Olsen v The Queen

[2015] NZCA 3

IN THE COURT OF APPEAL OF NEW ZEALAND

CA632/2014
[2015] NZCA 3

BETWEEN	MICHAEL KRISTIAN OLSEN Appellant
AND	THE QUEEN Respondent

Counsel:

Appellant in Person
J E Mildenhall for Respondent

Judgment:

(On the papers)

16 January 2015 at 3.00 pm

JUDGMENT OF RANDERSON J

The application for bail pending appeal is granted subject to the following conditions:

1. The appellant must reside at all times (24 hours per day seven days per week) at 34 Sentinel Road, Herne Bay, Auckland.

2. The appellant must present himself to the New Zealand Police at the door of the residence whenever requested to do so by a member of the New Zealand Police.

3. If the appellant’s mother dies before the appeal is heard, the appellant must surrender his bail immediately after the funeral by presenting himself to the Registrar of the District Court at Auckland.

4. The appellant or respondent may apply to this Court to vary the terms of bail if necessary.

____________________________________________________________________

REASONS

1. On 18 November 2014 I declined an application by the appellant for bail pending appeal.[1]  The appellant has now made a second application for bail on the grounds of changed circumstances.

   [1]Olsen v R [2014] NZCA 555.

2. The principal changed circumstance is that the appellant’s mother has been diagnosed with a terminal illness.  This has been confirmed by the Registrar of the Auckland Hospital who has advised that she is likely to have only a few months to live.  The appellant has been previously bailed to his mother’s address in Auckland.  The appellant says that he is an only child and that there is no one else who could look after his mother during her illness.  This is confirmed by his mother.  Both desire to be together during the last period of her life.

3. The Crown continues to oppose the grant of bail but, has sympathy for the appellant’s position.  Ms Mildenhall submitted that the appropriate course would be for the appellant to apply for temporary release under s 62(2)(a)(ii) of the Corrections Act 2004 on compassionate grounds.  Since that submission was made, the appellant has provided a letter to the Court from the New Zealand Parole Board Administration Support Service advising that a request for temporary release on compassionate grounds cannot be actioned since the circumstances are not such as to fulfil the relevant criteria.

4. The Crown also points out that the appellant’s reliance on misidentification as a ground of appeal would appear to be difficult given that the appellant gave evidence at trial and accepted that he caused the victim’s injuries.  Notwithstanding these submissions and the risk that the appellant may not comply with the terms of bail, I am satisfied in terms of s 14 of the Bail Act 2000 that the present circumstances are sufficiently exceptional to warrant the grant of bail pending appeal in the interests of justice.  I take into account particularly the personal circumstances of the appellant and his mother in terms of s 14(3)(d) of the Bail Act.

5. Bail pending appeal is granted subject to the following conditions:

   1.The appellant must reside at all times (24 hours per day seven days per week) at 34 Sentinel Road, Herne Bay, Auckland.

   2.The appellant must present himself to the New Zealand Police at the door of the residence whenever requested to do so by a member of the New Zealand Police.

   3.If the appellant’s mother dies before the appeal is heard, the appellant must surrender his bail immediately after the funeral by presenting himself to the Registrar of the District Court at Auckland.

   4.The appellant or respondent may apply to this Court to vary the terms of bail if necessary.

6. The appellant has applied for legal aid and it is in his best interests that he should receive legal assistance.  The Registrar is requested to:

   (a)Contact the Legal Services Agency to ascertain whether legal aid has been granted.

   (b)Arrange a telephone conference before me in one month’s time so that further directions may be given as to the prosecution of the appeal.

Solicitors:
Crown Law Office, Wellington for Respondent