Maharaj v R [2014] NZCA 60 (12 March 2014)

Last Updated: 20 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA795/2013 [2014] NZCA 60
BETWEEN	HEMANT KUMAR MAHARAJ Applicant
AND	THE QUEEN Respondent

Date of telephone conference:	28 February 2014
Counsel:	C J Tennet for Applicant M D Downs for Respondent
Judgment:	12 March 2014 at 10.30 am

JUDGMENT OF ELLEN FRANCE J

The application for bail is declined.
____________________________________________________________________

REASONS

Introduction

[1] Following a trial by judge alone in the District Court, Hemant Maharaj, the applicant, was convicted of 11 counts relating to the dishonest use of documents and two counts of attempting to pervert the course of justice by Judge Gibson.^[1] He was sentenced to two years and 10 months imprisonment.^[2] Mr Maharaj has appealed against conviction and sentence. He seeks bail pending determination of his appeal.^[3]

Factual background

[2] Mr Maharaj was tried together with Suresh Din.^[4] Their offending was summarised by Judge Gibson on sentencing as follows:^[5]

[3] ... Mr Maharaj was a longstanding employee of the North Shore City Council and he arranged for Mr Din to submit invoices to him for work to be undertaken by the Council which Mr Maharaj would normally supervise. Mr Maharaj certified the work as having been completed when [the Judge] found that in most cases it was not undertaken or if it was undertaken it was undertaken to a significantly less value than that set out in the invoices. The monies would be paid to Mr Din who had not undertaken the work, and that was the scheme of the fraud perpetrated on the Council. ... [T]his occurred over some 10 years.

[4] In terms of the attempting to pervert the course of justice counts, documents were altered or created by Mr Maharaj in the course of the [Serious Fraud Office] investigation and plainly with the intention of misleading or obstructing the investigators ... . The attempts were relatively amateurish and the Serious Fraud Office had no real difficulty in detecting those frauds.

The application for bail

[3] The application for bail is brought on the basis that bail is necessary to enable Mr Maharaj to assist his counsel to properly prepare for the appeal. In particular, Mr Maharaj says that he needs bail to locate witnesses and evidential documents and to collate material he has at his home address for the appeal.
[4] Bail is opposed by the Crown.

Discussion

[5] The test to be applied in relation to the application is that set out in s 14 of the Bail Act 2000. Under s 14(1) 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 case to do so. The onus is on the applicant to show cause why bail should be granted.^[6]
[6] On the information before me and having heard from counsel, I have no reason to believe that the appeal cannot be prepared while Mr Maharaj is in prison. This is not one of those exceptional cases in which bail pending appeal should be granted.^[7]
[7] The first point to make is that Mr Maharaj is represented by counsel, albeit that Mr Tennet is based in Wellington while Mr Maharaj is at the Spring Hill Facility in Huntly.
[8] Secondly, as Mr Downs for the Crown submits, Mr Maharaj has identified that his wife is still at their home address and there appears to be no reasonable impediment to her undertaking the tasks referred to above on his behalf with Mr Tennet’s assistance. Further, in advancing this point Mr Maharaj refers to documentation that was in existence at the time of trial.
[9] Thirdly, it is not suggested that the prison managers are not complying with their obligations under the Corrections Regulations 2005 to assist prisoners in these matters.^[8] Nor is there any suggestion of non-compliance with the provisions in the Corrections Act 2004 which deal with matters such as access to lawyers, the ability to send and receive mail and to make outgoing telephone calls.^[9] Mr Maharaj does suggest that the prison management and environment “are not conducive to having a free and open communication with” his lawyer but no specific failings or examples of problems are identified.
[10] In terms of the other factors in s 14(3) of the Bail Act, two require mention. The first of these is the likely length of time that will pass before the appeal is heard.^[10] The appeal is set down for hearing on 29 April 2014, an earlier fixture having been adjourned to allow for the fact Mr Tennet was not assigned as counsel until late in the piece.^[11] The second factor I address is the apparent strength of the grounds of appeal.^[12]
[11] On the latter aspect, the proposed grounds of appeal have only recently been particularised. It appears that there will be issues of trial counsel competence including allegations of a failure to call various witnesses as well as a challenge to the Judge’s reasoning. However, nothing so compelling is advanced at this point either in relation to the conviction or the sentence appeals as to alter the balance in terms of bail. It is relevant in this respect, as Mr Downs observes, that Mr Maharaj accepted at trial that he organised for Mr Din to create the invoices in the knowledge that Mr Din himself was not undertaking the work covered by the invoices. Accordingly, the issue identified as remaining for determination by Judge Gibson was whether the elements of dishonesty, absence of claim of right and intent to obtain a pecuniary advantage were proven.^[13] The quantum of loss to the Council is difficult to determine but involved the presentation of over $800,000 in false invoices.
[12] When all of these matters are considered, I have concluded that it is not in the interests of justice to grant bail.

Result

[13] The application for bail is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Maharaj DC Auckland CRI-2010-004-20916, 13 June 2013.

^[2] R v Din DC Auckland CRI-2010-004-20916, 3 October 2013.

^[3] Bail Act 2000, s 55.

^[4] Mr Din was declined bail and suspension of his sentence of home detention by this Court: Din v R [2013] NZCA 610.

^[5] R v Din, above n 2.

^[6] Section 14(2).

^[7] Ellis v R [1998] 3 NZLR 555 (CA) at 560.

^[8] Regulation 193.

^[9] Sections 69, 74, 76 and 77.

^[10] Section 14(3)(c).

^[11] Maharaj v R CA795/2013, 7 February 2014 (Minute of Randerson J).

^[12] Section 14(3)(a).

^[13] R v Maharaj, above n 1, at [39].