H v Police HC Nelson CRI 2008-442-4
[2008] NZHC 150
•19 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI 2008-442-4
H
Applicant
v
NEW ZEALAND POLICE
Respondent
Hearing: 19 February 2008
Appearances: H Roose for the Applicant
C Stevenson for the Crown
Judgment: 19 February 2008
ORAL JUDGMENT OF MACKENZIE J
[1] Ms H faces a number of counts of alleged fraud by false accounting. She was granted bail in the District Court. She applied in January 2008 for a variation of the conditions of bail to permit her to travel overseas to Australia on a family matter. The learned District Court Judge, who heard the application, indicated that he accepted unreservedly that she had good reason to travel to Australia to attend to the family matters and were it in his power to require the deposit of a suitable sum as surety, or the entry into an obligation of a bond or surety, he would have had no hesitation in granting bail. He noted however, that
under s 31(4) of the Bail Act 2000 no bond can be required.
H V NEW ZEALAND POLICE OJ HC NEL CRI 2008-442-4 19 February 2008
[2] Dealing first with the question of jurisdiction, s 31 applies to bail in summary proceedings. When matters proceed to indictment and the defendant has been committed for trial s 52 of the Bail Act applies. That section applies to s 31 “with any necessary modifications”. There is authority from this Court to the effect that the expression, “with any necessary modifications”, preserves the High Court’s inherent jurisdiction to grant bail on any terms including requiring a surety. By way of comment, I would say that it seems strange that the power to require a surety should be dependent on the inherent jurisdiction of the Court, rather than as an expressed provision in the Act itself. That is particularly so when it is borne in mind that on police bail, which may be granted under s 21, a surety can be required. Thus on the face of the provisions; police are entitled to require a security; the District Court is not empowered to require a surety; and the High Court’s ability to require a surety requires recourse to the inherent jurisdiction. That seems an odd result, which may require further consideration at some stage. It is however unnecessary for me to resolve that issue today.
[3] Mr Stevenson for the Crown accepts that it would be reasonable to allow bail, subject to a surety of an appropriate amount. The issue for me is what would be an appropriate amount of the surety. The surety must be related specifically to the purpose for which it is required; that is to ensure the attendance of the applicant at trial. Counsel for the Crown, in written submissions, submits that a sum of $60,000 would be appropriate, as providing a fund which would be sufficient to fund extradition proceedings if those proved necessary.
[4] Mr Roose submits that a lesser sum would be sufficient to ensure that the purpose of the bond could be satisfied, given the circumstances that the applicant will be travelling with her parents to Australia and they will have some ability to ensure compliance with the bond. In the circumstances, I consider that an appropriate figure to set is the sum of $10,000 and that will be the amount of the bond which will be required.
[5] There will be a variation of the bail terms which currently apply to the following effect: the applicant’s passport, which is currently held by Mr Roose, is to be released to the applicant at 9am on the 4th of March 2008. The applicant is
permitted to travel to Australia, but not beyond, and must return to New Zealand, and surrender her passport to the registrar in person by 2pm on the 12th of March
2008. There will be a surety from her parents to be given jointly in the sum of
$10,000. Custody of the passport while the applicant is in Australia is a matter for the parents who will of course have the responsibility under the bond and may exercise control of that as a means of ensuring compliance.
“A D MacKenzie J”
Solicitors: Pitt & Moore, Nelson
H Roose, Nelson
0
0
0