Osman v R [2011] NZCA 677 (21 December 2011)

Last Updated: 18 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA381/2011 [2011] NZCA 677

BETWEEN MUTAZ MOHAMMED OSMAN Applicant

AND THE QUEEN Respondent

Counsel: B J Hart for Applicant A M Toohey and M H Cooke for Respondent

Judgment: 21 December 2011 at 11.30 a.m.

BAIL JUDGMENT OF RANDERSON J

The application for bail is dismissed.

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REASONS

[1] The applicant seeks bail pending the determination of his appeal against conviction and sentence which has been set down for hearing on 13 February 2012.
[2] The applicant was found guilty after trial on one count of aggravated robbery. An additional count of causing grievous bodily harm with intent to cause grievous bodily harm was dismissed after the Crown sought leave to amend the indictment before it closed its case by offering no evidence on the charge. Counsel then acting for the applicant did not oppose the application.
[3] The applicant was subsequently sentenced by Judge Aitken on 15 June 2011 to three and a half years imprisonment and he was also ordered to pay reparation of $10,000.[1]
[4] The brief facts are that the applicant and an associate approached a young Korean man in the early hours of the morning of 5 December 2009. The Judge found that the applicant held the victim against a vehicle while the associate struck him with a metal car jack causing serious physical injuries. The Judge also found that the applicant kicked the victim while he was on the ground while the associate continued to hit the victim with the car jack.
[5] The essential basis for the appeal against conviction is that the Judge erred in allowing the prosecution to amend the indictment. In consequence, it is submitted that the evidence of serious violence before the jury was inadmissible on the remaining charge in the indictment which, I understand, was brought under s 235(b) of the Crimes Act 1961. A further ground of appeal is alleged disparity with the co-offender’s sentence.
[6] It is submitted on behalf of the applicant that the appeal grounds are strong and, given that the applicant has spent approximately nine months in custody, it is likely the time spent in custody may well exceed the final sentence on appeal.
[7] The Crown opposes the grant of bail on the basis that the appeal has little merit and that there is no appreciable risk that the time spent in custody may exceed the final sentence. The Crown submits that evidence of serious violence was properly admissible under both the original and amended indictment, pointing to s 234(1) of the Crimes Act. It is submitted that violence or threats of violence were an essential element of each of the crimes alleged.
[8] I have considered this application pursuant to s 393(2)(d) of the Crimes Act. The test to be applied in relation to the application is that set out in s 14 of the Bail Act 2000. 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.[2] The onus is on the appellant to show cause why bail should be granted.[3] Relevant considerations are set out in s 14(3).
[9] I am not satisfied that the applicant has satisfied the onus of showing cause why bail should be granted. There is no obvious merit in the grounds of appeal given the statutory definitions referred to by the Crown. Nor, given the Judge’s factual findings, is there any obvious merit in the disparity argument. I accept the Crown’s submission that it is unlikely that the time spent in custody will exceed the final sentence. No other grounds, whether of a personal nature or otherwise, have been advanced in support of the application.
[10] For these reasons, the application for bail is dismissed.

Solicitors:
N G Cooke for Applicant
Crown Law Offfice, Wellington for Respondent

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[1] R v Osman DC Auckland CRI-2009-004-26901.
[2] Bail Act 2000, s 14(1).
[3] Bail Act 2000, s 14(2)/