Department of Social Welfare v Publisher (1993) 10 FRNZ 148 (DC)

Case summary provided by BROOKERS

Name: Department of Social Welfare v Publisher
Reported: (1993) 10 FRNZ 148
File number: CRN1004053324-7
Date: 29 January 1993
Court: District Court
Location: Auckland
Judge: Satyanand DCJ
CYPFA: s 38
Key Title: Media Reporting; Family Group Conference - Report from

Summary:
Children and young persons - Confidentiality - Disclosure of information - Family group conference - Report of proceedings - All elements of offence proved - Jurisdiction of District Court to hear case - Role of media in juvenile proceedings - Children, Young Persons, and Their Families Act 1989, ss 2, 37, 38, 150, 247, 271; Summary Proceedings Act 1957, s 43; Criminal Justice Act 1985, s 138; Crimes Act 1961, s 25.

A leading magazine was alleged to have published an article containing identifiable details of a family group conference. The author of the article participated in that particular conference in the capacity of the victim's (her son) support person. In the article, reference was made to the people present and to what had happened. Although the victim, the offender, and the Government officials were not named, the venue and at least one volunteer social worker were referred to by name. In order to secure convictions, the informant must prove beyond reasonable doubt that the author and publisher breached the confidentiality provision under s 38 Children, Young Persons, and Their Families Act 1989. The elements of the offence requiring proof were those of (a) publication, (b) intention, (c) a report of proceedings not validated by s 38(2), and (d) identifiable proceedings of a particular conference.

A preliminary issue was whether the District Court had jurisdiction to hear the case when s 150 of the Act referred to proceedings being undertaken in the Family Court only. It was, however, agreed between counsel and conceded by the defendants that the only way in which an alleged offence could be brought to book was by way of prosecution under the Summary Proceedings Act 1957 and by way of prosecution in the District Court proper.

Note: At the end of the case, the Judge addressed the role of the media in light of the new jurisprudence affecting children and young persons brought in by the 1989 Act.

Held, finding all four elements proved:

1. On the first element, the magazine's masthead confirms publication by the publisher, and the actions of the author in devising and presenting the story to the editor establish the element of publication.
2. On the second element, s 38(1) and (4) must be read as requiring proof of intentional breach. The question of confidentiality was actively canvassed by the author and publisher through the editor. In deciding to publish notwithstanding the strictures against publication, the necessary mental intention is established against both defendants. [(1993) 10 FRNZ 148, 149]
3. On the third element, the term "report" within s 38 is not restricted to an official record which did not include a personal account of what may have transpired at a family group conference. The Act must be given a purposive interpretation. In so doing, the question of confidentiality is of prime significance and publication must relate to private and unsolicited reports and accounts of what may have transpired as well.
4. The fourth element is also proved by the youth justice coordinator's evidence that on reading the article she was able to recognise the case and its subject as being a particular conference held at the request of a police enforcement officer under s 247 of the Act.

Cases referred to:
Police v Starkey [1989] 2 NZLR 373; (1989) 4 CRNZ 400

Hearing:
This was a hearing on charges against the defendants for allegedly committing an offence against s 38 Children, Young Persons, and Their Families Act 1989 in publishing a report of the proceedings of a family group conference.

The facts appear from the judgment.

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Police v BG (1993) 10 FRNZ 157 (DC)

File number: CRN 221901637-8
Date: 2 February 1993
Court: District Court, Hamilton
Judge:Judge Twaddle
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Reasonable compliance

Summary:
BG (15) was one of four offenders charged with assault with intent to injure and threatening to kill; BG told police he was 17; a Police officer cautioned BG, told him of his right to contact a lawyer and took a written statement. Police officer told BG he was going to be charged with being a party to assault. BG then correctly advised that he was 15; Police officer did not explain s 215 or take a new statement. Court considered whether written statement was inadmissible by reason of non-compliance with s 215 and, if so, whether the evidence established a prima facie case against BG.

