Iti v The Queen

[2012] NZCA 392

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/2012
[2012] NZCA 392

BETWEEN  TAME WAIRERE ITI
Applicant

AND  THE QUEEN
Respondent

CA363/2012

AND BETWEEN             TE RANGIKAIWHIRIA KEMARA
Applicant

AND  THE QUEEN
Respondent

Court:             O'Regan P, Arnold and Ellen France JJ

Counsel:         E R Fairbrother for Applicant Iti
G M Fairbrother for Applicant Kemara
A R Burns and E C Finlayson-Davis for Respondent

Judgment:      28 August 2012 at 10.30 am

(On the papers)

JUDGMENT OF THE COURT

Both applications for bail pending determination of the appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

1. Tame Iti and Te Rangikaiwhiria Kemara were found guilty of charges of unlawful possession of firearms and a restricted weapon (Molotov cocktails).  The jury was unable to agree on a charge under s 98A of the Crimes Act 1961 (participation in an organised criminal group).  They were each sentenced by the trial judge, Rodney Hansen J, to a term of imprisonment of two and a half years.[1]

   [1]      R v Iti [2012] NZHC 1130.

2. Their appeals, along with that of their two co-accused, Urs Signer and Emily Bailey, were heard by this Court on 22 August 2012.  At the end of the hearing, counsel for Mr Iti indicated a bail application would be made for his client and for Mr Kemara.  It was agreed any application should be in writing and would be dealt with on the papers.  An earlier application for bail by Mr Iti and Mr Kemara was declined by this Court on 16 July 2012.[2]

   [2]Iti v R [2012] NZCA 307. That application was dealt with by a panel comprising Wild, Heath and Keane JJ.

3. An application for bail has now been filed for Mr Iti and Mr Kemara.  The application is opposed.

The basis for the bail application

1. The considerations applicable to bail pending appeal are set out in s 14 of the Bail Act 2000.  The applicants rely, as they did in their earlier application, on s 14(3)(a), the apparent strength of the grounds of appeal.  They make two key points.  First, that the earlier bail application proceeded without relevant documents, particularly, the summing up, which were not then available.  On appeal, they have challenged aspects of the summing up.  Secondly, they submit that the position post‑hearing has changed.  They rely, in this respect, on what they say were concessions by the Crown at the hearing on three critical matters.

2. In their submissions, counsel for Mr Iti and Mr Kemara describe the concessions as follows:

   … first … that the guilty verdicts related only to the counts in the indictment where presence of an appellant could be deduced from scene DVD footage.

   … second … that the jury had failed to accept, or rejected, the common purpose argument advanced by the Crown in support of both the s 98A allegation … and under s 66(2) of the Crimes Act in relation to the Arms Act allegations.

   … third … the summing up did not give a direction in line with R v Samuels.[3]

   [3]      R v Samuels [1985] 1 NZLR 350 (CA).

3. It is submitted these concessions support the submissions made on appeal about the lack of proximity of the alleged common purpose and the impact of the admission of evidence in reliance on the co-conspirators rule.  They argue this has a follow on effect on the summing up.  If accepted, it is said, these submissions support a reconsideration of sentence.  Both men have served three months of their terms.

Discussion

1. It is common ground that the applicable principles are as set out in this Court’s earlier bail decision in relation to Mr Iti and Mr Kemara.  The onus is on the applicants to “show cause” why bail should be granted.[4]  Further, s 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.

   [4]      Bail Act 2000, s 14(2).

2. Because of the absence of information, the applicants in the earlier bail application focused on the apparent strength of their sentence appeals.

3. This Court in its earlier decision reached the “firm” view that the applications did not meet the threshold in s 14.[5]  In reaching that conclusion this Court addressed the argument that in sentencing the Judge had relied on evidence relevant only to the (by then) stayed s 98A charge.  The Court considered the Judge’s sentencing remarks suggested the Judge drew a clear distinction between the s 98A charge and the firearms offences for which Mr Iti and Mr Kemara were being sentenced.  This Court also said the applicants’ arguments would need to be assessed against the Judge’s ruling, given prior to counsel’s closing addresses, that the documentary evidence in issue was admissible in assessing whether the firearms were in possession for a lawful, proper or sufficient purpose and on the question of whether the objectives of the criminal group were shared by the defendants.[6]

   [5] At [20].

   [6]Relying on R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779, the co-conspirators rule: R v Iti HC Auckland CRI-2008-004-20749, 12 March 2012 (Minute (No 13): As to evidential issues).

4. With the benefit now of having seen the relevant material and having heard the submissions on the appeal, we are satisfied the matters now raised do not alter the conclusion reached earlier, that is, that bail is not in the interests of justice.  Obviously, the extent to which the matters now relied on by the applicants are accepted and their impact, if any, is a matter for our ultimate decision.  However, none of these matters causes us to consider the position has changed.

Result

1. The applications for bail pending determination of the appeals are dismissed.

Solicitors:
Fairbrother Family Law, Napier for Applicant Iti
Ord Legal, Wellington for Applicant Kemara
Crown Law Office, Wellington for Respondent