DP v R [2015] NZCA 476

Background
Law
Principles
Decision as to extreme hardship
Decision as to discretion

Court of Appeal
File number: CA418/2015
Date: 18 October 2015
Judges: Harrison, Wild, Miller JJ
Key titles: Media reporting.

The Court of Appeal overturned the decision of the High Court and ordered the permanent name suppression of a child convicted of manslaughter.

Harrison J, on behalf of the Court of Appeal, held that when applying the general principles applicable to all applications for name suppression, the Court must recognise the United Nations Convention on the Rights of the Child (UNCROC) and s 25(i) of the New Zealand Bill of Rights Act 1990 (NZBORA) in cases where a child or young person is charged with a criminal offence.

The Court of Appeal held that the High Court Judge erred at both stages of the two-stage inquiry under s 200 of the Criminal Procedure Act 2011 (CPA):

First, the High Court Judge failed to give primary consideration to D’s particular characteristics, as mandated by UNCROC and the NZBORA, when assessing whether publication would likely cause D extreme hardship; and

Second, that the High Court Judge erred in principle when finding that the discretionary factors favoured publication.

Background
In June 2014, D stabbed a shopkeeper to death in the course of a failed robbery. D was aged 13 years old. He was charged with murder but was found guilty of manslaughter following a trial before Lang J and a jury in the High Court. D’s accomplice, aged 12 years, was acquitted on a charge of manslaughter. D was convicted and sentenced to six years imprisonment with a minimum term of three years and three months.

Lang J ordered interim name suppression of D’s name pending trial but, following trial, declined D’s application for permanent name suppression. Lang J was not satisfied that D would be likely to suffer extreme hardship if his name was published or, even if that criterion had been met, that he should exercise his residual discretion to order name suppression. However, any visual or photographic image which might lead to D’s identification was suppressed.

D appealed the application for permanent name suppression on the basis that Lang J erred at both stages of his inquiry when assessing the likely effect of publication of D’s name given his age and personal characteristics.

Law
The Court’s power to suppress publication of the name of a person convicted of an offence is governed by s 200 of the CPA.

Section 200 of the CPA mandates a two-stage inquiry. The first question considered by Lang J was whether D had established the jurisdictional prerequisite of proving that publication would likely to cause him extreme hardship. Although this is a very high threshold of hardship connoting severe suffering, the Court of Appeal emphasised that this stage of the inquiry is fact and context specific and must focus on D’s personal circumstances.

The second question was, if D met this jurisdictional threshold, whether after weighing the competing private and public interests Lang J was satisfied that D’s name should be suppressed. D’s personal characteristics must be balanced against other factors such as the seriousness of offending, the public interest in open justice and, where relevant, the views of the victims and his family.

Principles
The Court of Appeal outlined the general principles that apply to all applications for name suppression made by young persons:

• There is a settled presumption in favour of open reporting, open justice and freedom of expression;
• Publication of a name is an element of the penal process and public accountability;
• Section 200 of the CPA introduced objective and arguably more onerous criteria than those under the Criminal Justice Act 1985, including the test of extreme hardship; and
• Parliament has not expressly placed a young person in an exempt category for the purposes of name suppression. Where a young person is dealt with in the High Court, that Court’s rules and procedure apply (R v M [2011] NZCA 673, [2012] NZAR 137 at [43]).

However, the Court of Appeal found that, in cases where a child or young person is charged with a criminal offence, s 200 of the CPA must be interpreted in a way consistent with the Court’s obligations under UNCROC and s 25(i) of the NZBORA:

• Both UNCROC and NZBORA place children in a different category from adults by recognising that they require special protection when appearing before criminal courts. In all respects concerning children, including publication of name, the child’s best interests shall be a primary consideration (UNCROC, art 3.1: Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [82]);
• UNCROC reinforces the desirability of promoting a child’s reformation and reintegration into society, based on the assumption that he or she is capable of fulfilling a constructive role as an adult (UNCROC, art 40.1);
• Section 25(i) of the NZBORA guarantees that a child charged with an offence be dealt with in a manner that takes account of his or her age.

Referring to Churchward v R [2011] NZCA 531 the Court summarised the justifications for the special need for protection of young people recognised by UNCROC and s 25(i) of the NZBORA:

• With respect to criminal culpability, young people suffer deficiencies in their decision making ability due to the relatively unformed nature of the adolescent character. There are age-related neurological differences between young people and adults;
• During the development process the adolescent brain is affected by psychological, emotional and other external influences contributing to immature judgment:
• Harrison J added that this could also include, where relevant, family instability and alcohol and drug abuse;
• Young people are more impulsive than adults, and are less orientated toward the future than adults;
• Young people have greater capacity for rehabilitation, particularly given that a young person’s character is not as well formed as that of an adult. The weight to be given to the rehabilitative capacity diminishes where the offending is serious;
• Harrison J added that, nevertheless, the existence of serious offending does not equate with a conclusion that a child is beyond redemption;
• Offending by a young person is frequently a phase which passes fairly rapidly and thus a well-balanced reaction is required in order to avoid alienating the young person from society.