Section 208(h) of the CYPFA entitles young people to special protection during the investigation of offences; the intention of the Legislature is to give young people an effective right to silence. Section 221(2) of the CYPFA provides that, with some express exceptions, no statement may be admissible unless the explanations required by ss 215 to 218 have been given; the Court has no discretion to determine the admissibility of a young person's statement. If specific explanation not given and the exceptions or reasonable compliance are not established then the statement must be ruled inadmissible: Police v Edge CA277/92, 17 December 1991 per Cooke P; R v Irwin [1992] 3 NZLR 119 (HC) at 122-123 per Fisher J.

Held:
The subjective belief of the Police officer as to BG's age is irrelevant. This is in accordance with the spirit of the CYPFA; a young person cannot waive their rights by lying; assumption of CYPFA is that a young person requires a careful explanation before exercising their right to silence.

Section 223 is inapplicable to BG's written statement and to his oral statement concerning his age prior to being cautioned. A "statement" for the purposes of the section is a statement which can be used to inculpate its maker in the commission of an offence. The section might apply where proof of age is an ingredient of an offence. However, this is not the case here. No reasonable compliance in terms of section 224, thus the Court has no discretion and must reject the statement: R v Irwin [1992] 3 NZLR 119.

Once the Police officer became aware of BG's real age he should have started again and given a full statutory explanation to BG. Sections 215 and 221 do not impose "mere formalities": P v Crime Appeal (1991) 7 CRNZ 539 (CA). If explanations had been given, the Court may have been able to conclude that the spirit and object of s 215 of providing adequate protection to BG had been complied with and the statement may have been admissible.

Decision:
Evidence inadmissible but prima facie case against BG exists because the evidence establishes that he was there and involved.

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Department of Social Welfare v RF YC Otahuhu CYPF No 33/93, 11 March 1993

File number: CYPF No. 33/93
Date: 11 March 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Application for Order for Secure Care. RF (15) had absconded from Police custody on one occasion but had never absconded from a residential institution; had been compliant and co-operative but had threatened he would "run". No evidence to support "real likelihood that the child or young person will abscond" (s 368 CYPFA); no evidence of likely harm to RF's mental, physical or emotional wellbeing if he does abscond (s 368 CYPFA). Charges against RF not admitted and absconding "hypothetical" only. Judge expressed concern that RF had been placed in secure care after merely saying that he would abscond.

[Note: s 368 as considered here was repealed and substituted on 8 January 1995 by 1994 No 121, s 41].

Decision:
Application dismissed.

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Department of Social Welfare v T YC Otahuhu CYPF No 30/93, 8 March 1993

File number: CYPF No. 30/93
Date: 8 March 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for Order for Secure Care (not a youth justice matter); T (15) under the custody and guardianship of the Director-General of Social Welfare; T had worked as an exotic dancer; drug issues; independent; had absconded before. Evidence shows a real likelihood that T will abscond; risk to T's physical, mental or emotional wellbeing likely due to drug abuse; s 368(1)(b) satisfied.

Decision:
Application granted.

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DSW v LD YC Otahuhu CYPF No. 41/93, 22 March 1993

File number: CYPF No. 41/93
Date: 22 March 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for secure care grounded on s 368(b) [repealed and substituted on 8/1/95 by 1994 No 121, s 41] to prevent LD from behaving in a manner likely to cause physical harm to herself or to any other person. LD exhibiting problem behaviours including damaging property, threatening staff and threatening and assaulting other residents. Had threatened to abscond; did so for 15 minutes; put in secure care; effectively in secure care for one week before matter brought before a Judge. Allegations of physical harm to self. Judge concerned that secure care sought to impose discipline on C and to stop her absconding when these were not relevant matters for a s 368(b) application.

Decision:
Application declined due to time delay; concerns about disciplinary aspects of application highlighted.

