Police v Nahi (13 March 1991) HC, Christchurch, M. 97/91, Williamson J

Unreported
File number: M. 97/91
Date: 13 March 1991
Court: High Court
Location: Christchurch
Judge: Williamson J
Charge: Indecent Assault
Key Title: Bail

Summary:
Bail application; N (17) charged with indecently assaulting an elderly woman; threatened her with a knife; took clothing. Bail previously refused due to seriousness of offence, absconding and public interest. Criminal Justice Act 1985, s142(4) often overlooked. Police v Simeon [1990] 2 NZLR 116 cited. Court must release a 17-20 year old on bail "unless it is of the opinion that no other course is desirable having regard to all of the circumstances". Court found that as N could live with mother and would abide by curfew terms, it could not conclude that bail on strict terms was not desirable.

Decision:
Bail granted on strict terms.

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Weir v Police (1991) 7 CRNZ 128 (HC)

Case summary provided by BROOKERS

Name: Weir v Police (1991) 7 CRNZ 128
File number: AP60/91
Date: 15 March 1991
Court: High Court, Christchurch
Judge: Williamson J
Key Title: Sentencing in the adult courts: Other

Summary:
Sentence - Corrective training - Appellant 17 years of age - Sentence of corrective training - Where corrective training should be imposed - Corrective training available where had offender been over the age of 20, offender would have received imprisonment of over 3 months - No reference to what an adult offender would have received in the circumstances - Necessary for a Court to have considered likely sentence on an adult - Sentence of corrective training invalidated - General limitations on imprisonment especially for young persons - Criminal Justice Act 1985, ss 7(1), 9, 68.

The appellant and three others entered a tavern around midday and removed liquor to the value of $1,900. At the time of sentencing the appellant was 17 years old. The appellant was charged with burglary, theft, and failing to answer bail. He was convicted and sentenced to corrective training.

Held:
Corrective training should only be imposed where the Court is satisfied that had the offender been over the age of 20 the offender would have been sentenced to imprisonment of 3 months or more. In imposing such a sentence a Court should consider the likely sentence upon an adult. Reaching the conclusion without the appropriate reference is a ground to invalidate the corrective training sentence. In view of the appellant's age, the nature of the offending, and that this was a first appearance in the District Court, the sentence was inappropriate.

Decision:
Sentence of corrective training invalidated.

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R v Toko (1991) FRNZ 447 (HC)

Case summary provided by BROOKERS

Name: R v Toko (1991) 7 FRNZ 447
File number: T1/91
Date: 9 April 1991
Court: High Court, Auckland
Judge: Sinclair J
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Reasonable Compliance, Rights

Summary:
Children and young persons - Evidence - Admissibility - Young person not informed of rights before questioned by police - Evidence inadmissible - Children, Young Persons, and Their Families Act 1989, ss 215(1)(b), 218, 221, 224.

The accused, a young person, was charged with causing grievous bodily harm to H. The oral and written statements made by him to the police were challenged as inadmissible in that the interviewing officer did not advise the accused of his rights under s 215(1)(b) of the Children, Young Persons, and Their Families Act 1989.

Held, ruling the statements inadmissible:
As there was absolutely no attempt at all by the officer to warn the accused of his rights before he was taken from his home and questioned, it does not seem that the reasonable compliance clause can be resorted to. In all the circumstances, s 215(1)(b) has not been complied with and, applying s 221 of the Act, both the oral and written statements become inadmissible.

Obiter:
'on a perusal of this legislation, it is an absolute minefield. How any serving police officer could be expected to remember, in the heat of an inquiry and in the circumstances which existed here, all the matters required to be remembered under s 215, let alone how they should be dealt with at various times, places the officer in an impossible situation.'

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I v Police (1991) 7 FRNZ 674 (HC)

Case summary provided by BROOKERS

Name: I v Police
Reported: (1991) 7 FRNZ 674
File number: M131/91
Date: 23 May 1991
Court: High Court
Location: Hamilton
Judge: Doogue J
Charge: Murder; Aggravated Robbery
CYPFA: s 243; s 438
Key Title: Bail; Media Reporting

Summary:
Youth Justice - Name suppression - Young person charged with murder and aggravated robbery - Applications for bail and for suppression of name - Principles of and criteria for granting bail - Emphasis of law in favour of bail - Justice demands name suppression while applicant on bail - Children, Young Persons, and Their Families Act 1989, ss 243, 438(3)(a); Criminal Justice Act 1985, ss 140, 142; New Zealand Bill of Rights Act 1990, s 24.