The Court referred to three High Court cases delivered between 2010 and 2014 in which name suppression was granted for children or young people convicted of manslaughter, and which relied on domestic commitment to UNCROC and the NZBORA provisions (R v UGT HC Rotorua CRI-2011-263-73, 21 July 2011; R v MG HC Gisborne CRI-2010-016-000084, 7 December 2010; R v Q [2014] NZHC 550). In R v Q the young person was discharged without conviction after initially being charged with manslaughter, and pleading guilty to a charge of assault after the manslaughter charge was subsequently amended).

Decision as to extreme hardship
At sentencing in the High Court, Lang J took a number of personal factors into account when assessing whether D would suffer extreme hardship if his name were published, including that:

• D will be sheltered from the adverse effects of any publicity while he remains in a youth justice facility for the next three years at least;
• Publication of his name is unlikely to affect his rehabilitative progress in that period;
• Those who know D and his family are likely to know his involvement in Mr Kumar’s death in any event;
  D’s risk of self-harm associated with publication was not decisive; and
• Publication would not have an unduly adverse effect on D when he is released.
• The Court of Appeal held that Lang J failed to give primary consideration to D’s particular characteristics when assessing whether name publication would be likely to cause him extreme hardship.

It was the Court’s view that a young person is likely to suffer a greater degree of hardship than an adult because they lack the requisite maturity to deal with the attendant publicity. The question then becomes whether and where along the spectrum the degree of likely hardship arising from name publication reaches the requisite level of extremity. It was noted that, while the effect for a child who has not suffered the same deprivation as D might not meet the threshold, in this case the Court was satisfied that D’s circumstances qualify.

The Court of Appeal departed from Lang J’s views in four material respects:

1. Expert evidence at trial concluded that D had sustained a significant traumatic brain injury. Consequently, D is vulnerable, brain damaged and has a susceptibility to instinctive or impulsive reactions in difficult or complex situations. D’s brain injury, coupled with all the environmental and familial disadvantages of his upbringing, place him in a special category of vulnerability, and without appropriate mechanisms to deal with the added burden of publication.
   
   The Court of Appeal did not favour Lang J’s views that the likely effects of publication when D is released from custody, and that D’s confinement in the youth justice residence will adequately shelter him from that risk in the interim. It was the Court’s view that the predictive evaluation has to be more immediate. The risk, and even the fear of the risk, of others in the youth justice residence learning of the particular and highly publicised circumstances of D’s offending, would likely cause him hardship.
2. Lang J rejected a submission based on D’s risk of self-harm, observing that while the risk exists, this did not require much weight and would be something for the youth justice facility to monitor. Citing Robertson v Police [2015] NZCA 7 and R v Suttie [2007] NZCA 201, the Judge accepted that Courts have declined to suppress an offender’s name even when there is significant risk of suicide.
   
   The Court of Appeal clarified that in Robertson simply noted that there was no evidence of a significant  risk of suicide in that case. In this case, the level of risk established for D was not ameliorated by the care available during his detention. The Court also clarified the position in Suttieinsofar that while a risk of suicide is not a determining consideration, it is certainly a relevant consideration and justifies particular weight for a young and vulnerable offender.
3. Lang J made a distinction between suppression of publication of any visual or photographic image which might lead to D’s identification, which was granted, and name suppression, which was not. The Judge’s rationale was that people are more likely to remember a face than a name.
   
   The Court of Appeal departed from this analysis on the basis that it implies an acceptance that identification of D by facial recognition would cause him extreme hardship. Once extreme hardship is established, there can be no principled distinction between the nature of the recognition, whether facial or by name. The Court also noted that internet search engines are such that a person’s name can uncover images and data about that person within seconds, making a partial suppression ineffective.
4. The Court of Appeal did not accept Lang J’s assessment that D’s exposure to the adverse effects of publicity once released from the youth justice residence will not cause undue hardship if his transition is properly supported by the state. It was the Court’s view that publication would likely severely compromise D’s prospects of rehabilitation and reintegration back into the community. D, and the wider public, would be reminded of serious offending which occurred when he was at a vulnerable state of developmental immaturity, and which would preclude him from moving forward and adjusting to life in the community.
   
   Lang J referred to two cases where the names of young offenders who had committed serious crimes were published, including that of Bailey Kurariki (R v Rawiri HC Auckland T014047, 16 September 2002). The Court noted that constant attention has been given to Mr Kurariki by the media since his release from imprisonment on parole. Frequent references have been made to his status as the country’s youngest convicted killer. The same practice of placing young people in a special and highly publicised category has not been adopted for adult prisoners released on parole; the media has given little if any publicity to Mr Kurariki’s older co-offenders who were convicted of murder.

The Court of Appeal concluded that the publication of D’s name would likely cause him extreme hardship.