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DSW v K (11 June 1993) YC, Otahuhu, CYPF NO. 86/93, Harvey DCJ

Name: DSW v K
Unreported
File number: CYPF NO. 86/93
Date: 11 June 1993
Court: Youth Court
Location: Otahuhu
Judge: Harvey DCJ
CYPFA: s 368
Charge: Theft, Burglary, Unlawfully Getting into a Motor Vehicle; Aggravated Robbery; Escaping from Custody
Key Title: Secure Care

Summary:
Application for secure care grounded on s 368(a) and s 368(b) CYPFA [repealed and substituted on 8/1/95 by 1994 No 121, s 41]. K had been in secure care for three weeks; had absconded and re-offended seven months previously; further secure care sought to prevent K from absconding and causing physical harm to self and others; delay in application for secure care; behavioural issues. DSW v S (1992) 9 FRNZ 670; [1993] DCR 273 as to need for contemporaneity between absconding and application applied. Secure care should not be used to manage the unmanageable; "It must be established that secure care is necessary, and in an extremist situation, to prevent him from behaving in a manner likely to cause physical harm to himself or another person"; not to be used to confine likely absconders. Held: no evidence to support application under s 368(a) or (b); not appropriate for Judge to act as a social worker or a social analyst; basic parameters have to be met. CYPFA puts balance in favour of children and young people and recognises their vulnerability and susceptibility.

Decision:
Application for secure care declined.

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DSW v C (11 June 1993) YC, Otahuhu, CYPF No. 88/93, Harvey DCJ

Name: DSW v C
Unreported
File number: CYPF NO. 88/93
Date: 11 June 1993
Court: Youth Court
Location: Otahuhu
Judge: Harvey DCJ
CYPFA: s 368
Charge: Unlawfully Taking; Receiving; Theft; Burglary; Breach of Bail
Key Title: Secure Care

Summary:
Application for secure care; s 368(a) CYPFA [repealed and substituted on 8/1/95 by 1994 No 121, s 41]; C had absconded in past (s 368(a)(i)); some evidence that C had re-offended by unlawfully taking a vehicle, involved in a high speed car chase. Counsel argued necessary to keep C in secure care as likely she will abscond again and harm her "physical, mental or emotional wellbeing" (s 368(a)(iii)); Judge considered this "altruistic" approach was in fact an attempt to prevent C from re-offending and noted this was not a ground to keep C in secure care. To support an allegation that there is a real likelihood that a young person will abscond, Judge may look not only at incidents of absconding from a residence but other incidents of behaviour that involve a wilfulness of attitude demonstrated by action where young person absents herself from a place where she ought to be; C demonstrated such wilfulness. Judge found a real likelihood C would abscond again (s 368(a)(ii)), but no real evidence that she had unlawfully taken a vehicle and become involved in a high speed car chase, thus no evidence her "physical, mental, or emotional" wellbeing may be harmed (s 368(a)(iii)).

Decision:
Application declined.

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DSW v M (4 June 1993) YC, Otahuhu, CYPF NO. 83/93, McElrea DCJ

Name: DSW v M
Unreported
File number: CYPF NO. 83/93
Date: 4 June 1993
Court: Youth Court
Location: Otahuhu
Judge: McElrea DCJ
CYPFA: s 368
Charge: Aggravated Robbery (2)
Key Title: Secure Care

Summary:
Application for secure care. M (15) had a history of absconding from community and family placements but had never been placed in a CYFs "residence" as defined by CYPFA s 2; ability to rely on the absconding provision in s 368(a) [repealed and substituted on 8/1/95 by 1994 No 121, s 41] is limited to cases where the young person has previously absconded from Police custody or a "residence". Whether M's history of absconding may be taken into account in deciding whether M may behave in manner likely to cause harm to self or others: s 368(b) [repealed and substituted on 8/1/95 by 1994 No 121, s 41]. Held: Court may take into account the history of absconding from other placements in assessing the likelihood of such further offending occurring. M could abscond and re-offend in violent manner again and cause physical harm to self or others (s 368(b)).

Decision:
Application granted.

