Lichtwark v The Queen
[2013] NZCA 490
•16 October 2013 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA663/2013 [2013] NZCA 490 |
| BETWEEN | DARYL MICHAEL LICHTWARK |
| AND | THE QUEEN |
Telephone Conference: | 11 October 2013 |
Counsel: | Appellant in person |
Judgment: (On the papers) | 16 October 2013 at 10.30 am |
JUDGMENT OF WHITE J
The application for bail is declined.
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REASONS
The appellant, Daryl Lichtwark, was convicted following a trial in the Hamilton District Court on 17 June 2013 of two counts of possession with intent of a substance and equipment capable of being used in the manufacture of methamphetamine. He was sentenced on 28 August 2013 to two years and two months’ imprisonment. He appeals against his conviction.
Mr Lichtwark applies for bail pending the determination of his appeal under s 70 of the Bail Act 2000. He has filed a written application and made further submissions during the telephone conference arranged to give him an opportunity to respond to the Crown memorandum opposing bail.
I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.[1]
Relevant principles
[1]I note that pursuant to s 397(2) of the Criminal Procedure Act 2011, this proceeding continues in accordance with the law as it was before the commencement date. This accords with the general principles of ss 7 and 18 of the Interpretation Act 1999.
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 just cause why bail should be granted.
Section 14(3) sets out a number of considerations which may be taken into account when determining what is in the interests of justice. In this case the appellant relies on the apparent strength of his grounds of appeal.[2]
Discussion
[2]Bail Act 2000, s 14(3)(a).
It is not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail.[3] That said, there is nothing sufficiently compelling in the matters raised by the appeal to mean granting bail is in the interests of justice.
[3]R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R [1998] 3 NZLR 555 (CA).
The grounds for Mr Lichtwark’s conviction appeal are focused on errors alleged to have occurred at his trial as a result of the conduct of his defence by his then counsel. Mr Lichtwark is particularly concerned that crucial facts proving his innocence were not established, that Institute of Environmental Science and Research (ESR) evidence relating to a child’s hair sample was not properly adduced and that witnesses who would have supported the defence were not called on his behalf.
Mr Lichtwark is applying for legal aid and representation by new counsel. In support of his appeal, Mr Lichtwark will have the opportunity to raise issues of counsel competence. He will also be able to seek leave to adduce new evidence. These matters do not, however, justify a conclusion that the strength of his appeal requires bail to be granted at this stage.
The other factor relevant to the assessment of the interests of justice in this case is that, while no fixture has yet been allocated for the hearing of Mr Lichtwark’s appeal, it is to be expected that with Crown cooperation, which Ms Windley confirmed will be forthcoming, a fixture should be able to be allocated for the appeal hearing relatively early in the new year so that the appeal will not be rendered nugatory.[4] No injustice will therefore arise from Mr Lichtwark remaining in custody pending determination of his appeal.
[4]Bail Act, s 14(3)(c).
When these considerations are all taken into account, I am not satisfied that it is in the interests of justice to grant Mr Lichtwark bail pending the appeal. No exceptional circumstances have been made out.[5]
Result
[5]Compare Iti v R [2012] NZCA 307 at [7].
The application for bail is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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