Williams v Police (1993) 10 FRNZ 317 (HC)

Case summary provided by BROOKERS

File number: AP104/92
Date: 26 February 1993
Court: High Court, Auckland
Judge: Williams J
Key Title: Admissibility of Statements to police/police questioning (ss 215-222), Rights

Summary:
Children and young persons - Evidence - Admissibility - Appeal - Appellant, 17, admitted to burglaries committed while a young person - Special provisions under s 215 relating to interviewing young persons not followed by police - Whether special provisions applied to appellant - Whether Bill of Rights Act breached - Children, Young Persons, and Their Families Act 1989, ss 2(2), 215; New Zealand Bill of Rights Act 1990, s 23(1)(b).

Appeal:
This was an appeal against the decision of the District Court to admit as evidence statements made by the appellant to the police in relation to numerous burglaries.

The facts appear from the judgment. While certain burglary charges were pending the appellant, who had just turned 17, told the police that he wanted to 'clear up' other burglaries. He accompanied two officers in their car to identify the places he had burgled. After that the appellant was taken back to the police station and photographed. He declined to make a statement and was then taken to his home.

In the District Court, the appellant appeared to face a large number of burglary charges. Objection was made to the admissibility of the evidence of the police. It was argued that the admissions were inadmissible because the requirements of s 215 of the Children, Young Persons, and Their Families Act 1989 were not followed. The question before the District Court Judge was whether those special provisions relating to the interviewing of young persons applied to a person who was at the time of the interview over 17 years of age. The District Court Judge overruled the objections, finding that the statements were admissible because the Act and the special requirements of s 215 did not apply.

In this appeal it was also argued that there had been a breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 in that the appellant was not advised of his right to consult and instruct a lawyer without delay.

Held, dismissing the appeal:

1. So far as the application of the Act is concerned, the holding of the majority in Police v Edge (1992) 9 FRNZ 659 (CA) (which is not obiter as argued by the appellant) is decisive in this appeal. In that case it was held that a police interview with a person over the age of 17 at a time when no proceedings had been convened or were in contemplation does not require the procedures of s 215 to be followed.
2. The success of the Bill of Rights Act argument depends upon whether the appellant was at the time under arrest or detained. The findings of fact made by the District Court Judge are wholly inconsistent with the proposition that the appellant was arrested or detained, or in de facto custody when the admissions were made.

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Director-General of Social Welfare v District Court at Otahuhu (1993) 10 FRNZ 232 (HC)

Case summary provided by BROOKERS

Name: Director-General of Social Welfare v District Court at Otahuhu
Reported: (1993) 10 FRNZ 232
File number: M1280/92
Date: 22 March 1993
Court: High Court
Location: Auckland
Judge: Fisher J
CYPFA: s 2; s 4; s 5; s 6; s 371
Key Title: Custody - CYFS; Secure Care

Summary:
Children, young persons, and their families - Judicial review - Young persons serving term of imprisonment in children and young persons residence - Whether young person may be locked up without obtaining fortnightly authorising orders from District Court - Children, Young Persons, and Their Families Act 1989, ss 2, 4-6, 238, 361, 364, 365, 371; Children, Young Persons (Residential Care) Regulations 1986; Judicature Amendment Act 1972; Crimes Act 1961, s 172; Criminal Justice Act 1985, ss 8, 136, 142A, 143; Penal Institutions Act 1954, ss 4, 6, 7, 12, 16, 19, 20, 21A-21C.

The sole issue in this application for judicial review concerned young persons who are serving terms of imprisonment in a children and young persons residence: can these young persons be locked in a room or enclosure without obtaining fortnightly orders from the District Court specially authorising it under s 371 Children, Young Persons, and Their Families Act 1989? The Justice Department answered "yes" but the Department of Social Welfare and both counsel answered "no". The District Court held that it was unnecessary for the Director-General to apply in that way (see DGSW v V (1992) 8 FRNZ 598). This application was made in relation to a 13-year-old found guilty of murder who is kept in a locked area known as a "secure facility" at the Kingsley Residential Centre in Christchurch.

