S v District Court At New Plymouth (1992) 9 FRNZ 57

Case summary provided by BROOKERS

Name: S v District Court at New Plymouth
Reported: (1992) 9 FRNZ 57; [1992] 3 NZLR 508; 8 CRNZ 241
File number: M31/92
Date: 30 April 1992
Court: High Court
Location: New Plymouth
Judge: Barker J
Charge: Aggravated Robbery; Unlawful Discharge of a Firearm; Assault
CYPF no: s 275
Key Title: Jurisdiction of the Youth Court - s 275 offer/election

Summary:
Youth justice - Aggravated robbery - Administrative law - Judicial Review - Youth, 14, not given opportunity by Justices of Peace of forgoing jury trial and electing to be tried in Youth Court due to seriousness of charges - Justices gave insufficient weight to principles relating to welfare of young person - Benefits to young person of speedy trial - Case remitted - Young person to be given option under s 275(1) - Children, Young Persons, and Their Families Act 1989, ss 4, 5, 208, 274(2)(a), 275, 276, 277, 283, 284; Judicature Amendment Act 1972.

The prosecution alleged that two armed men robbed a picture theatre and that S, aged 14, was a secondary party to that crime. S was charged indictably with two counts each of aggravated robbery, unlawful discharge of a firearm, and assault. He wished to plead not guilty. Another offender, G, had been charged as a principal party in the robbery. Upon S's application, the two Justices of Peace who presided over the depositions hearing declined to give S the opportunity under s 275(1) Children, Young Persons, and Their Families Act 1989 of forgoing trial by jury and of electing to have the informations heard and determined in a Youth Court by a Youth Court Judge. The reason given was that the charges were too serious. The Crown had indicated that should S go on trial in the High Court, he would be tried jointly with G. This was an application for a judicial review of the Justices' decision.

Held, remitting the matter back to the Justices of Peace:

1. The Justices did not give sufficient weight to the principles in the Act relating to the welfare of the child (found in ss 4, 5, and 208). Their decision based solely on the severity of the offence was too simplistic in light of the fact that the youth was only a secondary party to the offence.
2. The committal of G is sufficiently far away and uncertain; the benefit to the young person of a speedy trial in the Youth Court outweighs any desirability of having him tried jointly with G in the High Court. In some cases the desirability of joint offenders being tried together could make it difficult to grant an application under s 275. This is not the case here.
3. The plaintiff must therefore succeed. The matter is to be remitted to the Justices who are directed to give S the option under s 275(1).
4. If the youth advocate here cannot be sufficiently remunerated for costs and disbursement under the Act, then this would be an eminently proper case for the grant of legal aid.

Cases referred to:
Police v M [1990] DCR 544
R v M and C (1985) 1 CRNZ 694 (CA)[(1992) 9 FRNZ 57, 58]

Application:
This was an application for judicial review of the decision of two Justices of Peace declining to give a young person the opportunity of forgoing trial by jury and of electing to have the information heard and determined in a Youth Court by a Youth Court Judge.

The facts appear from the judgment.

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Allen v Police (3 April 1992) HC, Rotorua, M 42/92, Barker J

Name: Allen v Police
Unreported
File number: M 42/92
Date: 3 April 1992
Court: High Court
Location: Rotorua
Judge: Barker J
Charge: Sexual Violation - Rape and Unlawful Sexual Connection
Key Title: Bail

Summary:
Application for bail; defendant faced two charges of sexual violation - one of rape and one of unlawful sexual connection. Defendant initially granted bail in Lower Hutt Youth Court but he was later found intruding in a house apparently about to commit a sexual offence; Lower Hutt Court then refused bail as real potential for escape and real risk of physical harm. Further application made to Tauranga Youth Court (as trial was to be in Rotorua) where Judge found defendant should be in secure care until his High Court trial. Barker J also refused bail as defendant's inappropriate conduct had forfeited his right to bail (I v Police 7 FRNZ 674 distinguished).

Decision:
Bail refused.

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Ratten v Edge (1992) 9 FRNZ 297 (HC)

Case summary provided by BROOKERS

Name: Ratten v Edge
Reported: (1992) 9 FRNZ 297
File number: AP20/92
Date: 10 June 1992
Court: High Court
Location: Timaru
Judge: Holland J
CYPFA: s 2; s 215, s 221
Key Title: Admissibility of statements; Jurisdiction of the Youth Court - Age

Summary:
Children and young persons - Statutory interpretation - 17-year-old defendant interviewed about crime allegedly committed while a young person - Whether to be treated as "young person" under the Act - Whether interviewing officer needs to inform defendant of young person's rights - Children, Young Persons, and Their Families Act 1989, ss 2(2), 215, 221.