Decision as to discretion
The Court of Appeal held that Lang J erred in principle when finding that the discretionary factors favoured publication.

It was the Court’s view that the balancing exercise required that D’s best interests be a primary consideration, and that the treaty and statutory rights conferred to a child under UNCROC and the NZBORA do no end with the completion of a trial. While the Court agreed with Lang J that New Zealand’s treaty obligations do not of themselves require an order for suppression for young offenders, they must play a central part in the discretionary analysis in a case such as this.

Two important counter-balancing factors were acknowledged:

• Public interest in open reporting: It was noted however, that this case had been fully reported, both throughout the trial process and afterwards. There is a distinction between something being of interest to the public and being in the public interest. The public interest was in knowing D’s personal circumstances including his deprived upbringing, his brain injury and the effect of his offending, not his name. This information had been fully traversed in the media; and
• Seriousness of the offending: The nature of D’s culpability was found to be a function of his age, physical and neurological disability and fatigue. It was held that D had been sentenced to a term of imprisonment and there is no need to hold D further accountable to the community by publishing his name.
  It was concluded that, when the balancing exercise is undertaken from the correct legal foundation and on the jurisdictional premise that D is likely to suffer extreme hardship if his name is published, D’s name should be suppressed. Society’s interest in promoting D’s reintegration and rehabilitation outweighs any interest in knowing his name.

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R v D P [2015] NZHC 1796

Background of the offender
Sentencing decision
Result

File number: CRI-2014-204-187
Court: High Court, Auckland
Date: 20 July 2015
Judge: Lang J
Key titles: Sentencing in the adult courts: murder/manslaughter.

D appeared for sentence having been found guilty at trial by jury for the manslaughter of Mr Kumar, a Henderson dairy owner, after stabbing him in the neck during an attempted robbery.

Background of the offender
Lang J set out a number of factors from D’s history relevant to the offending and the jury’s verdict.

Evidence at trial confirmed that his mother drank alcohol and consumed drugs heavily while pregnant with D. Furthermore, D was exposed to excessive consumption of alcohol and drugs from an early age. When D was eight years old, he was hit by a car causing a significant and permanent brain injury. Expert evidence at trial noted that such an injury required intensive therapeutic and rehabilitative intervention and, in the first instance, should be kept in a secure environment with very little stimuli for an extended period of time. However, D returned to school two weeks after the incident. D attended a large number of schools in subsequent years, meaning that the schools were not aware of D’s traumatic brain injury or his specific rehabilitative needs.

In the period leading up to the offending, D had disengaged from school for some time. He was also addicted to synthetic cannabis and his mother provided D with real cannabis in order to deal with this addiction. The house D was living in at the time of the offending was “no more than a drug den associated with drug consumers and drug dealers”.

It was accepted at trial that at D’s mental state at the time of offending was such that he was extremely vulnerable to complex fact situations. Expert testimony stated that D has trouble processing information in complex situations and consequently had a very limited ability to make appropriate decisions in the circumstances as they unfolded in the dairy.

Sentencing decision
In selecting a starting point, Lang J considered that the following principles relevant:

• This case involved a death in the context of an attempted robbery, making issues of deterrence, denunciation and accountability at the forefront;
• The effect of offending on the victim and his family are extreme and irreversible. There is also a ripple effect whereby small shop keepers will now take additional precautions out of concern for this type offending;
• The sentence must take into account D’s age (14 ½ years) and ability to rehabilitate and become a contributing member of the community.
• The Judge distinguished the 10 year imprisonment starting point in the case of R v Rapira [2003] 3 NZLR 794 (CA) in which 14 year old Bailey Kurariki was convicted of manslaughter as a party. In that case, an extensive level of premeditation and planning was undertaken by a large number of people, ultimately resulting in two principal offenders being convicted of murder. Lang J took some guidance from the starting point in R v Mako [2000] 2 NZLR 170 (CA), as this was an attempted robbery in which weapons were taken to the premises.

Lang J fixed a starting point of seven and a half years.

The Judge considered the following mitigating factors relevant:

• D’s age. The Court of Appeal in Churchward v R [2011] NZCA 531 provides an extensive discussion of the way in which youth may impact on sentencing processes. However, Lang J noted that in cases of very serious offending, such as this, youth may need to be given more limited weight; and
• D’s traumatic brain injury was considered to be causative of the offending and may mean that a sentence of imprisonment would be particularly difficult for D. However, the Judge placed limited weight on this factor with the justification that the jury took into account the traumatic brain injury when deciding whether to convict for murder or manslaughter;
• Taking into account D’s age and traumatic brain injury, a discount of 20 per cent was granted. An end sentence of six years imprisonment was imposed, with a minimum term of three years and three months imprisonment.

Finally, the Judge endorsed the view that transfer to an adult prison would be disastrous and would potentially undo all D’s positive development in the youth justice residence. It was noted that D’s transition back into the community would have to be managed very carefully, with considerable support from the State.

