J v R HC Auckland CRI-2010-004-14676

[2010] NZHC 1889

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-14676

J

Applicant

v

THE QUEEN

Respondent

Hearing:         21 September 2010

Counsel:         A M M Ives for Applicant

W P Cathcart for Respondent

Judgment:      21 September 2010 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an application for bail.   The applicant faces a number of counts in relation to the manufacture and supply of methamphetamine and some related offending.  His arrest arose out of a police operation in which a number of alleged offenders were apprehended and face charges.  This was a major operation in terms of the investigation.   Some of those charged have been granted bail either in the District Court or in this Court.  For others bail applications are outstanding.  One of the alleged lead offenders has an application for bail to this Court which is yet to be determined.   Police contend that the applicant is at a high level of culpability in

relation to the other participants.

J V R HC AK CRI-2010-004-14676  21 September 2010

[2]      The main ground of the application is a compassionate one.  The applicant’s father is currently in the Northhaven Hospital a short distance from the home of the applicant’s parents in Red Beach.  His prognosis is not good.  The medical evidence produced in support of the application notes that he was diagnosed with a large cerebral tumour and underwent surgery and then undergoing chemotherapy which had to be abandoned because of his general poor medical condition.  He is very ill due to the complications.  His prognosis is very poor with a life expectancy probably only a few weeks.  In those circumstances the applicant seeks bail to enable him to spend  time  with  his  mother  and  to  visit  his  father  in  hospital  during  what  are expected to be his last days.

[3]      I take the view that bail in this case needs to be considered effectively in two stages.  The first stage is while those compassionate grounds continue and I limit my consideration to that first stage.

[4]      In the circumstances and having regard to those compassionate grounds I consider that the risk of reoffending while on bail, or the risk of interference with witnesses, or the risk of non-appearance ought to be managed by a grant of bail on conditions directed towards managing those risks at this time.  The circumstances are such that bail ought to be granted on that basis.  What the position would be if those compassionate grounds did not exist:   essentially, what should be an appropriate situation after the father’s death, is a matter which will require further consideration at that stage and I say nothing further about that.   That will be a matter for some other Judge at that time.

[5]      On that basis, I propose to grant bail on conditions which are designed to meet  the  risks  that  I  have  indicated.    Counsel  for  the  applicant  has  helpfully suggested a number of conditions which, in my view, are realistic and would manage the risk in an appropriate way subject to some addition to meet matters raised by counsel for the respondent.  Those conditions relate to residence with the applicant’s mother on a 24 hour curfew at that address.  A condition is also sought, in relation to the  flight  risk,  for  surrender  of  any  valid  passport.    Counsel  for  the  applicant indicates that it is her understanding that the applicant’s passport has in fact been

seized by police but I consider it appropriate to impose such a condition which will address any travel documents which the applicant may still have in his possession.

[6]      There will accordingly be bail on the following terms and conditions:

a)        The applicant is to reside at 8 Panorama Court, Red Beach;

b)The applicant is to remain at that address for 24 hours daily unless he leaves  in  the  company  of  his  mother  Mrs  Anna  J    for  the purpose   of   visiting   his   father   at   Northhaven   Hospice,   142

Whangaparoa Road or to any other medical facility to which his father may be transferred;

c)       The applicant may also be absent from that address, not necessarily in the company of his mother, for the purpose of travelling directly to and directly home from any Court appearance which may be required during the period of bail;

d)The applicant is to attend to answer the  door at the bailed address at any time for the purpose of a check on his presence;

e)       The applicant is not to associate with any of the alleged co-offenders named in the draft summary of facts which is before the Court;

f)        The applicant is not to consume or possess illicit drugs or utensils;

g)       The applicant is to surrender any valid passport or travel documents of which he may still have possession or control and is not to apply for any further travel documents;

h)This bail is to continue for a maximum period of two months.  That period may be shortened if his father’s death should occur before that time.   Accordingly the condition will be that the applicant is to surrender to the High Court at Auckland on 19 November 2010;  or, if

before that date the applicant’s father’s funeral should occur, then within 72 hours after that funeral;

i)The applicant is not to access or use the internet and is not to have or use a mobile telephone.  That condition of non access to the internet will not prevent the presence in the home of any internet access which is presently available at that address, or the use of that internet access by Mrs  J  .

“A D MacKenzie J”

Solicitors:           Annabel Ives, Barrister, Auckland for Applicant

Crown Solicitor, Auckland for Respondent