Maharaj v The Queen - [2014] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

CA795/2013
[2014] NZCA 60

BETWEEN	HEMANT KUMAR MAHARAJ Applicant
AND	THE QUEEN Respondent

Date of telephone

conference:

28 February 2014

Counsel:

C J Tennet for Applicant
M D Downs for Respondent

Judgment:

12 March 2014 at 10.30 am

JUDGMENT OF ELLEN FRANCE J

The application for bail is declined.

____________________________________________________________________

REASONS

Introduction

Following a trial by judge alone in the District Court, Hemant Maharaj, the applicant, was convicted of 11 counts relating to the dishonest use of documents and two counts of attempting to pervert the course of justice by Judge Gibson.[1] He was sentenced to two years and 10 months imprisonment.[2] Mr Maharaj has appealed against conviction and sentence. He seeks bail pending determination of his appeal.[3]

Factual background

[1]R v Maharaj DC Auckland CRI-2010-004-20916, 13 June 2013.

[2]R v Din DC Auckland CRI-2010-004-20916, 3 October 2013.

[3]Bail Act 2000, s 55.

Mr Maharaj was tried together with Suresh Din.[4] Their offending was summarised by Judge Gibson on sentencing as follows:[5]
[3] … Mr Maharaj was a longstanding employee of the North Shore City Council and he arranged for Mr Din to submit invoices to him for work to be undertaken by the Council which Mr Maharaj would normally supervise. Mr Maharaj certified the work as having been completed when [the Judge] found that in most cases it was not undertaken or if it was undertaken it was undertaken to a significantly less value than that set out in the invoices. The monies would be paid to Mr Din who had not undertaken the work, and that was the scheme of the fraud perpetrated on the Council. … [T]his occurred over some 10 years.
[4] In terms of the attempting to pervert the course of justice counts, documents were altered or created by Mr Maharaj in the course of the [Serious Fraud Office] investigation and plainly with the intention of misleading or obstructing the investigators … . The attempts were relatively amateurish and the Serious Fraud Office had no real difficulty in detecting those frauds.

The application for bail

[4]Mr Din was declined bail and suspension of his sentence of home detention by this Court: Dinv R [2013] NZCA 610.

[5]R v Din, above n 2.

The application for bail is brought on the basis that bail is necessary to enable Mr Maharaj to assist his counsel to properly prepare for the appeal. In particular, Mr Maharaj says that he needs bail to locate witnesses and evidential documents and to collate material he has at his home address for the appeal.
Bail is opposed by the Crown.

Discussion

The test to be applied in relation to the application is that set out in s 14 of the Bail Act 2000. Under s 14(1) 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 case to do so. The onus…

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 Maharaj v The Queen

Details

AGLC: Maharaj v The Queen [2014] NZCA 60
Case: [2014] NZCA 60
Decision Date: 12 March 2014 at 10.30 am

CaseChat Overview and Summary

Hemant Kumar Maharaj applied to the Court of Appeal of New Zealand for bail pending the determination of his appeal against conviction and sentence. Maharaj was convicted of 11 counts of dishonest use of documents and two counts of attempting to pervert the course of justice, and was sentenced to two years and ten months imprisonment. The court was required to determine whether it was in the interests of justice to grant bail pending the appeal, in accordance with the Bail Act 2000. The applicant argued that bail was necessary to enable him to assist his counsel to properly prepare for the appeal, including locating witnesses and evidential documents. The Crown opposed the application.

The court held that the applicant had not demonstrated that it was in the interests of justice to grant bail. The applicant was represented by counsel, and there was no reason to believe that the appeal could not be prepared while the applicant was in prison. The court noted that the applicant's wife could assist with locating witnesses and documents on his behalf. The court also considered the likely length of time before the appeal was heard, and the strength of the grounds of appeal, and concluded that these factors did not favour the granting of bail. The application for bail was declined.

The final orders of the court were that the application for bail was declined.

Orders