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DSW v W YC Otahuhu MPF N. 85/93, 11 June 1993

File number: MPF No. 85/93
Date: 11 June 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for secure care. W (15) had committed offences, had been assaulted and had absconded from a residential centre. Physical and emotional wellbeing likely to be harmed if W absconds; emotionally fragile, predisposition for matches and fire; behavioural issues. Section 368(a) [repealed and substituted on 8/1/95 by 1994 No 121, s 41] made out; application granted; pursuant to s 376(3)(b) direction made that W be released from secure unit to attend counselling or treatment and to attend the FGC without compromising the order.

Decision:
Application granted.

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DSW v WGT YC Otahuhu CYPF No 87/93, 11 June 1993

File number: CYPF No. 87/93
Date: 11 June 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for continuation of secure care grounded on CYPFA s 368(b) [repealed and substituted on 8/1/95 by 1994 No 121, s 41]; WGT had been in secure care for some time; each secure care application must be considered de novo; WGT's attitude indicates he may physically harm others again; motor vehicle offences particularly cause concern that WGT is unable to appreciate and understand that his actions will cause harm; secure care necessary to prevent repeat of behaviour.

Decision:
Application granted - WGT to remain in secure care until his next Youth Court appearance in four days.

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Police v B R R (1993) 11 FRNZ 25 (DC)

Case summary provided by BROOKERS

Name: Police v B R R
Reported: (1993) 11 FRNZ 25
File number: CRN3255005934
Date: 23 July 1993
Court: District Court
Location: Papakura
Judge: Harvey DCJ
Charge: Assault
CYPFA: s 5(f); s 322
Key Title: Delay

Summary:
Youth justice - Rights of accused - Time for instituting proceedings - Delay in investigation - Unduly protracted delay in bringing matter to hearing - No reasonable explanation - Information dismissed - Children, Young Persons, and Their Families Act 1989, ss 5(f), 322; Children and Young Persons Act 1974, s 100.

The defendant young person was alleged to have committed an assault on 6 June 1992. The matter was not investigated until 6 months later, and then only intermittently. The defendant was interviewed in January 1993 and a family group conference was held on 8 March 1993. The information was only laid on 1 April 1993. The matter first came to Court on 4 June 1993 where the information was denied. The hearing was subsequently set for 23 July 1993.

The defendant sought a dismissal of the information under s 322 Children, Young Persons, and Their Families Act 1989 submitting that the time that had elapsed between the date of the commission of the alleged offence and the hearing had been unnecessarily or unduly protracted.

Held, dismissing the information:

1. It is clear under s 5(f) that timing is significant in terms of activities under the Act. Decisions affecting a child or young person should wherever practicable be made and implemented within the time-frame appropriate to the child or young person's sense of time.
2. The events that took place before and after the laying of the information must be taken into account. The delay between the alleged offence and the first appearance in Court (amounting to one year) would have been in itself an unduly protracted period of time. By the time the matter first came to Court on 4 June 1993, the time was so far out and the delay so inexplicable in terms of reasonableness of explanation that the matter would have failed anyway. Accordingly, the Court's discretion under s 322 will be exercised by dismissing the information.

Cases referred to:
Police v C, Judge Carruthers, YC Wellington CRN0285015569

Application:
This was an application under s 322 Children, Young Persons, and Their Families Act 1989 for the exercise of the Court's discretion to dismiss an information against a young person.

The facts appear from the judgment. [(1993) 11 FRNZ 25, 26].

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Re Warrant of Commitment DC Papakura CRN 3058003032, CRN 355005832, 8 July 1993

File Number: CRN 3058003032; CRN 355005832
Date: 8 July 1993
Court: District Court, Papakura
Judge: Moore DCJ
Key Title: Fine - enforcement, Principles of Youth Justice (s 208), Imprisonment

Summary:
Defendant defaulted on payment of fines and was arrested in accordance with warrant of commitment; when warrant issued defendant was 15 years old; defendant did not want to go to prison; query whether an absent, unrepresented, young person should be imprisoned in the light of statutory policy and sentencing principles; held that situation should be remedied by withdrawal of warrant; suggested that Family Group Conference may provide alternatives to imprisonment; statement about ordinary practice of the Court which is to require defendant to get learner's licence.

