Summaries 1994

Contents
Police v A [young person] (1994) 12 FRNZ 82 
Police v T and K YC Tauranga CRN 3270010963-64, 3 February 1994 
Police v WP YC Papakura CRN 3257005620, 11 March 1994
Police v LNT YC Auckland CRN 3255013487-89, 1 June 1994
Police v R-T YC Henderson CRN 4290014383, 20 June 2004
Department of Social Welfare v S (1994) 12 FRNZ 641 (DC)
R v CW YC Napier CRN 4241008001, 9 September 1994
Police v F (17 November 1994) YC, Auckland, CR4204004025, Harvey DCJ
DSW v OF YC Auckland, 3 November 1994
Appellate Court decisions

Police v A [young person] (1994) 12 FRNZ 82

Case Summary provided by BROOKERS

Name: Police v A [young person]
Reported: (1994) 12 FRNZ 82
File number: CRN 3290016320
Date: 9 February 1994
Court: District Court, Henderson
Judge: McElrea DCJ
Key Title: Election of jury trial

Summary:
Children, young persons, and their families - Youth justice - Young person charged with aggravated robbery - Whether possible to give opportunity to forgo the right to trial by jury - Children, Young Persons, and Their Families Act 1989, ss 274, 275, 276.

Pretrial ruling:
This was a ruling as to whether a young person had the right to forgo trial by jury. A, a young person, was charged with aggravated robbery. The charge was for robbing another young person of a pair of shoes. The offence was a purely indictable matter which could only be laid indictably. The issue was whether it was possible to give A the opportunity of 'forgoing the right to trial by jury' when that was not his right in the sense that he had an election.

Held, giving A the right to forgo his right to trial by jury:
The Court has to address the question of whether a young person will be given the opportunity of remaining in the Youth Court, before the trial, even where the matter is denied. Section 275 Children, Young Persons, and Their Families Act 1989 should be interpreted to apply even where there is no election of trial by jury by the young person because:

  1. Section 275 begins with the phrase 'where s 274 of this Act applies', and s 274 covers purely indictable offences and those where the young person elects jury trial;
  2. It would be meaningless to include the phrase 'if the offence is not murder or manslaughter' in s 275 if there was no possibility of giving the young person the choice for other indictable offences;
  3. Although in one sense there is no 'right' to trial by jury, because it is necessary to proceed in that manner, there is a 'right' in the sense that everyone has the right to trial by jury for serious offences whether the election is theirs or not; and
  4. There is an established practice of interpreting s 276 in that way, which is worded in a similar manner to s 275.

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Police v T and K YC Tauranga CRN 3270010963-64, 3 February 1994

File number: CRN3270010963-64; 3270010961/3287006682-83
Date: 3 February 1994
Court: Youth Court, Tauranga
Judge: Judge Callander
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Nominated Persons Rights, Arrest without warrant (s 214)

Summary:
Challenge to admissibility of videotaped admissions as CYPFA requirements not complied with in that:

  • T and K were not properly warned when required to accompany the Police officer/warning not given in language they could understand: s 215 of the CYPFA;
  • T and K not given the opportunity to nominate their own nominated person and that even if they failed or refused to do so, the person nominated for the role did not carry it out in the proper manner;
  • No legal authority for way in which T and K detained short of arrest and that at the point of detention, the warning should have been given. Obligations under s 215 discussed; obligations under s 222 discussed: R v Accused (1991) 8 FRNZ 119 (CA).

Held:
Police officer did properly advise the two youths as to their rights but statement inadmissible as, once de facto detention of T and K occurred, the rights should have been put again. Further, nominated persons should not sit passively by and the evidence is mute as to what assistance the nominated person (who was a social worker called by the Police officer) gave as to what was likely to occur in terms of the video interview.

Decision:
Statement inadmissible.

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Police v WP YC Papakura CRN 3257005620, 11 March 1994

File Number: CRN 3257005620, CRN 3257006281, CRN 3248024337-8
Date: 11 March 1994
Court: Youth Court, Papakura
Judge: Harvey DCJ
Key Title: Orders - enforcement of, breach and review of (ss 296A-296F): Community Work; Orders - enforcement of, breach and review of (ss 296A-296F): Supervision

Summary:
Application for cancellation of supervision with activity order; young person has made no reparation payments, undertaken no community work, not attended any courses, not adhered to plan; basically young person had flouted the order.

Decision:
Application granted.

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Police v LNT YC Auckland CRN 3255013487-89, 1 June 1994

File number: CRN 3255013487-89
Date: 1 June 1994
Court: Youth Court, Auckland
Judge: Brown DCJ
Key Title: Jurisdiction of the Youth Court - s 275 offer/election

Summary:
LNT charged with rape and sexual violation by unlawful sexual connection at teenage party; Youth Court jurisdiction offered pursuant to s 275 CYPFA; lengthy judgment discussing elements of offence and facts of case.

Decision:
Information dismissed.

