S v R HC Wellington CRI-2007-085-7843

[2010] NZHC 938

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-085-7843

CRI-2008-004-20749

S

AND

B

v

THE QUEEN

Hearing:         15 June 2010

Appearances: Mr M Bott for the applicants

Mr M Snape for the respondent

Judgment:      17 June 2010

JUDGMENT OF MALLON J

(Record of and reasons for bail variation decision made on 15 June 2010)

[1]      Mr S   and Ms B   apply for a bail variation.

[2]      They, together with a number of others, face Arms Act charges and a charge of membership of an organised group.  The charges relate to matters alleged to have occurred in 2006 and 2007.   The trial is not scheduled to take place until August

2011.

[3]      Mr S   and Ms B   have been bailed since November 2007.   Bail conditions   initially   included   reporting,   non   association   orders,   geographic

restrictions and a requirement to surrender passports.  Conditions were later reduced

S & B V R HC WN CRI-2007-085-7843  17 June 2010

but still include a number of restrictions including that Mr S   and Ms B   are not to have passports.  There have been no breaches of bail.

[4]      In July 2009 Mr S   applied for a variation of bail to enable him to travel to Switzerland.  That application was granted by the High Court.  Mr S   duly travelled to Switzerland for five weeks and then returned to New Zealand as he had told the Court at the time that he would do.

[5]      Mr S   and Ms B   are partners.  They have a son, who was born in February of this year.  Mr S   is from Switzerland but has lived in New Zealand since August 2003.   Apart from Ms B   and their son, all his family live in Switzerland.   Ms B   was born in New Zealand.   Through her father she is of Taranaki and Te Atiawa descent.   Her immediate and extended family reside in New Zealand.

[6]      Mr S   and Ms B   apply for a variation to enable them and their son to travel to Switzerland to visit Mr S  ’s family.  This travel will enable Mr S  ’s family to meet their grandson/greatgrandson.  There are difficulties in Mr S  ’s family coming to New Zealand including that his grandparents are elderly and, in the case  of  his  mother’s  parents,  ill.    Mr S    and  Ms B    wish  to  travel  to Switzerland  in  September  2010  or  thereabouts.    They  have  filed  considerable material supporting that the trip is genuine and that they intend to return to New Zealand.

[7]      The Crown’s position is that it does not consent to the variation because there must be some risk that Mr S   and Ms B   will not return to New Zealand.  On the material before me that risk seems to be negligible.  When Mr S  ’s previous variation application was granted the High Court Judge said this:

I am satisfied that the application should be granted.  The information before me suggests that the incentives on Mr S   to return to New Zealand far outweigh those for not doing so.   Apart from those which I have already mentioned, Mr S   indicates that he wishes to have the opportunity to defend the charges and I have no reason to doubt that commitment either.

[8]      I take the same view on the information before me both as to Mr S   and

Ms B  .

[9]      Mr S   and Ms B  ’s bail condtions are varied to allow them to travel to Switzerland on dates between 1 September 2010 and 31 October 2010 (the dates have  not  been  organised  given  that  travel  could  only  occur  if  a  variation  was granted).   They are to provide details to the officer-in-charge (or other nominated person) of their departure and return dates, together with documentary evidence of that.  The bail bond may be signed in New Plymouth.

Mallon J

Solicitors:

M Bott, Blackstone Chambers, Wellington, email: [email protected]

M Snape, Luke Cunningham & Clere, Wellington, email: [email protected]