Held, dismissing the application:
A young person serving a sentence of imprisonment may be detained in a conventional prison under the Penal Institution Act 1954 or in any children and young persons residence under s 142A Criminal Justice Act 1985. Where a young person is detained in a conventional prison, the prison superintendent has a discretionary power whether or not to physically confine the person without formal procedure or precondition. That power (subject to the overriding control of the Director-General of Social Welfare) devolves around the principal of the children and young persons residence where a young person is detained under s 142A Criminal Justice Act. That results from the wording of s 142A in combination with the Penal Institutions Act 1954. It is reinforced by the underlying objectives of the sentencing statute, the Penal Institution Act 1954, and the Criminal Justice Act 1985. The latter two Acts continue to apply to a young person detained in a children and young persons residence subject only to "such modifications as are necessary" (s 142A(2)).

This principle may have been overlooked or underestimated in this case. [(1993) 10 FRNZ 232, 233]

Application:
This was an application under the Judicature Amendment Act 1972 for a review of the decision of a District Court Judge.

The facts appear from the judgment.

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C v Dunedin District Court (1993) 10 FRNZ 416; (1993) 10 CRNZ 260 (HC)

Case summary provided by BROOKERS

Name: C v Dunedin District Court
Reported: (1993) 10 FRNZ 416; (1993) 10 CRNZ 260
File number: CP33/93
Date: 6 May 1993
Court: High Court, Dunedin
Judge: Holland J
Key Title: Jurisdiction of the Youth Court - s 275 offer/election; Youth Court Procedure; Jointly charged with adult.

Summary:
Administrative law - Judicial review - Young person charged indictably with adult co-accused - Young person not given opportunity of electing to be tried in Youth Court - No record of Youth Court Judge's reasons - Procedure to follow - Adequate reasons why affidavit evidence not required - Crown's support of application - Admission of guilt - Law changes advocated - Children, Young Persons, and Their Families Act 1989, ss 274, 275, 277, 443; Summary Proceedings Act 1957, Part V.

Youth justice - Rights of accused - Young person charged indictably with adult co-accused - Young person not given opportunity of electing to be tried in Youth Court - No record of Youth Court Judge's reasons - Procedure to follow - Adequate reasons why affidavit evidence not required - Crown's support of application - Admission of guilt - Law changes advocated - Children, Young Persons, and Their Families Act 1989, ss 274, 275, 277, 443; Summary Proceedings Act 1957, Part V.

The applicant, aged 16, was charged indictably with aggravated robbery with his co-accused, an adult. At the preliminary hearing, the Youth Court Judge declined an application under s 275 Children, Young Persons, and Their Families Act 1989 for an order that the applicant be given the opportunity of electing to be tried in the Youth Court. The Judge committed the applicant and his co-accused to the High Court for trial. This was an application for a review of that decision.

There was no record of the Judge's reasons. Holland J was persuaded not to require affidavit evidence giving the Judge an opportunity of reply for two reasons (although he warns that this should not form a precedent):

1. Counsel for the Crown supports the application and wishes the applicant to be sent back to the Youth Court to enable the question of election to be considered again by that Court; and
2. The applicant has now said that he wishes to admit to the offence (this reason being the more persuasive).

Held, quashing the Youth Court decision and directing that Court to give the applicant the right of election:

1. Where there is no record of a Judge's reasons, counsel wishing to challenge those reasons should confer with counsel on the other side, or in this case, the prosecuting officer, so that the notes they have taken of what the Judge said may be compared and an attempt made to agree on their content. Such a document should be submitted to the Judge in question for his approval or comment. In those circumstances it would be hoped that an agreed statement of facts could be presented to the Court but if no agreement is reached, then, the matter should be placed before the Court by way of affidavit.
2. As a general proposition, it is highly desirable that where more than one person is charged with an offence, the charges are heard together. It is even more desirable that such offenders, if convicted, be dealt with by the same Judge who can more easily apportion blame and assess the degrees of participation of the offenders. [(1993) 10 FRNZ 416, 417]
3. There is room for argument that s 277 applies only to summary trials and does not apply to the preliminary hearing of indictable charges.
4. It would seem unfortunate that where, as here, a young person, after having been committed for trial in the High Court, wishes to plead guilty is debarred from being treated as a young person under the Children, Young Persons, and Their Families Act 1989. It is suggested that the Act ought to be amended so as to empower a Judge of the High Court or District Court, following a plea of guilty or a conviction of a young person after a committal for trial on an indictable offence, either to exercise the powers given to a Youth Court Judge under the Act or to have power to remit the matter to a Youth Court Judge for sentence, should a High Court Judge or a District Court Judge consider it appropriate to do so.
5. The Crown having consented to the manner in which the proceedings were brought, it is held that the Youth Court Judge did not give proper attention to the matters required of him under the Act.