Result:
D was sentenced to six years imprisonment was, with a minimum term of three years and three months imprisonment to be served at a youth justice residence.

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R v DP and RP [2015] NZHC 1765

Facts 
Law  
Application by R  
Application by D  
Decision on name suppression  
Result  

File number: CRI-2014-204-187
Court: High Court, Auckland
Date: 29 July 2015
Judge: Lang J
Key titles: Media reporting (s 438).

NB – This decision was appealed to the Court of Appeal

Facts
D and R sought an order under s 200 of the Criminal Procedure Act 2011 (CPA) that their names be permanently suppressed. The application arose subsequent to a jury trial in which D was acquitted on a charge of murder but convicted of manslaughter, and R was acquitted on a charge of manslaughter. These charges arose from an attempted robbery of the Railside Dairy in Henderson in which D fatally stabbed the dairy owner, Mr Kumar in the neck. R accompanied D into the dairy but had backed out of the shop before D brandished the knife he was carrying.

Law
Section 200 requires the Court to approach an application for suppression in two stages. In this case, the Court had to consider:

• Whether the applicant had established that publication would result in extreme hardship per s 200(2)(a). This connotes a very high level of hardship and must entail a comparison between the contended hardship and the consequences normally associated with a defendant’s name being publicised. The contended hardship must go beyond the consequences ordinarily associated with publication (Robertson v New Zealand Police [2015] NZCA 7 at [39]-[41]); and
• If extreme hardship would result, the Court must consider whether to exercise its discretion in favour of the applicant. This requires the Court to weigh the competing interests of the applicant and the public. Issues such as the seriousness of the offending and the public interest in ensuring that the criminal justice process is open and transparent must be weighed against the interests of the offender. The views of the victims of the offending must also be taken into account at this stage of the enquiry.  

Application by R
Lang J acknowledged that R’s situation was different to D’s, given that R had been acquitted and was not guilty of any criminal involvement in the events that led to the victim’s death.

R was 12 years old at the time of the incident and is currently 13 years old. The evidence at trial showed significant difficulties in a number of areas of R’s life that will require substantial support from social welfare authorities if he is to develop positively. Lang J considered that given his acquittal and the inevitable publicity if suppression were not granted, R would suffer extreme hardship if his name was published. An order for permanent name suppression was granted.

Application by D
D’s lawyer relied heavily on a neuropsychology report from Dr Valerie McGinn, who gave evidence on D’s behalf at trial. Dr McGinn’s evidence established that D had an extremely unfortunate childhood. He was exposed to alcohol and drugs prior to birth. His mother has a long history of alcohol and drug addiction, which have significantly reduced her ability to provide her children with a suitably stable home and positive influences. D was exposed to domestic violence, parental drug and alcohol abuse and criminal influences from an early age. He also began using drugs and alcohol himself at an early age.

Matters were complicated further by the fact that when D was eight years old he suffered a severe traumatic brain injury after he was struck by a car whilst crossing the road. An injury of this type should have been the subject of lengthy and intensive therapeutic and rehabilitative treatment. However, D did not receive any treatment for his injury following his discharge from hospital. He went back to school just two weeks after the accident, and his mother then continued her pattern of moving her children from school to school on a regular basis. This resulted in the schools that D attended being unaware of his injury and the measures required to deal with it. By the time of the current offending D had very little to do with the school system. He had fallen into a lifestyle in which he consumed alcohol and drugs on a regular basis with adults and other persons within his social circle. During this period he also continued to be exposed to criminal influences.

Dr McGinn was of the opinion that at the time of the offending D was extremely tired, and his ability to function mentally was affected by this fact. It was also affected by the fact that he had consumed synthetic cannabis on the evening before the offending. She considered that these factors, coupled with the after effects of his brain injury, left him vulnerable to acting instinctively or impulsively once he encountered a complex situation such as that which arose when the shopkeeper’s wife emerged with the phone. Dr McGinn considered that D was likely to have become overwhelmed by the complexity of the situation at that point, and that thereafter he lashed out instinctively and impulsively. The jury’s verdict appears to support this view of events.

Dr McGinn’s opinion as to the likely effect of publication of D’s name is as follows: 

In my opinion, D is a vulnerable brain injured child whose future development will be jeopardised by the publication of his name. It has been established by the jury that he lacked murderous intent and it is only the jury that have heard the full evidence and particular circumstances of D on which they based their decision. In my opinion, should D’s name be made commonly known he will suffer extreme hardship. He will be judged harshly by the community when they are not privy to what really happened. As he mentioned to me at interview he will be forever known as the “Railside Dairy Killer” and this will be detrimental to his chances of rehabilitation and leading a normal life in the future. The video of Mr Kumar’s death has been widely played in the media and should D’s name be published this will be aligned to him without regard to his particular circumstances and his established lack of murderous intent.

