R v H HC Auckland CRI-2010-055-1155

[2010] NZHC 2205

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-1155

THE QUEEN

v

H

Hearing:         7 December 2010

Appearances: J L S Shaw for the Crown

M Kennedy for Mr H 

Judgment:      8 December 2010

RESERVED JUDGMENT OF ELLIS J [on Application to Vary Bail]

This judgment was delivered by me on 8 December 2010 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:       M Kennedy, PO Box 6955, Auckland 1141

R V H HC AK CRI-2010-055-1155  8 December 2010

[1]     Mr  H    presently  faces  charges  of  conspiring  to  manufacture methamphetamine and manufacturing methamphetamine.  He is one of a number of persons facing similar charges arising out of what is known as “Operation Hype”. The application before me is one for variation of Mr H  ’s current bail conditions, namely the curfew that he is under between 7 pm and 6 am each night.  The curfew was one of the three bail conditions that were agreed between Ms Kennedy for Mr H   and the Police when Mr H   was first admitted to bail by Harrison J on

1 June 2010.

[2]      The principal reason, in practical terms, for the application is that Mr H   wishes to travel around New Zealand performing with a band.  As I understand it, this would likely require him to be away from his bail address overnight primarily on some Friday and Saturday nights.

[3]      In legal terms, the reasons advanced by Ms Kennedy on Mr H  ’s behalf were that there is no nexus between the imposition of the present curfew and the particular risks on which the imposition of bail conditions are required to be focused and in particular, those risks identified in s 8(1) of the Bail Act and reiterated in s 31(3) of that Act.  Section 31 would appear to apply to the present matter by virtue of s 49(1)(d).

[4]      At the hearing before  me Mr Shaw indicated  that the Crown would not oppose the revocation of the curfew condition provided it were to be replaced by suitable reporting conditions namely that Mr H   report three times a week to the Howick Police Station.   This, he said, would address the concerns underlying the Crown’s initial position in favour of a curfew because it would give the police some surety that Mr H   remained living at his bail residence and had not otherwise absconded or gone into hiding.  In that respect Mr Shaw stressed the seriousness of the charges presently faced by Mr H  .

[5]      Initially I had thought that, in light of the Crown’s indication, the matter might be able to be resolved by agreement.  Ms Kennedy had indicated in response to Mr Shaw’s proposal that the change of conditions might be acceptable provided appropriate allowance could be made for the opening hours of the Howick Police

Station and Mr H  ’s work obligations. She suggested that the hours kept by the

Manukau Police Station might prove more conducive in that respect.

[6]      However, following a short adjournment to enable Ms Kennedy to take instructions and to consider the proposal Ms Kennedy advised that she had been unable to obtain instructions (Mr H   being unable to be located) and that she wished to maintain her initial position, namely that unless the Police could show that there was a clear link between the proposed condition (whether it be a curfew or reporting) and the identified and applicable bail risks, then no such condition should be imposed.

[7]      Mr H   is not bailable as of right under s 7 of the Bail Act but he must nonetheless be released on reasonable terms and conditions unless the Court is satisfied that there is just cause for continued detention (s 7(5)).   I accept that “reasonable terms and conditions” are properly referable in a general sense to the risks referred to in s 8(1).  As I have said, that is reinforced by the terms of s 31. When that section is read as a whole it is clear that reporting conditions (which are specifically referred to in, and authorised by, s 31(2)) are themselves directed to

those three risks.  I also refer in this respect to R v Keefe.[1]

[1] R v Keefe CA 162/04, 22 July 2004.

[8]      In that respect Mr Shaw did not seek to rely on either the second or the third risks identified in those provisions; he did not suggest that there was any significant concern that Mr H   would interfere with witnesses or evidence or that he would offend while on bail.

[9]      As regards the first s 8(1)/s31(3) risk – that Mr H   may fail to appear in court on the date to which he has been remanded - I record that there have been no issues with Mr H  ’s bail compliance during the six months since Harrison J’s orders.  However as I have indicated, Mr Shaw said that a real risk does exist due simply to the seriousness of the charges faced combined with the approaching trial (although the trial date is at present unknown and necessarily remains some way off). He also submitted that the Police needed and were entitled to have some means of

assuring themselves that Mr H   was continuing to reside at his bail address, particularly in light of his present intention to travel around with his band.

[10]     There is of course view always a risk that a person who is on bail will abscond or not appear.   The question is what conditions (if any) are “reasonably necessary” to ensure that that does not occur.

[11]     In my view the present risk of Mr H   at some later point absconding or failing to appear cannot be said to be sufficient to warrant the continuation of the existing curfew.  In that respect I accept Ms Kennedy’s submissions that a curfew necessarily involves a quite significant curtailment of Mr H  ’s rights under s 18 of

the New Zealand Bill of Rights Act 1990: R v Fatu.[2]   Mr H   cannot be categorised

as a young (alleged) offender.

[2] R v Fatu CA 454/05, 15 December 2005

[12]     Equally, however, I consider that some form of assurance as to Mr H  ’s continued residence at his bail address can be said to be reasonably necessary.  The provision of a means whereby the Police can obtain such assurance necessarily goes a considerable way to addressing future risks of non-appearance.   I consider that reporting conditions can be said to be reasonably necessary in light of my intention to revoke the curfew condition.

[13]     For the reasons I have given I make the following orders:

a)        The condition reflected in [2](2) of Harrison J’s judgment of 1 June

2010 is revoked;

b)Mr  H  ’s  bail  is  to  continue  on  the  remaining  two  conditions referred to by Harrison J in [2] together with the further condition that he present himself at the Howick Police Station at some time between the hours of 8 am and 4 pm on Monday and Thursday of every week.

[14]     In the event that the reporting times contained in this order present particular problems for Mr H   in terms of his work commitments then counsel are to agree a

suitable variation (as to either times or place) which can be brought back before me

for approval.

Rebecca Ellis J