New Zealand Police v JV  NZYC 248
Published 15 July 2021
Aggravated burglary — contemporaneous proceedings in different courts — age of criminal responsibility — fetal alcohol spectrum disorder — pushback — "crossover kids" — Oranga Tamariki Act 1989, ss 4, 4A, 5, 7AA, 10, 11, 14, 15, 17, 18, 19, 83, 84, 91, 92, 96, 101, 130, 163, 178, 187, 198, 208 247, 261, 272, 280A, 281B, 282, 326, 333 & 336 — United Nations Convention on the Rights of the Child, art 40 — United Nations Convention on the Rights of Persons with Disabilities 2515 UNTS 3 — Committee on the Rights of the Child General comment No. 24 (2019) on children’s rights in the child justice system UN Doc CRC/C/GC/24 (18 September 2019) — Youth Justice Indicators Summary Report (Ministry of Justice, December 2020) — Waitangi Tribunal He Pāharakeke, He Rito Whakakīkingi Whāuarua Oranga Tamariki Urgent Enquiry (Wai 2915,2021) — Police/Oranga Tamariki v LV  NZYC 117.
The child (aged 13) was before the Court on a charge of aggravated burglary. He was also before the Family Court on the same charge as well as a range of other matters, and was subject to plans before both the Family and Youth Courts.
The Court observed that it was unsatisfactory for the child to be before two courts at the same time, especially given that the Family Court proceedings covered some of the same matters as those in the Youth Court. Given that the child was only 13, the Court had the power to refer the matter back to the Family Court to have the case dealt with on a care and protection basis and to discharge the Youth Court proceedings (a power known as "pushback"). In this case the Court was unable to exercise the pushback because the Family Court proceedings were already too far advanced. However the Court considered that the statutory scheme in the Oranga Tamariki Act (the Act) established the principle that Youth Court proceedings should not remain before the Court when there is an alternative way of dealing with the matter. Further, international law favours avoiding subjecting children to criminal justice processes where possible, especially children with developmental delays or disorders (as the child was believed to have). The Court issued a s 282 discharge on the charge of aggravated burglary.
The Court then observed that the child was a "crossover kid" who was caught up in both the care and protection and youth justice systems. A well-coordinated response, in line with both the Act and international law, was required in order to keep the child from becoming drawn into the criminal justice system. This meant ensuring that there were proceedings in one court only (the Family Court), and that the child had one lawyer, one social worker and one plan. The proceedings needed to include the child's whanau, hapu and iwi and to promote their wellbeing, including their health and cultural wellbeing.
The Court ordered a Family Group Conference to revisit the child's existing plan. The Court also expressed a hope that members of the child's iwi be invited, and that the outcome would give practical effect to the principles of the Treaty of Waitangi.
Judgment date: 16 June 2021.
* * * Note: names have been changed to comply with legal requirements. * **