Decision:
Fines remitted; warrant withdrawn.

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DSW v K (26 July 1993) YC, Otahuhu, CYPF No. 110/93, Harvey DCJ

Name: DSW v K
Unreported
File number: CYPF No. 110/93
Date: 26 July 1993
Court: Youth Court
Location: Otahuhu
Judge: Harvey DCJ
CYPFA: s 368
Charge: Demanding with Menaces
Key Title: Secure Care

Summary:
Further application for secure care for K (dealt with in DSW v K, CYPF NO. 86/93, 11 June 1993, YC, Otahuhu); K faced allegation of demanding with menaces after being released from residential care. T v Department of Social Welfare (1989) 6 FRNZ 100 noted where it was commented that factors akin to matters of bail can be taken into account in considering an application for secure care; Judge noted situation different for adults as adjournment may be on bail or in custody but for young people detention in a residence is a half-way stage between close confinement and freedom in the community; examination of the forms of care pursuant to s 238(1)(c)-(e) CYPFA; examination of basis for secure care; where s 368(b) relied upon the physical danger to self or others must be in the residential context. Held: application on basis of s 368(b) [repealed and substituted on 8/1/95 by 1994 No 121, s 41] which requires Court to consider whether or not K likely to cause physical harm to self or others if placed in the open wing of the residential unit; Judge not satisfied that such harm would result from keeping K in open unit.

Decision:
Application declined.

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Police v B M (1993) 11 FRNZ 29 (YC)

Case summary provided by BROOKERS

Name: Police v B M
Reported: (1993) 11 FRNZ 29
File number: CRN3278004391
Date: 11 August 1993
Court: Youth Court
Location: Upper Hutt
Judge: Carruthers DCJ
Charge: Breaking and Entering with Intent to Commit a Crime
CYPFA: s 245; s 247; s 250; s 251
Key Title: Family Group Conference - Held/Convened

Summary:
Children and young persons - Family group conference - Whether convened in accordance with requirements of Act - Family group conference not convened because young person cannot be contacted and it was known he would deny the charge - Policy behind requirement that conference be convened prior to issue of summons - Keeping young people out of Court - Summons improperly issued - Children, Young Persons, and Their Families Act 1989, ss 245, 247, 250, 251; Crimes Act 1961, s 241(a).

The defendant young person faced a charge issued against him by way of summons alleging that he did break and enter a house with intent to commit a crime. Under s 245 Children, Young Persons, and Their Families Act 1989, a family group conference must be convened before the information can be laid. Although a conference was shown on record to have been held with the defendant present, the real position was that the youth justice coordinator had failed to contact the defendant and, on visiting his house, was told by the defendant's parents that he intended to deny the charges. The youth justice coordinator decided then that it was pointless to hold a family group conference in the usual way. The issue here was whether in those circumstances a family group conference could be said to have been properly convened in compliance with s 247 so that the summons was validly issued.

Held,

1. The convening of the family group conference, in the circumstances here, did not comply with the provisions of the Act which, amongst other things, entitles the defendant and the victim the right to attend the conference.
2. The principle that the Act requires the convening of a family group conference in accordance with the Act prior to a summons being issued is an important one as it may be as a result of the conference that the matter does not go to Court. The Act is a diversionary one aimed at keeping young people out of Court if that course has the agreement of informants, victims, and others who are affected. To deny this opportunity occurring in the proper way is to deny this young person, however much he might be deserving of a quick and efficient hearing in the Court, an opportunity of having this dealt with by facing those involved in a family group conference as contemplated by the Act.
3. Accordingly, the summons was improperly issued and the matter cannot properly proceed. Leave is allowed to have the information withdrawn. [(1993) 11 FRNZ 29, 30]

Application:
This was an application to dismiss a summons issued against a young person on the ground that a family group conference was not convened as required by s 245 Children, Young Persons, and Their Families Act 1989.

