Brian Tamaki wins appeal to allow him to go on holiday after Covid-19 rules change

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Destiny Church pastor Brian Tamaki has been granted a bail variation to go on holiday next month.

Brian Tamaki speaks to supporters outside Auckland Central Police Station, 23 November 2021

Photo: RNZ / Marika Khabazi

The decision was made because restrictions on outdoor gatherings ended for My Vaccine Pass users at 11.59pm on Friday, and will lift for everyone – even unvaccinated people – on 5 April. Tamaki’s holiday is planned for 16 April onwards.

These restrictions were the basis for the charges against him, so there is no risk he could breach gathering laws and therefore his bail conditions.

Tamaki has been under 24-hour home curfew for two months, after spending 10 days in jail in January. At the time, Judge Davison said the curfew would “mitigate the risk of … offending while on bail”.

He denies four charges related to large Covid-19 protests he was at – the first of organising a protest at Auckland Domain in October 2021, when gathering limits were 10 people. The second, third and fourth charges relate to attending three other protests. He denies all charges.

Tamaki’s bail conditions include not going to any outdoor gatherings in breach of Covid-19 laws.

Earlier this month, before the government announced outdoor gathering limits would be scrapped, he applied for a bail variation so he could go on a domestic holiday. He was declined; Judge Sinclair determined Tamaki was at “risk of re-offending”.

Tamaki appealed that on the basis that the laws have now changed.

In the High Court at Auckland today, Justice Downs overturned that and granted him a bail variation to allow the domestic holiday.

“Mr Mansfield QC (Tamaki’s lawyer) 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 [sic, should read midnight 26 March.]. 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,” Justice Downs wrote in his decision.

Prosecutor Brian Dickey acknowledged the “unusualness” of the matter – “an error-free decision overtaken by events”.

“Mr Mansfield’s logic is unassailable,” Justice Downs wrote. “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.”

Tamaki still faces the four charges.

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