R v Police (1997) 14 CRNZ 590 (HC)

Case summary provided by BROOKERS

Name: R v Police
Reported: (1997) 14 CRNZ 590
File number: AP35/96
Date: 23 April 1997
Court: High Court, Masterton
Judge: Neazor J
Key Title: Evidence (not including statements to police/police questioning), Youth Court Procedure

Summary:
Procedure - Amendment of charge - Amendment made by Youth Court Judge as part of decision after evidence completed and information proved - Weight of authority against existence of power to substitute without giving defendant opportunity to be heard before a final decision made on the substituted charge - Whether s 204 can save a proceeding if omission or deficiency occurred at time when Judge had no jurisdiction to act - Summary Proceedings Act 1957, ss 43, 204.

Evidence - Child complainant - Jurisdiction of Youth Court to use videotaped evidence - Existing authority provides sufficient basis for Judge with jurisdiction to try case without jury to modify procedures required by Evidence Act provisions so far as circumstances of case make necessary - Evidence Act 1908, ss 23C-23F, 23H.

Videotape evidence - Child complainant - Jurisdiction of Youth Court to use videotaped evidence - Existing authority provides sufficient basis for Judge with jurisdiction to try case without jury to modify procedures required by Evidence Act provisions so far as circumstances of case make necessary - Evidence Act 1908, ss 23C-23F, 23H.

Evidence - Child complainant - Practice to be followed in Youth Court where child complainant gives evidence - Judge must obtain from complainant requisite promise to tell truth.

Appeal:
Appeal against determination by Youth Court that appellant committed an offence under s 133(1)(b) of the Crimes Act 1961.

The appellant appealed against a determination by the Youth Court that he had committed the offence of doing an indecent act on a girl under the age of 12 years. The appellant was aged 15 at the time of the offence and 16 at the time of hearing. He was originally charged with attempting to commit sexual violation, but this was amended by the Judge as part of his decision after the evidence was completed and the information was found to be proved. The appellant was sentenced to 3 months' supervision.

The complainant was aged 7 years 9 months at the time of the offending and 8.5 at the time of hearing. After the police became involved, the complainant was interviewed by the Children and Young Persons Service on the basis that the interview would be recorded on videotape for use as an evidential video.

At the hearing in the Youth Court, the Judge recorded that a late application was made to him by the police to view the videotape. A request was made under s 23E of the Evidence Act 1908 that the complainant's evidence-in-chief be given by videotape and that when any oral evidence was given by her, she should be screened from the appellant. Counsel for the appellant reluctantly consented to both applications. The Judge decided that the complainant should not be present during the playing of the videotaped evidence.

The videotaped record of the interview was viewed by the Judge, who accepted it as evidence. The complainant did not view the videotape. The Judge then made inquiries of the complainant as a preliminary to determining whether she could give evidence, and sought from her a promise that she would tell the truth. It was determined that it was proper to accept her as a witness, a promise was obtained, and cross-examination by counsel for the appellant followed.

The appeal was based on the following grounds:

1. The Judge should not have permitted the complainant's evidence to be admitted by way of videotaped record.
2. The tape failed to comply with the minimum standards prescribed by the Evidence (Videotaping of Child Complainants) Regulations 1990.
3. The Judge was wrong to admit the complainant's oral evidence as there was insufficient evidence for him to be satisfied that the complainant had understood the need to tell the truth and had promised to do so.
4. The Judge was wrong to amend the charge and convict the appellant on it without complying with s 43 of the Summary Proceedings Act 1957.
5. Either hearsay evidence about the appellant's alibi was wrongly admitted by the Judge or there was misconduct on the part of the prosecution.
6. Complaint evidence given by the mother of the complainant was wrongly admitted and given weight contrary to the rules relating to complaint evidence.
7. The decision was not supported by the evidence and the conviction ought to be set aside.

