K v Police HC Palmerston North CRI 2010-454-44

[2010] NZHC 2253

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2010-454-44

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 December 2010

Counsel:         D Sheppard (on instructions) for Appellant

B D Vanderkolk for Respondent

Judgment:      14 December 2010

JUDGMENT OF SIMON FRANCE J (Appeal against refusal to vary bail)

[1]      Mr K   appeals the refusal to vary his bail conditions.   Mr K   has been on electronic bail for a long time.  The circumstances leading up to this were canvassed in a full decision of Joseph Williams J delivered on 18 March 2010.  Prior to that time Mr K   had been on a 24 hour curfew.   Joseph Williams J having reviewed the situation concluded that the conditions of the bail were too onerous given the length of time that Mr K   had been on bail, and his compliance with the conditions.  His Honour concluded that there was clear evidence of a reduction of

in risk and accordingly varied the conditions.

K V NEW ZEALAND POLICE HC PMN CRI 2010-454-44  14 December 2010

[2]      On 18 November 2010 Mr K   applied for a further variation.  The bases for the variation were:

a)        a trial date which was for July 2010 did not proceed;

b)since   the   decision   of   Joseph Williams J,   Mr K     has   been compliant with the conditions of his bail.

[3]      The variations sought are:

a)        reduction or deletion of his current curfew condition;

b)an  amendment  to  the  geographical  constraint  which  prevents  him from travelling outside of Palmerston North.  It is suggested that the variation could be that he is not to travel within 5 kms of the area where the complainant’s parents live.  I am advised the complainant herself now lives overseas.

[4]      The District Court held that there was no material change in circumstances. The Court nevertheless went on to consider the submissions of counsel that the conditions should be reviewed anyway for reasonableness and concluded that that situation had not been made out.  For myself, if the Court is correct that there has been no relevant change of circumstances, I consider it could have stopped at that point.

[5]      The real issue then is whether there is a relevant change of circumstances since the very full reviews that were undertaken in December 2009 by the District Court, and then on appeal by Joseph Williams J in March of 2010.

[6]      Concerning the loss of the trial date, whilst in some circumstances this could be  a  material  change  in  circumstances,  I  struggle  with  the  idea  that  as  at

18 November 2010 it was a material change.   The loss of the trial date must have been known for about six months by that point in time.  The new trial date is but two months away.   As at the date of the application, I consider it was not a material change.

[7]      The other issue is compliance with conditions.  It of course will always be the case that where there is a protracted period on bail, the point may be reached where it is appropriate to review the severity of the conditions even if there has been no material change.  This was in fact done in the present case by Joseph Williams J in March of this year.   I am far from convinced that another period of eight months justifies a further review.   There can be no doubt, with respect, that in the circumstances facing Joseph Williams J it was appropriate to cut back significantly the 24 hour curfew position that had lasted for some time.  Now however the curfew is a much more standard 7.00 p.m. to 7.00 a.m. and of itself it does not strike me as unreasonable or needing review.  There was some suggestion the curfew was causing difficulties in Mr K  ’s family life.  I note there is no evidence on that, but record it is also unlikely to be of such concern as to merit a change in conditions.

[8]      In relation to compliance I also observe that it is a double-edged sword.  One could equally say that compliance is a product of the conditions working, and they should be maintained.

[9]      I observe that one of the grounds advanced for a change in curfew hours was suggested to be the fact of daylight savings.  I simply record that I do not accept in any way the idea that the regular change in daylight hours of itself will provide a basis for persons to have their curfew hours changed.

[10]     In the ruling under appeal the Court referred to the fact that Mr K   had been charged with property offences occurring whilst on bail.   This was seen as unhelpful  to  the  application,  but  in  my  view  it  was  not  pivotal  to  the  Court’s decision.   On appeal Mr K   has filed evidence that those charges have been resolved.  I accept that and ignore them totally.

[11]     In my view, there being no relevant change of circumstances, and with a trial date but two months away, the District Court was correct to decline the application. Putting my conclusion that way is of course stating it higher than it needs to be, this

being an appeal from an exercise of discretion.  The appeal is dismissed.

Simon France J

Solicitors:

C Wilkinson-Smith, Barrister, PO Box 1544, Auckland 1140, email:  [email protected]

B D Vanderkolk, Ben Vanderkolk & Associates, PO Box 31, Palmerston North email:  [email protected]

Addendum

At the hearing the topic arose of Mr K  ’s ability to seek one off variations.  The Crown indicated it would be receptive.  Subsequent to completing this judgment, I have received an affidavit from Mr K   citing three occasions where applications to vary were not consented to.  I acknowledge receipt of the affidavit but indicate it

does not affect my assessment

Simon France J