The 15-year-old applicant was charged with murder and aggravated robbery. He was committed to this Court for trial. He now applies for bail. Associated with that is an application for continued suppression of his name under s 438 Children, Young Persons, and Their Families Act 1989 (on the basis that the committal to this Court was part of the proceedings under the 1989 Act), or alternatively, under s 140 Criminal Justice Act 1955.

Held, granting the application:

1. (Listing the criteria commonly considered on bail applications) there is no suggestion in the case of any basis for refusing bail. In those circumstances, when due regard is given to the emphasis of the law in favour of bail (ie s 24 New Zealand Bill of Rights Act 1990, s 142 Criminal Justice Act 1985, and relevant sections under the Children, Young Persons, and Their Families Act 1989), particularly of a young person, there is no basis for the refusal by this Court of bail.
2. The provisions under the Children, Young Persons, and Their Families Act 1989 relating to rights of bail do not directly apply to the present case by virtue of s 243 of that Act.
3. Once the young person has been committed to this Court for trial, the proceeding is no longer under the Children, Young Persons, and Their Families Act 1989. In any event, the bail application is not a proceeding under that Act. This Court has no power to grant bail directly under that Act, notwithstanding that it does have power to review any order which may have been made in respect of a young person in relation to custody or bail under that Act. That is not the case here. The application for suppression of name is thus to be dealt with under s 140 Criminal Justice Act 1985.
4. In this case, where the co-accused's name is suppressed (notwithstanding that he has also been committed for trial), and the effect of the granted bail is that the applicant will be at school where there would be clear problems for the applicant, his mother, and for the school if the name of the applicant were published, justice demands, not only for the applicant vis-a-vis his co-accused, but in respect of the community at large, that his name should be suppressed so long as he is on bail.[(1991) 7 FRNZ 674, 675]

Application:
This was an application by a young person charged with murder and aggravated robbery for bail and name suppression.

The facts appear from the judgment.

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R v Tarawa HC Auckland S.60/91, 14 May 1991

File number: S.60/91
Date: 14 May 1991
Court: High Court, Auckland
Judge: Barker J
Key Title: Sentencing in the adult courts: Sexual violation by rape; Sentencing in the adult courts: Aggravated Burglary; Sentencing in the adult courts: Application of Youth Justice Principles

Summary:
T (16 at time of offending) pleaded guilty to aggravated burglary and sexual violation by rape charges. On both occasions, T broke into houses and used knife/screw driver to threaten occupants. T showed remorse; had whanau support. Family Group Conference held, need for imprisonment acknowledged. Although in some circumstances a young person may get a lesser sentence than an older person for the same offence, some cases are so appalling that any reduction in sentence made primarily in the offender's interest will be seen as an outrage on the public conscience. Thus, no great reduction can be made here because of offender's youth.

Decision:
Four years imprisonment.

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R v Feetau HC Auckland S 79/91, 26 June 1991

File number: S 79/91
Date: 26 June 1991
Court: High Court, Auckland
Judge: Doogue J
Key Title: Sentencing in the adult Courts: Aggravated burglary

Summary:
F (15) one of 20 youths who intimidated five tourists and threatened them with a replica pistol; F a ring-leader. F eligible for prison but not corrective training which would be more appropriate; victims thought prison would be useless for F. Probation Service recommended Napier Cadet Academy; F and family accepted these recommendations. Remanded for sentence to Napier High Court in one month's time. If succeed at Academy no further sentence, otherwise prison a possibility.

Decision:
Remanded to Napier High Court in one month. Bail on conditions.

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R v Moss and Cuckow HC Gisborne S.4/91, S.5/91, 30 August 1991

File number: S.4/91; S.5/91
Date: 30 August 1991
Court: High Court, Gisborne
Judge: Temm J
Key Title: Sentencing in the adult Courts - Arson

(For appeal against sentence see R v Cuckow CA 312/91, 17 December 1991).

Summary:
M (15) and C (15) deliberately burned down a school; guilty pleas; principles in sections 5, 6 and 208; effect on victims and the desirability of keeping young people out of adult prisons considered.

Decision:
Two years imprisonment.

