Marsh v The Queen - [2010] NZCA 29

IN THE COURT OF APPEAL OF NEW ZEALAND
CA377/2009
[2010] NZCA 29
BETWEENKEITH RICHARD MARSH

Appellant

ANDTHE QUEEN

Respondent

Hearing:16 February 2010

Court:William Young P, Wild and Heath JJ
Counsel:Appellant in person

B D Tantrum for Respondent

Judgment:25 February 2010 at 10 am

JUDGMENT OF THE COURT

The appellant’s further application for bail pending appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
[1]        Pursuant to s 393(3) of the Crimes Act 1961, Mr Marsh applies to have this Court determine his application for bail, pending the hearing of his appeal against conviction and sentence. The appeal is scheduled to be heard on 10 March.
[2]        Mr Marsh’s application for bail was considered by Robertson J, and dismissed in the judgment he gave on 18 December last. Robertson J gave that judgment “on the papers”, and pursuant to s 393(2)(d) of the Crimes Act 1961.[1]
[1]R v Marsh [2009] NZCA 614.
[3]        Sections 14 and 70 of the Bail Act 2000 deal with bail pending appeal to this Court. 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. The appellant has the onus of establishing that. Section 14(3) of the Act lists the following considerations which the Court may take into account, instead of those in s 8:
(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.

[4]        Following a trial in the District Court at Auckland in February 2009, Mr Marsh was found guilty of two charges of burglary and eight charges of money laundering. On 3 June 2009 Judge Hubble sentenced him to two and a half years imprisonment.
[5]        On 29 June 2009 Mr Marsh appealed against both his conviction and sentence, advancing four grounds of appeal. In a further notice on 2 July 2009, Mr Marsh advanced a further four grounds of appeal.
[6]        In a lengthy letter received by the Court on 13 January, Mr Marsh elaborated on his grounds of appeal, which seem now to total 11.
[7]        In a further letter to the Court, received on 27 January, Mr Marsh sought copies of provisions in the Bail and Crimes Acts, and copies of four decisions of this Court. He also sought leave to adduce further (documentary) evidence in support of his appeal.
[8]        In a memorandum dated 5 February, without conceding that the prison facilities were inadequate, the Crown advised that it had arranged for copies of the documents sought by Mr Marsh to be provided to him.
[9]        Mr Marsh is proposing to represent himself when his appeal is heard on 10 March. He contended to us that, although he had been granted legal…

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 Marsh v The Queen

Details

AGLC: Marsh v The Queen [2010] NZCA 29
Case: [2010] NZCA 29
Decision Date: 25 February 2010

CaseChat Overview and Summary

In the case of Marsh v The Queen, the appellant, Keith Richard Marsh, sought an application for bail pending appeal against his conviction and sentence. Marsh was convicted of two charges of burglary and eight charges of money laundering and was sentenced to two and a half years imprisonment. He appealed both his conviction and sentence, advancing a total of eleven grounds of appeal. The Court of Appeal considered Marsh's application for bail and whether it would be in the interests of justice to grant it.

The legal issues before the Court of Appeal were whether the appellant's application for bail should be granted, and if so, under what conditions. The Court examined the appellant's grounds of appeal, the length of the sentence imposed, the likely length of time before the appeal is heard, the personal circumstances of the appellant and his immediate family, and any other relevant considerations. The Court also considered the appellant's ability to adequately prepare for his appeal while in custody.

The Court of Appeal found that the appellant had not demonstrated that the interests of justice required the grant of bail to enable him to properly prepare for his appeal. The appellant had not made proper requests for the documentation and video evidence relating to his trial, and the Court found that these could be provided while he was in custody. The Court urged the Crown to assist in ensuring that the trial files were delivered to Marsh in prison promptly and to support any proper requests by Marsh to view relevant videotapes. The Court declined Marsh's further application for bail pending the hearing of his appeal.

The final orders of the Court of Appeal were that the appellant's further application for bail pending appeal was declined. The Court urged the Crown to assist in ensuring that the trial files were delivered to Marsh in prison promptly and to support any proper requests by Marsh to view relevant videotapes.

Orders