In my opinion, D has some real strengths to build on for the future. He is of good underlying ability, is a good student who should be able to achieve academic success with sufficient support. He has a good work ethic and as long as his fatigue is managed has good learning capacity. In my opinion, the publishing of D’s name will have extremely negative repercussions on his future education, employment, housing and social function. His chances of successful rehabilitation will be greatly lessened, in my opinion, should his identity become publicly known.

Although D is currently stable in his mental health, he has the risk to act impulsively and has self harmed in the past. He gets tired and overwhelmed easily and his neurodisability does increase the risk of future poor mental health, self harm and suicide. He did make a suicide attempt at a young age and has cut his arms to self harm closer to the time of arrest. In my opinion the ongoing suppression of his name will help him to make progress, rehabilitate and be hopeful for the future. 

Decision on name suppression
Lang J determined that D would not suffer extreme hardship in terms of s 200(2)(a) if his identity were to be published for the following reasons:

• All offenders suffer a degree of hardship when their names are published. That fact alone is not sufficient to engage the section;
• Although age is a factor when considering the degree of hardship publication will create, Lang J accepted the submission for the media interests that in cases involving serious criminal offending, the age of the defendant is unlikely to be determinative where the names of young offenders who have committed serious crimes have been published;
• Although there is likely to be significant publicity on and around the sentencing date, it was Lang J’s view that this is likely to be of relatively short duration;
• Lang J considered it important that for next few years D will be residing in the youth justice facility where he has resided for the last twelve months, which would provide him with a shield in respect of the publicity generated in the wider community by his offending;
• Publication of visual images of D is likely to cause the greatest form of hardship as “people are likely to remember a face but not a name”. The adverse effects could be ameliorated by prohibiting any photographic image of D from being published in the news media;
• Those who know D and his family are already likely to know of his involvement in the incident that led to the charge. Those in the wider community who do not know D and his family are unlikely to have the opportunity to have access to him;
• It was Lang J’s view that many of the factors identified by Dr McGinn are the natural consequences of any form of serious criminal offending, and they cannot amount to serious hardship in terms of s 200(2); “In particular, D must now come to terms with the fact that he has been convicted of the manslaughter of the shopkeeper, and the stigma that this entails. He must also accept that the community is entitled to judge the offending for what it was”;
• The news media can be expected to report the Court’s sentencing remarks in a fair and balanced way. Provided this occurs, the community will have a clear understanding of the nature and culpability of D’s offending. This should not unduly restrict or inhibit D’s chances of rehabilitation and the ability to lead a normal life in the future;
• The publication of D’s name should not hinder his educational opportunities and social functioning at the youth justice residence. Residents and staff at the facility will already know of the charge that D faced and the jury’s verdict. To date they have been able to provide a supportive and structured environment for him, and this will no doubt continue in the future;
• Although Dr McGinn did not go so far as to say that D is likely to self harm if his name is published, that inference may be drawn from the final paragraph set out above. This is an issue that commonly arises when an offender is convicted on serious criminal charges. It is clearly an issue the youth justice residence will need to monitor as it has no doubt done in the past, but is not a factor was given weight. The courts have declined to make suppression orders even where there is a significant risk that publication may prompt the offender to take his or her own life; and
• By the time D is ultimately released, it was Lang J’s view that few members of the community are likely to remember his name: “Given that he is likely to be subject to strict release conditions, it should not impact on his ability to find housing at that time. Although the fact of his conviction may impact on D’s future employment prospects, publication of his name is unlikely to have a great deal of added impact in that area. Like all prospective employees, D will no doubt be required to disclose the existence of the conviction to future employers. They will then be able to make their own judgment as to whether or not he would make a suitable employee”.

For these reasons, a permanent order for name suppression was not granted. However, Lang J considered in the alternative that it would be inappropriate to exercise his discretion in favour of suppression if jurisdiction had been found to exist under s 200(2)(a), because:

• In addition to the above considerations, the seriousness of offending and public interest requiring the names of serious offenders to be published must be taken into account;
• Mr Kumar’s family are anxious that D’s name be published; and
• The rights conferred on children by the United Nations Convention on the Rights of the Child, particularly articles 37 and 40 that require children to be dealt with in the criminal justice system in a manner appropriate to their age and developmental needs, have largely been complied with prior to and during the trial. It was Lang J’s view that the treaty obligations do not require suppression of identity in respect of young offenders when that would not ordinarily be the case in domestic law.

Result:
Application for permanent name suppression was declined. An order was made suppressing from publication any visual or photographic image that might lead to D’s identification.

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C v R [2015] NZCA 452

Court of Appeal
File Number: CA605/2014
Date: 1 October 2015
Judges: Ellen France P, Stevens and Winkelmann JJ
Key title: Admissibility of statements to the police/police questioning (ss 215-222): Nominated Person, Admissibility of statements to police/police questioning (ss 215-222), Sentencing in the adult courts: Indecent assault/indecent act

Facts
R, 16 years old, was found guilty following a jury trial on one count of indecent assault. Prior to trial, R had pleaded guilty to a charge of wounding with intent to cause grievous bodily harm, offending involving the same complainant and at the same time. He was sentenced to five years six months’ imprisonment (see R v Campbell DC Papakura CRI-2013-292-203, 17 October 2014). R appealed the conviction for indecent assault, and the sentence imposed upon him in respect of both the wounding and indecent assault convictions.