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R v Accused (Fryer) (1991) 8 FRNZ 119 (CA)

Case summary provided by BROOKERS

Name: R v Accused (Fryer) (1991) 8 FRNZ 119
Court: Court of Appeal
File number: CA311/91
Date: 19 September 1991
Judge: Cooke P, Gault, Holland JJ
Charge: Rape
CYPFA: s 215; s 224
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Nominated Person, Admissibility of statements to police/police questioning (ss 215-222): Reasonable Compliance; Rights

Summary:
Youth justice - Rights of accused - Young person accused of rape interviewed by police - No express reference made to entitlement to presence of barrister or solicitor or person nominated by young person under Act - But young person given clear indication that legal advice could be obtained - Mother present throughout interview - Finding of reasonable compliance upheld - Children, Young Persons, and Their Families Act 1989, ss 215, 224.

Application:
This was an application for leave to appeal from a pretrial ruling determining that certain police evidence was admissible at the trial despite non-compliance with s 215 Children, Young Persons, and Their Families Act 1989.

The facts appear from the judgment. The defendant, a 14-year-old boy charged with raping a 7-year-old girl, was interviewed in the presence of his mother. When first questioned he denied responsibility, claiming an alibi. At the beginning of the interview, he was cautioned that he need not say anything unless he wanted to, but anything that he did say might be used in evidence and that he was entitled to legal advice. He was also told that his mother would remain throughout the questioning and that if he consented to give a statement he could withdraw his consent at any time. The interview lasted an hour, after which the detective went away to check on the alibi which was found to be false. The interview resumed. Another warning in the standard form was given to the defendant but nothing more was said which could have amounted to compliance with the requirements of s 215(1)(f) Children, Young Persons, and Their Families Act 1989 (ie that the young person was entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any person nominated by the child or young person in accordance with s 222 of the Act). The defendant then made plain and frank admissions of guilt in answer to questions. The High Court, in a pretrial ruling, admitted police evidence of the admissions made by the defendant young person on the basis that there had been reasonable compliance in terms of s 224 with the requirements imposed by s 215. This was an application for leave to appeal from that ruling.

Held, declining the application:
Although there was considerable deviation from the requirements of s 215 (arising from the fact that there was no express reference to entitlement to the presence of a barrister or solicitor or to any person nominated by the young persons), on the evidence before him, the High Court Judge was entitled to find reasonable compliance in terms of s 224. The spirit and object of hte relevant part of the Act being that adequate protection be provided for children or young persons in police interviews regarding a possible offence, enough was done here to ensure no significant contravening of the purposes and the provisions of the Act (although the case is not far from borderline).

There was a clear indication that legal advice could be obtained and, although the boy was not invited to nominate any person for consultation or attendance, the mother was manifestly the very sort of person contemplated by the Legislature.

Obiter:
This is far from suggesting that these sections impose mere formalities and may be disregarded with impunity by investigating police officers. A factor of importance here is that, the Crown having tendered evidence to discharge the burden of showing reasonable compliance and having adduced enough evidence to establish that prima facie, no evidence in response was called for the accused. The impression which is left is that the points arising under the Act are more of a technical nature in this case and that nothing substantially unfair or seriously contrary to the purposes of the Act took place.

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R v Cuckow CA 312/91, 17 December 1991

Court: Court of Appeal
Reported: [1992] BCL 308; 15 TCL 1/10
File Number: CA 312/91
Date: 17 December 1991
Judge: Cooke P, Richardson, Gault JJ
Key Title: Sentencing in the adult courts - Arson; Sentencing in the adult Courts - application of Youth Court principles; General principles of Sentencing eg parity/jurisdiction; Reports - Psychiatric; Reports - Psychological

[See also High Court decision: R and Moss and Cuckow HC Gisborne S.4/91, S.5/91, 30 August 1991 per Temm J].

Summary:
Appeal against sentence of imprisonment. Appellant and co-offender (both 14) charged with a number of offences including arson; Family Group Conference held; Youth Court (YC) Judge did not offer s 276 jurisdiction to co-offender and thought that YC jurisdiction should be offered to the appellant; however, for reasons of parity, both defendants refused YC jurisdiction. High Court had benefit of psychiatric and psychological reports showing appellant not normally criminally inclined, easily influenced; HC had only brief pre-sentence report; considered YC measures better suited to appellant's situation yet both defendants given 2 year prison terms; protection of community an overriding factor.

Held:
Principles in the CYPFA should underlie consideration of any sentence in respect of a young offender; there had been insufficient information before the High Court about the appellant and that if certain offender information had been available to the Court, the sentence would not have been so strong; as offender had already completed 3 months and had "learnt his lesson" his sentence was quashed and substituted with a sentence of supervision for two years with conditions.

Decision:
Sentence quashed. Supervision for two years with conditions.

