Summaries 1998

Contents
Police v TGW [1998] NZFLR 296 Police v W YC Otahuhu CRN 824 8016224, 23 July 1998
Police v T [1998] DCR 538 (YC) Police v T YC Hamilton CRN 8219018899/900-06, 29 July 1998
Police v D [1998] NZFLR 577 (DC) Police v H [1998] DCR 834 (YC)
Police v R [1999] NZFLR 312 (YC) Police v Manuel (1998) 16 CRNZ 62; (1998) 17 FRNZ 394
R v P and G YC Invercargill T 981064, 25 June 1998 Police v H (23 December 1998) YC, Hamilton, Brown DCJ
Police v T (20 July 1998) YC, Auckland, CRN 8204003603/ 8204003607, McElrea DCJ Police v W [1999] NZFLR 577 (DC)
Police v P W [1999] NZFLR 190; (1998) 17 FRNZ 340  Appellate Court decisions

Police v TGW [1998] NZFLR 296

Case summary provided by LEXISNEXIS

Name: Police v TGW
Reported: [1998] NZFLR 296
File number: CYPF 0004/132/97
Court: District Court, Auckland
Date: 19 March 1998
Judge: Judge Boshier
Key title: Secure Care (ss 367-383A); Care and Protection cross over (s 280): Family Group Conferences/Care and Protection (s 261)

Summary:
Children and young persons – Care and protection orders - Extreme and dangerous behaviour exhibited by young person - Need for secure care from time to time - Consent order made placing young person in custody of DGSW to attend a rehabilitation programme but on the basis that the young person would be immediately placed in secure care if the need arose - Jurisdiction of the Court to make an order in these terms - Director-General the only person who could make the placement in secure care - Direction from the Court that young person be placed in one residence but would be moved to another residence with secure unit if necessary - Children, Young Persons, and Their Families Act 1989, ss 83, 86, 101, 103, 105, 125, 128, 162, 202, 361, 364, 367, 368, 370 – Guardianship Act 1968, s 11.

Application:
This was an application to determine the validity of a condition attached to a custody placing the young person in the care of the D-GSW directing the placement of the young person in secure care where necessary.

A declaration that TGW was in need of care and protection was made in August 1997. TGW, now aged fourteen, had been demonstrating extreme anti-social behaviour and had regularly offended throughout 1997. It was considered that TGW would benefit from a therapeutic programme such as that offered by the Youth Horizons Trust. However concern was expressed by a psychiatrist and counsel for the child that while the Youth Horizons Trust could cope with TGW, it had no secure facility and the need for a secure facility would undoubtedly arise from time to time. An order was then made by consent placing TGW in the custody of the D-GSW pursuant to s 101 of the Children, Young Persons, and Their Families Act 1989. A further order by consent was made that if at any time during the custody order the Youth Horizons Trust considered a situation had arisen which required TGW to be accommodated in up to 72 hours of secure care, the D-GSW, through the Northern Residential Centre was to forthwith provide that facility.

The Head Office of the DSW later refused to acknowledge the validity of the order so far as the provision for secure care was concerned. It was argued that 'secure care' could only mean containment in a residence as provided for in part VII of the Act and accordingly it was for the D-GSW alone to place any child or young person in a secure unit under the grounds for placement as prescribed by s 368. It was argued that the effect of the order was to usurp the D-GSW’s discretion and to circumvent the statutory restrictions as to placement in secure care as set out in s 368.

Held, (varying the order):

  1. In so far as the condition attached to the custody order that required the D-GSW to supply up to 72 hours of secure care when requested, it was ultra vires. When use of secure care was sought, the only means of achieving it was for the D-GSW to make the placement into secure care and upon the grounds specified in s 368. The present order which contemplated that it was the Youth Horizons Trust who might make the request for secure care was therefore outside the Court’s jurisdiction.
  2. The Court could direct as a part of the term or condition that TGW be placed in one residence but be moved to another so as to require the D-GSW to at least consider use of the secure unit. Notwithstanding the provisions of s 105, the Court was able to direct, as terms or conditions, as long as it was in the child’s best interests, aspects which might otherwise have been left to the D-GSW pursuant to s 105.
  3. The order was varied so that if, pursuant to the D-GSW’s placement, TGW’s placement at Youth Horizons Trust could not, in the opinion of the Trust be immediately continued, the D-GSW or a social worker would forthwith place TGW in a residence of the kind specified in s 364 of the Act.