Held:

1. It is not necessary to rely on any inherent jurisdiction in deciding whether the Youth Court has jurisdiction to receive evidence under s 23E Evidence Act and the regulations, as this case is within the categories referred to in s 23C of the Evidence Act and ss 23C to 23F and 23H are not limited in application to jury trials. Principles derived from Clifford v CIR [1966] NZLR 201 (CA) and R v Moke [1996] 1 NZLR 263; (1995) 13 CRNZ 386; 14 FRNZ 75 (CA) provide sufficient basis for a Judge who has jurisdiction to try the case without a jury to modify the procedures required by the Evidence Act provisions so far as the circumstances of the case make necessary. If that is wrong, the decision in Moke would give the Court jurisdiction. It should be noted by the prosecution that s 23D requires the prosecutor to apply to the Judge for directions as to the mode of a young complainant giving evidence in sexual cases when there has been a committal for trial. The same step should be taken in advance of trial when a case is to be heard in the Youth Court. (p 597, line 45).
2. With regard to the fact that the child did not see or hear the video and that the child was not qualified as a witness before the videotape was played as evidence, the reason for the Judge's direction was understandable. However, the proper course in the Youth Court is usually to follow the practice laid down in R v Lewis [1991] 1 NZLR 409; (1990) 6 CRNZ 350 (CA) and R v S [1993] 2 NZLR 142; (1992) 9 CRNZ 201 (CA) that unless there is some particular reason in any case, before the child complainant gives evidence, the Judge must obtain from him [(1997) 14 CRNZ 590,592] or her the requisite promise to tell the truth. In this case, there was a procedural error under s 440 but no miscarriage of justice, so the video evidence should not be excluded. (p 598, line 12; p 599, line 27).
3. It was open to the Judge to accept that the interviewer complied with the requirements of the regulations and that the videotaped record was admissible. (p 601, line 34) R v S (CA105/92) [1993] 2 NZLR 142; (1992) 9 CRNZ 201 (CA) applied.
4. Whether a child witness is capable is always a difficult decision for a Judge to make because it has to be made on the basis of what the Judge knows of the child as a result of his or her questions (and in this case from what was on the videotape). In this instance, the Judge was not wrong to accept that the child was able to give evidence. (p 602, line 4).
5. The substance of authority in New Zealand is against the Judge having power to amend or substitute the offence charged, once the proceedings in open Court have been concluded by reserving decision. A strong support for such a view is that, unless special steps are taken, the benefit of the protection of s 43 of the Summary Proceedings Act will be lost. The weight of authority is against there being power to substitute without giving the defendant the opportunity to be heard before a final decision is made on the substituted charge. It cannot be the case that s 204 could ever save a proceeding if the omission or other deficiency occurred at a time when the Judge had no jurisdiction to act. (p 605, line 15).
6. In view of the determination that the conviction cannot stand, it is unnecessary to make any decision on the other grounds of appeal. (p 605, line 36).

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R v McLeish CA 219/97, 22 July 1997

Court of Appeal
File number: CA 219/97
Date: 22 July 1997
Judge: Robertson J
Key Title: Jointly Charged with Adult (s 277); Sentencing - General Principles (e.g. Parity/Jurisdiction)

Appeal against sentence. McLeish (17) and co-offender (16 years, 10 months) picked up a prostitute in parent's car, drove to a secluded place and attacked and robbed her in the back of the car. Co-offender dealt with in Youth Court; received fine, supervision and community service. McLeish sentenced in District Court to 12 months imprisonment as District Court Judge took view that Criminal Justice Act 1985, s 5 applied and expressed concern at culture developing where youth indulged and serious crimes downplayed or ignored. Appeal on grounds that Judge did not consider possibility of suspension and the disparity between the treatment of the two offenders. Held: Suspension did require to be considered once Judge determined that the appropriate avenue was a custodial sentence of 6 months to 2 years (R v Petersen [1994] 2 NZLR 522). Disparity test in R v Lawson [1982] 2 NZLR 219; common enterprise; offenders only 9 weeks apart in age; co-accused "more of the aggressor"; no great damage to victim; no weapon used; McLeish admitted guilt early on; McLeish only 17 years and 1 week old; no previous convictions. Fact that offenders were dealt with in different jurisdictions could not be used as a general blanket to ignore the reality of the consequences for each of them.

Decision:
Imprisonment reduced to 3 months due to disparity; Order for suspension confirmed.

