Lichtwark v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA663/2013
[2013] NZCA 490

BETWEEN	DARYL MICHAEL LICHTWARK Appellant
AND	THE QUEEN Respondent

Telephone

Conference:

11 October 2013

Counsel:

Appellant in person
B F Windley for Respondent

Judgment:

(On the papers)

16 October 2013 at 10.30 am

JUDGMENT OF WHITE J

The application for bail is declined.

____________________________________________________________________

REASONS

The appellant, Daryl Lichtwark, was convicted following a trial in the Hamilton District Court on 17 June 2013 of two counts of possession with intent of a substance and equipment capable of being used in the manufacture of methamphetamine. He was sentenced on 28 August 2013 to two years and two months’ imprisonment. He appeals against his conviction.
Mr Lichtwark applies for bail pending the determination of his appeal under s 70 of the Bail Act 2000. He has filed a written application and made further submissions during the telephone conference arranged to give him an opportunity to respond to the Crown memorandum opposing bail.
I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.[1]

Relevant principles

[1]I note that pursuant to s 397(2) of the Criminal Procedure Act 2011, this proceeding continues in accordance with the law as it was before the commencement date. This accords with the general principles of ss 7 and 18 of the Interpretation Act 1999.

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 applicant to show just cause why bail should be granted.
Section 14(3) sets out a number of considerations which may be taken into account when determining what is in the interests of justice. In this case the appellant relies on the apparent strength of his grounds of appeal.[2]

Discussion

[2]Bail Act 2000, s 14(3)(a).

It is not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail.[3] That said, there is nothing sufficiently compelling in the matters raised by the appeal to mean granting bail is in the interests of justice.
[3]R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R [1998] 3 NZLR 555 (CA).
The grounds for Mr Lichtwark’s conviction appeal are focused on errors alleged to have occurred at his trial as a result of the conduct of his defence by his then counsel. Mr Lichtwark is particularly concerned that crucial facts proving his innocence were not established, that Institute of Environmental Science and Research (ESR) evidence relating to a child’s hair sample was not properly adduced and that witnesses who would have supported the defence were not called on his behalf.
Mr Lichtwark is applying for legal aid and representation by new counsel. In support of his appeal, Mr Lichtwark will have the opportunity to raise issues of counsel competence. He will also be able to seek leave to adduce new evidence. These matters do not, however, justify a conclusion that the strength of his appeal requires bail to be granted at this stage.
The other factor relevant to the assessment of the interests of justice in this case is that, while no fixture has yet been allocated for the hearing of Mr Lichtwark’s appeal, it is to be expected that with Crown cooperation, which Ms Windley confirmed will be forthcoming, a fixture should be able to be allocated for the appeal hearing relatively early in the new year so that the appeal will not be rendered nugatory.[4] No injustice will therefore arise from Mr Lichtwark remaining in custody pending determination of his appeal.
[4]Bail Act, s 14(3)(c).
When these considerations are all taken into account, I am not satisfied that it is in the interests of justice to grant Mr Lichtwark bail pending the appeal. No exceptional circumstances have been made out.[5]

Result

[5]Compare Iti v R [2012] NZCA 307 at [7].

The application for bail is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

Daryl Michael Lichtwark, the appellant, has lodged an appeal against his conviction and sentence of two years and two months’ imprisonment for two counts of possession with intent of a substance and equipment capable of being used in the manufacture of methamphetamine. The conviction was handed down by the Hamilton District Court on 17 June 2013, and the sentence followed on 28 August 2013. The appeal was lodged in the Court of Appeal of New Zealand. The central legal issue in this case was whether bail should be granted to Mr Lichtwark pending the determination of his appeal. The Court of Appeal was required to determine this based on the principles set out in the Bail Act 2000. The appellant argued that the strength of his grounds of appeal justified the granting of bail, while the respondent opposed the application.

The Court of Appeal considered the relevant principles under the Bail Act, particularly section 14, which requires that bail should not be granted unless it is in the interests of justice. The court noted that while an extensive analysis of the merits of the appeal is not necessary, the grounds raised by Mr Lichtwark were not sufficiently compelling to warrant bail. The appellant's arguments centered on alleged errors in the conduct of his defence counsel during the trial, such as the failure to establish crucial facts, the inadequate presentation of Institute of Environmental Science and Research evidence, and the non-calling of witnesses. The court observed that these issues could be addressed during the appeal process, including the opportunity to raise issues of counsel competence and to seek leave to adduce new evidence. Additionally, the court noted that with the Crown’s cooperation, the appeal could be heard relatively early in the new year, thereby mitigating any risk of the appeal becoming moot.

The Court of Appeal concluded that the appellant had not demonstrated exceptional circumstances warranting bail. The court considered the balance of probabilities and found that it was not in the interests of justice to grant bail pending the appeal. The application for bail was therefore declined. The court did not make any specific orders beyond the refusal of the bail application.

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