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Police v T [1998] DCR 538 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v T
Reported: [1998] DCR 538
File number: CRN 8248020853
Date: 7 May 1998
Court: Youth Court, Otahuhu
Judge: McElrea DCJ
Key Title: Arrest without warrant (s 214); Rights

Summary:
Children and young persons - Powers to arrest and detain - Young person arrested and detained on charge of minor theft - Whether a single charge of shoplifting was sufficient to arrest a young person to stop him from committing further offences - Detention in police custody - Young person's rights to be brought to Court promptly - Children, Young Persons, and Their Families Act 1989, ss 214(1),239(2) - New Zealand Bill of Rights Act 1990.

Statutes - Interpretation - Young person arrested and detained on charge of minor theft - Power to arrest and detain - Children, Young Persons, and Their Families Act 1989, ss 214(1), 239(2) - New Zealand Bill of Rights Act 1990.

Preliminary question of law:
This was a preliminary question of law whereby the Court was asked to rule on the propriety of the defendant's arrest and continued detention in police custody and the failure to have the defendant brought to Court promptly.

The defendant, T, was a young person of 14. On 6 May 1998 he was leaving a Superette with two packets of biscuits and one packet of chips without paying. A police officer who happened to be in the Superette, instructed him to stop. T did not. He discarded the food items as he was jumping a property fence, was apprehended, arrested, placed in police custody and charged with shoplifting of goods worth nine dollars. At the time T was the subject of a supervision order relating to 17 charges. T remained in police custody until he was brought to Court, just over 24 hours later. The Youth Advocate questioned the basis of the arrest, the fact that T was not brought to Court and dealt with promptly and the basis of T's continued detention in police custody. The police submitted that the arrest was necessary to stop T from committing further offences.

Held (finding procedural failures by the police, granting bail to defendant, directing a Family Group Conference and directing that the decision be sent to the appropriate authorities)

  1. The continuation of the arrest unnecessarily was in breach of the letter and the spirit of s 214 of the Children, Young Persons, and Their Families Act (the Act). While the initial arrest might have been justified by the fact that the defendant was trying to escape, the time-frame in question must be the time between the arrest and when the defendant could be brought to Court. The mere fact that the defendant had other charges and was the subject of a supervision order did not mean that he could be arrested whenever he re-offended. A single charge of shoplifting was not such as to suggest that the defendant without arrest would continue shoplifting or commit any other offence.
  2. Failure to bring the defendant to Court constituted a breach of the young person's rights under the New Zealand Bill of Rights Act to have the matter dealt with on the same day. A person arrested in the morning ought to be dealt with that afternoon except possibly in unusual circumstances.
  3. The fact that the young person had spent 24 hours in police custody including a night in police cells was a serious breach of the law. Given the very limited grounds for the Court to remand a young person in police custody under s 239(2) of the Act, the police should be particularly careful not to hold young persons in custody unnecessarily.

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Police v D [1998] NZFLR 577 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v D
Reported: [1998] NZFLR 577
File number: CRN 7244026503
Date: 6 May 1998
Court: District Court
Location: North Shore
Judge: McElrea DCJ
CYPFA: s 322
Key Title: Delay

Summary:
Children and young persons - Young person appearing on criminal charges - No family group conference held - Three prior adjournments - Unnecessary and unduly protracted delay - Informations dismissed - Children, Young Persons, and Their Families Act 1989, s 322.

The young person was appearing in Court on a variety of charges. A family group conference had been directed in February 1998. No conference had yet been held and the Court had received three certificates on form SW 854 explaining the reasons for the delays - firstly, no summary of facts had been received, secondly the co-ordinator assigned had been taken ill and thirdly co-ordinators were unavailable.

A request for a further adjournment was now made.

Held (refusing the adjournment and dismissing the informations):

  1. The time that had elapsed between the date of commission of the offences and the hearing had been unnecessarily and unduly protracted by reason of the department's failure to convene a conference. The Court was not prepared to give the department a fourth opportunity to convene a conference.
  2. The word "hearing" in s 322 referred simply to a matter being dealt with in Court, as opposed to a defended hearing.

Application:
This was an application for an adjournment of the hearing of information against a young person, no family group conference having yet taken place.

