Y v R HC Auckland CRI 2009-092-10550
[2010] NZHC 680
•7 May 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-092-010550
BETWEEN Y
Applicant
ANDTHE QUEEN Respondent
Hearing: 7 May 2010
Counsel: J Haigh QC and Paul F Wicks for Applicant
David G Johnstone for Respondent
Judgment: 7 May 2010
(ORAL) JUDGMENT OF HUGH WILLIAMS J
The application for variation in the terms of bail is granted and Mr Y is admitted to bail until the next callover or fixture in this Court on the following terms:
a)He is to report to the Auckland Central Police Station or such other 24 hour police station as is approved in writing (including by email) by the officer in charge of the case at least 48 hours beforehand.
b) The time of reporting is to be between 8am and 4pm on Mondays, Wednesdays, Fridays and Sundays.
c) His bail bond is to be signed by his partner Wei Yu and she is to certify that she understands the terms of bail to which Mr Y has been admitted and her obligation to assist in ensuring he complies with those terms.
d) He has an obligation not to apply for or obtain any travel documents in either hard copy or electronic format and, despite the relaxation, he is still not to go to any international departure port or airport.
Y V R HC AK CRI 2009-092-010550 7 May 2010
[1] This judgment deals with an application by Y g for variation in the terms of bail to which he is currently subject.
[2] Mr Y currently faces an indictment charging him with two counts of possession of a false passport, seven counts of using a document and one each of supplying false information, deceiving a person exercising a function and making a false declaration. Despite the number of charges in the indictment, the case principally revolves around the Crown allegation that the accused obtained a second passport illegally in his native China and used that to obtain permanent residency and ultimately New Zealand citizenship.
[3] The question of the accused’s bail has occupied the District Court on at least three occasions.
[4] On 29 June 2009, he was admitted to bail on terms that required reporting to Auckland Central Police Station three times daily and a curfew from 8pm to 8am. Those terms of bail were amended on 12 August 2009 to reporting three times weekly but with retention of the curfew and again on 24 September 2009 when the reporting was reduced to once per day between 8am and 4pm with the curfew deleted. He was also directed not to apply for or obtain any travel documents either in hard copy or electronic format and not to go to any international departure port or airport.
[5] Since that time the accused’s trial has been removed under s 28J of the District Courts Act 1947 for trial in this Court by a Judge alone. The case currently has a fixture for hearing of pre-trial applications concerning proposed defence expert evidence and whether the Crown can call some of its witnesses by video-link. That will be heard in August this year. The trial is in May 2011.
[6] Mr Haigh QC, senior counsel for the accused, has applied for a reduction in the reporting for his client to say once or twice per week.
[7] Mr Johnstone, for the Crown, made clear that the only issue impacting on the terms of the accused’s bail is whether he is what is colloquially known as a “flight risk” or whether, in terms of s 8(1)(a) of the Bail Act 2000, there is a risk he may fail to appear in Court on the date to which he has been remanded.
[8] Mr Haigh, made the following points:
a) That at any one time there is a window of opportunity of up to 32 hours between the earliest reporting on one day and the latest reporting on the next when, if so minded, Mr Y might decamp from the country.
b)That the trial is not until May next year and Mr Y has complied faithfully with onerous terms of bail since he was originally granted bail, some 11 months ago.
c) That Mr Y has a partner and two infant children in New Zealand and has business interests here.
d)That he has been in New Zealand for nine years and is a New Zealand citizen.
e) That even if he were minded to leave New Zealand, there is really no country to which he could go, particularly given his assertion that he is in jeopardy if he returns to China because of his attitude to the State authority there.
f) Finally, Mr Haigh relies on s 18 and 24D of the New Zealand Bill of Rights Act 1990 and points to the Court of Appeal’s observations on bail in relation to those sections in R v Fatu.1
[9] Mr Johnstone stressed the facts of the matter and submitted this was a case where all the background circumstances were such as to give rise to a justifiable
1 R v Fatu (2005) 22 CRNZ 524 at 526, [2006] 2 NZLR 72.
inference that Mr Y might be minded to leave New Zealand improperly and evade trial.
[10] Some general comments about bail might be in order. An enormous amount of time is spent by Courts in this country devising and imposing terms of bail. Some of the terms regularly imposed are readily checkable such as a bar on applying for passports or travel documents. Some are detectable, although only with considerable difficulty and are often reliant on others. They include such things as a full curfew where police have to call to check in the early hours of the morning and the like or conditions debarring phone or personal contact with say a complainant or non- association with witnesses. Some terms of bail are scarcely checkable at all, such as a bar on a person going outside a particular geographical area. All are designed to grant the person liberty but to limit their freedom of action and movement in particular ways and as remarked to counsel during argument in this case, all of them leave windows of opportunity for reoffending or for breach of bail on the part of those who might be so minded.
[11] In particular, although we now have electronic monitoring of bail in this country, it is a relatively unsophisticated system which simply triggers an alarm if the person wearing an electronically monitored bracelet proceeds outside a tightly defined and restricted area. In these days, and this is particularly apposite to the present case, the GPS system is now so sophisticated and precise that one might have thought that technologically it would be simple for a GPS system to be incorporated as part of an electronic monitored bracelet. If that were done, those monitoring such bracelets would know precisely where accused persons on bail are - 24 hours a day and seven days a week - and they could be rapidly apprehended if, for instance, an accused person accused of a violent crime approaches the complainant. Other than that, their freedom of movement could be anywhere in New Zealand subject to those restrictions. But it seems we do not have a monitoring system of sufficient sophistication to employ the up-to-date technology of the GPS system.
[12] Coming back to Mr Y ’s position, he makes the point that he has fully complied with the detailed terms of bail to which he has been admitted for a lengthy period now but he suggests through counsel, that it imposes an unreasonable
restriction on him and one which invokes the Bill of Rights Act provisions earlier mentioned. He, of course, points to the length of time he has complied with those conditions and says that the terms of bail now unreasonably inhibit his capacity to act as a family man or pursue his business interests.
[13] As a result of that, it has been decided that the application should be granted and that Mr Y is admitted to bail until the next callover or fixture in this Court on the following terms:
a) He is to report to the Auckland Central Police Station or such other
24 hour police station as is approved in writing (including by email)
by the officer in charge of the case at least 48 hours beforehand.
b)The time of reporting is to be between 8am and 4pm on Mondays, Wednesdays, Fridays and Sundays.
c) All other terms of bail remain in force.
d)His bail bond is to be signed by his partner Wei Yu and she is to certify that she understands the terms of bail to which Mr Y has been admitted and her obligation to assist in ensuring he complies with those terms.
e) He has an obligation not to apply for or obtain any travel documents either in hard copy or in electronic format, and, despite the relaxation, he is still not to go to any international port or airport.
[14] Those terms of bail will be subject to review by the Judge dealing with the pre-trial matters.
7 May 2010.
.................................................................
HUGH WILLIAMS J.
Solicitors:
Crown Solicitor, PO Box 2213 Shortland Street, Auckland 1140
Email: david[email protected]
Counsel:
J Haigh QC/Paul F Wicks, PO Box 1614 Shortland Street, Auckland 1140
Copy for: Leroy[email protected]
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