The Queen v Patel - [2007] NZCA 380

IN THE COURT OF APPEAL OF NEW ZEALAND
CA190/07
[2007] NZCA 380
THE QUEEN
v
BHIKUBHAI PATEL
Hearing:30 August 2007

Court:Robertson, Baragwanath and Heath JJ
Counsel:Appellant in person

K B F Hastie for Crown

Judgment:30 August 2007

ORAL JUDGMENT OF THE COURT

The application for bail is refused.
___________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
[1]       Mr Patel, who appears in person before this Court, applies for bail under s 14 of the Bail Act 2000.
[2]       We note that this application was initially considered by O’Regan J under the provisions of s 393(2)(d) of the Crimes Act 1961. Mr Patel was refused bail.
[3]       Mr Patel has exercised the statutory right to have this Court consider the matter afresh and we now do so.
[4]       Following an eight day trial, Mr Patel was convicted by a jury on one charge of attempting to procure murder and five counts of threatening to kill. He was subsequently sentenced on 4 April 2007 by Venning J to an effective term of five years’ imprisonment. He has appealed to this Court against the conviction and sentence. He has been advised that his appeal can be heard in October.
[5]       At trial, Mr Patel was represented by Mr Robin Brown. He is currently without counsel. He informs us he has been granted legal aid but there seems to be some problem about the allocation of counsel. We would encourage Mr Patel to resolve that issue at the earliest possible date. Failure to do so may jeopardise the hearing of his appeal and create further delay.
[6]       At sentence, Venning J outlined the background circumstances in his Sentencing Notes of 4 April 2007 at [3] and [4]:
[3]       Despite that you were convinced that your wife and Mr Sunil Sharda were having an affair. You became obsessed about that over the next eight or so years even though they had no real contact during that time. You separated from your wife in March 2004 and in June 2004 you formed a plan to kill Mr Sharda. You sought out a man to kill Mr Sharda. Unknown to you, and with the benefit of hindsight thankfully, the person you sought out was a police informant. He had assisted the police in the past. Initially the informer did not think you were serious. But because of your persistence and the level of the detail that you went in to about your plan to have Mr Sharda killed he became concerned and went to the police. The police then fitted him with a recording device so that your subsequent discussions with him were recorded. The translation of those recordings discloses that you instructed the informant the ways in which he might lure the victim to a spot where he would be attacked and rendered helpless. You told him to hit the victim on the head with a hammer. Mr Sharda was then to be sadistically tortured before being killed and his body disposed of. You discussed…

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 The Queen v Patel

Details

AGLC: The Queen v Patel [2007] NZCA 380
Case: [2007] NZCA 380
Decision Date: 30 August 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Patel involved the appellant, Bhikubhai Patel, applying for bail under the Bail Act 2000. Patel had been convicted on one charge of attempting to procure murder and five counts of threatening to kill. He had been sentenced to an effective term of five years' imprisonment and subsequently appealed against the conviction and sentence. Patel was without counsel at the time of the bail application and had issues with legal aid allocation. The primary legal issue for the Court was whether the interests of justice required Patel to be granted bail. The Court considered the strength of the grounds of appeal, Patel's conviction of serious charges, his substantial term of imprisonment, and his personal circumstances. Despite Patel's arguments, the Court found no grounds to overcome the presumption against releasing a sentenced prisoner. Consequently, the application for bail was refused.

The Court of Appeal examined the specific criteria mentioned under section 14 of the Bail Act 2000, which emphasised that bail should not be granted unless it would be in the interests of justice to do so. The Court noted the overwhelming evidential base for the essential elements of the facts in issue. The trial judge had highlighted Patel's sense of entitlement and control, his refusal to accept responsibility for his actions, and his low level of motivation to assess factors contributing to his offending. The Court also considered Patel's serious charges and substantial term of imprisonment, which suggested that the presumptive situation should not be altered. The Court concluded that Patel's personal circumstances, while concerning, did not provide sufficient grounds to grant bail. The Court was unable to find any grounds to overcome the presumption against releasing a sentenced prisoner, and thus the application for bail was refused.

Orders