Iti v R

Case [2012] NZCA 307 16 July 2012

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/2012
[2012] NZCA 307

BETWEEN TAME WAIRERE ITI
Applicant

AND THE QUEEN
Respondent

CA363/2012

AND BETWEEN TE RANGIKAIWHIRIA KEMARA
Applicant

AND THE QUEEN
Respondent

Hearing: 3 July 2012

Court: Wild, Heath and Keane JJ

Counsel: E R Fairbrother for Applicant Iti
G M Fairbrother for Applicant Kemara
A R Burns for Respondent in both applications

Judgment: 16 July 2012 at 11 am

JUDGMENT OF THE COURT

Both applications for bail pending appeal are dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

By applications filed on 20 and 22 June respectively, Messrs Iti and Kemara apply under s 70 of the Bail Act 2000 for bail pending the hearing of their appeals.
Each man is appealing against both his conviction and his sentence. The appeals are to be heard on 22 August.
On 24 May Rodney Hansen J sentenced each applicant to two and a half years’ imprisonment.[1] The background to the sentencing is captured in these opening paragraphs of the Judge’s sentencing remarks:
[1]       Mr Iti, Mr Kemara, Mr Signer and Ms Bailey, you appear for sentence having been found guilty by a jury of charges of unlawful possession of firearms and a restricted weapon. Each of you were found to be in unlawful possession of firearms at military-style camps in the Urewera Ranges in January, September and October 2007 and, with the exception of Mr Signer, at a camp in June of that year. You were also found to be in possession of a restricted weapon, namely Molotov cocktails, at the September camp and to be in possession of firearms when the police operation terminated on 15 October 2007.
[2]       You were found not guilty on four charges relating to camps in November 2006 and April and August 2007. The jury was unable to reach a verdict on a charge of participating in an organised criminal group.[2] On the application of the Crown, a stay of proceedings has since been entered on that charge.
[1]      R v Iti HC Auckland CRI-2008-004-20749, 24 May 2012.
[2]      A charge under s 98A of the Crimes Act 1961.
The Judge had convicted them after a jury had found them guilty of charges of unlawful possession of firearms and a restricted weapon, namely Molotov cocktails.
Bail pending appeal is governed by s 14 of the Bail Act 2000. That places the onus on the applicant “to show cause why bail should be granted”: s 14(2). Section 14(1) provides that:
… 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 particular case to do so.
Of the permissory considerations set out in s 14(3) of the Act, the applicants rely only on (a), the apparent strength of the grounds of appeal.
The applicants rightly accept that s 14 confronts them with a high threshold. That is because, once an offender has been convicted and sentenced, the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Iti v R

Details

AGLC: Iti v R [2012] NZCA 307
Case: [2012] NZCA 307
Decision Date: 16 July 2012

CaseChat Overview and Summary

The applicants, Iti and Kemara, appealed against both their convictions and sentences, seeking bail pending the hearing of their appeals. The applicants were found guilty of unlawful possession of firearms and a restricted weapon, namely Molotov cocktails, at military-style camps in the Urewera Ranges. They were sentenced to two and a half years' imprisonment. The Court of Appeal had to decide whether bail should be granted pending the hearing of their appeals against both conviction and sentence.

The applicants argued that the strength of their grounds of appeal warranted bail, but the Court found that the applicants had not met the high threshold set by the Bail Act 2000 for granting bail pending appeal. The Court noted that admission to bail pending appeal is unusual and only granted in exceptional circumstances. The Court also considered the short time until the appeals were to be heard and found that the applicants had been in custody for approximately three months, which was not exceptional in the context of a two and a half year sentence of imprisonment.

The Court of Appeal dismissed both applications for bail pending appeal.

Orders