The Queen v Patel

[2007] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

CA190/07
[2007] NZCA 337

THE QUEEN

BHIKUBHAI PATEL

Counsel:        Appellant in person

M D Downs for Crown

Judgment:      8 August 2007 at 2 pm

JUDGMENT OF O'REGAN J

The application for bail is dismissed.

REASONS

Introduction

[1] The appellant was convicted of one charge of attempting to procure murder and five charges of threatening to kill after a High Court jury trial and was sentenced to imprisonment for a term of five years.

1. The appellant has appealed to this Court against his conviction.

R V BHIKUBHAI PATEL CA CA190/07 [8 August 2007]

[3] The appellant 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.

[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 appellant to show why bail should be granted.

[5] Mr Patel has applied for legal aid, but the assignment of counsel has not yet occurred. Mr Patel wishes to meet with the two potential counsel before the assignment is made. He has, however, made an application on his own behalf for bail. He asks to be allowed to reside at an Auckland address "to do my work necessary for the Courts and the assistance of my appointed Barrister".

[6] Bail is opposed by the Crown. Counsel for the Crown submitted a memorandum pointing out that the onus is on the appellant to show cause why bail should be granted and submitting that the appellant's application does not disclose any basis for the grant of bail. Crown counsel points out that, given the five year sentence, it is most unlikely that the appellant's appeal rights will be rendered nugatory.

[7] I understand from the Registrar that fixtures are available for criminal appeals in October. Thus the period of imprisonment until the likely hearing of the appellant's appeal will be in the vicinity of two to three months, assuming no delays in the assignment of counsel and the appeal being brought to hearing.

[8] The offences for which the appellant was convicted are serious offences, as reflected in the five year sentence. The application discloses no reason for the grant of bail, other than a wish to assist counsel in preparing for the appeal. But there is nothing which indicates that this could not be done from prison. More importantly there is nothing in the application which could satisfy the Court on relevant matters such as the risk of offending while on bail.   In that regard, it is notable that the

sentencing Judge referred to the fact that the appellant had previous convictions for offences of violence against family members.

[9] Section 14(3) allows the Court to take into account the following considerations:

(a)The apparent strength of the grounds of appeal: there is nothing
before the Court which gives any basis for assessment of this;

(b)The length of the sentence imposed on the appellant: in this case there
has been a lengthy sentence, reflecting the serious offending;

(c)The likely length of time that will pass before the appeal is heard: the
appeal could be heard within about three months;

(d)The personal  circumstances  of the appellant and the appellant's
immediate family:  given the circumstances of the offending, the
appellant is estranged from his immediate family.   There is nothing
which discloses any personal circumstances which would justify the
grant of bail;

(e)Any other consideration that the Court considers relevant: the serious
offending and the obsessive conduct of the appellant which appears to
have led to the offending count strongly against the grant of bail in
this case.

[10] The appellant has not discharged the onus imposed on him by s 14(2) to show cause why bail should be granted. I am not satisfied on the balance of probabilities that it would be in the interests of justice to grant bail to the appellant. I therefore decline the application.

Solicitors:

Crown Law Office, Wellington