Summaries 1995

Contents
Police v DH [1995] NZFLR 473 (YC)
Police v B (16 February 1995) YC, Auckland, CRN 5290005852-4, Harvey DCJ
Police v JSF (31 March 1995) YC, North Shore, McElrea DCJ
Police v PA [1995] DCR 204
Police v B (No 2) YC Levin CRN 524003780-3, 20 June 1995
Police v W [1996] NZFLR 15 (YC)
R v Wakely DC Napier CRN 4241009095, 13 July 1995
Police v T YC Papakura CR 5255004502/6648-50, 25 August 1995
Police v W [1995] DCR 756
Police v Dabrowski [1996] NZFLR 234 (DC)
Appellate Court decisions

Police v DH [1995] NZFLR 473 (YC)

Name: Police v DH
Reported: [1995] NZFLR 473
File number: CRN 4290021633
Date: 25 January 1995
Court: Youth Court
Location: Henderson
Judge: Harvey DCJ
CYPFA: s 5(f), s 322
Charge: Indecent Assault
Key Title: Delay

Summary:
D (16 at time of offence) now almost 18; charged with indecent assault; charge denied. Offence allegedly took place on 18/6/93; considerable delays; matter set for hearing in the week of 25/1/95. Application to dismiss the information pursuant to s 322 CYPFA; whether delays unnecessary or undue. Section 5(f) timeframe includes the words "wherever practicable", so this is not an absolute requirement; there may be certain external factors which may impact upon the ability to swiftly dispose of cases; including human difficulties and systemic difficulties within bureaucracies, such as Social Welfare, the Police and the Courts. BRR v Police 11 FRNZ 25: necessary for some explanation for the delay; Police v C (Undated, YC Wellington, CRN 0285015569, Judge Carruthers) considered. Held: "Unnecessary" per s 322 CYPFA, connotes an action should have been taken which was not or there is some lack of explanation for an action; here, explanations have been given for the delays considering the nature of the offence, the investigative steps undertaken quite properly by Social Welfare, the Police, the necessity for a FGC prior to the laying of the information and the difficulties attendant upon the laid information. The delays have not been unnecessarily protracted. The law in this particular type of case is designed to protect as much the complainant as the defendant. When considering whether delays have been unduly protracted the Court must consider the question of prejudice to the defendant. Here, the defendant's ability to prepare his defence has not been prejudiced.

Decision:
Application refused.

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Police v B (16 February 1995) YC, Auckland, CRN 5290005852-4, Harvey DCJ

Name: Police v B
Unreported
File number: CRN 5290005852-4
Date: 16 February 1995
Court: Youth Court
Location: Auckland
Judge: Harvey DCJ
CYPFA: s 276
Charge: Aggravated Robbery
Key Title: Jurisdiction of Youth Court - s 276 offer/election

Summary:
B (15) charged with aggravated robbery as robbed a store at knifepoint; indicated a desire to plead guilty. Whether case should be dealt with in YC. Police not opposed to YC jurisdiction. Aggravating factors: B armed with a knife, drunk, threat of violence made to complainant; Mitigating factors: no actual physical injury to complainant, remorseful, first offence, family and victim supportive. Public interest a difficult factor here; community requires retributive approach but need for rehabilitation important so YC jurisdiction offered but Judge emphasised that FGC proposal should contain a substantial punitive element with close supervision; Judge tired of seeing FGC reports requiring a minimum of community work which demonstrate no understanding of the seriousness of the offending. Police v James [A Young Person] (1991) FRNZ 628 referred to.

Decision:
YC jurisdiction offered.

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Police v JSF (31 March 1995) YC, North Shore, McElrea DCJ

Name: Police v JSF
Unreported
File number: unknown
Date: 31 March 1995
Court: Youth Court
Location: North Shore
Judge: McElrea DCJ
Key Title: Youth Advocate's Costs

Summary:
Application to review a decision of the Registrar of the North Shore District Court concerning a Bill of Costs submitted by a Youth Advocate. Youth Advocate charged for 36 minutes but length of time in Court was 10 minutes; Judge found that this was reasonable given the Youth Advocate had spent time explaining the Court process to JF outside the Courtroom. To allow only 10 minutes would not allow the young person to be "properly advised and represented and would tend to down-grade the importance of the role of the advocate and the importance of young people being properly advised". Judge did not agree that where less than 6 minutes was spent on a matter it could be charged at the minimum rate of one unit. The six minute units were a matter of convenience. However, as the reading of the short letter in this instance, that had been charged at one unit, had also included a telephone conversation and supplying the letter to the Court, the Judge thought that one unit was reasonable.

Decision:
Youth Advocate's costs to be paid in full. Judge advised that Youth Advocate should keep more detailed records.

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Police v PA [1995] DCR 204

Name: Police v PA
Reported: [1995] DCR 2004
File number: CRN 4254009389-92
Date: 6 April 1995
Court: Youth Court
Location: Palmerston North
Judge: Toomey DCJ
CYPFA: s 214, s 245
Charge: Wounding with Intent to Cause GBH; Possession of an Offensive Weapon with Intent to Commit Bodily Injury; Party to Assault with a Weapon; Ill-treating an Animal
Key Title: Arrest without Warrant; Objects; Principles

Summary:
H (14 at time of arrest) charged with wounding with intent to cause GBH; possession of an offensive weapon with intent to commit bodily injury; assault with a weapon and ill-treating an animal. Police Constable arrested H for obstructing Police during altercation involving several young people, one of whom attacked a Police officer with a baseball bat. Whether arrest in compliance with s 214 and thus legal, if not, must comply with s 245. Discussion of objects and principles of CYPFA: s 4, s 5, s 208 CYPFA; consideration of s 245; s 214 and s 245 are designed to ensure that the principles fixed in s 208 are not overlooked or avoided, particularly s 208(a) and s 208(h); Police officer had no reasonable cause to suspect H had committed a purely indictable offence or that the arrest of the young person was required in the public interest (s 214(2)), which in the context of s 214 must refer to something more than the purposes set out in s 214(1)(a). Where the validity of an arrest without warrant is challenged the prosecution must prove beyond reasonable doubt that the conditions contained in s 214(a) and (b) have been satisfied: K v Police [1993] 11 FRNZ 335, 339. Held: provisions of s 214 have not been complied with by the informant and alternative procedures to bring young person to Court pursuant to s 245 not complied with either, thus, the Informations are invalid and must be dismissed.

Decision:
Informations dismissed.

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Police v B (No 2) YC Levin CRN 524003780-3, 20 June 1995

Name: Police v B (No 2)
File number: CRN 524003780-3
Date: 20 June 1995
Court: Youth Court, Levin
Judge: Judge Inglis QC
Key Title: Evidence

Summary:
Whether videotaped evidence was admissible or whether the complainant should give the whole of his evidence-in-chief orally.

B charged with sexual violation and indecent assault; Youth Court jurisdiction offered and accepted; complainant's evidence had been videotaped; Counsel argued that Evidence Act, ss 23D and 23E allowing the use of videotaped evidence not applicable to Youth Court proceedings which are summary proceedings by virtue of CYPFA s 321(1); Summary Proceedings Act 1957, ss 60 and 67(4); Palmer v Attorney-General [1992] NZLR 375 per Hillyer J.

Held:
The Evidence Act, ss 23D to 23I was intended to protect young complainants from the embarrassment of giving oral evidence-in-chief in open Court; this protection potent for this complainant up until point where s 275 election made; Judge would not accept that protection should be withdrawn simply because of the operation of s 275, which in this case operated effectively to substitute trial in the Youth Court for trial by jury. The mode of trial seems immaterial to the principle and policy behind ss 23D to 23I, especially as s 23H expressly contemplates the possibility of trial by Judge alone. If unintentional gap exists, then the Court is entitled to bridge it: Northland Milk Vendors Assn Ltd v Northern Milk Ltd [1988] 1 NZLR 530 (CA) at 537 per Sir Robin Cooke P. Proceedings here not transformed into purely summary proceedings for the purposes of ss 23D to 23I, as s 321 incorporates the Summary Proceedings Act, Part II, but 'with such modifications - as are necessary'. One such necessary modification here is that a complainant's evidence-in-chief need not be given orally, but may be given as prescribed by s 23E.

Decision:
Complainant's evidence-in-chief to be given in the form of the videotape.

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Police v W [1996] NZFLR 15 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v W
Reported: [1996] NZFLR 15
File number: CRN 50480117139-40
Date: 20 June 1995
Court: Youth Court
Location: Otahuhu
Judge: McElrea DCJ
Charge: Armed Robbery
CYPF no: s 272; s 277
Key Title: Jurisdiction of the Youth Court - Age

Summary:
Children and young persons - Youth of seventeen had pleaded guilty to charges of armed robbery - Jurisdiction of Youth Court to sentence him - Children, Young Persons, and Their Families Act 1989, ss 272, 277, 283.

The defendant, aged seventeen, had pleaded guilty to two charges of armed robbery committed after he had turned seventeen. His two co-defendants were under seventeen and had been remanded to the Youth Court for a family group conference. The question was whether the Youth Court had any further jurisdiction in the defendant's case given that he had pleaded guilty to the charges.

Held (declining jurisdiction):
There was no jurisdiction for the Youth Court to deal with somebody over the age of seventeen, that is, who was "adult" for the purposes of the Children, Young Persons, and Their Families Act 1989, if they plead guilty. The appropriate course, and what was envisaged by the Act, was that they were then referred off to the appropriate adult Court to be dealt with as adults. The only need for them to be dealt with by a Youth Court was where the proceedings must proceed in tandem with those relating to young people and so it was only where there was a defended hearing, involving both a young person and somebody over the age of seventeen, that there was any need for the adult to remain. Further, the powers of the Act relating to directing or convening family group conferences were limited to children and young persons.

Application:
This was an application for an order that a youth, aged seventeen, be allowed to remain in the Youth Court and be dealt with by that Court, notwithstanding his age.

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R v Wakely DC Napier CRN 4241009095, 13 July 1995

File number: CRN 4241009095
Date: 13 July 1995
Court:
District Court, Napier
Judge:
Thompson DCJ
Key Title:
Sentencing in the adult Courts - Sexual violation by rape

Summary:
W charged with violent and callous rape; W transferred to the District Court for sentence following FGC recommendation and social worker's report. Rape was not accompanied by further violence or other acts of degradation; no remorse until recently; W has showed signs of maturing and improvements in his attitude recently.

Held:
Sentence of imprisonment required as a very clear signal that this behaviour will not be tolerated. Special consideration to be given to youth offenders: R v M CA131/93, 11 June 1993. Suspended sentence not appropriate bearing in mind s 128B of the Crimes Act 1961 but special consideration in terms of length of imprisonment in view of offender's age and mitigating factors.

Decision:
Sentence of two years imprisonment.

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Police v T YC Papakura CR 5255004502/6648-50, 25 August 1995

File Number: CR 5255004502/6648-50
Date: 25 August 1995
Court: Youth Court, Papakura
Judge: Judge Harvey
Key Title: Evidence (not including admissibility of statements to police/police questioning)

Summary:
T (16) faced three charges of sexual violation and one of indecent assault; complainant 7 and 8 years old at the time of the alleged offences; complainant's credibility and reliability assessed; applying Galbraith [1981] 2 All ER 1060 and the Practice Note of Lord Parker CJ in [1962] 1 All ER 448, approved in ACC v Jenkins [1981] 2 NZLR 363, 365 and Kimura (1981) 1 CRNZ 268, there was evidence a crime was committed and the evidence was not so weak or vague as to stop a jury, properly directed, convicting on that evidence; whether evidence satisfies Judge beyond a reasonable doubt. Evidence proved one charge of indecent assault and sexual violation.

Decision:
Guilty on one charge of indecent assault and one charge of sexual violation.

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Police v W [1995] DCR 756

Case summary provided by LINX

Name: Police v W
Reported:
[1995] DCR 756
File number:
CRN 5043007168, CRN 5043007298-7301
Date:
22 August 1995
Court:
District Court, New Plymouth
Judge:
Abbott DCJ
Key Title:
Jurisdiction of the Youth Court - Age.

Summary:
CRIMINAL PROCEDURE - application for transfer to Youth Court - five representative charges alleging sexual misconduct against ten year old sister - defendant aged sixteen at time of offending, now aged 21 - admits offending - guilty plea to s 276(1) Children, Young Persons, and Their Families Act 1989 - confronted behaviour, counselling underway - whether Court has jurisdiction to transfer proceedings from District Court to Youth Court.

Held:
No power to order transfer to Youth Court - considered ambiguous s 2(2) Children, Young Persons, and Their Families Act 1989 - fundamental principle that age of alleged offender at date of offence should determine criminal responsibility overruled by s 2(6) Children, Young Persons, and Their Families Amendment Act 1994 - charge can be laid in District Court for offence committed as young person if offender is 18 at time of charge - cannot then be shifted to Youth Court - application denied, interim name suppression.

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Police v Dabrowski [1996] NZFLR 234 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v Dabrowski
Reported: [1996] NZFLR 234
File number: CRN 5011003302, 5011003153
Date: 15 December 1995
Court: District Court
Location: Whangarei
Judge: Thorburn DCJ
Charge: Carelessly Using a Motor Vehicle and Causing Bodily Injury
CYPF no: s 2; s 208; s 272
Key Title: Jurisdiction of the Youth Court - Charge type; Principles

Summary:
Criminal law - Infants and children - Practice and Procedure - Application to vacate convictions entered against a young person in the District Court on the ground that she would have been dealt with in the Youth Court - Effect of s 205 of the Summary Proceedings Act 1957 on informations laid in the District Court instead of the Youth Court - Observation on integrating s 205 of the Summary Proceedings Act 1957 against the philosophy of Youth Court - Children, Young Persons, and Their Families Act 1989, ss 2, 208, 272: Summary Proceedings Act 1957 s 205(1), (2).

The defendant was charged with two offences of carelessly using a motor vehicle and causing bodily injury under the Transport Act 1962. At the time of the offences and at the time the informations were laid the defendant was aged 16 years. The informations were laid under the District Court jurisdiction and not the Youth Court jurisdiction. The defendant initially pleaded not guilty, her counsel raising with the Court the question of whether the District Court had jurisdiction to hear the matter. When the defendant changed her plea to guilty, probation reports and emotional harm reports were commissioned and the question of jurisdiction was argued at sentencing.

Held (declaring the proceedings invalid and nullities and vacating the convictions):
The interpretation of s 205 of the Summary Proceedings Act 1957 involved a gathering up of factors beyond the age of the defendant as the Court could not invalidate the proceedings on that ground alone. It was the effect of the error by the police and the Court did not see how a mistake or error in the respect to age could ever stand alone from that effect in this area. The effect was of prejudice to the defendant and that was a matter that the Court regarded as beyond and in addition to the error of age. It did not seem right to interpret s 205 to the advantage of the police when in fact without any excuse the police had by their own error given rise to the problem. That was a matter also beyond the fact alone of the defendant's age. Therefore it was appropriate to declare the proceedings invalid or nullities and the convictions were vacated.

Observations:
In an interpretation of s 205 of the Summary Proceedings Act it was imperative to pay heed to the strong and powerful philosophy contained in the Youth Justice legislation and to interpret the section in light of that legislation.

Cases referred to in judgment:
Police v Edge (1992) 9 FRNZ 659
W v Ministry of Transport (1990) 7 FRNZ 75

Application:
This was an application by counsel for a defendant to declare that the proceedings were null and void.

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