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

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

The basis for the bail application

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.
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…

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 The Queen

Details

AGLC: Iti v The Queen [2012] NZCA 392
Case: [2012] NZCA 392
Decision Date: 28 August 2012

CaseChat Overview and Summary

The applicants in this case, Tame Wairere Iti and Te Rangikaiwhiria Kemara, sought bail pending the determination of their appeals against their convictions and sentences. The applicants were found guilty of unlawful possession of firearms and a restricted weapon and were sentenced to two and a half years imprisonment each. Their appeals, along with their co-accused, were heard by the Court of Appeal of New Zealand on 22 August 2012. The applicants had previously made an application for bail which was dismissed on 16 July 2012. In this case, the applicants relied on the apparent strength of their grounds of appeal to support their application for bail. They made two key points: first, that the earlier bail application proceeded without relevant documents, particularly the summing up, which were not then available. Secondly, they submitted that the position post-hearing had changed. They relied on what they say were concessions by the Crown at the hearing on three critical matters. The Crown opposed the application.

The legal issues before the Court were whether the applicants had shown cause why bail should be granted, and whether granting bail would be in the interests of justice. The Court noted that the onus was on the applicants to show cause why bail should be granted. The Court also noted that because of the absence of information, the applicants in the earlier bail application focused on the apparent strength of their sentence appeals. The Court had previously reached the view that the applications did not meet the threshold in s 14 of the Bail Act 2000. The Court also noted that the extent to which the matters now relied on by the applicants were accepted and their impact, if any, was a matter for the Court's ultimate decision. However, none of these matters caused the Court to consider the position had changed.

The Court held that the applications for bail pending determination of the appeals were dismissed. The Court noted that the matters now raised did not alter the conclusion reached earlier, that is, that bail was not in the interests of justice. The Court held that the applicants had not shown cause why bail should be granted and that granting bail would not be in the interests of justice. The Court also noted that the applicants had served three months of their terms.

The final orders of the Court were that both applications for bail pending determination of the appeals were dismissed.

Orders