C v R HC Christchurch CRI 2007-009-8275

[2008] NZHC 9

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-009-008275

C

v

REGINA

Hearing:         22 January 2008

Counsel:         M Dyhrberg for Applicant

Z R Johnston for Crown

Judgment:      22 January 2008

JUDGMENT OF FOGARTY J

[1]      This is an application for variation of bail.   On 14 September last Rodney Hansen J granted bail on terms which included a curfew between the hours of 9 pm and 6 am.  This is an application to remove the curfew condition.

[2]      The applicant faces joint charges of conspiracy to supply methamphetamine and possession of methamphetamine for the purpose of supply.  The charges were initially laid in Auckland and subsequently identical charges were laid in Christchurch.  A point of some relevance is the question of surety to which I will return in a moment.

[3]      It  now  looks  as  though  this  case  will  be  tried  here  in  Christchurch  in

September of this year.   As the authorities establish, there is a right of counsel to

C  V R HC CHCH CRI 2007-009-008275  22 January 2008

apply at any time for bail and that includes for a variation of bail.  But there is an ethic to be observed that the application should only be made where there has been a change of circumstances.

[4]      Ms Dyhrberg submits that there has been a change of circumstances and the applicant has abided with his bail conditions since granted bail, that he has observed his curfew and that the police have checked and observed security only four times, indicating the police did not have real concern as to his whereabouts.  She further submits that the judgment of this Court granting bail was in a context where in the end the Crown removed its objection to the grant of bail and that is recorded in paragraph [3] where the Judge also noted it was unnecessary for him to give a lengthy decision.

[5]      The conditions of bail, of course, have to relate to the risks.  Ms Dyhrberg relied in that respect on R v Fatu [2005] 22 CRNZ 524 and also on that same case for change of circumstances.

[6]      This application just gets over the bar on a change of circumstances.  There is nothing like the delay in the Fatu case and I am influenced by Ms Johnston not taking too much issue with this threshold which is essentially an informal ethical requirement rather than a legal threshold.

[7]      After discussion with counsel it would seem that the clearly identified risk to be addressed is one of flight and that a better way of addressing the risk of flight is to increase the reporting from three times a week to daily and if this step is taken then the function of the curfew becomes redundant.

[8]      I accordingly allow this application to vary the bail by deleting the curfew and substitute an amended reporting clause as follows:

He shall report every day of the week to the Auckland Central Police Station between the hours of 8 am and 4 pm.

[9]      Secondly, this variation shall not come into effect until fresh sureties are executed.    As  the  applicant’s  mother,  with  whom  he  resides,  and  his  father’s

attorney, both reside in Auckland, the sureties may be executed at the Auckland

High Court.

[10]     To remove any doubt, all the conditions of the bail remain the same except the deletion of the curfew and the amendment of the reporting clause so that leaves the provision for surety by the parents as it appears in the judgment of 14 September in paragraph (g).

Solicitors:

M Dyhrberg, Auckland, for Applicant

Raymond Donnelly & Co, Christchurch, for Crown