R v Karena CA387/05

[2005] NZCA 429

IN THE COURT OF APPEAL OF NEW ZEALAND

CA387/05

THE QUEEN

v

ROGER PATRICK KARENA

Hearing:         22 December 2005

Counsel:         R A B Barnsdale for Appellant

A Markham for Crown

Judgment:      22 December 2005

JUDGMENT OF O’REGAN J

The bail application is dismissed.

REASONS

[1]      The appellant was convicted after a trial of sexual violation and indecent assault in relation to a girl under the age of 12 years.   He was sentenced to imprisonment for four and a half years.  He appealed to this Court in October 2005 against conviction and sentence and the appeal has a fixture date of 5 April 2006.

[2]      On   20   December   2005   the   appellant   applied   for   bail   pending   the determination of his appeal pursuant to s 70 of the Bail Act 2000.  I personally have

considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.  It is not

R V KARENA CA CA387/05  22 December 2005

clear why the application was not made earlier.   I have considered written submissions from counsel.  It has not been practicable to convene a hearing.

[3]      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) says that the onus is on the appellant to show cause why bail should be granted.

[4]      The factors which have the greatest relevance in the present case are the strength of the case on appeal and the delay until hearing.  In relation to the latter, the delay is significant, but must be seen in the context of an appellant who has been sentenced to a very substantial prison term.   Any success on the appeal against sentence would not lead to a sufficient reduction to make delay a concern.

[5]      As to the strength of the case, counsel submits that trial counsel made an error in agreeing to the admission of similar fact evidence, not adducing evidence from  family  members  and  not  putting  to  the  complainant  in  cross-examination matters which may have been relevant.   None of these appears to be compelling points  on  appeal,  although  of  course  in  the  present  context  I have  not  had  an opportunity to consider them in detail and I do not express any view on the eventual outcome of the appeal.  I do, however, accept the submission made on behalf of the Crown that the remarks made by the Judge at sentencing provide some context for the points which are now raised in support of the appeal.

[6]      Having  considered  the  submissions  before  me  I  am  not  satisfied  on  the balance of probabilities that it is  in  the interests  of  justice to  grant  bail  to  the appellant.  He has failed to discharge the onus under s 14(2).  I therefore decline the application.

Solicitors:

Crown Law Office, Wellington