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H v Police (1997) 15 FRNZ 678 (HC)

Case summary provided by BROOKERS

Name: H v Police
Reported: (1997) 15 FRNZ 678
File number: AP63/97
Date: 18 July 1997
Court: High Court, Hamilton
Judge: Hammond J
Key Title: Sentencing - General Principles (e.g. Parity/Jurisdiction); Principles of Youth Justice (s 208); Order - type: Conviction and transfer to District Court for sentencing - s 283(o): Aggravated burglary; Orders - type: Conviction and transfer to District Court for sentencing - s 283(o): Serious assault (including GBH), Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other

Summary:
Child, young persons, and their families - Youth justice - Young person transferred to District Court for sentencing - Risk of gross disparity of sentence with co-offender - Sentence to be least restrictive appropriate and to maintain and promote development of young person - Challenge to District Court sentence premature - Seriousness of offending required remittance - Children, Young Persons, and Their Families Act 1989, ss 208, 283, 284, 290, 344.

Appeal:
This was an appeal against a Youth Court Judge's decision to transfer a young person to the District Court for sentence under s 283(o) of the Children, Young Persons, and Their Families Act 1989.

H, aged 15, was convicted of wounding with intent, aggravated burglary, and unlawfully interfering with a motor vehicle, together with W, also aged 15, and a 12-year-old. Both 15-year-old offenders were brought before the Youth Court. W was transferred to another Youth Court, where he was ordered to undertake supervision with residence, followed by 6 months' supervision under s 283(n) of the Children, Young Persons, and Their Families Act 1989. Although the police disputed this sentence, no appeal was lodged.

H was remanded to a family group conference which did not reach agreement on an appropriate sentence. The Youth Court Judge transferred H to the District Court for sentence, considering that, in the light of H's history and the nature of the attack, against an elderly woman, a deterrent sentence was required. H appealed on the grounds that a custodial sentence in the District Court would result in gross disparity with W's sentence and that, in remitting H to the District Court, the Youth Court Judge failed to recognise the requirements of s 208 of the Children, Young Persons, and Their Families Act, and the potential family support available to H.

Held, dismissing the appeal:

1. Any question of the appropriateness of District Court sentencing was premature as the Court had not yet passed sentence. Parity in sentencing may well be an issue for the Court. If that principle was infringed, H would have the right to appeal. (p 680, line 13).
2. The second ground of appeal was essentially against the exercise of a discretion. The Judge's finding could not be said to be plainly wrong. Given the nature of the report under s 344 of the Children, Young Persons, and their Families Act, there was ample evidence to support a finding that H's family would not support him in making reparation and an apology to the victim. The appeal was dismissed. (p 680, line 27).

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Herewini v Police HC Hamilton AP 85/97, 19 September 1997

File number: AP 85/97
Date: 19 September 1997
Court: High Court, Hamilton
Judge: Hammond J
Key Title: Sentencing in the adult Courts - Aggravated burglary; Sentencing in the adult courts - Serious assault (including GBH); General Principles of Sentencing - e.g. Parity/Jurisdiction

Summary:
Appeal against sentence. H (15 yrs 3 months at time of offending) pleaded guilty to charges of aggravated burglary, wounding with intent to cause grievous bodily harm and unlawfully getting into a vehicle; H first appeared in Youth Court; proceedings removed to District Court for sentencing; appeal against that decision dismissed: H v Police HC Hamilton AP63/97, 18 July 1997 per Hammond J. H effectively sentenced to two years imprisonment concurrent on the two more serious charges, and discharged on the third charge; H appealed against sentence. Co-offender (15) dealt with in Youth Court by way of a constructive rehabilitation programme; parity issue; in lower Court circumstances of offenders were considered to be different as co-offender was remorseful and had family support; notable that some of H's supporters were not present at his Family Group Conference. Viewed objectively, the administration of justice had miscarried: R v Monica CA484/93, 25 March 1994.

Decision:
Appeal allowed, suspended prison sentence substituted.

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Lee v Police HC Auckland AP 180/97, 9 September 1997

File number: AP 180/97
Date: 9 September 1997
Court: High Court, Auckland
Judge: Salmon J
Key Title: Sentencing in the adult Courts - Aggravated Robbery

Summary:
Appeal against sentence. L [age not indicated] appealed against a sentence of two years imprisonment imposed by the District Court on a charge of aggravated robbery. L and co-offender had gone to a Japanese restaurant where they had eaten, made arrangements to pay the following day but returned later and attacked the restaurant owner, robbing him of over $3,000; chair leg and diver's knife used as weapons; serious violence. Whether the two year sentence should be suspended. R v Moananui [1983] NZLR 537 and R v Petersen [1994] 2 NZLR 533 considered; this case falls within second category in R v Moananui; Criminal Justice Act 1985, s 5: imprisonment appropriate unless there are special circumstances which would justify avoiding a full-time custodial sentence. R v Hodge CA 471/94, 28 November 1997 distinguished.

