Z v Police HC Auckland CRI-2007-404-201

[2009] NZHC 299

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-201

Z

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 March 2009

Counsel:         R Mansfield for the Applicant

B D Tantrum for the Respondent

Judgment:      10 March 2009

ORAL JUDGMENT OF JOSEPH WILLIAMS J

[1]      The applicant Z   was bailed on 19 September 2007 by decision of Andrews J on appeal from the District Court.   Of concern at the time was the prospect of flight.   Having considered all of the issues Her Honour granted the applicant bail on condition that she reside at Apartment 33, 41B Leslie Avenue, Morningside; that she comply with the usual curfew and reporting requirements; and (most importantly in the context of the concern of the Court at that time) that there be given a $200,000 surety, and that Ms Z   surrender her passport.

[2]      Since that date, there have been no allegations of further offending and there appear to be no problems in terms of compliance with bail conditions, although I

Z V NEW ZEALAND POLICE HC AK CRI-2007-404-201 10 March 2009

note there have been a couple of variations none of which are relevant to today’s application.

[3]      In  January  2009,  Ms  Z    married  Huang  Shin  Fu  who  resides  at

190 Greenlane  Road  with  his  parents.    Ms  Z    now  applies  to  vary  her  bail conditions essentially to allow her to co-habit with her new husband.  As an aside I note there is no contention here for the Crown that there is anything untoward in respect of this marriage.  It is to all intents and purposes a genuine marriage rather than one of convenience, and I set any concerns of that nature to one side in making today’s decision.

[4]      Mr Tantrum, for the Crown, opposed the variation.  He argued that Mr Huang is himself charged with serious drug offences and as a general principle it is inappropriate to condone association between two people both of whom are charged with serious drug offences.  I note for completeness that the two sets of charges do not relate to joint offending so that there are no particular concerns in that regard.

[5]      I note that Mr Huang is also charged with the offence of perverting the course of justice.   The caption summary provided to me indicates that the allegation is Mr Huang attempted by bribery to have a witness perjure himself as to who was the perpetrator in respect of the offending for which he has been charged.

[6]      Mr Tantrum  also  noted  that  the  Crown’s  position  in  respect  of  this application has been consistent.  Apparently counsel for the applicant foreshadowed in September 2008 a likely application to allow the two individuals before me to co- habit, and that there was an indication, even at that early stage that this would be opposed no doubt for the reason of general principle articulated by Mr Tantrum today.

[7]      Section 7(5) of the Bail Act makes it clear that any condition of bail must be reasonable.   In particular, the cases suggest that there must be some rational relationship between the condition and the factors against which bail is considered. They are the risk of flight, the risk of reoffending while on bail, and the risk of interference with witnesses or evidence in the trial.

[8]      Flight is clearly not an issue now and I set that to one side.

[9]      The question for me then is whether there is a greater risk of reoffending or interference with witnesses or evidence if these two are allowed to co-habit.  While as a matter of general principle, one could hardly take issue with the idea that alleged offenders should not be encouraged to associate, the fact is there is no extant prohibition on these two associating and if they wished to reoffend or interfere with evidence or witnesses, they could so wherever they lived.   Co-habitation would neither increase nor decrease that risk, in my view.

[10]     On the contrary, I am struck by the advantages in having these two people in a stable home in which parents and parents-in-law are present.  In my view they are more likely to assist in compliance with bail conditions and reduce the risks to which I have referred than would be the case if Ms Z   was resident in a flat without the strong presence of an older generation.

[11]     Accordingly, it is my view that it is appropriate, indeed desirable in these circumstances,  and  I  note  perhaps  not  others,  but  in  these  circumstances,  for Ms Z   to be bailed to the address of her husband and parents-in-law, and I order that her bail conditions be amended accordingly.

“Joseph Williams J”

Solicitors:

R Mansfield, PO Box 2674, Auckland

Crown Counsel, PO Box 2213, Auckland