His appeal against conviction was advanced on the grounds that a miscarriage of justice occurred because:

1. A statement he made to the police was wrongly admitted as evidence at trial.
2. The trial Judge was wrong to prevent R’s counsel from cross-examining the complainant about sexual conduct by the complainant prior to the incident and about post-incident contact between RC and the complainant.

The appeal against sentence was brought on the grounds that the overall sentence of 5 years 6 months’ imprisonment was manifestly excessive because the starting point adopted was too high, and the discounts for the guilty plea on the wounding with intent charge, and for R’s youth, were too low.

First ground of appeal: challenge to admissibility of statement
The Court outlined the statutory context for the appeal as ss 208, 215 and 218. Section 208 states that children and young people are entitled to “special protection” during any criminal investigation, and s 215 states that children and young people are entitled to consult with, and make or give statements to, a lawyer and any nominated person. Section 218 provides that all explanations are to be given in a manner and language that is appropriate for the child or young person concerned.

Adequacy of advice regarding the right to counsel
The critical issues to determine were whether R understood that he had a right to a lawyer and that he was given an opportunity to avail himself of that right. In this case, R was taken through his rights and asked to explain them back to an officer on two occasions. The Court was satisfied that R fully comprehended his rights, and there was no necessity to follow up the advice of rights with a further query as to whether he wished to avail himself of them (at [45]).

However, the Court made obiter comment on the use of the phrase “and/or” in connection with the child or young person’s right to a lawyer and a nominated person:

[46] […] This is an unnecessarily complex way of presenting information to a young person. We not that the “and/or” expression appears in the nominated person form. We do not know if it also appears in any other material or standard checklists utilised by police. We encourage the use of simpler language which makes clear that these are additional and not alternative rights.

Inefficacy of the nominated person process
When informed of his rights, R asked that his father act as his nominated person. R and his father were given time together alone in advance of the interview and then again prior to the topic of a possible sexual element to the offending being introduced.

The Court accepted the reasoning at the pre-trial appeal, which was that the statute did not require the support person to take a ‘best interests approach’, and that the support person had not failed in the discharge of his duty:

[25] […] [T]he statutory duty on a nominated person under s 222(4)(a) of the CYPF Act is “to take reasonable steps” to ensure that the child or young person understands the matters set out in ss 221(2)(a). We agree with Mr Downs that s 222(4) does not require a best interests approach on the part of the support person […].
[26] In any event, there is no evidence on which we could find that RC senior failed to discharge this duty. […] [T]his Court has held that the legislature did not envisage that a comprehensive judicial enquiry is required into the nature and quality of the support given in any particular case.

Unfairness / breach of rights in how the interview was conducted
R was arrested in relation to the alleged assault and agreed to an interview on that basis. At that stage the police did not have any definitive information from any source that there had in fact been a sexual assault. After initial questioning, R and his father were advised that police now wanted to talk to him about the evidence they had about the incident being sexually motivated. There was brief consultation between R and R’s father. The interview reconvened, and R was reminded of his rights. R made no admissions during this second stage of interviewing.
The Court accepted the reasoning applied in the pre-trial appeal, this being that the police were not obliged to advise R that he was at risk of facing sexual charges at the beginning of the interview, because the officers were not in possession of the full facts relevant to the sexual element of the complaint. The officers then ensured that R and his father were on notice, and given an opportunity to speak in private, before possible sexual offending was raised in the interview. The Court held that this did not entail a breach of R’s rights under NZBORA or the CYPF Act.

Second ground of appeal: Judge’s refusal to allow evidence
R submitted that a miscarriage of justice had been caused by the refusal of the trial Judge to permit cross-examination of the complainant on the following:

1. Contact of both a sexual and non-sexual nature which began some weeks after the assault, which would constitute evidence of recommencement of a relationship; and
2. Three alleged occasions on which R and his friend had group sex with the complainant.

The Court held that the Judge was right to prevent these lines of cross-examination. For discussion of the Court’s reasoning, particularly in relation to s 44 of the Evidence Act 2006, please see paragraphs [67] to [81] of the judgment.

Sentence Appeal
R submitted that the sentence imposed was manifestly excessive because too high a starting point was adopted and the discounts on account of his guilty plea to the wounding charge and his youth were too low. The Court was satisfied that the starting point of seven years was not too high, because the injuries inflicted were serious, the attack was for all material purposes unprovoked and the attack facilitated the commission of another crime, the indecent assault.

