissed. Counsel for the appellant is to advise the Case Officer whether he will be ready to proceed with the appeal on 19 November 2014.

Solicitors:
Thode Utting & Co, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Keane DC Auckland CRI-2012-090-4685, 26 June 2014.

^[2] Ellis v R [1998] 3 NZLR 555 (CA) at 560; affirmed in Iti v R [2012] NZCA 307 at [7].

^[3] R v de Bruin [2007] NZCA 76 at [9] citing Ellis v R, above n 2.

^[4] Hosking v R [2012] NZCA 263 at [5].

^[5] Doolan v R [2011] NZCA 542 at [39].

^[6] A half-day fixture before a Criminal Appeal Division in Wellington.