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 aid for his appeal, Mr Levett, who had represented him at his trial, had not responded to his communications.  When making his application for bail he advised the Court that he had lost confidence in Mr Levett.  He told us that he had not asked for fresh counsel to represent him.

[10]       When Mr Marsh began his submissions in support of his fresh application for bail, it rapidly became apparent that he was confusing the merits of his appeal with bail pending the hearing of that appeal.  When he was confined to the latter, it emerged that he had just two concerns.  The first was that he had been unable to obtain the documentation relating to his trial from his trial counsel.  He said this comprised eight ring binders.  He told us – and Crown counsel confirmed – that ring binders would not be permitted in prison.  When we asked him whether he had attempted to obtain this material packed in box files or soft folders, he said he had not.

[11]       His second concern was that he could not watch videos relating to his trial.  We think these are surveillance tapes.  When we asked Mr Marsh whether he had inquired of the prison authorities about this, he said he had not.  Crown counsel informed us that there were facilities at the prison for prisoners and their counsel to watch videotapes relating to trials and appeals. 

[12]       We are not at all persuaded that the interests of justice require the grant of bail to Mr Marsh to enable him properly to prepare for his appeal on 10 March.  Mr Marsh needs to make a proper and prompt request to Mr Levett for the material he considers he needs to prepare for his appeal.  We note that Mr Levett wrote to the Court on 11 February (the Court received the letter on 15 February) advising that he had sought Mr Marsh’s confirmation that he intended to represent himself on his appeal.  Mr Levett concluded his letter:

I am currently awaiting his directions as to the person I should deliver the trial files to.

We urge the Crown assist, as best it can, in ensuring that the trial files are delivered to Mr Marsh in prison promptly.

[13]       Mr Marsh also needs to request the prison authorities for the opportunity to watch any videotapes relevant to his appeal.  Again, we ask the Crown to support any proper request by Mr Marsh in this regard.

[14]       Mr Marsh’s further application for bail pending the hearing of his appeal is declined.

Solicitors:

Crown Law Office, Wellington for Respondent