A fine of $10,000 was imposed, of which $7,500 was to be paid to the victim, along with the 2 year sentence of imprisonment. Concern of the sentencing Judge was the degree of violence involved and the need for a deterrent sentence; but considered the youth of the offender and that it was his first offence.

Held:
deliberate and unprovoked attack; not satisfied that the sentencing Judge was wrong or that the sentence was manifestly excessive.

Decision:
Appeal dismissed.

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R v S (1997) 15 CRNZ 214 (CA)

Case summary provided by BROOKERS

Court of Appeal
Reported: (1997) 16 FRNZ 102
File number: CA220/97
Date: 4 September 1997
Judge: Eichelbaum CJ, Gault, Henry, Thomas, Keith JJ
Key Title: Reports - Cultural, Admissibility of statements to police/police questioning: Nominated persons, Rights

Summary:
Youth justice - Right to consult lawyer - Decision not to consult lawyer - Whether compliance with s 221(2)(b) Children, Young Persons, and Their Families Act 1989 - Unfairness - Cultural factors - Children, Young Persons, and Their Families Act 1989,ss 221(2)(b) 222(4); Crimes Act 1962,s 344A New Zealand Bill of Rights Act 1990.

Application:
This was an application under s 344A of the Crimes Act 1961 to appeal against a pre-trial order admitting video evidence.

The applicant, S, a 15-year-old Samoan, was one of three young persons jointly charged with murder. He applied for leave to appeal a pretrial order determining that a police videotape of his evidence was admissible at trial. He claimed that for cultural reasons he had deferred to his mother, who was present at the interview, in deciding not to consult a lawyer. S's mother had told him that the most important thing was to tell the truth, and that a lawyer was not necessary. At the conclusion of the interview, S was arrested and charged, and elected to consult a lawyer. The order was challenged on two grounds: first, that s 221(2)(b) of the Children, Young Persons, and Their Families Act 1989 operated to make the evidence inadmissible, and secondly, that S's mother had unduly and unfairly dissuaded S from his initial wish to see a lawyer.

Held, dismissing the application for leave to appeal:

1. The appropriate standard of proof to establish the admissibility of a statement under s 221(2), as established by analogous cases under the Bill of Rights, is the balance of probabilities, having regard to the gravity of the particular issue. There is no good reason to elevate the test under the Children, Young Persons, and Their Families Act 1989 to "beyond reasonable doubt", and to add a second exception to the ordinary rule governing incidental trial issues. (p 219, line 14). R v Fitzgerald HC Auckland T183/90, 30 October 1990 not followed, Police v Kohler [1993] 3 NZLR 129 (CA); R v Te Kira [1993] 3 NZLR 257 (CA) applied.
2. S had effectively made a decision not to consult a lawyer, which was translated into an express acknowledgement that he did not want a lawyer. In the absence of true coercion or compulsion, it was difficult to see how a decision, even if taken on persuasive advice, ceased to be a decision or to represent that person's "wish". Where a person expressly elects not to consult a lawyer, it will generally require an extreme case to hold that the statutory provision has nevertheless been breached. (p 220, line 2).
3. When enacting s 222(4), the Legislature did not envisage a comprehensive judicial inquiry into the nature and quality of support given in any particular case. Obvious difficulties arise if such an inquiry is conducted. Cultural issues may surface, and the age, knowledge, and understanding of the young person will vary, as may individual or family concepts of the appropriate course of action. Given the Children, Young Persons, and Their Families Act 1989 emphasis on the family, it was not for the Court to gainsay S's mother's advice. (p 220, line 35).

Obiter:
There may well be instances where the requisite support has not been made available in a real sense, and that has led to a situation where a child or young person has been left in an unacceptable or unfair state of vulnerability. (p 220, line 44).

DPP v Blake [1989] 1 WLR 432; (1989) 89 Cr App R 179 referred to.

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