Keane v The Queen - [2014] NZCA 464

IN THE COURT OF APPEAL OF NEW ZEALAND

CA446/2014
[2014] NZCA 464

BETWEEN	JOLENE KEANE Appellant
AND	THE QUEEN Respondent

Counsel:

J A G Moroney for Appellant
M L Wong for Respondent

Judgment:

(On the papers)

23 September 2014 at 3.00 pm

JUDGMENT OF STEVENS J

The application for bail pending the hearing of this appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The appellant was convicted in the Auckland District Court following trial by jury on one charge of permitting premises to be used for the manufacture of methamphetamine. On 26 June 2014 the appellant was sentenced to two years’ imprisonment by Judge Ronayne.[1]
[1]R v Keane DC Auckland CRI-2012-090-4685, 26 June 2014.
The appellant has appealed to this Court against her conviction and against sentence.
The appellant has applied for bail pending the determination of that appeal, pursuant to s 55 of the Bail Act 2000 (the Act). I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.
The test to be applied in relation to this application is 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 appellant to show cause why bail should be granted. Section 14(3) of the Act sets out a range of permissive considerations in relation to applications for bail pending appeal.
As this Court stated 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.

The present application

[2]Ellis v R [1998] 3 NZLR 555 (CA) at 560; affirmed in Iti v R [2012] NZCA 307 at [7].

The appellant’s application is brought on several grounds, as follows:
(a)the strength of the appeal in the grounds set out in the notice of appeal;
(b)the length of sentence that has been imposed;
(c)the length of time that will pass before the appeal is heard; and
(d)the personal circumstances of the appellant; in particular, that there is a suitable address and family support available, and there are suitable bail conditions that would alleviate any concerns held by the Court.
The Crown opposes bail.

Analysis

As to the strength of the grounds of appeal, it is neither necessary nor appropriate to attempt an extensive analysis of the merits of an appeal when determining an application for bail.[3] Further, in Hosking v R it was held that “the prospects of success on appeal need to be very strong before this factor can go in the balance on the side of granting bail”.[4]
[3]R v…

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 Keane v The Queen

Details

AGLC: Keane v The Queen [2014] NZCA 464
Case: [2014] NZCA 464
Decision Date: 23 September 2014 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Jolene Keane sought bail pending her appeal against her conviction and sentence. Keane was convicted in the Auckland District Court for permitting premises to be used for the manufacture of methamphetamine and was sentenced to two years’ imprisonment. The Court of Appeal was required to determine whether bail should be granted pending the appeal. The primary consideration was whether it would be in the interests of justice to grant bail, taking into account the strength of the appeal, the length of the sentence, the length of time before the appeal would be heard, and the personal circumstances of the appellant.

The Court noted that a detailed analysis of the merits of the appeal was neither necessary nor appropriate when determining an application for bail. The Court found that the grounds of appeal against conviction had not been fully particularised and that the prospects of success on appeal did not appear to be strong. The appellant also submitted that her appeal would not likely be heard before she had served her sentence, as her co-offender, Mr Rex Tukuafu (who is her husband), may also appeal against conviction. However, the Court was satisfied that this factor should not be taken into account in the present application for bail, as there was nothing to suggest the two appeals (if Mr Tukuafu files one) need to be heard together. The Court also found that the appellant's personal circumstances were not of such significance as to weigh in favour of a grant of bail.

The Court dismissed the application for bail, noting that the merits of the appeal did not appear to be strong and that the appellant had not identified an error in the sentencing Judge's decision. The Court also noted that the appeal would be heard on 19 November 2014, which would mean a relatively short time would elapse. The Court ordered that Counsel for the appellant is to advise the Case Officer whether he will be ready to proceed with the appeal on 19 November 2014.

Orders