Naiker v The Queen

[2015] NZCA 586

IN THE COURT OF APPEAL OF NEW ZEALAND

CA562/2015
[2015] NZCA 586

BETWEEN	VIJENDRA NAIKER Applicant
AND	THE QUEEN Respondent

Counsel:

I M Brookie for Applicant
Z Johnston for Respondent

Judgment:

(On the papers)

2 December 2015 at 3.30 pm

JUDGMENT OF MILLER J

The application for bail pending appeal is declined.

____________________________________________________________________

REASONS

1. The applicant moves for bail pending appeal.  An application to the trial Judge was dismissed.[1]

   [1]R v Naiker [2015] NZDC 22803.

2. The grounds advanced are the strength of the appeal, delays in getting the case to trial in the first place, likely further delays before the appeal is heard, and personal circumstances.

3. The test is found in Ellis v R:  admission to bail pending appeal is unusual and requires exceptional circumstances.[2]  That is so because the applicant has been found guilty and sentenced.  The applicant must show on the balance of probabilities that admission to bail is in the interests of justice.[3]

   [2]Ellis v R [1998] 3 NZLR 555 (CA) at 560.

   [3]Bail Act 2000, s 14.

4. The grounds of appeal focus on jury contamination and the sufficiency of a credibility ruling under s 122 of the Evidence Act 2006.  As to that, I accept that there are real issues to be argued, but I do not accept that the grounds of appeal are obviously compelling,[4] for the reasons given by the Judge in his ruling on Mr Naiker’s application for a mistrial,[5] and because the remarks that the Judge did make about the allegedly unreliable witness may be considered adequate to prevent a miscarriage.

   [4]Mayer v R [2014] NZCA 216 at [11].

   [5]R v Naiker [2015] NZDC 16132.

5. Turning to the question of delay, it seems that there was extraordinary delay in bringing the case to trial, but a stay was refused[6] and an allowance was made for this consideration in sentencing.[7]  So far as delay in this Court is concerned, it is true that the appeal will not be heard before Christmas, but there is no reason why it cannot be set down promptly in the New Year.  The length of the sentence is such that delay will not render the appeal academic.

   [6]R v Naiker [2015] NZDC 8387.

   [7]R v Naiker [2015] NZDC 22145 at [26].

6. Turning to personal circumstances, the applicant points to physical ailments and depression.  It appears that he is using medication for heart and stomach issues and has been denied surgery to treat a frozen shoulder.  He complains that he is not given pain relief in prison at night.  These are matters of concern, but none is incapable of being dealt with in the prison system.  They should be taken up with the prison authorities.

7. The other personal circumstance relied upon is the applicant’s religious convictions.  He is said to be a deeply religious man and a spiritual leader in his community.  He wishes to return to the community to engage with prayer ceremonies.  I am prepared to accept that this causes him hardship, but it is not hardship of a kind that can justify admission to bail.  Nor does the hardship experienced by his family and others in the community who may depend upon him;  such difficulties commonly attend a sentence of imprisonment.

8. The applicant has not shown that the circumstances are sufficiently exceptional to justify bail pending appeal.  The application is declined.

Solicitors:
Crown Law Office, Wellington for Respondent