Application:
This was an application for judicial review of the decision of the Youth Court declining to give the applicant the opportunity of being dealt with in the Youth Court and committing him to the High Court for trial.

The facts appear from the judgment.

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R v M [1993] NZAR 327 (HC)

Case summary provided by BROOKERS

Name: R v M
Reported: [1993] NZAR 327
Date: 11 May 1993
Court: High Court
Location: Nelson
Judge: Greig J
Charge: Sexual Violation - Rape
Key Title: Youth Advocates Costs

Summary:
Review of refusal of legal aid - Young person aged over 16 living with parents - Statement of means disclosing modest disposable income - Whether inequitable to take into account parents' means - Inclusion of farm property owned by company - Application of underlying policy of Legal Services Act 1991 - Legal Services Act 1991, ss 7(1), 10, 29, 31, 31(2), 31(3), 31(4), 32.

The applicant, aged 17 years, was charged with rape and elected trial by jury in the High Court. An application was made under the Legal Services Act 1991 for a grant of criminal legal aid. The applicant was then aged over 16 years and working but living at home with his parents. Notwithstanding that the total disposable assets and income of the applicant and his parents was returned as some $12,000 per annum the grant of aid was refused by the Registrar, the Registrar including as an asset the parents' farm property, owned by a family company of which the parents were the shareholders. It was submitted, inter alia, that it was inequitable that the parents' income and assets be considered, and that it was not in the interests of justice that legal aid be refused.

Held (dismissing the application):
While it was inaccurate to say that the means of the parents were deemed to be the means of an applicant aged over 16 years, in this case the Registrar had a discretion to exercise pursuant to s 31(4) of the Legal Services Act 1991 in respect of the means of the applicant, resources of his parents and their amalgamation. That discretion had been exercised by the Registrar in the correct expectation that the farm property and business were, in effect, owned by the applicant's parents. It was the plain policy of the Legal Services Act 1991 that where a young person was living at home with his parents and they were of sufficient means their means may be taken into account in deciding whether legal aid should be granted. The applicant's parents had considerable assets in value and in accordance with the underlying policy of the Act it would be wrong to grant criminal legal aid in the circumstances.

Application:
For review of the Registrar's decision to refuse to direct that criminal legal aid be granted to the applicant.

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Brown v Attorney-General HC Whangarei M21/93, 8 September 1993

Reported: [1993] BCL 1782
File number: M21/93
Date: 8 September 1993
Court: High Court, Whangarei
Judge: Fisher J
Key Title: Evidence (not including admissibility of statements to police/police questioning); Youth Court Procedure, Appeal to High Court/Court of Appeal: Jurisdiction

Summary:
Application for judicial review regarding the circumstances in which sexual complainants should be required to give oral evidence at preliminary hearings under s 185C of the Summary Proceedings Act 1957. Defendant charged with sexual violation by rape; remanded for a preliminary hearing; applied for an order pursuant to s 185C(b)(ii) of the Summary Proceedings Act that the complainant's evidence be given orally and that she be made available for cross-examination; application declined. Applicant alleges that Judge's decision was vitiated by error of law in that he misapplied the discretion conferred upon him under s 185C of the Summary Proceedings Act. Summary of manner in which discretion under s 185C should be exercised outlined: W v Attorney-General; P v District Court at Wellington (1992) 8 CRNZ 427 (CA).

Decision:
No error of law. No special circumstances exist to require complainant to give evidence. Application declined.

