R v de Bruin

[2007] NZCA 76

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 length of the sentence that has been imposed on the appellant:

(c)       the likely length of time that will pass before the appeal is heard:

(d)the personal circumstances of the appellant and the appellant's immediate family:

(e)any other consideration that the court considers relevant.

The apparent strength of the grounds of appeal

[9]       It is neither necessary, nor appropriate, to attempt an extensive analysis of the merit of the appeal:  Ellis v R [1998] 3 NZLR 555 (CA).

[10]     Notwithstanding that we have to observe that we see considerable difficulty for the applicant with the proposed ground of appeal against conviction.  First, the depositions hearing was in relation to the charges laid against Mr Sorby, not Mr de Bruin.  There is an issue as to whether the applicant had any right to participate in that process at all.  Mr Sorby did not consent to Mr de Bruin’s presence at the preliminary hearing. 

[11]     Next, Mr de Bruin unsuccessfully applied to the High Court for an order prohibiting the preliminary hearing from proceeding pending directions regarding his standing.  But Mr de Bruin did not apply under s 178 of the Summary Proceedings Act 1957 to seek to have Mr Smith’s evidence taken again.  Instead Mr de Bruin sought to stay the prosecution against him.  That matter was considered and dealt with by Courtney J in a reserved judgment (R v de Bruin HC AK CRI 2005-088-1527 18 October 2005) in the course of which she observed:

[13]     … Mr Burns points out that as at the date of the preliminary hearing the indictment has not actually been amended; leave to take that step was obtained after the preliminary hearing of the charges against Mr Sorby.  This meant that, as at the date of Mr Sorby’s preliminary hearing, Mr de Bruin still faced charges relating solely to the importation and sale of MDMA and money laundering, these being the charges he had always faced.  It appeared that this fact was not fully appreciated by Mr de Bruin.  Mr Weir accepted that it did create a real difficulty for the basis of his application.

[14]     I think it is clear that, at the time of the preliminary hearing of the charges against Mr Sorby, the charges faced by Mr de Bruin were those he had always faced.  He had been committed on them.  He had stood trial on them three times.  Although the amended indictment against Mr de Bruin shows that he is now charged along with Mr Sorby (except in relation to the May 2002 shipment) the indictment against Mr Sorby at the preliminary hearing stage did not show that.

[15]     There was no factual basis on which Mr de Bruin could have even asserted a right to appear at the preliminary hearing.  As a result, the basis for the application to stay the prosecution on the ground that he was not permitted to attend has simply not been made out. 

[12]     Mr Weir suggested he was perhaps wrong to have made the concession he did.  Nevertheless the matter was clearly before the Court and dealt with prior to the fourth trial. 

[13]     As the matter proceeded to trial the statutory procedure for challenging the convictions is that contained in s 383 and 385 of the Crimes Act 1961.  As observed by a full Court of the High Court in Attorney-General v Palmer HC AK CIV 2003-404-588 16 July 2004:

[53]     Whether there is a miscarriage of justice or the trial is a nullity is now to be viewed through a different lens from that of s204 of the Summary Proceedings Act.  Relevant to the exercise of judgment by the Court of Appeal are the questions whether overall the appellant has received a fair trial.  While the absence of a lawful committal process may be taken into account by the Court of Appeal its concern will be whether and what injustice can be said to have resulted.  The purpose of the proviso to s385(1) is to allow that Court to put aside technical arguments that do not affect the merits of a conviction. 

[14]     The position is stronger for the Crown in relation to the present case given the challenges that Mr de Bruin took to the process prior to trial. 

[15]     Finally, it can be noted that in relation to the only fresh count(s) relating to cannabis, both the applicant and Mr Sorby were found not guilty. 

[16]     For the above reasons we have to say that the merits of the appeal on the information we have, do not appear to be strong.

