New Zealand Police v JH [2020] NZYC 396

Published 15 April 2021

Reserved decision — unlawful arrest — reasonable grounds — wounding with intent to wound — special protection — taonga — mana tamaiti — mandatory report — dismissal of charge — Crimes Act 1961, s 188(2) — New Zealand Bill of Rights Act 1990 — Oranga Tamariki Act 1989, ss 4, 4A, 5, 7AA, 208, 214 & 245 — Te Tiriti o Waitangi (Treaty of Waitangi) — United Nations Convention on Rights of the Child, art 37. The young persons were siblings and each faced a charge of wounding with intent to wound. The alleged offending occurred on the street in a residential area not far from the young persons' house. Police arrived at the scene shortly after the commotion and the young persons were not there. A police sergeant knocked on the young persons' door and queried them about the incident, subsequently asking them to accompany him to the police station. They did this without incident where they spent a night in the police cells. The sergeant did not advise the young persons that they were not required to accompany him to the station, nor did he inform them of their rights pursuant to the New Zealand Bill of Rights Act. At issue was whether the arrest of the young persons had been lawful. Section 214 of the Oranga Tamariki Act 1989 ("the Act") outlines the process by which a young person may be arrested without warrant, which include ensuring a young person's attendance at a court appearance, prevention of further commission of offences and preventing loss or destruction of evidence. This section must be read in the broader context of the Act, especially the changes which came into effect on 1 July 2019, as well as other important documents such as Tiriti o Waitangi and United Nations Convention on Rights of the Child (UNCROC). The concepts of young people or tamariki as taonga and mana tamaiti, that young people require "special protection" were now paramount to the Act. The Judge noted that the 2019 amendments to the Act constituted a significant change in the way that young people in criminal justice matters are treated in and out of court. The Judge determined that the sergeant had not given appropriate weight to the considerations under the Act and that he did not have reasonable grounds upon which to arrest the young persons. The sergeant had also not filed an arrest report as required by the Act. The arrest of both young persons was therefore deemed unlawful and the charges against them were dismissed. The Judge also took the view that to allow the charges to be re-laid would be an abuse of process. Judgment Date: 17 September 2020. * * * Note: names have been changed to comply with legal requirements. * * *