J v Police HC Rotorua CRI 2008-463-29

[2008] NZHC 2275

This case has been anonymized

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-29

BETWEEN  J

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 April 2008

Counsel:         K J Ewen for Appellant

A F Pilditch for Respondent

Judgment:      24 April 2008

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

K J Ewen, Taupo

J V NEW ZEALAND POLICE HC ROT CRI 2008-463-29  24 April 2008

[1]      Mr J   has been charged with carelessly using a firearm causing bodily injury to a named person.   The events that gave rise to the charge occurred on 8

December 2007.

[2]      Mr J   is a Danish national.  He arrived in New Zealand with his wife on

7 December 2007 to visit their son, who was in New Zealand on a farm exchange programme.   The person to whom injury was caused was involved in the same exchange programme and all were staying at a farm in Putaruru.

[3]      The discharge of the firearm, in circumstances I need not discuss, allegedly caused serious injury to the complainant, a young man aged 21 years, who came from England.

[4]      Mr J   was granted bail by the District Court at Tokoroa on 14 December

2007.  It was on that date that he surrendered his passport as a term of bail.  He was aware of the investigation up to that time.

[5]      Since then, Mr J   has been committed for trial in the District Court.  It is hoped that the trial can take place during the week of 5 August 2008, though that is to be confirmed at a callover on 14 May 2008.

[6]      Mr J   made an application to vary bail to the District Court.  He seeks variation of the terms of bail to allow him to return to Denmark to attend to business matters pending trial.  He offers to deposit borrowed funds totalling $100,000 with the Registrar of this Court as a security for his return.

[7]      Because a question involving deposit of a sum of money was raised, the District Court Judge declined to deal with the application on Mr J  ’s behalf. Accordingly, the application is now before me for disposal.

[8]      The starting point is that Mr J   is entitled to be released on bail on reasonable terms and conditions.  Bail may only be refused in those circumstances if there were a “real and significant risk” that the accused would fail to appear in Court, interfere with witnesses or evidence or offend while on bail.

[9]      The only issue on this application is whether variation to permit a return to Denmark would cause a real and significant risk that Mr J   will fail to appear for trial.  If such risk existed the application would be dismissed.

[10]     At  my  request,  Mr  J    gave  evidence  orally  before  me.     He  was questioned by Mr Pilditch.    The  evidence  has  been  recorded  and  can  be  made available later, if necessary.

[11]     I am satisfied from Mr J  ’s evidence that he sincerely intends to return to New Zealand for trial.   He made the point well that had he intended to flee the jurisdiction he could have done so  at any time between the  date on  which  the incident occurred and the date on which he was required to surrender his passport. The amount of money he has borrowed to lodge as a surety with the Registrar of this Court represents one-third of the value of his home against which it will be secured.

[12]     He is required to be in Denmark to attend to his business.  His business is licensed by the Government and no other person can attend to it fully in the meantime.

[13]     Being satisfied that there is no real or significant risk that Mr J   will fail to appear for trial, I am prepared to vary the terms of his bail.

[14]     Mr J   will continue to reside at the current bailed address until such time as he leaves New Zealand.

[15]     He may leave New Zealand after the sum of $100,000 has been deposited with the Registrar of the High Court at Rotorua.  That sum will be placed on interest bearing deposit and will be available to Mr J   should he comply with terms of bail.  If he were not to comply, that sum will almost inevitably be forfeited.

[16]     The Registrar shall return Mr J  ’s passport to him on deposit of the money.   Once Mr J   leaves the country he shall reside at Agerstien 40, 5591

Gelsted, Denmark during the terms of bail.

[17]     Mr J   shall return to New Zealand not less than 14 days prior to the scheduled trial date.  That date shall be conveyed to him by his counsel, following callover on 14 May 2008.   Mr J  ’s appearance at callover in May has been excused.

[18]     I would urge the District Court, if possible, to ensure that a firm date is allocated then so that Mr J   can arrange his affairs satisfactorily.   In the meantime, bail is varied on the basis outlined.

[19]     Following his return to New Zealand for trial, Mr J   shall reside at his current bail address.   Forthwith on his return, he shall report to the Police, at the Tokoroa Police Station, and shall surrender his passport to the Registrar of the

District Court at Tokoroa pending outcome of the trial.

P R Heath J