As to the discount, the Court calculated the youth discount allocated by the trial Judge to have been six months. It considered that a greater discount for youth was indicated in this case. R was only 16 and had no previous convictions. Although this was serious offending, it was very likely that R’s young age played a role in his conduct. It was considered that a further discount of six months should be allowed to reflect his youth and prospects for rehabilitation.

Result
The application for leave to adduce further evidence was declined.

The application against conviction was dismissed.

The appeal against sentence was allowed. The sentence imposed of 5 years six months’ imprisonment on the charge of wounding with intent to cause grievous bodily harm was quashed, and RC was resentenced to five years’ imprisonment on that charge with the sentence of 12 months imprisonment on the charge of indecent assault confirmed, to be served concurrently with the wounding sentence.

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R v Brown [2015] NZHC 1155

File Number: CRI-2014-009-6904 
Date: 27 May 2015
Court: High Court, Christchurch
Judge: Nation J
Key title: Delay (s 322); Objects/Principles of the CYPFA (ss 4-5), Appeals to the High Court/Court of Appeal: Jurisdiction.

Facts
Brown faced charges of sexual offending in relation to a young male relative. Brown then applied for dismissal of these charges on the basis that the time elapsed between commission of the alleged offences and trial had been unduly protracted, pursuant to s 322 of the CYPF Act.

The alleged offending started, for legal purposes, when Brown was aged 14, and the complainant was eight, and ceased when Brown was aged 16, and the complainant 10. Charges were laid in the District Court when Brown was aged 20. The expected time of trial was seven years and ten months from commencement and five years and six months from conclusion of the alleged offending.

Issues

1. The first issue was whether a District Court Judge has jurisdiction to apply s 322 of the CYPF Act.
2. The second issue was whether s 322 can be applied after the prosecution has filed evidence and the defendant has been remanded to the High Court for trial.
3. The third issue was whether dismissal of charges pursuant to s 322 should be granted in this particular case (or, in the case that a District Court Judge does not have jurisdiction to apply s 322 of the CYPF Act, whether dismissal should be granted pursuant to s 147 of the Criminal Procedure Act 2011).

Law and Application
The power to dismiss charges for delay is contained in s 322 of the CYPF Act, which provides:

A Youth Court Judge may dismiss any information charging a young person with the commission of an offence if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.

1. Does a District Court Judge have jurisdiction to apply s 322 of the CYPF Act?
The Judge finds that a District Court Judge does have jurisdiction to apply s 322. Section 2(3) of the CYPF Act provides that where any charging document is filed in a District Court as a result of a party to proceedings having attained the age of 18 years, s 322 shall apply, with all necessary modifications, to the proceedings.

The Judge discusses, at length, the Court of Appeal authority R v M [2011] NZCA 673. In that case, charges were laid in the Youth Court, and proceedings were then transferred to the High Court and District Court, at which point s 322 could no longer be applied. The Judge distinguishes R v M as the present case concerns charges that were first laid in the District Court. The Court must therefore give effect to s 2(3) of the CYPF Act and apply s 322, with all necessary modifications, to the proceedings.

For discussion of the above, see the judgment at [14] to [29].

2. Can s 322 be applied after the prosecution has filed evidence and the defendant has been remanded to the High Court for trial?
The Judge finds that s 322 may be applied at the pre-trial callover stage and at any stage up to the commencement of the trial. For discussion of the above issue, particularly regarding the interplay between the Criminal Procedure Act 2011 and the CYPF Act, see the judgment at [29] to [42].

3.Should dismissal of charges pursuant to s 322 be granted in this particular case?
The Judge adopts the principles governing a s 322 application as formulated by Winkelmann J in Attorney-General v Youth Court at Manukau [2007] NZFLR 103:

1. The s 322 discretion to dismiss charges is only triggered if there is undue or unnecessary protraction of the relevant period of time.
2. The relevant period is the time elapsed between the commission of the alleged offence and the hearing of the charge.
3. To exercise the discretion, the Court must be satisfied that the protraction of this period was unnecessary or undue.
4. The test for assessing whether a delay is undue involves consideration of:
   i. The length of the delay;
   ii. Waiver of time periods;
   iii. The reasons for the delay, including but not limited to inherent time requirements of the case, actions of the accused, actions of the Crown, and limits on institutional resources; and
   iv. Prejudice to the accused.
5. In assessing whether there has been undue delay, the Court should have particular regard to the mandatory s 5(f) principle that decisions affecting a child should, wherever practicable, be made and implemented within a time-frame appropriate to the child’s or young person’s sense of time.
6. Courts must have regard to the qualification of the s 5(f) principle: decisions should take into account a child’s sense of time “wherever practicable”.
7. Unnecessary delay means no more than delay that could reasonably have been avoided.
8. If the Court is satisfied of undue or unnecessary delay, the Court then has a discretion as to whether to dismiss.
9. When exercising this discretion, the Court is entitled to take into account the objects of the Act which include the provisions of s 4(f).
10. The seriousness of offending will be a factor to be taken into account in the exercise of the discretion, although the weight given to that factor will depend on the particular circumstances of the case.
11. In exercising its discretion, the Court must recognise that the welfare and interests of a young person charged with an offence are not to be the first and paramount consideration.

