Kendall v The Queen
[2011] NZCA 475
•20 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA572/2011 [2011] NZCA 475 |
| BETWEEN GRAEME JOHN KENDALL |
| AND THE QUEEN |
| Hearing: 19 September 2011 |
| Counsel: G C Gotlieb for Applicant |
| Judgment: 20 September 2011 at 4 pm |
JUDGMENT OF ELLEN FRANCE J
The application for bail is dismissed.
REASONS
Introduction
The applicant was convicted after trial before a judge alone of two counts of perjury (s 108 of the Crimes Act 1961).[1] On 9 September 2011, he was sentenced by the trial Judge, Courtney J, to a term of 12 months imprisonment and ordered to pay reparation of $25,831.13.
[1] HC Auckland, CRI-2009-004-7655, 1 March 2011.
The applicant has appealed to this Court against his conviction and sentence.
The applicant has applied for bail pending the determination of his appeal pursuant to s 70 of the Bail Act 2000. The Crown opposes bail.
Application for bail pending hearing
I personally have considered the application under s 393(2)(d) of the Crimes Act. The test to be applied in relation to the application is that 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 applicant to show cause why bail should be granted.
The factors advanced in support of the bail application can be summarised as follows:
(a) The appeal has strong prospects of success and so it is contrary to the interests of justice for the applicant to spend more time in custody than necessary pending the hearing of the appeal.
(b) The applicant’s personal circumstances, in particular, his health issues support the grant of bail because it is difficult to have these needs adequately met whilst in prison.
Taking first the alleged strength of the conviction appeal, the applicant relies on a number of evidential matters to found the submission that the Judge’s decision was not supported by the evidence. An associated issue is the absence of any reference by Courtney J to s 112 of the Crimes Act, which provides that a conviction for perjury may not be entered on the evidence of one witness only unless the evidence of that witness is corroborated in some material particular. The applicant also emphasises the impact of a ruling by the Judge which, it is said, hamstrung the defence ability to cross-examine the complainant.
It is not possible or appropriate on the limited information I have to assess the strength of these grounds. However, I accept the submissions for the Crown that at this stage nothing raised by the applicant is so compelling as to satisfy me that the interests of justice favour bail.
In terms of the strength of the sentence appeal, this ground overlaps with that relating to the applicant’s personal circumstances. The point made is that the sentence imposed was well within home detention range and, taking into account the applicant’s age, the fact he is a first offender and his health issues, a non-custodial sentence would have been appropriate.
Mr Gotlieb on behalf of the applicant emphasises that in the mornings and the evenings, the applicant requires one on one assistance from a caregiver. It appears that the applicant is one of three inmates for whom the caregiver has responsibility. However, the applicant’s needs are essentially for medication and hygiene. No doubt having the latter needs, in particular, catered for in the prison environment is not easy for the applicant. But these matters were squarely raised very recently in evidence before the sentencing judge. Whether the combination of these matters and the other factors relied on by the applicant are such that a non-custodial sentence should have been imposed will be a matter for the appeal. I am not convinced that bail is in the interests of justice. It is relevant to that assessment that the substantive appeal can be heard on 6 October 2011.[2]
Result
[2] The time to hearing is accordingly minimal: s 14(3)(c) of the Bail Act 2000.
For these reasons, the application for bail is dismissed. Counsel should confer over a truncated timetable for the filing of submissions for the appeal on 6 October 2011.
Solicitors:
Crown Law Office, Wellington for Respondent
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