E v R [2012] NZCA 243, (2012) 29 FRNZ 27

Court of Appeal
File number: CA798/11, CA799/11
Date: 13 June 2012
Judge: Randerson, Keane and Asher JJ 
Key title: Admissibility of statements to police/police questioning (ss 215-222): Explanation of rights, Media reporting (s 438)

Case summary from Brookers “Briefcase”:
Successful appeals by E and T against rulings of District Court Judge (‘DCJ’) admitting parts of their statements to Police as admissible evidence in aggravated robbery and aggravated wounding proceedings; E and T aged 14 years and nine months when charged; when spoken to by Police, T admitted being at scene of robbery, denied involvement in stabbing, and mentioned E’s involvement; E also admitted presence at scene but denied involvement in stabbing; DCJ ruled first part of E’s statement to be admissible but held that, as E’s rights under s 215 Children, Young Persons, and Their Families Act 1989 (CYPFA) were not repeated to him after his support person changed from his mother to his aunt, balance was inadmissible; DCJ held T’s initial statement made at home inadmissible as Police should have observed suspicious behaviour and issued warning under s 215 CYPFA but later statements at police station with nominated person present could be admitted; DCJ’s determinations to be considered together

Held
Under s 221(1)(a) CYPFA required explanations must be provided ‘before the statement was made or given’; T’s later admissions made following s 215 CYPFA explanation so did not involve breach of requirements but raised issue whether obtaining them unfair in circumstances; s 30 Evidence Act 2006 (EA) applied to unfairly obtained evidence; later statements would be inadmissible if ‘real and substantial connection’ established between earlier breach and later statement; this would occur if first admission operated in real and substantial way on T’s mind and influenced his subsequent statements; Crown obliged to negate connection where credible basis for such unfairness raised; existence of connection to be seen in context of 14 and half year old youth’s susceptibility to pressure emanating from earlier admission; Police officer’s indication at station that what T was involved in was ‘really serious’ related to content of original wrongly obtained admission and T responded with attempt to clarify earlier admission; interviews were conducted by same officer; difficult for T to resile from earlier statement unless specifically told it was inadmissible and had been put aside; as first statement was substantial factor in making later admissions, these were also inadmissible; additional grounds under CYPFA for removal of final statement due to fairness issues arising from extensive questioning; exclusion of evidence proportionate to impropriety; Crown obliged to prove E understood explanation of his rights under s 215 CYPFA; no evidence produced of real understanding by E of right to obtain lawyer, or potential assistance lawyer could provide; no evidence of E’s maturity or comprehension of Court process; no clear evidence of E’s understanding and admission of evidence disproportionate due to need for vulnerable young persons in Police custody to receive protection;

Result:
T’s and E’s admissions held to be inadmissible; appeals allowed; This case contains some publication restrictions: neither the judgment nor any part of the proceedings (including the result) to be published in news media or on the internet or other publicly available database until final disposition of trial; publication in law report or digest permitted.

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K v R [2012] NZHC 2950, (2012) 29 FRNZ 141

File number: CRI-2012-441-000037
Court: High Court, Napier
Date: 7 November 2012
Judge: Kós J
Charge: Sentencing in the adult courts - Application of Youth Justice principles, Sentencing in the adult courts: Serious assault (including GBH), Orders - type: Supervision with residence - s 283(n).

Facts
K (aged 16) admitted injuring with intent to cause grievous bodily harm, assault and stealing. The victim was part of a group of six young people who approached K and friends, who were drinking. K harmed two of the group by punching, kicking, stealing a cap and striking one victim in the mouth with an empty glass bottle, breaking three front teeth and causing him to require a bone graft.

Youth Court Judgment
The Youth Court Judge rejected the FGC’s plan (which included 6 months of participation in programmes and counselling, reparation, community service, commitment to education, a good behaviour bond and weekly contact with a Youth Justice social worker), and instead imposed a sentence of three months’ supervision with residence. K appealed this sentence.

In imposing supervision with residence, the Judge noted that the young person was of good character and had a supportive family, and no previous Youth Court involvement. This was balanced against the seriousness of the offending and consequences to the victim and the fact that the offending was fuelled by alcohol.

High Court Judgment
In the High Court, the Judge considered the statutory framework (ss 4, 5, 208, 283, 289 and 284). Justice Kós noted that the offending was 'entirely out of character' and the genuine remorse expressed. He placed some weight on the fact that the appellant had been drinking and allegations of a shoulder push from the victim as possible mitigating factors. He stated that there was no suggestion that the appellant represented a threat to the community, and thus could serve his sentence in the community in keeping with youth justice principles. He noted that supervision orders should be used 'as a last resort' and that there were other, less restrictive options available to the Judge. Finally, he compared the case to other Youth Court cases which resulted in less restrictive outcomes (e.g. R v C CA332/95, 28 September 1995 and R v LF YC Waitakere CRI-2005-004-014541, 17 August 2007). He also noted that, had the appellant been sentenced in the District Court as an adult, he would likely have received home detention, and thus would have served his sentence in the community anyway.

Decision:
Appeal allowed. Supervision with residence order set aside, with remaining aspects of the Youth Court sentence sustained and to be completed.

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