In applying the above factors, the Judge took into account a large number of factors, including but not limited to the following:

• The delay between the alleged offending and the trial was to be seven years and ten months from when offending began, and five and a half years from when it ended, which the Judge considered to be “significant” for both complainant and defendant.
• There was prejudice to the defendant in facing to face a jury trial as an adult for conduct alleged to have occurred when he was a young person, and this prejudice was exacerbated by a troubled background.
• The trial would cause stress, and potentially “further damage”, to the complainant. However, the complainant chose to go to the Police with his allegations and, in doing so, had his parents’ support.
• The charges could not have been brought by the Police any earlier as they were not disclosed until late 2013. Accordingly, bringing the charges earlier was “not practicable”.
• The alleged offending was serious. The public, the complainant and the complainant’s family therefore had an interest in ensuring the defendant was held accountable, and the community had an interest in ensuring that the defendant received the intervention that would ensure he would not reoffend.
• The overarching purpose of the CYPF Act is to “promote the wellbeing of children, young persons and their families”. To fulfil this purpose, the Court should take into account the damage that might be caused to the complainant by the matter not proceeding to trial.
• In this case, the defendant was unlikely to be prejudiced in his defence. The offending was alleged to have occurred in situations where he was alone with the complainant, and delay may raise doubts as to the reliability of the complainant’s evidence.
• Parliament has indicated that particular caution needs to be exercised after a delay of 10 years (Evidence Act 2006, s 122(2)(e)). That period has not elapsed in this case.

For additional factors, further detail on the above factors and discussion of s 147 of the Criminal Procedure Act 2011 see the judgment at [59] to [77].

Conclusion
The delay between the alleged offending and the date of trial was not sufficient reason to dismiss the charges. The application for dismissal of charges pursuant to s 322 was denied.

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Brown v R [2015] NZCA 325

Court of Appeal
File Number: CA320/2015
Date: 3 July 2015
Judges: Wild, Keane and Kós JJ
Key title: Delay (s 322); Objects/Principles of the CYPFA (ss 4-5)

Brown sought leave to appeal the non-dismissal of the charges pursuant to s 296 of the Criminal Procedure Act 2011.

Issues
There were four issues addressed by the Court:

1. Does s 296 of the Criminal Procedure Act 2011 confer jurisdiction for a defendant’s pre-trial appeal against non-dismissal of charges under s 322 of the CYPF Act?
2. Are the proposed questions on appeal “questions of law”?
3. Should leave to appeal be given?
4. Did the Judge err in law?

Law and Application
This brief will not elaborate on the first three issues. The Court of Appeal proceeded on the presumption that s 296 of the Criminal Procedure Act 2011 confers jurisdiction for a defendant’s pre-trial appeal against non-dismissal of charges under s 322 (see [8] to [14]). The Court found the issues on appeal to be “questions of law” as defined by modern case authorities (see [15] to [18]), and granted leave to appeal (see [19]).

Three questions of law were posed on appeal. The Court did not find the High Court Judge to have erred in law in relation to any of the three questions, as outlined below:

Does a denial of guilt militate against dismissal of charges under s 322 of the CYPF Act?
This question was the result of the High Court judgment having provided a hypothetical counterfactual in which a defendant accepted responsibility for charges, and the s 322 application was successful. The appellant argued that this counterfactual indicated the Judge would have regarded the case as stronger if he had pleaded guilty. The Court of Appeal did not accept that submission. See paragraph [25].

Is the welfare of the complainant a relevant factor to be taken into account in determining whether there should be a dismissal of charges under s 322?
The Court found the welfare of the complainant to be a relevant factor:

[30] As s 6 of the CYPFA makes clear, the welfare and interests of the young person charged does not have first and paramount consideration. As this Court has held previously in R v M [2011] NZCA 673, drawing upon the United Nations Convention on the Rights of the Child, the best interests of a young complainant are a primary consideration alongside those of the young person accused.

Did the High Court fail to take into account relevant factors in relation to the application for the dismissal of charges under s 322?
The appellant argued that the Judge failed to take properly into account the length of delay in the case, but the Court of Appeal did not accept that submission for the following reasons:

1. The Judge was “entirely aware” that the delay was substantial;
2. delay by youth complainants is commonplace and a purely arithmetical approach to assessing delay would tend to immunise offenders from serious misconduct;
3. the seriousness of the charges means the Youth Court would likely have been denied jurisdiction, had they been brought earlier;
4. the appellant is now an adult, and thus s 322 is being brought to bear in a context “far removed from the youth justice one it was intended to apply to”;
5. a tabulated comparison of delay periods in other cases would be of little assistance; and
6. the High Court Judge did not fail to consider relevant considerations.

Conclusion
Leave to appeal was granted. The appeal itself was dismissed.

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