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Police v R-T YC Henderson CRN 4290014383, 20 June 2004

File Number: CRN 4290014383
Date: 20 June 2004
Court: Youth Court, Henderson
Judge: Harvey DCJ
Key Title: Secure care (ss 367-383A)

Summary:
Application for detention in secure care; discussion about location of hearing; Judge comments that it is preferable for such applications to be heard at a residence unless it is not practicable; not practicable to be heard in residence on day so Judge reluctantly hears application at Court.

Decision:
Secure care granted.

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Department of Social Welfare v S (1994) 12 FRNZ 641 (DC)

Case summary provided by BROOKERS

Name: Department of Social Welfare v S
Reported: (1994) 12 FRNZ 641
File number: MFP112/94
Date: 30 September 1994
Court: District Court
Location: Otahuhu
Judge: Boshier DCJ
CYPF no: s 371
Key Title: Secure Care

Summary:
Youth justice - Continuation of secure care - Jurisdiction - Procedure in bringing such applications - Children, Young Persons, and Their Families Act 1989, ss 371, 372.

This was an application under s 372(1) Children, Young Persons, and Their Families Act 1989 for an order authorising the continued detention of a young person, S. After a brief hearing the applicant sought to withdraw the application.

The application was filed in the first instance in the District Court at Otahuhu, and was then faxed to Papakura and placed before a Youth Court Judge. The proceedings were then referred back to the District Court to be dealt with by a Family Court Judge.

Held, declining jurisdiction to hear the application:
The only application before the Court is one under s 372(1) Children, Young Persons, and Their Families Act 1989 which relates to an ex parte application before a Registrar. A Judge does not have jurisdiction under s 372, but only under s 371. Even if the Registrar had considered this application in the first instance, as he should have, there probably would not have been jurisdiction because there is no substantive application before the Court under s 371.

Obiter,

  1. it is desirable that if matters that involve considerable thought and care are asked to be dealt with in a busy Court schedule they are presented carefully.
  2. An application for continued secure care detention must be sought before a Judge, and preferably a Family Court Judge where it relates to care and protection.
  3. The correct procedure appears to require the Registrar to deal with the documents in the first instance ex parte, for service to then occur, and for a Judge to be requested to exercise jurisdiction only after hearing from the persons who are entitled to be heard.

Application:
This was an application under s 372(1) Children, Young Persons, and Their Families Act 1989 for an order authorising the continued detention of a young person.

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R v CW YC Napier CRN 4241008001, 9 September 1994

File number: CRN 4241008001
Date: 9 September 1994
Court: Youth Court, Napier
Judge: Hole DCJ
Key Title: Jointly charged with adult (s 277)

Summary:
CW (16) jointly charged with adults with wounding with intent to cause GBH; exceptionally serious allegations. Whether proceedings should be held in Youth Court or elsewhere: s 277(2) CYPFA. If CW found guilty in YC, s 283(o) CYPFA transfer likely due to seriousness of charge and CW's age. Question of whether, as CW jointly charged with adults and s 277(2) determination required, s 275 and s 276 could apply. Counsel argued that proceedings would be in YC pursuant to order under s 277(2) not s 274 and as s 275 and s 276 begin with the words 'Where section 274 of this Act applies', s 275 and s 276 would not apply. Judge thought that s 275 and s 276 would be available as s 274 determines the procedure for the preliminary hearing in the YC, not where the preliminary hearing should be held; issue not pivotal in this case.

Decision:
Proceedings to take place in District Court.

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Police v F (17 November 1994) YC, Auckland, CR4204004025, Harvey DCJ

Name: Police v F
Unreported
File number: CR4204004025
Date: 17 November 1994
Court: Youth Court
Location: Auckland
Judge: Harvey DCJ
CYPFA: s 276
Charge: With Intent to Cause GBH, did Cause GBH
Key Title: Jurisdiction of the Youth Court - s 276 offer/election; Bail

Summary:
Whether to exercise discretion to allow young person to remain in Youth Court pursuant to s 276 CYPFA; F charged with causing grievous bodily harm with intent to cause grievous bodily harm; charge not denied; horrendous attack on victim in a park; huge media interest. Key cases as to discretion noted; key factors to be considered listed including: chances of rehabilitation, public interest in punishment of violent offenders as opposed to public interest in rehabilitation. Public interest discussed at length; in determining how the public interest will best be served the long term consequences for the offender must be considered where appropriate as well as the more immediate consequences and the victim's interests. F almost 17 at time of attack and now 17 so Youth Court orders could only be of limited duration; comprehensive plan provided; Court asked not to make a decision as that would compel it to make orders. Instead the Court agreed in principle to place B on bail (for up to 4 years) to carry out the plan. Plan included counselling, family and cultural input, army military programme; plan constructive as opposed to imprisonment which would be counterproductive.

Decision:
F on bail for 4 years to allow plan to be implemented.

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DSW v OF YC Auckland, 3 November 1994

File number: not available
Date: 3 November 1994
Court: Youth Court, Auckland
Judge: Harvey DCJ
Key Title: Secure Care (ss 367-383A)

Summary:
Application for secure care. Whether young person should be kept in secure care; application based upon agreement with Weymouth authorities and local authority; whether that agreement overrides provisions of s 368;

Held:
Agreement does not override provisions of s 368; Department must establish grounds within statutory framework.

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