The Queen v Patel [2007] NZCA 380 (30 August 2007)

Last Updated: 6 September 2007

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 with the informant the locations where he might attack the proposed victim and where and how his body might be disposed of. You drove him to the various locations you proposed that he use for the attacks. You showed the informant where the victim could be found and gave him the victim’s telephone number and registration number of a car. You discussed the price you would pay the informant and you went so far as to buy both a mallet hammer and a pair of gloves for the purposes of the informant carrying out the murder. Your attempt to procure the informer to carry out the murder was only brought to an end when the police arrested you. It was not a case of you changing your mind. You were committed to your course of action throughout which was to procure the informant to commit the murder.

[4] The charges of threatening to kill arise from a number of threats you made to kill Mr Sharda and your wife. In the course of your discussions with the informant you told him that if he wasn't serious about killing them then you would kill them yourself. You also made further threats directly to your wife when you went to her home on 27 June 2004. You threatened her. You said that you would burn her and Mr Sharda alive. You said she would suffer a long and torturous death. The next day, on 28 June just two days before the police arrested you, you again threatened to kill your wife.

[7] Under s 14, the starting point is that the Court must not agree to bail unless it is satisfied that, on the balance of probabilities, it would be in the interests of justice in a particular case to do so. Certain criteria are specifically referred to but overall the question is: what do the interests of justice require?
[8] With regard to the specific issues which are referred to, the first is the apparent strength of the grounds of appeal.
[9] From what Mr Patel has said to us today, it seems he has some complaint that the trial did not go the way he wanted and he now wants to bring out the truth. Whether Mr Patel intends to challenge the conduct of his counsel we are not sure, but we have had an opportunity to look at the file.
[10] There was an overwhelming evidential base for the essential elements of the facts which are in issue. In this regard, we note particularly that Venning J said at [6] in dealing with Mr Patel’s perception and assessment of his present position:

[6] There are a number of concerning aspects to the pre-sentence report the probation officer has prepared. The probation officer notes that you spoke with a sense of entitlement when referring to your family, a sense of control. Despite being found guilty by the jury, you continue to maintain your innocence. You say you were set up. Your counsel has said your instructions are that you still hold the informer and the police accountable. Mr Patel that is simply unsustainable. The transcript of what you said is very very clear. It is also very clear that you were the one directing the conversations. You simply refuse to accept responsibility for your actions. You are assessed as having a low level of motivation to assess factors contributing to your offending and your risk of re-offending is assessed as being high. Given your attitude to your actions that must be so.

[11] Secondly, it is relevant to note that Mr Patel has been convicted of serious charges and sentenced to a substantial term of imprisonment. There is nothing there which suggests that the presumptive situation should not apply.
[12] Providing Mr Patel can get himself organised, the Court is in a position, within a couple of months, to hear his appeal so that is not a case of any undue or lengthy delay.
[13] Mr Patel has drawn particular attention to the personal circumstances of himself and his family. There must be a degree of concern about this. The issues referred to above by Venning J are echoed in the way he spoke about his children and his wife in light of the period in which they have been separated and the problems there have been between them.
[14] Mr Patel indicated that he has a niece in Wellington who appears to have a legal qualification, a sister and brother in law who are currently overseas and a nephew he does not see as being of assistance. All this goes to his to a central theme of the problems of the preparation of his file because he is incarcerated.
[15] We do not under-estimate the fact that there can be difficulties for prisoners, but that is not a unique circumstance and not a matter which relates to this particular case. There are many people who, with the assistance of proper and professional counsel, are able to prepare. As one of the Judges indicated to Mr Patel in the course of this hearing, an appeal is heard on the basis of the record in the Court below. The core material is already in Mr Patel’s hands and can be passed to the counsel he chooses to engage to assist him in this regard.
[16] Although there are always some difficulties, Parliament has clearly and unequivocably directed the presumptive position which must apply. We have seen the 160 points which are contained in Mr Patel’s initial 25 page application to the Court. None of those go to the issues which are of relevance or have probative value with regard to this exercise.
[17] The Court is unable to find any grounds to overcome the presumption against releasing a sentenced prisoner and the application for bail is accordingly refused.

Solicitors:
Crown Law Office, Wellington