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Police v R [1999] NZFLR 312 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v R
Reported: [1999] NZFLR 312
File number: CRN 8219005845
Date: 10 June 1998
Court: Youth Court
Location: Hamilton
Judge: Twaddle DCJ
Charge: Theft
CYPFA: s 208; s 214; s 215
Key Title: Admissibility of statements; Arrest without warrant; Principles

Summary:
Children and young persons - Young person charged with theft - Challenge to the admissibility of some of the evidence - Whether police officer had reasonable grounds to suspect that the young person had committed an offence - Whether reasonable grounds had existed for police officer to arrest the young person - Consequences of a breach of s 214 of the Children, Young Persons, and Their Families Act 1989 - Test to be applied - Whether overall interests of justice required the informations to be dismissed - Children, Young Persons, and Their Families Act 1989, ss 208, 214, 215, 221, 223, 245 - Crimes Act 1961 ss 315, 347 - New Zealand Bill of Rights Act 1990 s 22.

The defendant (R), a young person, aged sixteen at the time of the alleged offences, faced five charges of theft. R was a passenger in a car stopped by the police. The police had received information that the vehicle was of interest in respect of a shoplifting offence. The police officer saw a large amount of new clothing in the foot space area of the seat in which R had been sitting. He obtained R's name and began questioning her about the clothing. After having established where the property had come from and whose it was the police officer decided to arrest R. He cautioned her, telling her she was not obliged to say anything, and that she could consult a lawyer without delay and in private. Then he arrested her and took R to the police station. She declined to make a formal statement.

At the conclusion of the prosecution case, two issues were raised on behalf of R in respect of compliance with ss 215 and 214 of the Children, Young Persons, and Their Families Act 1989.

Held (dismissing the informations):

  1. It was a question of fact whether there were reasonable grounds to suspect a young person of having committed an offence. The test was an objective test, the state of the officer's mind was not relevant. There were reasonable grounds in this case for the police officer to have suspected R had committed an offence before he began questioning her. In those circumstances the officer had an obligation to explain the matters referred to in s 215 of the Act. As he did not do so, the answers obtained from questioning R were inadmissible. Nevertheless a prima facie case had been made out on the admissible evidence.
  2. Having regard to the fact that R had given her name to the officer, and that it was difficult to see how the arrest of R would preserve the clothing, no reasonable grounds existed for the officer to arrest R.
  3. The approach to be taken where there was a breach of s 214 was whether the overall interests of justice required the informations to be dismissed. Rather than focusing on one single factor, this approach took into account all aspects of the case, including the requirements contained in s 208(a) and (h) of the Act to afford special protection to young people from intrusive state powers, the need to maintain the integrity of the criminal process and the public interest.
  4. Applying the test to this case, and having regard to the facts that being arrested had denied R the opportunity of being dealt with by another means, the relatively minor nature of the offences and the fact that all the property was recovered, it would not be in the interests of justice for the legal process to continue in this case.

Cases referred to in judgment:
Bennett v Police (High Court, Auckland AP 180/91, 22 August 1991, Robertson J)
K v Police (1993) 11 FRNZ 335
McMenamin v Attorney-General [1985] 2 NZLR 274
Police v BG [a young person] (1993) 10 FRNZ 157
Police v PA [1995] DCR 204
Police v Schumann [1992] DCR 342
Practice Note [1962] 1 All ER 448
R v Goodwin (No 2) [1993] 2 NZLR 390
R v Hartley [1978] 2 NZLR 199 (CA)
R v Irwin [1992] 3 NZLR 119
R v Taylor (1996) 14 CRNZ 426
R v Te Kira [1993] 3 NZLR 257
Simpson v A-G [Baigent's Case] [1994] 3 NZLR 667

Application:
This was an application to have informations against a young person dismissed for failures by the police to comply with the requirements of the Children, Young Persons, and Their Families Act 1989.

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R v P and G YC Invercargill T 981064, 25 June 1998

File number: T 981064
Date: 25 June 1998
Court: Youth Court, Invercargill
Judge: Judge Macdonald
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Nominated person.

Summary:
Defendant challenged admissibility of videotaped interview on grounds of non-compliance with ss 221 and 222 of the CYPFA. Defendant charged with burglary and arson; advised of her rights, father unavailable to be nominated person; fire officer acted as nominated person but played a passive role; nominated person to give active support before and during the interview: Lord v R HC Wanganui, 3 December 1997 per Gallen J; should talk privately with the accused whether or not they want this opportunity - it should be imposed upon them.

Held:
Nominated person should have discussed situation with defendant; explained his role; videotaped interview thus inadmissible. Defendant in house when fire lit; found in possession of property from the house thus s 347 Crimes Act 1961 application refused.

Decision:
Videotaped interview inadmissible; s 347 of the Crimes Act application refused.

