Olsen v Police

COURT OR TRIBUNAL

High Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

21/11/2023

LITIGATION TYPE

Access to Justice

SUBJECT MATTER

Protest activities

REVIEW TYPE

N/A

SUMMARY

BAIL - appeal by way of rehearing (Bail Act 2000 s42(6)) against District Court decision to decline the appellant's application for bail simpliciter in respect of one charge of endangering transport (Crimes Act 1961 s270(1)(b)) - the appellant allegedly attempting to concrete her hand to State Highway One in wellington as part of a protest against climate change inaction with the group Restore Passenger Rail - these alleged actions were in breach of pre-existing bail conditions for two other charges of endangering transport and one charge of being a pedestrian on a motorway (Government Roading Powers Act 1989 s82(1)(a) and 87(1)(a)) arising from alleged similar protest actions

HELD: the District Court Judge did not err in not referring to climate change or the right to protest in “rights” terms - the Bail Act 2000 needs to be interpreted in a way that is consistent with rights assured under the New Zealand Bill of Rights Act 1990 (NZBORA) (R v Fatu) - the right to protest is guaranteed under the NZBORA because it is a product of the right to freedom of expression and the right of peaceful assembly (NZBORA s14 and s16) - however, the District Court Judge did adequately consider the right to protest by being attuned to those considerations as to the context in considering the alleged offending - the District Court Judge did not err in considering video evidence of the alleged protesting as going to the strength of the evidence under s8(2) Bail Act 2000 - the video evidence was of direct relevance - new information that the appellant put forward since the District Court judgment did justify granting ordinary bail because the balance of factors under s8 meant there was no just cause for the continued detention of the appellant - despite a risk of the appellant reoffending while on bail, evidence that the appellant would lose her job should she be released on electronically monitored bail and evidence that she had taken safety precautions in protesting - a factor going to the nature of the offending meant that it would be unjust under s8(1)(b) of the Bail Act 2000 to detain her any longer and careful conditions could manage risk - appeal allowed and bail simpliciter granted with reporting conditions.

CASE DOCUMENTS

Olsen v Police [2023] NZHC 2637