The facts appear from the judgment.

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DSW v S and M YC Otahuhu CYPF No 118/93, CYPF No 119/93, 19 August 1993

File number: CYPF No. 118/93, CYPF No. 119/93
Date: 19 August 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for secure care grounded on s 368(b) [repealed and substituted on 8/1/95 by 1994 No 121, s 41]; similar circumstances relating to both young people; serious offence; whether offending serious enough to raise concerns as to physical harm to others that would bring s 368(b) into play: T v Department of Social Welfare (1989) 6 FRNZ 100. Police requested remand to DSW residence; no evidence of likelihood of self-harm; application not based on likelihood of absconding; implicit that if young person in open wing there might be absconding; observations on duty of DSW to ensure that those in a residence who do not fulfil criteria for detention in secure care are nonetheless not a risk where absconding likely; obligation of DSW to provide proper supervision while young people are in the open wing. No evidence of violent propensity within institution to justify detention in secure care; apart from offending no evidence of violent propensity within the community. Held: Not absolutely necessary to keep young people in secure care to prevent them from causing physical harm to other people; if risk of absconding, appropriate supervision should be put in place.

Decision:
Application refused.

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Police v M & S (13 August 1993) YC, Otahuhu, CRN 3248020789-795, Moore DCJ

Name: Police v M & S
Unreported
File number: CRN 3248020789-795
Date: 13 August 1993
Court: Youth Court
Location: Otahuhu
Judge: Moore DCJ
CYPFA: s 396
Charge: Sexual Violation; Kidnapping/Abduction
Key Title: Bail; Custody - CYFS

Summary:
Application for bail of M & S (15 and 16); serious allegations of sexual violation and detaining with intent to have sexual intercourse. Samoan Trust seeking to have M & S placed in its care but Trust not yet approved as a "cultural authority" pursuant to CYPFA, s 2; thus, no jurisdiction under s 238(1)(d) to place M & S there. To release M & S on bail under CYPFA, s 238(1)(b) subject to requirement that they are in 24 hour custody of the Trust would defeat the policy of the statute that only organisations approved by the Director-General under s 396(2) should be used in custodial situations.

Decision:
M & S remanded in the custody of the Director-General under s 238(1)(d).

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DSW v P YC Otahuhu CYPF No 143/93, 20 September 1993

File number: CYPF No. 143/93
Date: 20 September 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for secure care grounded on s 368(b) CYPFA [repealed and substituted on 8/1/95 by 1994 No 121, s 41]; no evidence of violent or anti-social behaviour in residence; evidence of such out of residence - appears to occur while on the street and not in a structured environment. Duty to ensure behaviour while in open wing; application posited on basis of violent behaviour if P absconds - but absconding not a factor in s 368(b); observations as to notice that is to be given pursuant to CYPFA, s 369(2).

Decision:
Application refused.

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DSW v T YC Otahuhu CYPF 139/93, 13 September 1993

File Number: CYPF 139/93
Date: 13 September 1993
Court: Youth Court, Otahuhu
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for secure care; grounds on both s 368(a) and (b) CYPFA - evidence clearly justified application; clear indication from young person himself that he needed intensive counselling in a secure environment; protective environment required; conditions imposed; lengthy history of violence; necessity established as result of all other avenues being tried. [Note: s 368 CYPFA repealed and substituted on 8/1/95 by 1994 No 121, s 41].

Decision:
Secure care and counselling ordered.

