R v P HC Napier Cri-2008-020-4688

[2010] NZHC 392

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2008-020-004688

THE QUEEN

v

P

Appearances: R J Collins for the Crown

G W Calver for the Prisoner

Judgment:      16 February 2010

ORAL JUDGMENT OF MACKENZIE J

[1]      P  , you appear as a consequence of having been arrested for a breach of the conditions of  your bail.   The current conditions of the bail were imposed on 18 November 2009 in this Court and include a condition not to associate with his co-offender, Karl Nathan, nor with any member of the Mongrel Mob while on bail.  It is alleged that you were associating with a Mongrel Mob member, Zane Lewis, who apparently is your younger brother.  Your explanation given was that he is not a patched member of the gang.

[2]      Mr Collins, for the Crown, acknowledges difficulties of definition with the clause.  He says that the clause was offered by you and was not sought by the Crown and he now submits that the difficulty of definition is such that that part of the

condition should be removed.

R V P HC NAP CRI-2008-020-004688  16 February 2010

[3]      But for that attitude on the part of the Crown, I would be minded to take a serious view of this matter so as to require me to investigate whether there had in fact been a breach of bail in this respect.  One reason for my inclination to take a somewhat stern view would be the fact that your appearance on 18 November when this  condition  was  imposed  was  itself  the  result  of  an  alleged  breach  of  bail. However, in view of the approach taken by counsel for the Crown, I am minded to take a less serious view of the matter.

[4]      Among the considerations which counsel for the Crown has raised is that your  trial  is  due to  commence in  April,  it  having been  delayed  until  that  time awaiting the decision of the Supreme Court in Morgan v R1 and it is accepted by the Crown that if that appeal were successful it may well mean that the basis of the evidence against you would be insufficient to sustain the charge and you would be entitled to a discharge.  Mr Calver, on your behalf, has referred to the fact that the

association was with a family member.  He suggests the possibility that the condition be amended to exclude from its prohibition, immediate family members.  Mr Collins, however, submits that that too would raise jurisdictional and definitional difficulties.

[5]      In  those  circumstances  I  am  minded  to  adopt  counsel  for  the  Crown’s suggestion and to renew your bail on the same terms and conditions as are contained in paragraph 5 of the minute of Andrews J of 18 November 2009 with the exception that the words in (d) “nor with any member of the Mongrel Mob” will be deleted from that condition.   You will be released on bail on those terms accordingly.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Napier for Crown

G W Calver, Barrister, Hastings for Mr P 

1      Morgan v R SC 92/2008