Application to dismiss charges — unduly protracted — sexual offending —sexual violation by unlawful sexual connection — Oranga Tamariki Act 1989, ss 5, 247, 272, 272A & 322 — Criminal Procedure Act 2011, s 147 — Crimes Act 1961, ss 2(1), 22, 128 & 128A — New Zealand Bill of Rights Act 1990, s 25(b) — Attorney- General v The Youth Court at Manukau [2007] NZFLR 103; [2007] DCR 243 (HC) — Police v T [2006] DCR 599 (HC) — Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) — Police v ET [2015] NZYC 412 — H v R [2019] NZSC 69 — R v M (CA689/11) [2011] NZCA 673 — Police v ZW [2017] NZYC 472 — EW v Police YC Manukau CRI-2010-229-000007, 20 December 2010 — Brown v R [2015] NZCA 325 — M (CA427/11) v R [2012] NZCA 270 — R v Flyger [2001] 2 NZLR 721 — Parris v Attorney General [2004] 1 NZLR 519 — R v Gan [2016] NZCA 352 — Christian v R [2017] NZSC 145 — Perkins v R [2011] NZCA 665; M(CA85/2013) v R [2013] NZCA 239 — R v Kauakasi & Ors HC Auckland T014047, 9 August 2002 — R v Rapira [2003] NZLR 794 (CA). The young person faced four charges of sexual violation by unlawful sexual connection. It was alleged he had offended against a fellow pupil while they were at school together. Counsel for the young person sought a dismissal of the charges either pursuant to s 322 of the Oranga Tamariki Act ("OTA") or by s 147 of the Criminal Procedure Act. Section 322 creates a discretion to dismiss charges where the time between the alleged commission of the offence and the hearing has been unnecessarily or unduly protracted, with a meaning similar to that of "undue delay" in s 25(b) of the New Zealand Bill of Rights Act. A court should take into consideration the length of delay, waiver of time periods, reasons for delay, actions of parties involved, limitations on institution resources, and prejudice to the accused. The length of the delay by the time of this hearing was some three years, and would be around four by the time the young person got to full trial. The alleged offending had occurred in 2017 but did not come to light until early 2020 after the complainant had attended a presentation at school assembly on sexual abuse. The procedural background showed that there was period of delay of two months and three weeks between the date of complaint to the police and the referral to a family group conference ("FGC"), three months between the FGC and the first court appearance, and one month and three weeks between the first appearance and the delay hearing. Counsel for the young person was for the most part unable to point to any stage where a delay was realistically avoidable. The Judge noted that in cases involving sexual violation there was often a delay between the alleged offending and reporting. The investigation stage had in fact occurred relatively quickly, especially when the COVID-19 restrictions in place at the time were factored in. The Judge concluded that there was no unnecessary delay in this case and dismissed the s 322 application. With regards to the s 147 application, it had to be established that as a matter of law a properly directed jury could not reasonably convict the accused. The elements of the charges of sexual violation were that there was a sexual connection between the young person and the complainant as described in the charge list; that the complainant did not consent to the sexual connection; and that the young person knew or did not reasonably believe the young person consented to the sexual connection. As the young person had been 13 at the time of alleged offending, the prosecution also had to rebut the presumption that children could not be held criminally responsible. That the sexual connection occurred was conceded; the other three elements had to be proven. The focus of a s 147 application was on the sufficiency of the evidence, not on its quality – the credibility and weight were to be determined by the fact finders, in this case the jury. Evidence was in the form of the complainant's account of events, testimony from current classmates and a school mentor, and from the young person's primary school principal. The Judge was satisfied that the evidence was sufficient in this instance, if accepted by the fact finder, to establish liability on the part of the young person in respect of each of the charges. The application under s 147 was also dismissed. Judgment Date: 15 January 2021. * * * Note: names have been changed to comply with legal requirements. * * *