R v Briaturi [2008] NZCA 133 (22 May 2008)

Last Updated: 17 January 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA697/07 [2008] NZCA 271THE QUEEN

v

ROBERTO MANUEL PISSANO BRIATRUI

Hearing: 31 July 2008 (by telephone)

Court: O'Regan, Robertson and Baragwanath JJ

Counsel: P K D Chambers for Applicant
N P Chisnall for Crown

Judgment: 31 July 2008 at 10.00 am

(Oral)

JUDGMENT OF THE COURT

The application for bail is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] This application for bail involves a reconsideration of a decision given by Chambers J on 22 May 2008 declining to grant bail to the applicant pending the hearing of his appeal against conviction and sentence on drugs charges. The background is set out in that decision: [2008] NZCA 133. In his consideration of the application Chambers J addressed the relevant considerations under s 14(3) of the Bail Act 2000.
[2] First, he determined that the strength of the appeal appeared to be weak. There did not appear to be any evidence to back the claim that there had been a translation error and no details had been provided of the alleged failure of trial counsel to follow instructions.
[3] As to the second factor he determined that the length of the sentence (five years imprisonment) meant that the appeal would not be rendered substantially nugatory if bail were not granted.
[4] On the third factor he dealt with the likely length of time that would pass before the appeal was heard. At that time the appeal was meant to be heard in June and that has now been deferred until September.
[5] He then considered the personal circumstances of the applicant and acknowledged they were difficult but found that there was nothing exceptional about them.
[6] Finally, he looked at the other relevant circumstances which was a statement by the applicant’s counsel that it would assist the preparation of the appeal if the applicant were granted bail.
[7] Before us counsel for the applicant has not taken issue with anything in the decision of Chambers J. The present application is based solely on the fact that there is now a further delay until the hearing of the appeal. That delay involves less than two months from today’s date.
[8] In circumstances where there is an acceptance that the grounds of appeal appear weak, the length of sentence means the appeal will not be rendered substantially nugatory and there are no other compelling circumstances, and where the applicant is a foreign national who would be an obvious flight risk, it is clear to us that there are no grounds for granting bail. We therefore decline the application.

Solicitors:
Equity Law, Auckland for Applicant
Crown Law Office, Wellington