Clutterbuck v The Queen

[2017] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/2017
[2017] NZCA 9

BETWEEN	RICHIE STUART CLUTTERBUCK Appellant
AND	THE QUEEN Respondent

Counsel:

Appellant in person
C J Hurd for Respondent

Judgment:

(On the papers)

14 February 2017

JUDGMENT OF HARRISON J

Application for bail pending determination of appeal is declined.

____________________________________________________________________

REASONS

1. Following a trial in the Christchurch District Court the appellant, Richie Clutterbuck, was found guilty of one count of burglary of a timber yard.  In December 2016 he was convicted and sentenced to 15 months’ imprisonment.  He appeals against his conviction on the principal ground of trial counsel error. 

2. Mr Clutterbuck has applied for bail pending appeal.  The Crown opposes.  Mr Clutterbuck must establish that on the balance of probabilities he should be granted bail pending appeal.[1]  He must show exceptional circumstances exist.  Within that inquiry the apparent strength of his appeal and any delay causing injustice are relevant considerations. 

   [1]See Bail Act 2000, ss 14 and 55. 

3. Mr Clutterbuck has sent a brief letter to the Court setting out his grounds for seeking bail.  First, he submits that a recent stomach operation (apparently before his trial) is causing him dietary difficulties within the prison environment.  He has had to rely on his family and friends to buy his own food.  However, Mr Clutterbuck has not produced evidence of either the adverse effect of this medical condition or that he cannot be properly cared for within the prison.  This ground must fail.

4. Second, Mr Clutterbuck refers to his primary ground of appeal that his trial counsel failed to follow his instructions in a number of respects including producing medical records of his stomach operation.  Apart from general allegations in his notice of appeal, Mr Clutterbuck has not provided any particulars or specific information or evidence which might support this allegation. 

5. It is well settled that it is not appropriate when determining an application for bail pending an appeal to undertake an analysis of the merits or of the prospects of success.  Evidence that the appeal has some strength may be a relevant factor.  But that is not the case here.  Apart from assertions, Mr Clutterbuck has not identified anything to suggest that his appeal has merit or is even arguable.  Moreover, Mr Clutterbuck faces the inherent difficulty that the lower Court by its finding of guilt must have rejected the credibility of his exculpatory evidence at trial, including of his recent stomach operation.

6. Mr Clutterbuck’s application for bail pending determination of his appeal is declined. 

Solicitors:
Crown Law Office, Wellington for Respondent