Kerr v The Queen

[2004] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

CA167/04

THE QUEEN

v

VONRICK CHRISFORD KERR

Hearing:16 August 2004

Coram:Anderson P
Baragwanath J
Ronald Young J

Appearances:  Appellant in person

G C de Graaff for Crown

Judgment:16 August 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an appeal against a refusal to grant bail pending hearing of the appellant’s appeal against conviction.  Having been found guilty by a jury of one count of injuring with intent to injure, he was sentenced on 22 April 2004 to a term of 18 months imprisonment with leave to apply for home detention.  It seems that he has not made application for home detention.  His release date is 20 January 2005.  He has now served some four months imprisonment and his substantive appeal is scheduled for hearing on 20 September, that is five months after sentence, slightly more than half-way through his effective period of imprisonment.

[2]       The matter comes before the Court following refusal by the trial Judge and later a single Judge of the Court of Appeal to grant bail.  The statutory provisions relating to grants of bail pending appeal following convictions are found in ss 70 and 14 of the Bail Act 2000, the terms of which are as follows:

Bail pending appeal against conviction or sentence

70     Granting of bail to appellant and custody pending appeal

(1)     This section applies if a person is in custody under a conviction and is appealing the conviction or sentence, or both, to the Court of Appeal [or the Supreme Court].

(2)     The Court of Appeal [or the Supreme Court (as the case may be) or the Judge who presided at the trial in the court below may, if it or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody only under the conviction to which the appeal relates.

(3)     Section 95 of the Parole Act 2002 (which provides that time on bail pending an appeal is not to be taken as time served) applies if an appellant is released on bail pending an appeal.

(4)     If a case is stated under Part 13 of the Crimes Act 1961, this section applies to any person in relation to whose conviction the case is stated as it applies to an appellant.

(5)     For the purposes of this section, an appellant is not deemed to be in custody only under the conviction to which the appeal relates if a direction has been given under [section 83 of the Sentencing Act 2002] that another sentence or term of imprisonment is to follow the sentence imposed on that conviction, and the appellant has not appealed against the conviction in respect of which that other sentence or term was imposed.

14     Exercise of discretion when considering bail pending appeal

(1)     If a person is in custody under a conviction and is appealing the conviction or sentence, or both, 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.

(2)     The onus is on the appellant to show cause why bail should be granted.

(3)     When considering the interests of justice under subsection (1) the court may, instead of the considerations in section 8, take into account the following considerations:

(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.

[3]       Mr Kerr spent some time on the first statutory criterion for consideration appearing in s 14(3)(a).  This is the apparent strength of the grounds of appeal.  The principal issue on the appeal will be, as it was at trial, the identity of the assailant of the victim, who suffered a laceration and associated injuries to the head when his head came into contact with a hard object.  I express the matter of causation neutrally because there may be an issue for discussion on appeal whether the injury was caused by falling and striking part of a hotel bar, or whether it was the result of a blow with a stubbie beer bottle.  Some potential evidence has been made known to the Court in the form of a report from that highly respected and well known forensic pathologist Dr K J Thompson.  It may, if developed, be used in affidavit form to provide some basis for argument on appeal in support of the proposition that the injury was caused by a fall rather than by a blow, but that is not a matter we can resolve at this stage.

[4]       We have taken the approach most favourable to Mr Kerr, who does not have counsel representing him today, that the appeal may be arguable and was not taken by us for present purposes to be unarguable or otherwise vexatious.  As we mentioned earlier, the length of the sentence imposed is 18 months and the passage of time between sentence and appeal will be five months.  That does not seem to us to be so long to render the appeal essentially nugatory if bail is not granted.

[5]       We asked Mr Kerr to inform us of any personal circumstances and note his concern that access by his children to him is necessarily impeded by his imprisonment at present, this being a point which he regards with some concern as he feels his relationship with his young children had just started to settle down in the days before his present incarceration.  We are not unsympathetic to this but it is not sufficient to improve the situation in relation to the appeal. 

[6]       Other considerations which the Court considers relevant could amount to practical difficulties in preparing the appeal for hearing by reason of imprisonment.  Mr Kerr has touched on these matters bringing to our notice his concerns.  These relate to (a) liaison difficulties with his present counsel Mr Fulton and (b) practical difficulties he has experienced in obtaining an audio record of the trial evidence.

[7]       As to the first matter, we have received in the Court of Appeal information that Mr Fulton has had personal tragedies and difficulties which have impeded his discussions with Mr Kerr, and if that is likely to continue it will be imperative that new counsel be assigned and approved by the Legal Services Agency at the earliest possible opportunity.  A copy of this judgment will be sent to the Legal Services Agency to facilitate that process if required.

[8]       The other matter relates to the fact that a German/English interpreter was used at the trial.  Mr Kerr has reservations over the accuracy of the translations.  Such concerns cannot be resolved by reference to the printed transcript since they will lie, if at all, in the actual exchanges between counsel and witnesses per medium of the translator. 

[9]       Mr Kerr advises that he has attempted to obtain from the District Court an audio record but has had no success.  The matters of particular concern are the evidence of the complainant, and of Detective Campbell up to the point of and including the commencement of the playing of the video taped interview so as to capture the Court’s directions on that issue at the time.  Any audio recording need relate only to those matters.

[10]     Appreciating the significance of an audio record for the point to be examined, we raised with Ms de Graaff of counsel for the Crown whether the Crown Law Office could facilitate the obtaining of such a record, and note with gratitude Ms de Graff’s undertaking to look into that matter immediately.  The willingness of the Crown to assist, of course, will not obviate the necessity for Mr Kerr’s counsel to liase with the Crown on that issue as soon as possible. 

[11]     Looking at the matter overall and bearing in mind that the presumptive position is against the grant of bail and the onus is on the appellant, having regard also to the matters we have examined, we have not been satisfied that the onus has been discharged and the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington