P v Police HC Wellington CRI-2008-485-43

[2008] NZHC 2347

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-43

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 May 2008

Counsel:         M Lillico for Appellant

J Webber for Respondent

Judgment:      27 May 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      This is an appeal against a condition of bail.

[2]      The appellant is  charged  with  indecently assaulting  a  young child.    The allegations allege that he was at a party for his older brother.  It was said that he was grossly intoxicated and late in the evening got into a bed where a three year old child was sleeping.  What then happened is no doubt going to be the subject of the charge itself, although it is not alleged there was any bodily intrusive assault but more touching the victim.

[3]      The appellant was granted bail on the following conditions:

P V NEW ZEALAND POLICE HC WN CRI-2008-485-43  27 May 2008

(1)He  reside  at  his  address  which,  as  I  understood  it  also  was  the property of his parents’ address.

(2)       He not contact directly or indirectly the complainant. (3)       He not consume alcohol or illicit drugs.

(4)       He report to the Johnsonville Police Station on a regular basis. (5)     There be a curfew from 9 pm to 7 am.

(6)Not to associate with any children under the age of 12 years of age unless in the company of his mother.

[4]      The appeal relates solely to the fifth condition, namely curfew.  The appellant says that this is simply unnecessary and an unfair restriction on his movements given that guilt has not been established.   He says that the other conditions of bail are sufficient to adequately protect the public and that the fifth condition unfairly and inappropriately restricts his movements.

[5]      The Crown oppose appeal saying that the condition of bail does relate to the offending itself and is a reasonable condition to give the public reassurance about any danger Mr P   might be.

[6]      I am prepared to allow his appeal and remove the curfew provision.  I agree with the appellant that the other conditions adequately protect the public and are a reasonable  balance  between  Mr  P  ’s  right  of  freedom  of  movement  and  the public’s right to be protected from someone who may have offended against a young child.   I say, of course, “may” because  it  is  currently impossible  to  assess  the allegations made by the prosecution.

[7]      The conditions relating to alcohol and a prohibition against contacting the complainant and a prohibition about being in the presence of children under 12 years of age are, in my assessment, sufficient to protect the public.

[8]      The appeal is allowed.    Condition (5) relating to curfew will therefore be removed from his bail conditions.

“Ronald Young J”

Solicitors:

Ord Lillico, Wellington, for Appellant

Crown Solicitor, Wellington, for Respondent