Maligi v The Queen - [2014] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND

CA13/2014
[2014] NZCA 156

BETWEEN	SAVANE MALIGI Appellant
AND	THE QUEEN Respondent

Counsel:

I Jayanandan for Appellant
S B Edwards for Respondent

Judgment:

(On the papers)

17 April 2014 at 10.00 am

JUDGMENT OF FRENCH J

The application for bail is dismissed.

____________________________________________________________________

REASONS

Introduction

A District Court jury found Mr Maligi guilty of one count of aggravated robbery. He was convicted and sentenced by Judge Andree Wiltens on that charge to a term of imprisonment of three years and nine months.[1]
[1]R v Maligi DC Manukau CRI-2011-092-10855, 13 December 2013. The Judge also imposed a cumulative sentence of three months on a separate charge of assault on a police officer.
On 10 January 2014, Mr Maligi filed a notice of appeal against conviction and sentence.
He now seeks bail pending the hearing of his appeal. No date for the hearing has yet been set. Mr Maligi has been in custody since 13 October 2013.

Grounds of the application for bail

The application is brought on the grounds that the strength of the appeal and Mr Maligi’s personal circumstances are such that bail ought to be granted.
The proposed appeal points are that:
(a)The Judge erred in ruling that a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 relating to a co‑accused (Mr Stowers) should be held at the same time as the trial. A separate hearing should have been ordered.
(b)The Judge wrongly included Mr Stowers in the indictment and had him arraigned.
(c)Evidence of Mr Stower’s statement to the police should have been put before the jury.
(d)Having found Mr Stowers was involved for the purposes of the s 9 hearing, the Judge’s ability to make an independent assessment of Mr Maligi’s application under s 347 was compromised.
(e)The Judge’s direction to the jury that they did not need to consider Mr Stowers “except if you think he was involved” was prejudicial to Mr Maligi and jeopardised his right to a fair trial.
(f)During the summing up, the Judge made two prejudicial comments, the first about the use of bandanas and the second about counsel having a vested interest.
(g)The Judge’s response to a question from the jury was unclear and prejudicial.
The personal circumstances relied upon are that Mr Maligi suffers from epilepsy and is on medication. Counsel submits that a supportive family environment would be more beneficial to him than prison. Reliance is also placed on the fact that Mr Maligi was on EM Bail prior to trial without incident.
The Crown opposes bail being granted.

Discussion

The test to be applied is set out in s 14 of the Bail Act 2000. Under s 14(1), the court is not to grant bail unless 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…

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 Maligi v The Queen

Details

AGLC: Maligi v The Queen [2014] NZCA 156
Case: [2014] NZCA 156
Decision Date: 17 April 2014 at 10.00 am

CaseChat Overview and Summary

The New Zealand Court of Appeal was asked to decide whether to grant Mr Maligi bail while his appeal against conviction and sentence was being heard. Mr Maligi had been convicted and sentenced to three years and nine months in prison for aggravated robbery, with an additional three months for assaulting a police officer. He sought bail on the basis of the strength of his appeal points and his personal circumstances, which included suffering from epilepsy and having a supportive family. The Crown opposed the granting of bail.

The Court considered whether it would be in the interests of justice to grant bail. The Court noted that the appellant must show cause why bail should be granted and that the prospects of success on appeal must be very strong. The Court assessed the merits of the appeal points and found them not to be compelling enough to justify granting bail. The Court also considered Mr Maligi's personal circumstances, but found that they did not justify granting bail. The Court concluded that Mr Maligi had not discharged the onus placed upon him.

The Court of Appeal dismissed the application for bail. The Court found that it would not be in the interests of justice to grant bail pending appeal. The Court noted that the appellant had been found guilty and sentenced, and that the length of the sentence made it unlikely that a denial of bail would render the appeal academic. The Court also found that the merits of the appeal and the appellant's personal circumstances did not justify granting bail.

Orders