New Zealand Police v LB [2020] NZYC 318

Published 13 October 2021

Application to dismiss charge — undue delay — sexual violation by rape — Oranga Tamariki Act 1989, ss 4, 5 & 322 — Attorney General v Youth Court at Manukau [2007] NZFLR 103; [2007] DCR 243 — Police v T [2006] DCR 599 — R v Morin (1992) 71 CCC (3d) 1; [1992] 1 SCR 771 (SCC) — Martin v Tauranga District Court [1995] 2 NZLR 419 — Police v C (2000) 19 FRNZ 715 — Police v B [2007] DCR 232. This was an application by the young person for the charge against him to be dismissed because of undue delay pursuant to s 322 of the Oranga Tamariki Act 1989 (OTA). The young person had been charged with sexual violation by rape. Almost a year had passed between the date of alleged offending and the young person's first appearance at court. The test for undue delay is a two-part process: firstly, determining whether the time between the commission of the alleged offending and the hearing has been unnecessarily or unduly protracted; secondly, if there is a finding of undue delay it is at the court's discretion to dismiss the charges. An undue delay is a period of time that is likely to be longer than reasonably expected; it must be more than trivial. A delay due to resourcing will not usually constitute an unreasonable delay; however, at a certain point it will. It is not the court's role to second-guess police-resourcing choices. A court should consider the purposes and principles of the OTA set out in ss 4 and 5. Here, the delay had been due to the Police misplacing the young person's contact details thus being unable to identify him for some time, and the availability of the witness. The Court then looked to whether it should exercise discretion. Counsel for both sides acknowledged the charge was a serious one. Counsel for the prosecution stressed the public interest need for accountability and rehabilitation, which would likely not occur if the charge was dismissed. The youth advocate noted that judicial discretion had been exercised in factually similar cases. Looking at the trajectory of the proceedings, the Judge concluded that the time from this appearance to a full hearing would be significant given that the young person had elected trial by jury. The Judge also considered the stress to the complainant, who may want to move on with her life. The Judge concluded it was appropriate in the circumstances to exercise discretion and dismissed the charge. Judgment Date: 17 June 2020. * * * Note: names have been changed to comply with legal requirements. * * *