R v KG [2018] NZYC 278

Published 15 February 2019

Admissibility of evidence — nominated person — sexual violation by unlawful sexual connection — sexual conduct with a person under 16 — Oranga Tamariki Act 1989, ss 221 & 222 — Police v H C [2017] NZYC 375. The young person, KG, faced one charge of sexual violation by unlawful sexual connection and one charge of sexual conduct with a person under 16. It was alleged that when KG was 12 he had sexually abused his younger sister. KG was interviewed by police with his mother acting as his "nominated person". The role of a nominated person is to take reasonable steps to ensure the young person understands the matters explained to them and to support them before and during any questioning and during the giving of any statement. KG's lawyer submitted that his statement given to police admitting the offending should be ruled inadmissible. The basis of this submission was that KG's mother was not an appropriate nominated person as she was the mother of the suspect, mother of the complainant, a witness and the person who took KG to the police station. The Crown opposed this. KG had chosen his mother, she had been present during the interview and statement and had been briefed about her duties as a nominated person. There was no evidence she had failed to fulfill her role. The Judge determined the statement was inadmissible. KG had no real opportunity to select who his nominated person would be and his mother encouraged him throughout the interview to tell police everything. It was clear that her aim at the interview was to find out everything KG had done to his sister and that she did not support her son to the standard required by s 222 of the Oranga Tamariki Act. While a parent is often the appropriate choice of nominated person, in these circumstances the mother could not impartially act in the best interests of the young person. Extreme care must be taken where a nominated person has a relationship with both a complainant and the young person. Judgment Date: 15 May 2018. * * * Note: Names have been changed to comply with legal requirements * * *