The Queen v Veza

[2007] NZCA 409

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/07
[2007] NZCA 409

THE QUEEN

v

MARTIN ROYCE VEZA

Hearing:12 September 2007 (by telephone)

Counsel:M S Gibson for Appellant

M F Laracy for Crown

Judgment:12 September 2007 at 3 pm

JUDGMENT OF O’REGAN J

AThe application for bail is allowed.  The appellant is released on bail for the period until this Court delivers judgment on his appeal, subject to the following conditions:

(i)        He is to reside at 5 Thompson Road, Pamapuria RD2 Kaitaia.

(ii)He is to be present at that address from 8 pm to 7 am daily, and to present at the door if requested to do so by the police.

BThe position that will apply after delivery of judgment will be addressed in the Court’s judgment.

REASONS

[1]       The appellant was convicted of supplying methamphetamine and sentenced to two years imprisonment.

[2]       The appellant has appealed to this Court against his conviction and that appeal is due to be heard next week.  In its submissions for the appeal, the Crown accepts that evidence of text messages which is now available but was not known to the appellant or his then counsel at trial would have been likely to have influenced the jury’s assessment to a considerable degree.  Crown counsel submits that the appeal “will be difficult to resist on this ground”.

[3]       Having received those submissions, counsel for the appellant has applied for bail on behalf of the appellant, 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 cause why bail should be granted.

[5]       Section 14(3) sets out the matters which the Court may take into account in considering an application in these circumstances, instead of the matters dealt with in s 8.  These matters are:

(a)The apparent strength of the grounds of appeal: in light of the Crown’s submissions, there are clearly very strong grounds for the appeal.

(b)The length of sentence imposed on the appellant: in this case the sentence is two years imprisonment, of which the appellant has served about four months.

(c)The length of time that will pass before the appeal is heard: the appeal will be heard in a week or so, but it seems that there is a strong chance it will be allowed, so that bail is being sought effectively in anticipation of the granting of the appeal.

(d)Personal circumstances: there is no information available to me about the appellant’s personal circumstances, other than that, if released, he will be living with his partner and two young children at the bail address.

(e)Other considerations: no other considerations have been raised.

[6]       There is a strong chance the appeal will be allowed.  Counsel for the appellant has indicated that he will ask the Court to direct the entry of an acquittal, rather than ordering a new trial.  I cannot anticipate the outcome of that application.  But even if a new trial were ordered, it is highly likely that bail would be permitted pending the new trial.

[7]       In those unusual circumstances, I am satisfied that the appellant has met the onus of establishing that he should be released on bail.  The Crown did not oppose the granting of bail, but sought a curfew condition, in addition to a requirement that the appellant reside at his home address.  Counsel for the appellant resisted the curfew condition but I am satisfied that, at least pending the hearing of the appeal which is only a few days away, it is appropriate to make that condition.  All aspects of the bail terms can be revisited at the time of the hearing of the appeal if necessary.  I therefore grant bail on the conditions noted above.

Solicitors:
Crown Law Office, Wellington