TAMAKI v POLICE [2022] NZHC 593

TAMAKI v POLICE [2022] NZHC 593 [29 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000076[2022] NZHC 593BETWEEN BRIAN RAYMOND TAMAKIAppellantAND NEW ZEALAND POLICERespondentHearing: 25 March 2022Counsel: RM Mansfield QC for AppellantBH Dickey for RespondentJudgment: 29 March 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 29 March 2022 at midday.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.RM Mansfield QC, Auckland.[1] Brian Tamaki faces four charges of intentionally failing to comply withCovid-19 orders. Police allege Mr Tamaki: (a) organised a protest atAuckland Domain 2 October 2021; (b) attended (a); (c) attended a second Domainprotest 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 wasvideoed at each and some footage made news. However, Mr Tamaki deniesintentionally 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 attendedHagley Park, Christchurch, 8 January 2022, during a protest there.[4] On 27 January 2022, Davison J granted Mr Tamaki bail subject to a 24-hourcurfew. The Judge concluded the curfew would "mitigate the risk of offendingwhile on bail".1[5] Mr Tamaki applied to vary his bail to permit a family holiday between 14 and23 March 2022. Mr Tamaki proposed to visit Gisborne and Rotorua.Judge P J Sinclair declined the variation 11 March 2022 because of risk ofre-offending.[6] Mr Tamaki appeals Judge Sinclair's decision on the basis circumstances havechanged.[7] Mr Mansfield QC contends Mr Tamaki poses no material offence risk becausethat alleged is exclusively directed at outdoor gatherings; and restrictions of theseended midnight, 25 March 2022. So, Mr Mansfield contends, even if Mr Tamaki wereminded now to attend a large outdoor gathering, he could not, in so-doing, commit anyCovid-19-related offence.2 It follows things have changed fundamentally since1 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 andHastings between 16 and 29 April 2022.[8] On behalf of Police, Mr Dickey responsibly acknowledges the unusualness ofthe situation: an error-free decision overtaken by events.[9] Mr Mansfield's logic is unassailable. That Mr Tamaki may holiday is notbecause a defendant may ordinarily do so while on bail. Rather, because the landscapeinforming 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