Tamaki v Police

[2022] NZHC 593

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000076

[2022] NZHC 593

BETWEEN

BRIAN RAYMOND TAMAKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 March 2022
Counsel:	RM Mansfield QC for Appellant BH Dickey for Respondent
Judgment:	29 March 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 29 March 2022 at midday.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. RM Mansfield QC, Auckland.

TAMAKI v POLICE [2022] NZHC 593 [29 March 2022]

[1]                 Brian Tamaki faces four charges of intentionally failing to comply with Covid-19  orders.  Police  allege  Mr  Tamaki:  (a)  organised  a  protest  at   Auckland Domain 2 October 2021; (b) attended (a); (c) attended a second Domain protest 16 October 2021; and (d) attended a third Domain protest 20 November 2021. Large outdoor gatherings were then prohibited by Covid-19 orders.

[2]                 Mr Tamaki does not deny attending (b), (c) or (d). He could not—he was videoed at each and some footage made news. However, Mr Tamaki denies intentionally breaching any Covid-19 orders. He denies the charges.

[3]On 17 January 2022, Mr Tamaki was remanded in custody. This because:

(i) charges in relation to (c) and (d) arose while Mr Tamaki was on bail for (a) and (b); and (ii) in alleged contravention of his conditions of bail, Mr Tamaki attended Hagley Park, Christchurch, 8 January 2022, during a protest there.

[4]                 On 27 January 2022, Davison J granted Mr Tamaki bail subject to a 24-hour curfew. The Judge concluded the curfew would “mitigate the risk of … offending while on bail”.1

[5]Mr Tamaki applied to vary his bail to permit a family holiday between 14 and

23  March  2022.  Mr  Tamaki  proposed   to   visit   Gisborne   and   Rotorua.   Judge P J Sinclair declined the variation 11 March 2022 because of risk of re-offending.

[6]                 Mr Tamaki appeals Judge Sinclair’s decision on the basis circumstances have changed.

[7]                 Mr Mansfield QC contends Mr Tamaki poses no material offence risk because that alleged is exclusively directed at outdoor gatherings; and restrictions of these ended midnight, 25 March 2022. So, Mr Mansfield contends, even if Mr Tamaki were minded now to attend a large outdoor gathering, he could not, in so-doing, commit any Covid-19-related offence.2 It follows things have changed fundamentally since

1      Tamaki v Police [2022] NZHC 41 at [35].

2      Mr Tamaki has undertaken he will not attend or speak at any political gathering ala Covid-19.

11 March 2022 and Mr Tamaki should be able to holiday at Rotorua, Gisborne and Hastings between 16 and 29 April 2022.

[8]                 On behalf of Police, Mr Dickey responsibly acknowledges the unusualness of the situation: an error-free decision overtaken by events.

[9]                 Mr Mansfield’s logic is unassailable. That Mr Tamaki may holiday is not because a defendant may ordinarily do so while on bail. Rather, because the landscape informing Mr Tamaki’s bail conditions has changed since they were imposed.

[10]The appeal is allowed. Bail is granted on the conditions proposed.

……………………………..

Downs J