The Queen v MacDonald

[2008] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND

CA185/2008
[2008] NZCA 206

THE QUEEN

v

KANE LEX MACDONALD

Counsel:J A Young for Appellant

M D Downs for Crown

Judgment:4 July 2008 at 10.00 am

(On the papers)

JUDGMENT OF O’REGAN J

The application for bail is dismissed.

[1]       The appellant was convicted of one count of wounding with intent to injury (s 188(2) of the Crimes Act 1961) and one count of wounding with intent to cause grievous bodily harm (s 188(91)).  He was sentenced to a term of imprisonment of four years.  The victims were brothers: Marc Fatu (first count) and Ben Fatu (second count).

[2]       The appellant has appealed to this Court against his conviction and sentence.

[3]       The appellant has 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.

[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 appeal is to be heard on 29 July 2008.  The appellant has been in custody since early April 2008.

[6]       The charges resulted from an incident which happened at a camp ground on New Years Eve 2006.  The new evidence comes from the manager of the camp ground and is to the effect that he reported to a police officer during the appellant’s trial that he knew of eye witnesses who had seen a man on the night of the incident with blood all over his shirt.  He said that these witnesses had seen that man remove his shirt and put it into a bucket of water, and then put on a clean shirt.  This was not reported to the appellant’s counsel and no evidence to this effect was given during the trial.  The eye witnesses have also sworn an affidavit in which they attest to having seen the man in the bloodied shirt and having seen him place it in a bucket of water and put on a clean shirt.  They were staying in the camp on the night of the incident.  They name the person whom they saw in the bloodied shirt.

[7]       As I understand it, the new evidence will be used to support the appeal against the conviction on the count involving Ben Fatu, on which there was no direct eye-witness evidence.  Counsel for the appellant applied for discharge under s 347 in relation to that count at trial, but that application was unsuccessful.  It will be argued that the fresh evidence gives weight to the appellant’s theory of the case that a third party was responsible for the attack on Ben Fatu.  The medical evidence given at trial was said to be consistent with this theory.  It will be argued that disclosure of the information obtained from the camp manager ought to have been made by the police officer, and that if the information now before this Court had been before the jury, the outcome could well have been different, at least in relation to the count involving Ben Fatu.

[8]       The application for bail points to the fact that the appellant was on bail before trial without any problems, he has the support of his family, and has employment available to him if granted bail.

[9]       Crown counsel, Mr Downs, opposed bail on the basis that the statutory presumption had not been displaced.  He pointed to the imminence of the appeal fixture (now only four weeks away) and argued that, given the sentence of imprisonment imposed on the appellant, his appeal will not be rendered nugatory by his remaining in prison until the determination of the appeal.  He accepted that there may be some merit in the conviction appeal in relation to Ben Fatu, but argued that the non-disclosure and new evidence has little relevance to the count relating to Marc Fatu.  He argued that the fact that the appellant had family support and an employment opportunity was not unusual, and did not bring the case within the statutory criteria for the granting of bail pending appeal.

[10]     Applying the criteria set out in s 14(3) of the Bail Act, I consider that:

(a)There appears to be some strength in the grounds of appeal in relation to the conviction involving Ben Fatu.  It is not clear to me how the grounds of appeal relate to the count involving Marc Fatu;

(b)The appellant has been sentenced to a lengthy term of imprisonment, and will have served only a small portion of that sentence at the time the appeal comes to a hearing;

(c)It will now be only four weeks until the hearing of the appeal;

(d)The personal circumstances of the appellant and his immediate family appear to indicate that the proposed bail address would be a suitable address.

[11]     Given the imminence of the hearing of the appeal, and the lack of clarity as to the likelihood of success in relation to the count involving Marc Fatu, I am not persuaded that the appellant has satisfied the onus of showing cause why bail should be granted in this case.  I give particular weight to the short period of time which will pass before the appeal is heard.  If the Court hearing the appeal reserves its decision, the bail situation can be reconsidered at that stage if the Court considers it appropriate to do so.

[12]     I dismiss the application for bail.

Solicitors:
Crown Law Office, Wellington