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R v Irwin (1991) 9 FRNZ 487 (HC)

Case summary provided by BROOKERS

Name: R v Irwin (1991) 8 FRNZ 487
File number: T32/91
Date: 2 December 1991
Court: High Court, Hamilton
Judge: Fisher J
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Reasonable Compliance, Rights ,

Summary:
Children and young persons - Evidence - Admissibility - Offence of being a party to murder - Voir dire - Accused young person not informed of rights before police interview - Statement inadmissible - Children, Young Persons, and Their Families Act 1989, ss 2, 208(h), 215, 221(2), 222, 224.

The accused, aged 15, was charged with being a party to a murder. The Crown's case was that the accused and another youth, Rogers, formed a common purpose to carry out an aggravated robbery involving firearms, and that the accused knew that the murder of the deceased was a probable consequence of carrying out that plan. The evidence was that as soon as the shots were fired, the accused left Rogers who drove off in the deceased's car. The accused was apprehended shortly afterwards near the murder scene.

The following sequence of events occurred:

• 7.30 pm An officer was called to the scene to supervise the accused. It was not disclosed whether the officer was told the accused's name and address. The officer discussed the situation with the accused.
• 8.00 pm The officer heard the accused say to a bystander that when caught, he, the accused, had been on his way to a police station to turn himself in.
• 8.10 pm The officer advised the accused that he was taking the accused back to the police station. The accused was not given any option in the matter or advised of his rights.
• 8.20 pm At the police station, the officer interviewed the accused. He began with the conventional caution given to an adult. He did not refer to the possibility of consultation with a lawyer or with another adult nor that such persons might be present during the interview. The accused made two critical concessions in the interview.
• 8.40 pm The first phase of the interview ended. The officer discussed (from memory) with the accused his rights under the Children, Young Persons, and Their Families Act 1989. With the consent of the accused, it was arranged for a social worker to be present for the next phase of the interview.
• 9.30 pm The interview resumed in the presence of the social worker. The officer had the accused confirm that he had previously been "advised on his rights". During the interview, the accused repeated his statements and provided more incriminating details. The interview was recorded in writing and signed by the accused.
• 1.30 am The accused was formally arrested.

In a voir dire during the accused's murder trial, the defence objected to the admission of the statement made by the accused to the officer in the interview.

Held, ruling the statement inadmissible:

1. As the accused was not arrested until the interview had been completed, all six paragraphs (the required explanations) under s 215(1) applied. Only two (ie the conventional adult caution provisions contained in s 215(1)(c) and (e)) had been given by the end of the initial interview in the police station. Hence there was an irrevocable non-compliance with the explanation provisions before requiring the accused to accompany and before questioning the accused. There was no proper compliance with the explanation provisions even after the initial interview. Furthermore, there was no compliance with the consultation and presence provisions even after the arrival of the social worker.
2. In deciding whether there has been reasonable compliance, a starting point is the principle in s 208(h) that during a criminal investigation the vulnerability of young persons calls for their special protection. That objective is to be attained in substance rather than in form and this is reflected in s 224. It is not the letter of the rules which matters but whether, in substance, the youth understood that he did not have to accompany the officer, that he could consult with a lawyer and an independent adult before giving a statement, that he could have them present, and that he could stop the interview and leave at any time until arrested. It must be the cumulative effect of those requirements that matters, without preoccupation with any particular provision.
3. The officer cannot rely on the accused's ostensible intention to go to a police station in any event as an answer to the failure to advise him of his right to decline to accompany. The officer should have some reservations about the truth of the accused's remark but in any case, it cannot be equated with an understanding of legal rights by the accused.
4. The Crown's submission that the portion of the statement made after the social worker's arrival should be admitted is unacceptable. Once there has been substantial non-compliance, it will usually be difficult or impossible to prevent it from prejudicing any subsequent interview. In some cases, preliminary deficiencies might be curable if the full statutory explanation is then given, followed by a full discussion between the accused and his or her lawyer, and the interview is voluntarily continued with the lawyer and/or properly nominated adult present. This is not such a case. At no stage were the proper explanations ever given, nor was there ever any meaningful opportunity for consultation. These were all matters of substance, not of form.
5. The breaches in this case are individually significant and cumulatively overwhelming. It is not a case of reasonable compliance. Unless the Act is to be ignored altogether, the statement must be excluded.

Obiter:
'it [is] surprising and regrettable that over a year after the Act came into force, and after the publicity given to decisions such as R v Fitzgerald, the officer concerned should have fallen so far short of the requirements of the Act, in so many respects, in a matter which was so patently serious.'

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