R v Marsh

[2009] NZCA 614

IN THE COURT OF APPEAL OF NEW ZEALAND

CA377/2009
[2009] NZCA 614

THE QUEEN

v

KEITH RICHARD MARSH

Counsel:Applicant in person

K Raftery and J Shaw for Crown

Judgment:18 December 2009 

(on the papers)

JUDGMENT OF ROBERTSON J

A           The application for bail is dismissed.

B           Order to produce at appeal hearing on 10 March 2010.

____________________________________________________________________

[1]        Following a District Court jury trial involving a number of accused, on 12 March 2009 the applicant was found guilty on two charges of burglary and eight charges of money laundering.  On 3 June 2009, he was sentenced by Judge Hubble to an effective sentence of two years and six months’ imprisonment: DC AK CRI 2006-004-009486.

[2]        Mr Marsh has appealed against both conviction and sentence.

[3]        His appeal is scheduled for hearing in this Court on 10 March 2010.

[4]        Mr Marsh seeks bail pending the appeal, he says under s 60 of the Bail Act 2000, but as noted by the Crown the application must necessarily be brought under s 70 of the Bail Act.  Under s 14 of the Bail Act, the onus is on the applicant to prove, on the balance of probabilities, that it is in the interests of justice that bail be granted.

[5]        Mr Marsh argues that he is a non-violent offender and that he had been on bail for four and a half years from his arrest until sentence subject to stringent conditions of which there had never been any breach.

[6]        He contends that the facilities in prison are inadequate for him to prepare for his hearing in which he may now be representing himself.  As an alternative to bail he asks for an order to produce so that he may attend his appeal hearing in Auckland.

[7]        The Crown opposes the application.  It is submitted that Mr Marsh’s grounds of appeal against conviction, which relate to the admission of evidence that was only nominally opposed at trial by Mr Marsh, and to the weight of evidence at trial, are without merit.  In respect of the grounds of appeal against sentence, it is submitted that sentence was within the sentencing Judge’s discretion, and that the appeal is therefore weak.

[8]        The Crown accepts that Mr Marsh was remanded on bail from the time he was charged right up until sentencing without incident, but that was pre-conviction. By the time of his appeal hearing, Mr Marsh will have spent approximately nine months in prison, which in the context of his whole sentence is not insignificant. 

Discussion

[9]        I personally have considered Mr Marsh’s application pursuant to s 393(2)(d) of the Crimes Act 1961, and I am satisfied that it does not demonstrate, on the balance of probabilities, that it would be in the interests of justice to grant bail. 

[10]      Mr Marsh’s grounds of appeal against conviction, while not unarguable, are not so apparently strong that bail is warranted.  In respect of the appeal against sentence, the fact Mr Marsh has 50 prior burglary convictions and 82 dishonesty convictions seriously diminishes the weight of any argument that the Judge failed to take proper account of the pre-sentence suggestion of home detention. 

[11]      The appeal is due to be heard relatively promptly in early March next year, and the time Mr Marsh will spend in prison between now and then is not so long as to make bail necessary.  The fact Mr Marsh was on bail without breach before he was sentenced is not a consideration that weighs heavily in favour of bail at this juncture.  Mr Marsh has now been convicted and sentenced, and there is nothing in his grounds of appeal that suggests bail is necessary in the interest of justice.

[12]      Finally, in respect of Mr Marsh’s concern that the facilities in prison are inadequate to allow him to prepare his appeal, in the absence of evidence to the contrary – the onus being on Mr Marsh, the applicant – there is no reason to conclude that prison facilities will be so inadequate as to hinder the preparation of a defence.  The fact Mr Marsh has elected to represent himself and would like access to a library to do so is, for obvious reasons, not a ground on which to grant bail.

[13]      There will be an order for Mr Marsh to be produced to conduct his appeal in the High Court at Auckland on 10 March 2010.

Result

[14]      The application for bail is dismissed.

Solicitors:

Crown Law Office, Wellington