Naidu v The King

[2024] NZHC 2953

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-000115 [2024] NZHC 2953

BETWEEN

KRISHNAN NAIDU

Appellant

AND

THE KING

Respondent

On the papers
Counsel:	S A McKenna for the Appellant L S P Glaser for the Respondent
Judgment:	10 October 2024

JUDGMENT OF VAN BOHEMEN J

[on jurisdiction to hear bail appeal]

This judgment was delivered by me on 10 October 2024 at 4:30 pm Registrar/Deputy Registrar

……………………………..

Solicitors:

McKenna King, Hamilton Crown Solicitor, Hamilton

NAIDU v R [2024] NZHC 2953 [10 October 2024]

[1]    Krishnan Naidu seeks to appeal the decision of Judge N D Cocurullo in the District Court at   Hamilton  refusing  Mr  Naidu  bail  (the  bail  appeal)  pending  Mr Naidu’s appeal of the sentence of four years and six months’ imprisonment imposed by Judge Cocurullo on 18 September 2024 after Mr Naidu had been found guilty of sexual violation by rape (the sentence appeal).

[2]The bail appeal is set down for hearing on Monday, 14 October 2024.

[3]    The Crown has challenged the Court’s jurisdiction to hear the bail appeal because of the operation of s 54 of the Bail Act 2000. Counsel for Mr Naidu has disputed the Crown’s interpretation of s 54 and says the High Court has jurisdiction to hear the bail appeal in accordance with ss 41, 42 and 54(5) of the Bail Act.

[4]    Having considered the memoranda and relevant authorities, I am satisfied that counsel for Mr Naidu is correct and that I do have jurisdiction to hear the bail appeal.

Memoranda of counsel

[5]    Crown counsel, Ms Glaser, notes that s 54 replaced the former s 55 and that this Court has held, in Filitonga v New Zealand Police, that s 55 was a complete code in the case of appeals in respect of bail applications by appellants who are in custody under a conviction or subject to a sentence of home detention pending appeal.1

[6]    Ms Glaser also refers to Morgan v New Zealand Police, where it was stated that the usual practice is for an application for bail pending the determination of an appeal against conviction or sentence to be made to the trial judge in the first instance and, if that is refused, to the Court of Appeal.2

[7]    Ms Glaser advises that the Crown seeks the appeal hearing to be vacated and invites Mr Naidu to file a notice of appeal in the Court of Appeal.

[8]    Counsel for Mr Naidu, Mr McKenna, notes that the former s 55 did not include a provision equivalent to s 54(5) and the effect of that provision is to overturn Filitonga

1      Filitonga v New Zealand Police [2017] NZHC 1215. See also Mayo v R [2015] NZHC 3224.

2      Morgan v New Zealand Police HC Auckland CRI-2004-404-200, 28 May 2004, at [7].

by providing that s 42 applies and grants a defendant a right of appeal to the “appeal court” which, in accordance with s 41(b), is the High Court.

Relevant provisions of Bail Act 2000

[9]Section 41 relevantly provides:

In this subpart, unless the context otherwise requires, appeal court means,—

…

(b) if a decision of a District Court Judge is appealed against, the High Court:

[10]Section 42(1) provides:

(1)If a court refuses to grant bail to a defendant (whether before or after conviction and whether under any enactment or rule of law or otherwise), the defendant may appeal to the appeal court against that decision.

[11]Section 43 relevantly provides:

(1)Sections 273 to 275 and subpart 12 of Part 6 of the Criminal Procedure Act 2011 apply to an appeal under section 42 as if the appeal were a first appeal against a decision on a costs order, except that the notice of appeal must be filed within 20 working days after the date of the decision appealed against.

…

(3)Every decision of the appeal court on an appeal under section 42 is   final.

…

[12]Section 54 relevantly provides:

54Granting of bail to appellant in custody or on home detention pending appeal to High Court, Court of Appeal, or Supreme Court

(1)This section applies if a person—

(a)is in custody under a conviction or is subject to a sentence of home detention; and

(b)is appealing against the conviction or sentence, or both, to the High Court, Court of Appeal, or Supreme Court (as the case requires).

(2)If the appellant is in custody, or is subject to a sentence of home detention, only under the conviction to which the appeal relates, the appellant is bailable at any time before the hearing of the appeal—

(a)at the discretion of the Judge who presided over the court whose determination is appealed against (if applicable); or

(b)if that Judge is not available,—

(i)if the decision was made by a District Court Judge, at the discretion of another District Court Judge; or

(ii)if the decision was made by a High Court Judge, at the discretion of another High Court Judge; or

(c)at the discretion of the Court of Appeal or Supreme Court (in the case of an appeal to the Court of Appeal or to the Supreme Court).

…

(5) If an appellant is granted or refused bail under this section, or if any decision is made under section 33(1) (as applied by subsection (4)) in respect of any appellant, the provisions of sections 42 and 43, as far as they are applicable and with all necessary modifications, apply as if the appellant were a defendant who had been granted or, as the case may be, refused bail.