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Department of Social Welfare v M and K (1993) 11 FRNZ 341 (DC)

Case summary provided by BROOKERS

Name: Department of Social Welfare v M and K
Reported: (1993) 11 FRNZ 341
File number:unknown
Date: 8 November 1993
Court: District Court
Location: Hamilton
Judge: D R Brown DCJ
Charge: Murder
CYPF no: s 368
Key Title: Secure Care

Summary:
Youth justice - Continuation of secure care - Young persons charged with murder - Whether detention behind lock and key and under guard required - Whether secure care required when no history of absconding - Positive finding of likely harm required - Children, Young Persons, and Their Families Act 1989, s 368.

These were applications by the informant for the continuation of the secure care of M and K. M and K were due to appear in the Youth Court for the continuation of a part heard depositions hearing in relation to charges of murder. K had been involved in significant offending in the past, including aggravated robbery, and had absconded from a social welfare residence. M had been the subject of a family group conference as a result of previous offending but had not had a formal Court appearance. M had no history of absconding and the police evidence was that she played a smaller part in the alleged murder than K.

Held, making an order for the continuation of secure care for K, but declining to make an order for continued secure care of M:

1. Section 368(a)(ii) Children, Young Persons, and Their Families Act 1989 requires a positive finding that there is likely to be physical, mental, or emotional harm to the young person if there is absconding. It cannot be said that there will always be emotional harm to any young person who absconds and possibly comes into a situation of offending.
2. The question posed by s 368(b) is whether secure care in the form of detention behind lock and key and under guard is required to prevent the possibility of behaviour likely to cause physical harm to the young person or any other person. The Youth Court Judge is entitled to weigh whether that level of detention is warranted against the potential public risk. Whether the general risk of absconding from forms of social welfare care which do not involve truly secure care is to be tolerated in the particular case is a question of weighing history, present circumstances, and the risk of absconding.
3. Because of K's significant history, proclivity for flight, absconding history, and the offence she was charged with, placement in continued secure care was necessary to prevent the possibility of physical harm to any other person. As M had no history of absconding, and her part in the alleged murder may have been less, there was insufficient material to satisfy the Court that custody had to be behind lock and key and under guard.

Applications:
These were applications for the continuation of secure care of two young persons charged with murder. [(1993) 11 FRNZ 341, 342].

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Police v S and M (1993) 11 FRNZ 322 (YC)

Case summary provided by BROOKERS

Name: Police v S and M
Reported: (1993) 11 FRNZ 322; [1993] DCR 1080
File number: CR207/89
Date: 2 November 1993
Court: Youth Court
Location: Otahuhu
Judge: Harvey DCJ
Charge: Sexual Violation - Rape; Indecent Assault; Detaining Girl under Age of 14 with Intent to have Sexual Intercourse
CYPFA: s 275
Key Title: Reports - Cultural; Jurisdiction of the Youth Court - s 275 offer/election

Summary:
Children, young persons, and their families - Youth justice - Exercise of discretion under s 275 - Young persons charged with serious sexual violation - Victim and defendants wanted Youth Court proceedings - Weight to be accorded to resolution of dispute between families and Samoan custom - Law must be applied evenly - Youth Court not appropriate in circumstances - Defendants not permitted to forgo the right to jury trial - Children, Young Persons, and Their Families Act 1989, s 275.

The defendants, S and M, were two Samoan boys charged with sexual violation by rape, indecent assault, and detaining a girl under the age of 14 years with intent to have sexual intercourse. The complainant was a 14-year-old Samoan girl. The charges were all laid indictably and were purely indictable. The complainant and the defendants requested that the discretion under s 275 Children, Young Persons, and Their Families Act 1989 be exercised, and that the matter be dealt with in the Youth Court. The defendants submitted that many of the outstanding issues had been addressed within the context of the Samoan culture and that the Youth Court system was complementary to the Samoan method of dispute and conflict resolution. They argued that the equilibrium between the Samoan aiga (extended family) would have to be restored, which could only be successful if the damage from the hearing was minimised, and that the sentencing process of the Youth Court was in line with the objects and principles of the Children, Young Persons, and Their Families Act.

