Ngamu v The Queen - [2010] NZCA 3

IN THE COURT OF APPEAL OF NEW ZEALAND
CA654/2009
[2010] NZCA 3
BETWEENKAREN ROWENA NGAMU

Appellant

ANDTHE QUEEN

Respondent

Counsel:N J Bioletti for Appellant

M J Inwood for Respondent

Judgment:5 February 2010 at 4.45 pm

JUDGMENT OF O’REGAN J

The application for bail is dismissed.
____________________________________________________________________
REASONS
[1]        The appellant was convicted after a jury trial in the District Court of 39 counts of using a document to obtain a pecuniary advantage. She was sentenced to an effective term of imprisonment of four years and nine months. A notice of appeal against conviction and sentence was received by the Court on 16 October 2009. The notice of appeal specified a particular ground of appeal and stated that further grounds of appeal would be filed on receipt of the case on appeal, including the summing up. There was some delays in compiling the case on appeal.
[2]        Having considered the case on appeal counsel for the appellant has now filed a memorandum setting out a further ground of appeal which is to be pursued and seeking bail on her behalf pending the determination of her appeal pursuant to s 70 of the Bail Act 2000.
[3]        I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.
[4]        The test to be applied in relation to the application is that set out in s 14 of the Bail Act. Under s 14(1), 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 to do so. Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.
[5]        The basis on which the application is advanced is that:
(a)          The new ground of appeal has a strong chance of success;
(b)         The appeal is unlikely to be heard for some time;
(c)          The appellant would not constitute a flight risk;
(d)Release on bail would allow the appellant to care for her children, who facing some difficulties and would benefit from her involvement in their care.

[6]        I will consider each of these in turn.
Strength of appeal
[7]        The new ground of appeal is that there was a misapplication of the joint enterprise rule of evidence in the context of the trial, which has led to a miscarriage of justice. The argument is that there was confusion between the co-conspirator’s rule and the principle that evidence of what offender A said or did may be admitted against co-offender B as original evidence going to prove an element of B’s joint offence with A.
[8]        It will be argued that these two principles are distinct and different, but that the jury was not given guidance on this with the result that the jury was misinformed as to the use to which certain evidence against co-offenders could be used in relation to the Crown case against the appellant.
[9]        It is difficult to assess…

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 Ngamu v The Queen

Details

AGLC: Ngamu v The Queen [2010] NZCA 3
Case: [2010] NZCA 3
Decision Date: 5 February 2010

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Karen Rowena Ngamu appealed against her conviction and sentence for using a document to obtain a pecuniary advantage. Ngamu was convicted after a jury trial in the District Court and was sentenced to an effective term of imprisonment of four years and nine months. The appeal was lodged on 16 October 2009, and additional grounds of appeal were to be filed after receiving the case on appeal. The key legal issue in the bail application was whether the appellant demonstrated sufficient cause for granting bail pending the appeal. The grounds for appeal included the alleged misapplication of the joint enterprise rule of evidence, which may have led to a miscarriage of justice. The appellant argued that the new ground of appeal had a strong chance of success and that release on bail would allow her to care for her children. The court considered the strength of the appeal, the delay in hearing the appeal, the flight risk, and the appellant's personal circumstances. Ultimately, the court found that the onus to justify the grant of bail had not been discharged, and the application for bail was dismissed.

The Court of Appeal assessed the strength of the appeal, considering that the new ground of appeal was arguable but its success was uncertain until the appeal hearing. The delay in the appeal was not considered a strong factor in favour of granting bail, as a fixture was available for May 2010, and the appellant would have been in prison for about eight months of her sentence. The appellant was not considered a flight risk, as she had been on bail without compliance issues prior to trial. Although the appellant's children would benefit from her care, the court did not see this as a sufficient factor to grant bail in the absence of other compelling reasons. The court concluded that the appellant had not met the onus to justify the grant of bail pending the appeal, and the application was dismissed.

Orders