R v O HC Hamilton CRI 2007-019-10310

[2009] NZHC 1115

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-019-010310

THE QUEEN

v

O

Hearing:         24 August 2009

Appearances: M N Sturm for the Crown

K L Tustin for Accused

Judgment:      24 August 2009

ORAL JUDGMENT OF RANDERSON J [Application for Variation of Bail]

Solicitors:           Almao Douch, PO Box 19173, Hamilton 3244

K L Tustin, PO box 9035, Hamilton 3240

R V O HC HAM CRI 2007-019-010310  24 August 2009

[1]      Mr O   seeks a variation of electronic bail conditions granted by Heath J on 5 February 2009.   Heath J indicated in his decision that the grant of bail was marginal but was satisfied that with strict conditions it was appropriate to grant bail. One of those conditions was that Mr  O   reside and remain at a Hamilton address on a 24 hour curfew basis.  This address is that of his mother.  Condition (h) of the grant of bail provides:

Save for the case of a medical emergency, Mr O   may not leave the property without providing 24  hours  notice  to  the  electronic  monitoring assessor of the purpose for which he requires to leave and the route he will take to and from the place to which he will go.  If the assessor determines that there is no need to leave the residence, Mr O   shall not leave the residence.   However, the assessor’s consent to the type of movement to which I have referred, shall not be unreasonably withheld.

[2]      The application now seeks a variation to enable Mr O   to leave the address for two hours each week for a variety of purposes.   These could include attending  the  dentist;  keeping  appointments  with  WINZ;  attending  to  personal matters such as obtaining clothing; medical appointments; taking his 20 month old son  to  the  park  and  matters  of  that  kind.  Ms  Tustin  for  Mr  O    has  also mentioned that he wishes to investigate some training courses and is looking at employment prospects.

Counsel’s Submissions

[3]      It is suggested that as a condition of the variation Mr O  ’s mother would accompany him on any trips away from the bail address and that 24 hours prior notice would be given to the E-Bail co-ordinator.

[4]      Mr Sturm for the Crown opposes the grant of bail and has raised the matters already covered by Heath J in his previous decision.  He also points out the fact that there was a breach of bail in May which was dealt with by a decision of Andrews J delivered on 8 May 2009.   Since then there has apparently not been any further breach of bail and Ms Tustin advises that Mr O   has recently had a further urine test which was found to be clear.

[5]      Mr O  ’s trial is to take place in this Court on 2 November this year which is a little over two months away.  I am not persuaded that the variation should be granted.   None of the matters raised seem to be particularly pressing.   More importantly, under condition (h) the bail co-ordinator has the discretion to grant relief from the 24 hour curfew for specific purposes approved by the co-ordinator and  subject  to  such  special  conditions  as  the  co-ordinator  may impose.    If  Mr O   has a specific need to leave the residence (save in the case of medical emergency which is already exempted) his proper approach is to apply to the E bail co-ordinator, providing appropriate details and corroboration for any appointment he may have or other need to leave the home.

Result

[6]      On that basis the application is dismissed.

A P Randerson J Chief High Court Judge