Length of sentence

[17]     The appeal against sentence is on the basis that there is a lack of parity with Mr Sorby and Mr Smith’s sentences of nine years.  Mr Smith was sentenced to nine years’ imprisonment on the basis he had agreed to provide assistance to the Crown.  For present purposes it is sufficient to observe that, even if Mr de Bruin’s appeal against sentence was successful and his sentence was reduced to a term of nine years’ imprisonment then, as Mr Weir conceded, Mr de Bruin would not be eligible for parole until well after his appeal is heard in May this year.

Length of time before the appeal is heard

[18]     When this application was first called the Court offered Mr Weir an early hearing of the substantive appeal either on 28 March at Auckland or 18 April at Wellington.  Mr Weir took instructions from Mr de Bruin and confirmed that Mr de Bruin wished to proceed with this application for bail on the basis that the substantive appeal would proceed on 22 May.  That is just over two months away.  Given Mr de Bruin’s election to maintain that date for the substantive appeal no issue arises as to any undue length of time before the appeal can be heard.

Personal circumstances of the appellant

[19]     The personal circumstances of the appellant are unfortunate.  Mr de Bruin has been diagnosed with, and is suffering from, an aggressive form of cancer which requires invasive treatment.  It is primarily for that reason that he seeks bail.  Mr de Bruin has deposed that in the medical unit nursing staff are on hand between 8 am and 10.00 pm and a nurse and doctor are on call from outside the prison during the night.  But there is no toilet inside his room.  If he rings the buzzer for attention three guards are required to come and unlock his room.  Mr de Bruin would undoubtedly be more comfortable if he were not in the confines of a prison medical unit.  This factor, however, is directly related to the last consideration under s 14(3).

[20]     Mr Weir submitted that given the constraints on Mr de Bruin the prison authorities were in breach of s 9 of the New Zealand Bill of Rights Act 1990.  Section 9 reads:

9        Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

[21]     Mr Weir suggested that Mr de Bruin was subject to cruel, degrading or disproportionately severe treatment.  We reject that submission as misconceived.  The applicant has been transferred to the medical unit for the purposes of medical treatment.  Inevitably a different regime operates in the medical unit to that in the general prison.  That is not sufficient to invoke s 9:  Attorney-General v Taunoa [2006] 2 NZLR 457.

[22]     Ms Member, a law clerk employed by Mr Weir, confirms that she has been liaising with Auckland Prison on the issue of a compassionate parole application.  She says her understanding is that the process will take some time to conclude.  Although there is no information given about that, it appears that she is pursuing an application under s 41 of the Parole Act 2002 on the applicant’s behalf. 

Other considerations

[23]     However, Mr Weir and the applicant are apparently not aware of s 62 of the Corrections Act 2004.  Section 62(2) of the Act provides:

(2)       The chief executive may give authority for the temporary release from custody or temporary removal from prison of a prisoner to whom this section applies—

(a)    for any purpose specified in regulations made under this Act that the chief executive considers will facilitate the achievement of 1 or more of the following objectives:

…

(ii)the compassionate or humane treatment of the prisoner or his or her family:

(iii)furthering the interests of justice; or

(b)      in any circumstances that, in the opinion of the chief executive, are exceptional and that will facilitate the achievement of 1 or more of the objectives described in paragraph (a).

[24]     Mr de Bruin has the ability to apply under s 62(2)(a)(ii) if there are needs that he has by reason of his medical condition that cannot be adequately met within the medical unit at the prison.  His ability to apply under the section is directly relevant to the issue of whether it is in the interests of justice to grant him bail pending the hearing of a substantive appeal.

[25]     Finally there is also force in the submission made for the Crown that the grant of bail would achieve little for the applicant if ultimately the appeal was unsuccessful.  That would simply have Mr de Bruin subjected to further stress by being returned to the prison to serve his sentence.

[26]     Taking the above factors into consideration the applicant failed to satisfy this Court that it would be in the interests of justice to grant him bail pending appeal.  For those reasons the application was declined.

Solicitors:           
Crown Law Office, Wellington