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Police v T (20 July 1998) YC, Auckland, CRN 8204003603/ 8204003607, McElrea DCJ

Name: Police v T
Reported
File Number: CRN 8204003603 / 8204003607
Date: 20 July 1998
Court: Youth Court
Location: Auckland
Judge: McElrea DCJ
CYPFA: s 263
Key Title: Family Group Conference - Non-agreement

Summary:
Youth Aid Officers attending Family Group Conferences concerning aggravated robberies with a pre-determined view as to how such matters should be dealt with; attendees at Family Group Conferences are not to come in with pre-conceived ideas; discusses "spirit of the conference"; likely consequence of coming with pre-conceived ideas, apart from fact that conference is unlikely to be successful, is that the Court will disregard the views expressed by that person.

Decision:
Minute of Judge - no decision.

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Police v P W [1999] NZFLR 190; (1998) 17 FRNZ 340

Case summary provided by BROOKERS

Name: Police v PW
Reported: [1999] NZFLR 190; (1998) 17 FRNZ 340
File number: CRN 8248016224
Date: 23 July 1998
Court: Youth Court, Otahuhu
Judge: Carruthers DCJ
Key Title: Jointly charged with adult (s 277)

Summary:
Youth justice - Joint charge - Whether a young person could be prejudiced by police failure to follow procedure set under s 277(2) Children, Young Persons, and Their Families Act 1989.

Youth justice - Joint charge - Severance.

The defendant, a young person, was jointly charged with several adults with possessing cannabis for supply. The information against the defendant was laid summarily in the Youth Court, despite the joint charge, because of his youth. This did not strictly follow the procedure set out in s 277(2) Children, Young Persons, and Their Families Act 1989. The youth advocate therefore argued that the defendant would suffer unfair prejudice if the matter simply proceeded.

The Judge also called for submissions on whether the Court had the power to direct that the defendant be dealt with separately, notwithstanding the police election to lay the informations jointly.

Held,dismissing the application and ordering a separate trial in the Youth Court:

  1. Failure to comply with the procedural requirements of s 277 was not fatal. It was likely that the defendant would be in exactly the same position (facing a summary trial in the Youth Court) even if the procedure had been properly followed. (p 342, line 5)
  2. In deciding to proceed separately and on a summary basis for the young person, the police had themselves precluded the possibility of a joint trial and dictated the necessary severance. Therefore, there was no prejudice to the defendant. (p 342, line 30)

Cases referred to:
Police v Nolan [1997] DCR 495

Application:
This was an application by a young person that charges against him be dismissed on the grounds of procedural irregularity leading to unfair prejudice.

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Police v W YC Otahuhu CRN 824 8016224, 23 July 1998

File number: CRN 824 8016224
Date: 23 July 1998
Court: Youth Court, Otahuhu
Judge: Carruthers DCJ, Principal Youth Court Judge (1996-2001)
Key Title: Youth Court Procedure; Jointly charged with adult (s 277)

Whether non-compliance with s 277 CYPFA results in a nullity or merely an irregularity; W jointly charged with adults with having in his possession cannabis plants for supply; charges denied; charges against W laid summarily in Youth Court; charges against adults laid indictably in District Court; s 277(2) CYPFA procedures not followed. W argued charges should be dismissed as will suffer unfair prejudice if matter proceeds; Summary Proceedings Act 1957, s 204, CYPFA s 440; Police v Nolan [1997] DCR 495 at 498-499.

Held:
Section 277 has the purpose of administrative expediency (illustrated by the provisions of sub-sections (4) and (5)) and this, along with the expansive language of s 440 and its purpose of saving proceedings from unmeritorious challenge, adds weight to the conclusion that non-compliance with s 277 is not fatal. W would be in the same position if the correct procedure had been followed; no prejudice to W through the irregularities in this case.

Court also considered whether it could direct that, notwithstanding Police election to lay matters jointly, it had the power to direct matters proceed separately. Here no possibility of a joint trial as young person dealt with summarily and adults dealt with indictably and this dictated the necessity of severance.

Decision:
Separate trial in YC for young person.

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Police v T YC Hamilton CRN 8219018899/900-06, 29 July 1998

File number: CRN 8219018899/900-06
Date: 29 July 1998
Court: Youth Court, Hamilton
Judge: Brown DCJ
Key Title: Youth Court Procedure

One information laid in Youth Court; 7 others laid in District Court at Hamilton; 7 Informations laid wrongly in District Court and therefore dismissed. Cannot lay Information against young person in District Court; Youth Court information to continue.

