The Queen v Gharbal

[2009] NZCA 39

IN THE COURT OF APPEAL OF NEW ZEALAND

CA89/2009
[2009] NZCA 39

THE QUEEN

v

IDRIS GHARBAL

Counsel:C J Tennet for Applicant

Judgment:26 February 2009 at 12 noon

JUDGMENT OF HAMMOND J

The application for bail is dismissed.

REASONS

[1]       The applicant, Idris Gharbal, was convicted of sexual violation in the District Court at Auckland, on 3 December 2008.  On 5 February 2009, he was sentenced to eight years imprisonment.

[2]       The applicant has appealed to this Court against his conviction on a variety of grounds which relate to evidential matters, alleged errors by trial counsel, alleged prosecutorial misconduct, and alleged misdirections by the trial Judge.

[3]       The applicant has applied for bail pending the determination of his appeal, pursuant to s 70 of the Bail Act 2000.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.  I have not found it necessary to hear from the Crown.

[4]       The test to be applied in relation to the application is that set out in s 14 of the Bail Act.  Under s 14(1) bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  Section 14(2) provides that the onus is on the applicant to show cause why bail should be granted.

[5]       It is convenient to deal with the grounds of the application in the order they were dealt with by Mr Tennet.

[6]       First, I observe that the application is predicated on strict terms as to residence, no contact with the complainant, and a 24-hour curfew (with some very narrow exceptions).  I have no difficulty with the terms put forward, if the application were otherwise made out.

[7]       The first ground put forward is that the applicant says that he is not guilty of the charge on which he has been convicted.  That will not do.  The conviction stands unless and until it is disturbed on appeal.  It is impossible to say, at this point, that there is a compelling point, particularly where a smorgasbord of grounds have been advanced.

[8]       The next ground is that the applicant was given bail up until the time of his conviction and an extension was sought until sentencing, on the grounds of his ill health.  That can go only to the likelihood that if bail is granted, he will observe it.

[9]       The third ground is that the applicant has a heart condition for which he is receiving ongoing treatment, and being regularly treated by his doctor.  Prisoners often have medical conditions, some of them serious, but there are in place regulations and procedures in New Zealand prisons to see that prisoners receive appropriate medical treatment.  This is an administrative matter rather than a stand alone ground for bail.

[10]     The fourth ground is the impact on the applicant’s wife and six children and his business.  This business is a commercial cleaning business employing five workers.  Unfortunately, the conviction of a family man and bread winner routinely has a distinct impact on his family and business.  There is nothing about this case to take it out of the ordinary.

[11]     The onus was on the applicant to satisfy me why it would be in the interests of justice to grant bail.  I am not so satisfied and the application is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington