Summaries 1997

Contents
Blaikie v Registrar of Youth Court in Kaikohe [1997] NZFLR 478; 16 FRNZ 9 
Police v W (15 September 1997) DC, Whangarei, CYPF 88/251/97, Boshier DCJ
Re an application by Ewen [1998] NZFLR 193 (FC) 
Police v SM [1998] DCR 120 (DC)
Police v M [1998] NZFLR 307 (YC)
Appellate Court decisions

Blaikie v Registrar of Youth Court in Kaikohe [1997] NZFLR 478; 16 FRNZ 9

Case summary provided by LEXISNEXIS NZ

Name: Blaikie v Registrar of Youth Court in Kaikohe
Reported: [1997] NZFLR 478; 16 FRNZ 9
Date: 5 May 1997
Court: District Court
Location: Kaikohe
Judge: Carruthers DCJ
Charge: Rape
CYPFA: s 325
Key Title: Youth Advocate's Costs

Summary:
Youth Court - Costs - Taxation of bill of costs by Registrar of Youth Court - Application for review of Registrar's decision - Manner in which claims for costs should be considered - Children, Young Persons, and Their Families Act 1989, ss 275, 325.

The applicant had acted as youth advocate for the defendant in a rape trial. There had been difficult matters relating to the defendant's family and whanau and to the general circumstances. It was a case where a great deal of time was required to deal not only with the young person, but also the young person in the context of his family.

The applicant sought a review of the Registrar's decision as to his costs in taxing the account. The Registrar said the claim had been considered similarly to the way claims were considered by the Legal Services Committee in respect of adult offenders facing similar charges.

Held (directing the applicant's account to be paid in full)

  1. The legal circumstances which related to the representation of adult offenders were different from those which related to young offenders pursuant to the Children, Young Persons, and Their Families Act. No such guidelines as were applicable to adult offenders were available. The circumstances of each young offender could vary considerably and the importance of the involvement of the family at each part of the process was emphasised by the Act.
  2. In this case there was no reason to limit the applicant's account. The hourly rate of $110 was restrained. The costs were fair and reasonable and should be paid in full.

Cases referred to in judgment:
Burger-Ringer v Burger-Ringer [1995] NZFLR 895
Sage v Registrar of Youth Court Auckland [1996] NZFLR 477

Application:
This was an application to review the Registrar's decision as to the costs of the youth advocate pursuant to s 325 of the Children, Young Persons, and Their Families Act 1989.

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Police v W (15 September 1997) DC, Whangarei, CYPF 88/251/97, Boshier DCJ

Name: Police v W
Unreported
File Number: CYPF 888/251/97
Date: 15 September 1997
Court: District Court
Location: Whangarei
Judge: Boshier DCJ
CYPFA: s 101, s 86(1)(a), s 83(1)(b)
Key Title: Child offenders

Summary:
Child offender; discussion of preparation of long-term social work plan; suggested rehabilitative programme; final custody and services order made subject to conditions; directions to revisit court if necessary; transfer of file and filing of new plan.

Decision:
Custody order and plan.

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Re an application by Ewen [1998] NZFLR 193 (FC)

Case summary provided by LEXISNEXIS NZ

Name: Re an application by Ewen
Reported: [1998] NZFLR 193
File number: CYPF 048/171/97
Date: 11 November 1997
Court: Family Court
Location: Otahuhu
Judge: Adams DCJ
Charge: Sexual Assaults
CYPFA: s 238(1)(d)
Key Title: Care and protection cross-over - s 280; Custody - CYFS

Summary:
Children and young persons - Care and protection orders - Application for declaration in respect of 15-year-old youth - Young person already under the care of the Director-General pursuant to an order made under s 238(1)(d) of the Children, Young Persons, and Their Families Act 1989 - Whether order could be made under s 78 of the Children, Young Persons, and Their Families Act 1989 - Children, Young Persons, and Their Families Act 1989, ss 68. 70, 78, 238.

An application by the Youth Advocate was made that the young person in question (D) was in need of care and protection. D, who was fifteen years old, and who was alleged to have engaged in a number of sexual assaults, was in the care of the Director-General pursuant to an order made under s 238(1)(d) of the Children, Young Persons, and Their Families Act 1989. The Youth Advocate argued that D's needs for care and protection were not receiving appropriate attention and sought leave to bring the application under s 68(c).

Held (granting leave to bring the application and making an interim order placing the young person in the custody of the Director-General):

  1. A case that D was in need of care and protection had been made out.
  2. Although the circumstances in which an order might be made under s 78 where there was already an order under s 238(1)(d) was likely to be rare, there was good purpose in making a s 78 order in this case because otherwise it seemed that attention would not be paid to D's care and protection needs. The s 78 order would not supplant the order under s 238 but would simply lie in the same position with the purpose of unlocking Part II of the Act for the benefit of the young person involved.

Application:
This was an application for a declaration that a young person was in need of care and protection pursuant to s 78 of the Children, Young Persons, and Their Families Act 1989.

Katherine J Ewen, Youth Advocate

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Police v SM [1998] DCR 120 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v SM
Reported: [1998] DCR 120
File number: CRN 7048030108
Date: 7 November 1997
Court: District Court, Otahuhu
Judge: Judge Moore
Key Title: Evidence (not including admissibility of statements to police/police questioning)

Summary:
Evidence - Child witness - Application for order that 10-year-old complainant in summary trial for indecent assault give evidence by video tape and closed circuit television - Whether procedure set out in Evidence (Videotaping of Child Complainants) Regulations 1990 could be followed in a summary case - Ambit of judicial activism in this area of criminal procedure - Recent Court of Appeal and High Court decisions expanding the adjectival law outside the statutory regime - Evidence Act 1908, s 23C - Evidence (Videotaping of Child Complainants) Regulations 1990.

Application:
This was an application for an order for a child complainant to give evidence in accordance with the provisions of the Evidence (Videotaping of Child Complainants) Regulations 1990 by videotape.

The defendant was charged with indecent assault of a 10-year-old girl and had exercised his right to be tried summarily. The prosecution submitted that the complainant should be able to give evidence-in-chief by videotape compiled in accordance with the Evidence (Videotaping of Child Complainants) Regulations 1990. The issue was whether the District Court had the power to permit this to be done in a summary trial.

Held:(ruling that the complainant could give her evidence by videotape and closed circuit television)

  1. The District Court was a Court of statutory jurisdiction and had no inherent jurisdiction. It did however have inherent power to do what was necessary to enable it to exercise the functions, powers and duties conferred upon it by statute. It also had the duty to see that its process was used fairly. McMenamin v Attorney-General [1985] 2 NZLR 274, 276 and Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701, applied.
  2. There was a recent judicial willingness to be active in expanding the adjectival law. In particular there were Court of Appeal and High Court decisions allowing the giving of evidence outside the statutory regimes of the Evidence Act 1908. The Court of Appeal had allowed children who were the alleged victims of non-sexual abuse to be interviewed in accordance with the procedures prescribed in the Evidence (Videotaping of Child Complainants) Regulations 1990, although there was no statutory basis to have the evidence so placed before the Court as it was not a sexual case. R v Moke and Lawrence [1996] 1 NZLR 263, R v Police (1997) 14 CRNZ 590 (HC), considered.
  3. The Evidence (Videotaping of Child Complainants) Regulations 1990 and provisions of the Evidence Act 1908 provided both a specific regime in respect of a particular type of case, namely an offence of a sexual nature which would ultimately be tried by jury, and at the same time afforded a measure of guidance as to the proper restraints and protections appropriate where the Court, in the exercise of its inherent powers, made orders in relation to the mode of adducing evidence in cases outside the statutory regime.
  4. The statutory regime provided by the Evidence (Videotaping of Child Complainants) Regulations 1990 was available where summary jurisdiction was elected.

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Police v M [1998] NZFLR 307 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v M
Reported: [1998] NZFLR 307
File number: CRN 72040033923-3925
Date: 1 December 1997
Court: Youth Court
Location: Otahuhu
Judge: Carruthers DCJ
Charge: Indecent Assault
CYPFA: s 2; s 246; s 247
Key Title: Jurisdiction of the Youth Court - Age; Youth Court Procedure

Summary:
Children and young persons - Indictable charges laid against 18-year-old youth - Charges laid in the Youth Court - Jurisdiction of Youth Court - Discretion of police to file proceedings in Youth Court rather than the District Court - Children, Young Persons, and Their Families Act 1989, ss 2, 246, 247, 270, 322 - Crimes Act 1961, s 140(1)(A).

The defendant was aged 18 years of age. He faced charges laid indictably in the Youth Court of indecent assault on a young boy. The alleged incidents occurred between July 1993 and July 1996. The charges had originally been laid by error in the District Court and the defendant had been committed to trial in the High Court following a depositions hearing in August 1997. At that time the defendant had been under the age of 18 years and when the error in his date of birth was noticed, the present informations were laid.

The Youth Advocate now raised the question of the Youth Court's jurisdiction and as to whether or not the police had a discretion to file proceedings in the Youth Court, notwithstanding that the defendant had now attained the age of 18 years and even though under s 2(2)(c) of the Children, Young Persons, and Their Families Act 1989 no family group conference could be directed or authorised.

Held (finding that the Youth Court had no jurisdiction and dismissing the informations)

  1. The police did not have a discretion whether to lay the informations in the Youth Court or in the District Court. Pursuant to s 2(2)(d) the police were "required" to lay the informations in the District Court.
  2. There was no provision in the Act for these charges to be laid indictably in the Youth Court.

Cases referred to in judgment:
Police v Edge [1993] 2 NZLR 7
Police v W (1990) 6 FRNZ 711
Police v W (1995) DCR 756

Application:
This was a hearing to determine whether the Youth Court had jurisdiction to consider criminal charges laid indictably against a youth now aged 18 years.

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