Decision:
7 Informations dismissed; 1 Youth Court Information remanded; bail to continue; FGC to be held and could consider the 7 dismissed offences.

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Police v H [1998] DCR 834 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v H
Reported: [1998] DCR 834
File number: CRN 822012788-89
Date: 18 August 1998
Court: Youth Court
Location: Hastings
Judge: von Dadelszen DCJ
Charge: Murder; Wounding with Intent to Cause Grievous Bodily Harm
CYPFA: s 239
Key Title: Bail

Summary:
Criminal procedure - Custody of young person pending hearing - 15-year-old charged with murder - Legal presumption as to granting of bail - Possibility of further offending - Place of residence - Ability of police to ensure bail conditions were observed - Children, Young Persons, and Their Families Act 1989, ss 238, 239.

The young person, H, aged 15 years, was charged with one charge of murder and one charge of wounding with intent to cause grievous bodily harm. H was remanded for a pre depositions hearing. There was a legal presumption that a young person was to be granted bail. In submissions on H's behalf it was proposed that H would reside with his uncle, D, at Porangahau. The police preferred that H reside at Hastings with his father. There was the possibility of further offending. The alleged offence was committed in the early hours of the morning and H was believed to have consumed alcohol. Due to police manning levels, police would have difficulty in ensuring that bail conditions would be observed if H was to reside at Porangahau.

Held (granting bail subject to conditions):

  1. The presumption that bail would be granted outweighed any community expectations that persons charged with a crime as serious as murder should be kept in custody pending hearing.
  2. The onus on the prosecution was to satisfy the Court, on the balance of probabilities, that a young person was likely to abscond or might commit further offences or be violent. (obiter)

Case referred to in judgment:
I v Police (1991) 7 FRNZ 674

Application:
This was an application for bail by a young person in the Youth Court.

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Police v Manuel (1998) 16 CRNZ 62; (1998) 17 FRNZ 394

Case summary provided by BROOKERS

Name: Police v Manuel
Reported: (1998) 16 CRNZ 62; (1998) 17 FRNZ 394
File number: CRN 8009030441
Date: 21 August 1998
Court: Youth Court, Christchurch
Judge: Bisphan DCJ
Key Title: Jointly charged with adult (s 277)

Summary:
Children, young person, and their families - Youth justice - Jurisdiction - Adult charged jointly with three young persons - Depositions for all four defendants conducted in Youth Court - Young persons elected trial in Youth Court - Whether adult defendant could be committed to Youth Court for trial before Judge alone - Circumstances in which adult defendant could be dealt with in Youth Court - Children, Young Persons, and Their Families Act 1989, s 277.

The four defendants were jointly charged with wounding with intent to injure, a purely indictable offence. Defendant C M was an adult for the purposes of the proceedings. The other defendants were young persons. The Judge found sufficient evidence for trial and the defendants indicated they would not plead guilty. The Judge decided that the defendant young persons should have the option of trial in the Youth Court, and that option was taken up. The issue remained as to where C M should be tried.

Held, committing the defendant C M to the High Court for trial:

  1. Where depositions are held in the Youth Court in respect of young persons and adults jointly charged, if there is sufficient evidence to put the adult on trial then that person must be committed to the appropriate Court (either District Court or High Court). The adult cannot be dealt with either on the basis of a defended hearing or in a sentencing context in the Youth Court. (p 399, line 15)
  2. In this case it followed that once the young persons had been given the election to be dealt with in the Youth Court, there was no option but to commit C M to the High Court for trial. (p 398, line 42)
  3. The Court preferred to interpret s 277 of the Children, Young Persons, and Their Families Act 1989 as applying to the following:
    1. Murder, manslaughter and purely indictable offences, but only up to and including depositions;
    2. Indictable offences (where the maximum penalty is over 3 months' imprisonment) where jury trial is elected but only up to and including depositions;
    3. Indictable offences where summary jurisdiction is elected; and
    4. All other offences. (p 399, line 5)

Cases referred to:
C v District Court at Dunedin (1993) 10 CRNZ 260
Police v W [1996] NZFLR 902 (DC)
Police v Whitehead [1995] DCR 533
S v District Court at New Plymouth (1992) 9 FRNZ 57; 8 CRNZ 241, also reported as S v New Plymouth District Court [1992] 3 NZLR 508

Application:
This was an application for young persons to be given the opportunity of foregoing the right of trial by jury and have the information heard and determined in the Youth Court. The question then arose as to where the jointly charged adult defendant should have his case heard.

