R v ES [2020] NZYC 434

Published 01 October 2020

Application to dismiss charges — delay — unduly protracted — COVID-19 — resourcing — youth justice principles — Oranga Tamariki Act 1989, ss 4, 4A, 5 & 322 — Attorney-General v Youth Court at Manukau [2007] NZFLR 103 (HC) — R v M [2011] NZCA 673, CA689/2011 — H v R [2019] NZSC 69 — Police v Turner [2006] BCL 412 (HC) — Police v BRR [1993] 11 FRNZ 25. The young person faced one charge of sexual violation by rape. Counsel for the young person sought to have the charge dismissed under s 322 of the Oranga Tamariki Act ("the Act") on the basis of undue delay. The alleged offending had occurred in mid-2018. The complainant reported the incident to the police 14 months later. Further delays caused by workload of the Detective Constable in charge and the first COVID-19 lockdown resulted in the charges only being pressed against the young person in June 2020. Under s 322 of the Act, a judge may dismiss a charge where there is an unnecessary or unduly protracted delay between the date of the commission of the alleged offence and the hearing. A date still had not been set for a hearing, and given the suspension of jury trials during the COVID-19 lockdown period and subsequent backlog, the Judge estimated that a hearing may not occur until July 2021, some 34 months after the alleged date of offending. The Judge noted, citing other cases, that this type of delay was seen often where authorities had to make decisions around resourcing. That in and of itself did not constitute undue delay, but there is a point where it would be considered undue delay. The Judge considered that the time elapsed was unduly protracted, but noted the complainant was not criticised for the time it took to go to the police with her complaint. In considering the s 322 application, once a judge is satisfied that the time between the alleged offending and the hearing date is unnecessarily or unduly protracted, the judge has a residual discretion to decline the application to dismiss the charge. The Judge noted the 2019 amendments to the Act, in particular s 4A, which ensured consideration was given to the wellbeing and interests of the young person, were to be balanced against s 322. The Judge concluded that it was not appropriate to exercise the residual discretion to decline to dismiss the charge. The application was granted and the charge against the young person was dismissed. Judgment Date: 24 August 2020. * * * Note: names have been changed to comply with legal requirements. * * *

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