Kauvai v The Queen - [2017] NZCA 70

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/2017
[2017] NZCA 70

BETWEEN	WESLEY JOHN KAUVAI Appellant
AND	THE QUEEN Respondent

Counsel:

S Thode for Appellant
C J Hurd for Respondent

Judgment:

(On the papers)

22 March 2017 at 11.30 am

JUDGMENT OF BROWN J

The application for bail pending hearing of the appeal against sentence is declined.

____________________________________________________________________

REASONS

Introduction

The appellant, Mr Kauvai, was convicted in the Auckland District Court in January this year on one count of injuring with intent to injure and one count of assault with intent to injure following a trial by jury. On 27 February Judge R G Ronayne sentenced Mr Kauvai to two years and one month’s imprisonment.[1]
[1]R v Kauvai [2017] NZDC 5068 [Sentencing notes].
The appellant has appealed to this Court against his sentence. He has applied to this Court for bail pending the determination of his appeal pursuant to s 55 of the Bail Act 2000. The Crown opposes bail.
I have personally considered the application pursuant to s 333(2)(d) of the Criminal Procedure Act 2011. Counsel have not sought an oral hearing. I have therefore determined the application on the papers and on the basis of the written submissions filed by the parties.

Applicable principles

The test to be applied is set out in s 14 of the Bail Act. Under s 14(1A), 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 appellant to show why bail should be granted.
Section 14(3) sets out a range of permissive considerations in relation to applications for bail pending appeal:
(a)the apparent strength of the grounds of appeal:
(b)the length of the sentence that has been imposed on the appellant:
(c)the likely length of time that will pass before the appeal is heard:
(d)the personal circumstances of the appellant and the appellant’s immediate family:
(e)any other consideration that the court considers relevant.
As this Court explained in Ellis v R:[2]
Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.

Concerning the requisite strength of the grounds of appeal the Court further said that:[3]

[T]he Court in Moananui accepted that the applicant had an arguable case on the points intended to be advanced in the appeal but concluded that none of them pointed overwhelmingly to the ultimate success of the appeal.

Thus, the prospects of the substantive appeal being allowed need to be compelling before they can go into the balance on the side of granting bail.[4]

The apparent strength of the grounds of appeal

[2]Ellis v R [1998]…

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 Kauvai v The Queen

Details

AGLC: Kauvai v The Queen [2017] NZCA 70
Case: [2017] NZCA 70
Decision Date: 22 March 2017 at 11.30 am

CaseChat Overview and Summary

The case of Kauvai v The Queen involved Wesley John Kauvai, the appellant, who was convicted of injuring with intent to injure and assault with intent to injure. Kauvai was sentenced to two years and one month's imprisonment by Judge Ronayne in the Auckland District Court. Kauvai appealed against his sentence and applied for bail pending the determination of his appeal under the Bail Act 2000. The Crown opposed the bail application.

The legal issues in this case centred on whether bail should be granted to Kauvai pending the determination of his appeal against sentence. The Court was required to consider the grounds of appeal, the length of the sentence, the likely length of time before the appeal was heard, Kauvai's personal circumstances, and any other relevant considerations. The Court had to determine whether it was in the interests of justice to grant bail.

In deciding the application, the Court considered the strength of the grounds of appeal, which were that Judge Ronayne had taken into account irrelevant factors, failed to consider relevant factors, relied on facts inconsistent with the evidence, did not take into account the victim's views, and did not impose the least restrictive outcome. The Court found that the grounds of appeal did not point overwhelmingly to the ultimate success of the appeal. The Court also considered the length of the sentence, the likely length of time before the appeal was heard, and Kauvai's personal circumstances. The Court found that there was nothing exceptional about Kauvai's personal circumstances and that his previous compliance with bail conditions carried little weight. The Court concluded that the application for bail pending appeal was declined.

The Court ordered that the application for bail pending appeal is declined.

Orders