Adjei v The Queen

[2010] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND

CA285/2010
[2010] NZCA 214

BETWEENINCE PAUL ADJEI

Applicant

ANDTHE QUEEN

Respondent

Counsel:Applicant in person

M F Laracy  and J E Mildenhall for Respondent

Judgment:28 May 2010 at 10 am 

(on the papers)

JUDGMENT OF ELLEN FRANCE J

The application for bail is declined.

REASONS

[1]        The applicant, Ince Adjei, was convicted after trial on one count of dishonestly and without claim of right using a document for pecuniary advantage and one count of forgery.  The charges relate to a home loan.  On 19 March 2010, he was sentenced by Judge McAuslan, the trial judge, to a term of imprisonment of 21 months.

[2]        Mr Adjei has appealed to this Court against his conviction and sentence.[1]

[1]       R v Adjei DC Papakura CRI-2008-092-019131.

[3]        He has also applied for bail pending the determination of his appeal pursuant to s 70 of the Bail Act 2000.  I personally have considered the application under 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 applicant to show cause why bail should be granted. 

[5]        The application is brought primarily on the basis of the impact of Mr Adjei’s incarceration on his two children (s 14(3)(d) of the Bail Act).  In addition, Mr Adjei says he was expecting to receive a sentence of home detention (s 14(3)(a) of the Bail Act).

[6]        I deal first with the effect on the children.  As noted in the Crown submissions opposing bail, it appears Mr Adjei’s children (aged nine and six) are currently being well-cared for.  Mr Adjei says he is “happy with this state of affairs”.  His concern is rather at not being in a position to care for them and at their distress over his conviction.  These difficulties are unfortunate but they are not sufficiently compelling to displace the statutory presumption against bail.

[7]        Secondly, in terms of the apparent strength of the sentence appeal, the Judge considered a non-custodial term would not meet the need for denunciation given Mr Adjei’s previous convictions for similar offending.  The correctness of that approach is a matter for the hearing of the appeal but nothing Mr Adjei raises at this point is such as to satisfy me that the interests of justice favour bail. 

[8]        I add that Mr Adjei does not appear to rely on the strength of his conviction appeal in seeking bail.  Given that the grounds of appeal include a challenge to trial counsel’s actions it would not be possible to make any assessment of the merits.   On the material before me, in any event, there is nothing to suggest that this is one of those exceptional cases warranting a grant of bail pending appeal.[2]

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

[9]        The appeal could be given a June hearing date.  However, as I have indicated, the grounds of appeal include a challenge to trial counsel’s actions.  In particular, Mr Adjei says there was a failure to call key witnesses and to follow his instructions.  An August hearing date therefore seems more realistic.  In addition, Mr Adjei does not currently have a lawyer but his notice of appeal suggests he intends to instruct a lawyer.  Accordingly, the Registrar is to contact Mr Adjei with a view to setting the appeal down for hearing on 11 or 12 August 2010.

[10]      The application for bail is declined.

Solicitors:

Crown Law Office, Wellington for Respondent