This was an appeal by way of case stated by the Crown against a District Court's ruling that a statement made by a 17-year-old youth to a police officer in relation to a crime alleged to have been committed by him when he was aged 16, was inadmissible under s 221 Children, Young Persons, and Their Families Act 1989 because the interviewing officer did not comply with s 215 of the Act. The interviewing officer considered that the appellant was no longer a young person and that the provisions of the Act did not apply.

Held, dismissing the appeal:

1. The situation has been dealt with by the High Court in Police v W (cited below) where it was held that such a person was still a young person within s 2(2) of the Act. The Crown's submission that the definition of "young person" in Police v W only relates to the appropriate Court for the proceeding is unsupportable.
2. It may be that if there were no existing decision of the High Court, this Court could have been persuaded that, notwithstanding the clear wording of s 2(2), Parliament could not have intended for adults at the time of interview or being charged to be treated as children. That, however, seems to be the clear meaning of the words used in the statute.
3. The decision of Police v W is indistinguishable from this case. It would not be in accordance with the best interests of justice for a puisne Judge to embark on an exploration with a view to reaching a conclusion different from that case. If the Crown wishes the law to be applied differently then there should either be a statutory amendment or a decision of the Court of Appeal.

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Police v Edge (1992) 9 FRNZ 659 (CA)

Case summary provided by BROOKERS

Name: Police v Edge
Reported: (1992) 9 FRNZ 659
File number: CA277/92
Date: 17 December 1992
Court: Court of Appeal
Location: Wellington
Judge: Cooke P, Richardson, Casey, Hardie Boys, Gault JJ
CYPFA: s 2; s 208; s 215; s 221; s 245; s 272
Key Title: Admissibility of Evidence; Jurisdiction of the Youth Court - Age

Summary:
Children and young persons - Statutory interpretation - Appeal from case stated - Seventeen-year-old interviewed about crime allegedly committed while a young person - Whether to be treated as "young person" under Act - Children, Young Persons, and Their Families Act 1989, ss 2(2), 208, 209, 211, 215, 221, 245, 272; New Zealand Bill of Rights Act 1990, ss 23(1)(b), 25(i); Summary Proceedings Act 1957, ss 107, 144.

In June 1992, the High Court (see (1992) 9 FRNZ 297), by way of a case stated and following the decision in Police v W (cited below), upheld a District Court's ruling that a statement made by a 17-year-old youth to a police officer in relation to a crime alleged to have been committed by him when he was aged 16 was inadmissible under s 221 Children, Young Persons, and Their Families Act 1989 ("the Act") because the interviewing officer did not comply with s 215 of the Act. This application for leave to appeal from the High Court decision was granted by the Court of Appeal which went on to deal with the appeal.

Held, (Gault J dissenting) allowing the appeal:

1. The meaning of s 2(2) of the Act must be considered against the background of the statute as a whole. The key words are "where proceedings ... are contemplated or taken". The word "contemplated" is to be seen in context. The context is that before proceedings are taken other measures are to be considered (ss 209, 211, and 245 where appropriate). The word "contemplated" must therefore refer to an event, ie to the initiation of procedures under the Act, and not to a state of mind. The starting point is an allegation by or to a person in authority that a particular child or young person has committed a particular offence. It is at this point that the obligation to consider alternative sanctions arises under s 209, as does the obligation to consult and to hold a family group conference under s 245. It is therefore at this stage that s 2(2) comes into play. If at this stage the suspect is a child or young person, all subsequent procedures must be conducted on the basis of the suspect's age at the time of the offence.
2. In this case, no proceedings had been taken and none were contemplated before the respondent was interviewed. As he was not then a young person, s 2(2) had no application and neither did s 215. Thus there was no obligation to give him the warnings prescribed by that section. It follows that the view that the case should go to the Youth Court was erroneous.
3. On this analysis Police v W was incorrectly decided as in that case proceedings had neither been taken nor contemplated while the offender was a child or young person. [(1992) 9 FRNZ 659, 660]
4. There is no disharmony between this decision and s 25(i) New Zealand Bill of Rights Act 1990 which recognises "the right, in the case of a child, to be dealt with in a manner that takes account of the child's age". Here, certain procedures cut off at age 17. It is to be assumed that they are no longer appropriate past that age. This will be so whenever the offence was committed.

Obiter, while this appeal is not concerned with the jurisdiction of the Youth Court, it is inescapable that the construction which this decision has placed on the Act so far as it affects this appeal applies equally to the provisions as to the jurisdiction of the Youth Court. If amendment of the statute is in contemplation, it is desirable that it address the point in a way that puts the legislative intent beyond question.

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