Held, committing the defendants to the High Court for trial:

1. The law is applied evenly to all defendants, regardless of race, religion, or cultural background. The process undertaken within the defendants' community is designed to resolve differences between the families of the victim and defendants. The criminal law is based upon the State taking action on behalf of its members for violations of minimum standards of conduct prescribed in the Crimes Act 1961. If the State failed to take such action it could be seen as failing to provide for the safety of the community.
2. There were two issues to consider in deciding whether to exercise the discretion under s 275 Children, Young Persons, and Their Families Act 1989: (a) whether the young person should be allowed to forgo the right to trial by jury; and (b) what the sentencing options will be in the event that a guilty verdict is returned or the charge is found proven.
3. The matter should not remain in the Youth Court because of the seriousness of the charges, the part allegedly played by the defendants, the circumstances giving rise to the charges, the likely consequences that could [(1993) 11 FRNZ 322, 323]be visited on the defendants should they be found guilty, and the public interest which demands that for allegations of such a severe nature a forum appropriate to the charges should be provided.

Cases referred to:
Kent v US 383 US 541 (1966)
Police v Ioka 27/5/91, Judge Harvey, YC Otahuhu CRN1248012415
Police v James (a young person) (1991) 8 FRNZ 628
Police v M (1990) DCR 544
Police v Richard 12/6/90, Judge Lee, YC Upper Hutt CRN9278003995/6; CRN9278004028
Police v Tarawa 27/3/91, Judge McElrea, YC Henderson CRN1290005211-14
R v Accused(CA265/88) (1988) 4 CRNZ 36 (CA)
R v Pora 14/9/90, Gault J, HC Auckland S98/90
R v Talataina (1991) 7 CRNZ 33
R v Wilson; R v Amohanga (1988) 5 CRNZ 165 (CA)
Rihari v Police 11/5/90, Fisher J, HC Rotorua T14/90
Tugaga v Police 14/12/89, Holland J, HC Christchurch AP225/89

Hearing:
This was a hearing to determine whether the defendants should be tried in the Youth Court and forgo their right to a jury trial.

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Police v ST (15 December 1993) YC, Whangarei, Trial No. 70/93

Name: Police v ST
Unreported
File number: Trial No. 70/93; 3288008796-8; 3288005614-5
Date: 15 December 1993
Court: Youth Court
Location: Whangarei
Judge: Brown DCJ
CYPFA: s 275
Charge: Aggravated Robbery
Key Title: Justices of the Peace - powers; Youth Court procedure; Jurisdiction of the Youth Court - s 275 offer/election

Summary:
ST faced several charges including one of aggravated robbery; depositions were heard before Justices of the Peace; Justices exercised the discretion having established there was a prima facie case and ruled ST should be given the opportunity to be dealt with in the Youth Court. Such a decision only to be made by Youth or District Court Judges. Further difficulty in that no FGC had been called to determine the question of jurisdiction [note that as at 2005, an FGC is not usually held before these decisions are made]; this defect enabled matter to be returned for FGC to advise Court on jurisdiction and for Youth Court Judge to decide on the matter.

Decision:
All matters remanded for FGC.

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Police v H (16 December 1993) YC, Lower Hutt, CRN 3285018224, Ongley DCJ

Name: Police v H
Unreported
File number: CRN 3285018224
Date: 16 December 1993
Court: Youth Court
Location: Lower Hutt
Judge: Ongley DCJ
CYPFA: s 208
Key Title: Custody - CYFS; Principles; Family Group Conference - Plan

Summary:
Funding issue. FGC recommendation not to be implemented by CYPFS, rejected on grounds of principle and finance. Judge disagreed considering: that cost of residential course must be considered against cost to community of H's continued offending; victim's views; no family support for H; H willing to undertake the course (CYPFA s 5(d)); course would re-integrate H into the community (CYPFA s 208(d), s 208(f)(i)). Court has no power to recommend financial assistance be provided.

Decision:
H remanded in hope that application will be discussed again between Youth Justice Co-ordinator and CYPFS.

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