Colosimo v The Queen - [2011] NZCA 614

IN THE COURT OF APPEAL OF NEW ZEALAND

CA687/2011
[2011] NZCA 614

BETWEEN MICHAEL SANTO COLOSIMO
Appellant

AND THE QUEEN
Defendant

Counsel: W T Nabney for Appellant
J E Mildenhall for Respondent

Judgment: 2 December 2011 at 3 pm

JUDGMENT OF CHAMBERS J

The application for bail pending the hearing of the appeal is dismissed.

REASONS

On 11 October 2011 Judge Rollo sentenced Michael Colosimo to two and a half years’ imprisonment. Mr Colosimo has appealed to this Court against his conviction and sentence. He has applied for bail pending the determination of his appeal. The Crown opposes the application. I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961. Counsel dispensed with the need for an oral hearing. I have therefore determined the application on the papers and on the basis of the parties’ written submissions.
The application is brought under s 70 of the Bail Act 2000. The test to be applied on these applications is set out in s 14 of that Act. Under s 14(1), I am not to grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in this case to do so. Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.
Subsection (3) sets out matters the Court should take into account when applying the interests of justice test. The first of those grounds is “the apparent strength of the grounds of appeal”. This is obviously important. The more likely it is the appeal will be granted, the stronger, all other things being equal, is the case for bail. Conversely, if the appeal seems meritless, bail would never be in the interests of justice. The prospects of success on appeal need to be very strong before this factor can go in the balance on the side of granting bail.
Often, judges determining bail applications post-conviction find it very difficult to assess the merits of the appeal: there is often too little information available to assess the merits with any degree of accuracy. That is the case here. Although Mr Nabney, for Mr Colosimo, has said the grounds of appeal are “strong”, I have been unable to form a clear view on that. There are complaints that the trial was unfair because of late disclosure of Crown evidence, that the defence was caught somewhat by surprise when the Crown decided not to call a particular witness who then was called on behalf of Mr Colosimo, and about the fairness of the Judge’s summing-up. All I can say at this stage is that the appeal is far from being a slam dunk; nor is it obviously hopeless.
The second factor under s 14(3) is “the length of the sentence that has been imposed on the appellant”. Obviously, it will be easier to get bail in circumstances where the sentence is very short. For the purposes of s 14, a sentence of two and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Colosimo v The Queen

Details

AGLC: Colosimo v The Queen [2011] NZCA 614
Case: [2011] NZCA 614
Decision Date: 2 December 2011

CaseChat Overview and Summary

The case of Colosimo v The Queen involved an appeal by Michael Santo Colosimo against his conviction and sentence, with an accompanying application for bail pending the hearing of the appeal. The Crown opposed the bail application. The Court of Appeal of New Zealand assessed the application under the Bail Act 2000, specifically section 14, which outlines the criteria for granting bail. The appellant's counsel argued that the grounds of appeal were strong, but the court found it challenging to assess the merits of the appeal due to limited information.

The court considered several factors, including the apparent strength of the grounds of appeal, which the court deemed neither exceptionally strong nor weak. The length of the sentence, two and a half years, was seen as neutral in terms of bail eligibility. The court also considered the likely length of time before the appeal would be heard, which was expected to be in mid-March of the following year, and found this period to be reasonably short. Lastly, the personal circumstances of the appellant, involving his care for his five-year-old son, were deemed not exceptional. Given these considerations, the court concluded that Colosimo had not satisfied the onus of showing why bail should be granted.

Ultimately, the Court of Appeal dismissed the application for bail, finding that it was not in the interests of justice to grant bail pending the appeal. This decision was based on the balance of probabilities and the factors outlined in the Bail Act 2000. No further orders were made in the judgment beyond the dismissal of the bail application.

Orders