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Police v H (23 December 1998) YC, Hamilton, Brown DCJ

Name: Police v H
Unreported
Date: 23 December 1998
Court: Youth Court
Location: Hamilton
Judge: Brown DCJ
CYPFA: s 214
Charge: Robbery, Theft
Key Title: Arrest without warrant

Summary:
Application to dismiss Information on basis that arrest unlawful. H (16) and others threatened and robbed complainants who were eating sweets at bus stop; H taken home by Police; no interview as H's father not in agreement; H arrested; Police believed arrest necessary to prevent loss and destruction of evidence relating to offence (CYPFA s 214(1)(a)(iii)). Held: Police officer did have reasonable grounds to believe arrest necessary to prevent loss or destruction of evidence; should apply the standard in the CYPFA and the standard should "be applied sensibly with as broad a sense of the realities of the situation as the Court can muster".

Decision:
Application dismissed.

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Police v W [1999] NZFLR 577 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v W
Reported: [1999] NZFLR 577
Reported: (1998) 18 FRNZ 203
File number: CRN 8277008566
Date: 14 December 1998
Court: District Court, Tokoroa
Judge: Whitehead DCJ
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Explanation of rights, Admissibility of statements to police/police questioning (ss 215-222): Nominated persons, Custody (s 238): CYFS, Rights

Summary:
Children and young persons - Young person arrested on serious charge - Young person held overnight in police cells - Whether young person should have been held - Admissibility of statements made by young person to police - Young person's rights under Bill of Rights Act 1990 and Children, Young Persons, and Their Families Act 1989 accorded to him - Whether young person's solicitor or mother should have been contacted prior to him making his statements - Conduct of CYPS staff - Children, Young Persons, and Their Families Act 1989, ss 215, 221, 222, 224, 234, 235, 236, 237, 238, 321, 436 - New Zealand Bill of Rights Act 1990.

Application:
This was a hearing to determine a number of preliminary issues relating to the arrest and charging of a young person on a charge of aggravated robbery, including the admissibility of statements made to the police and whether the requirements of the Children, Young Persons, and Their Families Act 1989 had been complied with.

W, a young person, was charged with the aggravated robbery of a Putaruru residence. He had been interviewed three times by the police, once before being charged and twice after his arrest. On the uncontested evidence of the police officer, he had on each occasion been made aware of the Bill of Rights, the general caution and the rights under the Children, Young Persons, and Their Families Act 1989 to the young person. On the latter two interviews that had been verified and corroborated by the evidence of the nominated person.

At issue in this hearing was the admissibility of statements made by W and whether W should have been held in the police cells overnight following his arrest. The nearest District Court to where W was arrested was not sitting on the date in question. The police officer had taken no steps to inquire as to the possibility of a Court being convened either before a Judge or a Justice of the Peace to determine issues of bail. The police were going to oppose bail due to the seriousness of the charge and W's past history of offending. The police officer did consult with a social worker who advised that there were not sufficient facilities available for W's detention and safe custody. The social worker then signed a certificate pursuant to s 236 of the Children, Young Persons, and Their Families Act 1989 enabling W to be held for a period in excess of 24 hours and until appearance before a Court.

Also at issue at this hearing was whether W's solicitor and mother should have been contacted when he asked to speak to the police on the occasion of his second and third interviews.

Held:

  1. The combination of the violent nature of the offence and the current spate of aggravated robberies within the Tokoroa area gave reasonable grounds for the police and the social worker to believe that the young person may be likely to abscond or be violent. Given the unavailability of suitable facilities for the detention and safe custody of the young person available to the Director-General, the failure to bring the young person before the Court on the day of his arrest was not fatal to his detention as, in terms of s 237, he shall be brought before a Youth Court 'as soon as possible'.
  2. From the evidence it was clear that the young person made a decision in the form of an expressed acknowledgment on the second interview, and in respect of the third interview, acquiesced in his declination not to consult a lawyer and there was nothing on the evidence that would enable the Court to conclude that the statutory provisions had been breached. The same applied in respect of the absence of his mother.
  3. In each interview the young person had been provided, in a manner and language appropriate to his age and understanding, his rights under the Bill of Rights Act, the general caution required to be given, and the Children, Young Persons, and Their Families Act. The young person's statements were admissible in evidence and did not contravene the provisions of the Children, Young Persons, and Their Families Act.
  4. Objections as to the involvement by CYPS staff immediately prior to and during the interviews were rejected. There was no conflict of interest in the social worker signing the s 236 certificate and her subsequent attendance on the second interview.

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