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R v de Bruin

R v de Bruin

Case [2007] NZCA 76 19 March 2007

Constitutional Validity

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA296/06
[2007] NZCA 76
THE QUEEN
v
ROBERT CHARLES DE BRUIN
Hearing:14 March 2007

Court:Robertson, Baragwanath and Venning JJ
Counsel:R A A Weir for Applicant

A J F Perkins for Crown

Judgment:14 March 2007
Reasons:19 March 2007

JUDGMENT OF THE COURT

THE APPLICATION FOR BAIL IS DECLINED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       The applicant seeks bail pending the hearing of his appeals against conviction and sentence. At the conclusion of the hearing on 14 March 2007, we advised the application for bail was declined and that reasons would follow.
Background
[2]       On 20 May 2006 the applicant was found guilty of a number of counts of serious drug offending. He was sentenced to 12 years’ imprisonment. He appeals against conviction and sentence. The appeals are to be heard on 22 May 2007.
[3]       The trial was the fourth relating to these matters. The juries in the first two trials were discharged before verdict. The applicant together with a co-accused Mr Smith was found guilty at a third trial. The applicant successfully appealed to this Court against conviction. He was granted a retrial. Before the retrial the Crown charged a Mr Sorby with a number of the offences that the applicant was facing. A fresh indictment was laid charging the applicant and Mr Sorby jointly with a number of counts.
[4]       The applicant seeks bail pending the hearing of his appeal on the grounds that (in counsel’s words):
On the balance of probabilities, in the particular circumstances of this case, [it is] in the interests of justice to do so, given the personal circumstances of the appellant and the apparent strength of the grounds of appeal.

[5]       The sole ground of appeal is that the applicant was not able to take part in the depositions hearing relating to the charges the Crown brought against Mr Sorby. It is submitted that, in particular, Mr de Bruin wished to cross-examine Mr Smith, who, after conviction, had agreed to assist the police.
[6]       Additionally, the applicant was diagnosed with small cell lung cancer, an extremely aggressive cancer, in December 2006. He has been transferred to the medical unit at Paremoremo Prison.
[7]       Mr de Bruin applied for bail in the High Court. Before that hearing could be concluded because of the unavailability of the Judge dealing with the application until the end of the month, Mr Weir prevailed on this Court to hear the application as an emergency.
Decision
[8]       Section 14 of the Bail Act 2000 applies. The onus is on the applicant to show cause why bail should be granted. The Court must not grant bail “unless it is satisfied on the balance of probabilities that it would be in the interest of justice” to do so in a particular case. By s 14(3) the Court is directed that it may take into account the following considerations:
(a)       the apparent strength of the grounds of appeal:
(b)       the…

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 R v de Bruin

Details

AGLC: R v de Bruin [2007] NZCA 76
Case: [2007] NZCA 76
Decision Date: 19 March 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against the denial of bail by the applicant, Robert Charles de Bruin. The applicant, who had been found guilty of several counts of serious drug offences and sentenced to twelve years' imprisonment, appealed against his conviction and sentence. The applicant's appeal was set to be heard on 22 May 2007. The applicant sought bail on the grounds that it was in the interests of justice to do so, considering his personal circumstances and the apparent strength of the grounds of appeal. The applicant's sole ground of appeal was that he was not able to take part in the depositions hearing relating to the charges the Crown brought against Mr Sorby. The applicant also suffered from small cell lung cancer, an aggressive form of cancer. The Court of Appeal held that the applicant had not satisfied the Court that it would be in the interests of justice to grant him bail pending appeal. The Court found that the merits of the appeal did not appear to be strong, the length of time before the appeal was heard was not undue, and the applicant's personal circumstances, although unfortunate, did not warrant the grant of bail. The Court also held that the applicant's submission that he was subject to cruel, degrading or disproportionately severe treatment was misconceived. The Court further noted that the applicant had the ability to apply for compassionate release under the Corrections Act 2004, which was directly relevant to the issue of whether it was in the interests of justice to grant him bail pending appeal. The Court also considered that the grant of bail would achieve little for the applicant if ultimately the appeal was unsuccessful, and would simply have the applicant subjected to further stress by being returned to prison to serve his sentence. The application for bail was declined.

Orders