…

[13]   In accordance with s 97 of the Court Matters Act 2018, ss 54, 54A and 55 replaced the former ss 54 and 55 of the Bail Act with effect from 14 November 2018.3

[14]Prior to its replacement, s 55 relevantly provided:

55Granting of bail to appellant in custody or on home detention pending appeal to Court of Appeal or Supreme Court

(1)This section applies if an appellant—

(a)is appealing his or her conviction or sentence, or both, to the Court of Appeal or the Supreme Court; and

(b)is—

(i)in custody; or

3      Under s 2(1) of the Court Matters Act 2018, s 54 came into effect the day after the Act received Royal Assent, which was 13 November 2018.

(ii)in a home detention residence subject to a sentence of home detention.

(2)The Court of Appeal or the Supreme Court (as the case may be) or the Judge who presided at the trial in the court below may, if it or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody, or is subject to a sentence of home detention, only under the conviction to which the appeal relates.

…

Analysis

[15]   I begin by noting that, in accordance with s 247(1)(d) of the Criminal Procedure Act 2011, the appeal court for the sentence appeal is the Court of Appeal and the sentence appeal has been filed in that Court.

[16]   As Ms Glaser has pointed out, this Court has held, in Mayo and in Filitonga that the old s 55 was a code and that there was no right of appeal to the High Court from a refusal to grant bail in the District Court, where the defendant was in custody and was appealing a conviction or sentence.4 However, that view was not upheld by the Court of Appeal in A v R,5 in which the Crown accepted, contrary to its stance in Filitonga, that appeal rights to the High Court are available where a person in custody has been refused bail in the District Court pending an appeal against conviction and sentence.6 This position was accepted by the Court of Appeal.7

[17]Importantly, in A v R, the Court of Appeal:

(a)confirmed that there is no direct right of appeal from the District Court to the Court of Appeal;8

(b)noted that, not infrequently, documents which purport to be appeals from bail decisions of trial judges in the District Court are filed in the

4      Filitonga v New Zealand Police, above n 1, at [5] ]; and Mayo v R, above n 1Error! Bookmark not defined., at [7].

5      A v R [2018] NZCA 126, [2018] 3 NZLR 755. This decision was issued on 7 March 2018, before the commencement of the Court Matters Act 2018 on 14 November 2018.

6 At [17].

7 At [41].

8 At [14].

Court of Appeal and that, in practice, the Court of Appeal has tended to treat such filings as de novo applications under s 55(2); and

(c)held that s 55(2) conferred an election between two paths; namely:9

(i)either a right to apply to the trial judge, with a right of appeal from that decision available to the defendant and the prosecutor; or

(ii)a right to apply at the outset to the Court of Appeal.

[18]   The Court of Appeal’s analysis and its finding that there are appeal rights to the High Court where the trial judge refused bail were made by reference to ss 44, 45 and 47 of the Bail Act. Those sections, along with ss 41 – 43, 45, 46 and 48 - 52, were replaced by ss 41 to 44 of the Bail Act, in accordance with s 95 of the Court Matters Act 2018.

[19]   However, the replacement of ss 44 and 47, like the replacement of s 55, does not alter the analysis or the result mandated by A v R, the reasoning of which applies equally to the current s 54 as it did to the old s 55.

[20]In Mr Naidu’s case, s 54 operates as follows:

(a)Mr Naidu is in custody under a conviction and is appealing against a sentence to the Court of Appeal. Therefore, s 54 applies in accordance with s 54(1).

(b)Because Mr Naidu is appealing against a sentence to the Court of Appeal, he is bailable at any time before the hearing of the appeal:

(i)at the discretion of the District Court Judge who presided over the Court whose sentence is being appealed — in accordance with s 54(2)(a); or

9 At [41].

(ii)at the discretion of the Court of Appeal, because the sentence appeal  is  to  the  Court   of  Appeal  —  in  accordance  with   s 54(2)(c).

(c)Mr Naidu has exercised his right to seek bail from the trial judge in accordance with s 54(1)(a) and has been refused bail. In other words, he has made his election as between an application to the trial judge or a de novo application to the Court of Appeal.

(d)Mr Naidu has been refused bail by the trial judge. That refusal was under s 54. Accordingly, 54(5) applies, which provides that ss 42 and 43, as far as applicable, apply as if Mr Naidu were a defendant who had been refused bail.

(e)In accordance with s 42(1), Mr Naidu may appeal the District Court Judge’s refusal to grant bail to the appeal court which, in accordance with s 41(b), is the High Court.

(f)In accordance with s 43(3), the High Court’s decision on the bail appeal is final.

Result

[21]This Court has jurisdiction to hear Mr Naidu’s bail appeal.

[22]The Crown’s challenge to the Court’s jurisdiction is dismissed.

[23]   The hearing of the bail appeal set down for 2.15 pm on Monday, 14 October 2024 will proceed.

G J van Bohemen J