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

1. 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.

2. On 10 January 2014, Mr Maligi filed a notice of appeal against conviction and sentence.

3. 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

1. 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.

2. 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.

3. 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.

4. The Crown opposes bail being granted.

Discussion

1. 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 be granted.

2. As noted in Ellis v R, admission to bail pending an appeal is unusual and only to be granted in exceptional circumstances.[2]  The concern is for the overall interests of justice, the starting point being that the appellant has been found guilty and sentenced.

   [2]Ellis v R [1998] 3 NZLR 555 (CA).

3. Section 14(3) provides that when considering the interests of justice, the court may take into account the apparent strength of the grounds of appeal, the length of the sentence, the likely time that will pass before the appeal is heard, the personal circumstances of the appellant and their family and any other relevant consideration.

4. As regards the first of these considerations, the apparent strength of the appeal, it is well established that it is not the court’s role on a bail application to attempt an extensive analysis of the merits of an appeal.  It is also well established that the prospects of success on appeal need to be very strong before this factor can go into the balance on the side of granting bail.

5. My assessment of the merits in this case is necessarily limited but at this stage I am not satisfied that the appeal points are so compelling that it would be in the interests of justice to grant bail.  In particular, the submissions do not identify any specific prejudice caused to Mr Maligi by the decision to run a s 9 hearing at the same time as the trial.  The proposition that the Judge’s ability to independently determine the discharge application was somehow compromised is questionable.  Also questionable is the materiality of most of the alleged misdirections.

6. At this stage, a date for the appeal hearing has not yet been set.  However, because of the length of the sentence, it cannot be said that a denial of bail would render the appeal academic.

7. Nor do I consider that Mr Maligi’s personal circumstances, whether viewed in isolation or combined with the merits of his appeal, justify granting bail.  There is no evidence or suggestion that his epilepsy is unable to be treated appropriately in prison.

8. I also attach little weight to the fact that Mr Maligi was on EM bail for an extended period of time without incident.  In the post-conviction scenario, risk of future offending is of limited significance.

9. Taking into account all these considerations I have concluded that Mr Maligi has failed to discharge the onus placed upon him.  I am not satisfied it would be in the interests of justice to grant him bail pending appeal.

Outcome

1. The application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent