Nguyen v R [2015] NZCA 219 (8 June 2015)

Last Updated: 23 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA275/2015 [2015] NZCA 219
BETWEEN	PHUONG ANH NGUYEN Appellant
AND	THE QUEEN Respondent

Counsel:	M Meyrick for Appellant B J Dawson for Respondent
Judgment: (On the papers)	8 June 2015 at 2.30 pm

JUDGMENT OF HARRISON J

The application for bail is dismissed.
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REASONS

[1] Phuong Anh Nguyen appeals against her conviction following a trial before a Judge and jury in the District Court on five counts of importing pseudoephedrine and one count of possessing pseudoephedrine for supply. She also appeals against her sentence of two years and seven months imprisonment.
[2] Ms Nguyen has applied for bail pending a determination of her appeal.^[1] The Crown opposes. In accordance with the statutory provisions I have personally considered her application.^[2]
[3] The principles governing an application for bail pending appeal are well settled. Bail is not to be granted unless the Court is satisfied on the balance of probabilities that it is in the interests of justice to do so.^[3] Ms Nguyen carries the onus of showing cause why bail should be granted.^[4] Admission to bail pending appeal is unusual; it is only to be granted in exceptional circumstances where the overall interests of justice require it.^[5] The fact that Ms Nguyen has been found guilty of a number of offences following her trial counts against admission for bail unless she can establish that the strength of her appeal when coupled with any appreciable delay in its determination, point to an injustice if she is detained in the meantime.
[4] Mr Meyrick has filed a comprehensive synopsis of submissions in support of Ms Nguyen’s application, setting out in some detail the four principal grounds of her appeal against conviction as follows: (a) the prejudice caused to her fair trial rights as a result of systemic delays; (b) abuse of process and the serious prejudice caused by comments made by a Crown witness; (c) the trial Judge’s erroneous decision to prohibit defence counsel from conducting the proper cross-examination of a Crown witness; and (d) the trial Judge’s erroneous decision to exclude evidence.
[5] Mr Meyrick simply submits that Ms Nguyen’s appeal against conviction is solidly supported. However, on Mr Meyrick’s summary none of the four grounds appears on its face to be compelling and in the absence of an analysis of those grounds which shows their particular merits I cannot reach a view about Ms Nguyen’s prospects on appeal. Her application falls well short of the threshold required for exceptional circumstances which might justify admission to bail pending determination of her appeal. I am not satisfied that the interests of justice require that course.
[6] Mr Meyrick also submits that Ms Nguyen’s rights of appeal against both conviction and sentence might be rendered nugatory if bail is not granted. That is because Ms Nguyen may well have served her effective sentence by the date of hearing for her substantive appeal. The remedy lies with Mr Meyrick. He should request the Registry to allocate a prompt fixture to hear Ms Nguyen’s appeal.
[7] The application for bail is dismissed.

Solicitors:
Berman & Burton, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] Bail Act 2000, s 70.

^[2] Crimes Act 1961, s 393(2)(d).

^[3] Bail Act, s 14(1).

^[4] Bail Act, s 14(2).

^[5] Ellis v R [1998] 3 NZLR 555 (CA) at 560; affirming Moananui v R (1984) 1 CRNZ 231 (CA).