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K v Police (1993) 11 FRNZ 335 (HC)

Case summary provided by BROOKERS

Name: K v Police
Reported: (1993) 11 FRNZ 335
File number: AP243/93
Date: 14 October 1993
Court: High Court
Location: Auckland
Judge: Fisher J
Charge: Aggravated Wounding, Dangerous Driving, and Unlawful Taking
CYPFA: s 214; s 245
Key Title: Arrest without warrant

Summary:
Children and young persons - Jurisdiction - Youth Court - Statutory preconditions for arresting young persons - Original charges against the appellant dismissed - Second set of informations laid and found proved - Whether there was a jurisdictional bar to the prosecutions because of non-compliance with s 245 - Arrest not related to particularly identified information - Consequential upon incidents - Filters for non-arrest situation not applicable in arrest cases - Section 214 conditions adequate substitute - Children, Young Persons, and Their Families Act 1989, ss 214, 245.

The appellant took the first complainant's car without authority and drove at him in an allegedly dangerous manner when he tried to stop her. A few days later, a second complainant received serious injuries when trying to stop the appellant while she was driving the stolen car. The appellant was arrested by the police and charged with three offences relating to those incidents. When the appellant was brought before the Youth Court to appear on those charges, the two charges which involved summary offences laid indictably were dismissed on the ground that there was a jurisdictional defect as was the aggravated wounding charge. The police then laid new charges of aggravated wounding, dangerous driving, and unlawful taking. The Youth Court held the dangerous driving and unlawful charges to be proved, and rejected the appellant's submission that s 245 Children, Young Persons, and Their Families Act 1989 posed a jurisdictional barrier.

That decision was appealed on the basis that the Judge did not consider whether there had been a relevant arrest or compliance with the alternative procedures specified in s 245. The appellant submitted that there could be jurisdiction under s 245(1) only if she had been relevantly "arrested", or if the requirements for belief, consultation, and family group conference had been satisfied in terms of subs 245(1)(a), (b), and (c). The appellant submitted that when the second set of informations were laid the earlier arrest no longer related to those informations, and that she could no longer be regarded as a person "arrested" for the purpose of giving jurisdiction under s 245(1).

Held, dismissing the appeal:

1. When s 245(1) Children, Young Persons, and Their Families Act 1989 refers to a case in which the "young person has been arrested", it does not relate the arrest to any particularly identified information. The arrest in question relates to the "offence" in the sense that the arrest relates to the incident with which the information is later concerned. The arrest was directly consequential upon the very incidents for which the second informations were laid. [(1993) 11 FRNZ 335, 336]
2. One of the principal objects of the Act is to divert young persons away from the Court process. Section 245 discourages an over-readiness to bring prosecutions in non-arrest cases by requiring that these cases first pass through the filters of belief, consultation, and conference. The reason that those filters do not apply in arrest cases may well be because different filters relating to arrests under s 214(1) are an adequate substitute. Where the police have considered it necessary to arrest, they should be held publicly accountable for it in a Court of law to ensure that the arrest was justified, a process facilitated by prosecution.
3. There had been an arrest in this case for the purpose of all the informations which followed. At the outset, the police had to consider whether an arrest was justified in light of s 214. Having done so they discharged their responsibilities as to preconditions for a prosecution. The fact that the mechanisms of those prosecutions subsequently changed was a matter of form only.

Cases referred to:
Police v Burgess 17/9/92, Judge Harvey, DC Papakura CRN2255011532

Appeal:
This was an appeal against conviction on the ground that the Youth Court lacked jurisdiction under s 245 Children, Young Persons, and Their Families Act 1989.

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R v Karaitiana (5 November 1993) CA 247/93, Casey J

Name: R v Karaitiana
Unreported
File Number: CA 247/93
Date: 5 November 1993
Court: Court of Appeal
Location: Wellington
Judge: Casey J
Charge: Grievous Bodily Harm with Intent
Key Title: Sentencing in the adult Courts - Other

Summary:
Solicitor-General appealed sentence on grounds that sentence of 3 years was "manifestly inadequate"; attack was deliberate, offender showed no remorse and injuries suffered by victim serious; offence carries maximum penalty of 14 years imprisonment; Court satisfied that starting point of 4 years too low for crime.

Decision:
Terms of 5-8 years are appropriate; taking into account mitigating factors, sentence of 5 years imprisonment appropriate.

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