1999 Appellate Court decisions

Contents
W & Ors v Registrar, Youth Court, Tokoroa [1999] NZAR 380 (HC)
R v M [a young person] (1999) 18 FRNZ 194 (HC)
R v Wikitoa HC Rotorua T990342, 28 May 1999
W v The Registrar of the Youth Court (Tokoroa) (CA) [1999] NZFLR 1000; 18 FRNZ 433
S v Police [2000] NZFLR 380 (HC)
H v Police [1999] NZFLR 966; 18 FRNZ 593 (HC)

W & Ors v Registrar, Youth Court, Tokoroa [1999] NZAR 380 (HC)

Case summary provided by LEXISNEXIS NZ

Name: W & Ors v Registrar, Youth Court, Tokoroa
Reported: [1999] NZAR 380
File number: M 27/99
Date: 25 May 1999
Court: High Court
Location: Rotorua
Judge: Morris J
Charge: Aggravated Robbery
CYPFA: s 276
Key Title: Jurisdiction of the Youth Court - s 276 offer/election; General principles of sentencing eg Parity/Jurisdiction

Summary:
Youth Court - Aggravated robbery - Youths refused opportunity to elect to be dealt with by Youth Court - Sent to District Court - Whether Judge erred in exercise of his discretion - Whether Judge gave too much weight to public interest consideration - Children, Young Persons, and Their Families Act 1989, ss 4, 5, 208, 276(1), 283(o), 284.

The applicants were each charged with one count of aggravated robbery in four separate cases. Each had indicated in December 1998 that they would plead guilty. On 10 February 1999 the Youth Court Judge refused to give any of them the opportunity to elect to be dealt with in the Youth Court and ordered each to be brought before the District Court. The applicants sought a review of his decision and an order that each be dealt with by the Youth Court. It was argued that the four judgments given by the Court all mirrored each other and were not specific judgments dealing with the case of each applicant. It was further submitted that the Youth Court failed to take into account all the matters it was required to consider under the Children, Young Persons, and Their Families Act 1989, and the Court gave too much weight to the public interest.

Held (dismissing the applications):

  1. It could not fairly be advanced that the Judge did not act within the sentencing principles consistent with the scheme and purpose of the Children, Young Persons, and Their Families Act 1989. In each of the four judgments, he detailed matters relating to the offence as well as to each applicant. In each case he referred to the volume of aggravated robberies in Tokoroa and surrounding areas. The Judge specifically referred to the factors that he was required to take into account in three of the judgments.
  2. The Judge was at pains to consider each applicant's case on its merits. The determining factor was the need for the public to be protected against aggravated robberies, which were prevalent in the area. Under s 208, the Judge was obliged to consider the public interest. This was always an important factor in any sentencing consideration. He was entitled to reach the view he did and to exercise his discretion to refuse the applications.

Cases referred to in judgment:
R v M and C (1986) 1 CRNZ 694 (CA)
R v P (High Court, Auckland S 89/90, 14 September 1990, Gault J)
R v Police (1990) 6 FRNZ 538
S v District Court at New Plymouth (1992) 9 FRNZ 57

Judicial review:
This was an application for judicial review of decisions made by the Youth Court Judge on 10 February 1999 that the applicants be sent to District Court for sentence.

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R v M [a young person] (1999) 18 FRNZ 194 (HC)

Case summary provided by BROOKERS

Name: R v M [a young person]
Reported: (1999) FRNZ 194
File number: T990626
Date: 3 May 1999
Court: High Court, Auckland
Judge: Nicholson J
Key Title: Admissibility of statements to police/police questioning (ss 215-222): Reasonable Compliance.

Summary:
Youth justice - Evidence - Admissibility - Statement by young person to detective before video interview - Whether young person had been advised of his entitlement to have lawyer present during questioning - Whether young person had clearly indicated a wish to consult lawyer before questioning took place - Lack of reasonable compliance - Element of unfairness in nature of questioning - Children, Young Persons, and Their Families Act 1989, ss 208, 215(1)(f), 221(2)(b), 224.

Application:
This was an application under s 344A of the Crimes Act 1961 for a ruling on the admissibility of a statement made to the police by a young person.

The Crown applied under s 344A of the Crimes Act 1961 for a ruling on the admissibility of a statement by the accused, M, which was given to L, the detective who had interviewed him. L visited M's house in the early morning with a search warrant, in connection with the stabbing of W. He asked M's parents to wake M. He then explained M's rights to M and his parents, including telling them that M was 'entitled to consult and instruct a lawyer without delay and in private' and to consult a nominated person. This advice was based on the police Youth Justice Checklist - pol 388. Both M and his parents indicated that they understood this right and were willing to go to the police station for an interview. When L then asked M if he wanted to contact a lawyer before being interviewed, M initially said, 'yeah' but after speaking to his mother indicated that he would 'be all right'.

In the interview room L repeated his earlier advice and M indicated that he understood this. Both M and his mother agreed to talk without a lawyer being present. L then asked for the names of the people involved in the stabbing of W. M admitted his part in the stabbing, who else was involved, where the weapon had come from and what had been done with it. Later L started a video interview with M and M's mother. When L repeated his advice during the video interview, M said that he wanted to speak to a lawyer before continuing with the interview. The police then arranged for a lawyer. After M and his mother had consulted the lawyer, M's mother told L that she would take the lawyer's advice and that M would not say any more. M was later charged with W's murder.

M's counsel sought to have M's statements before the video interview declared inadmissible on the grounds that ss 215 and 221 of the Children, Young Persons, and Their Families Act 1989 were not complied with. In evidence, M said that he had initially said 'yeah' when asked if he wanted a lawyer so he could get help. However, he later said that he would be all right because he thought that the lawyer would not have turned up at the time and he wanted a lawyer straight away.

Held:
Ruling that the statements were inadmissible: [(1999) 18 FRNZ 194, 195]

  1. It was clear and understandable that L had relied on the police Youth Justice Checklist - pol 388 in explaining M's rights to him. The checklist made no mention of entitlement to the presence of a lawyer while being questioned. Having regard to L's evidence it was likely that L did not explain to M before questioning him that M was entitled to make or give any statement in the presence of a lawyer. Accordingly s 215 of the Act was not complied with. (p 200, line 41)
  2. When M was informed of his right to consult a lawyer, he clearly advised L by his answer, 'yeah', that he wished to do so. L should then have arranged for M to consult with a lawyer before questioning him further. There was no compliance with s 221(1)(b) of the Act. (p 201, line 15)
  3. The two instances of failure to comply with the Act were substantial and not technical in nature. The cumulative effect of non-compliance amounted to lack of reasonable compliance with the requirements of the Act. There was a strong element of unfairness in the form and content of the questioning which pressurised M into agreeing that he had stabbed W. (p 201, line 44)

R v Accused (1991) 8 FRNZ 119, (1991) 7 CRNZ 539
R v Irwin [1992] 3 NZLR 119, (1991) 8 FRNZ 487, (1991) 8 CRNZ 39
R v S (1997) 16 FRNZ 102, (1997) 15 CRNZ 214 followed

Observation:
L may have been led into the trap of not advising M of his entitlement to have a lawyer present by the absence of any reference to presence in the police Youth Justice Checklist. It is recommended that the police consider amending the checklist to include reference to entitlement to have a lawyer present during questioning. (p 202, line 9)

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R v Wikitoa HC Rotorua T990342, 28 May 1999

File Number: T990342
Date: 28 May 1999
Court: High Court, Rotorua
Judge: Nicholson J
Key Title: Admissibility of statements; Nominated person

Summary:
Unsuccessful challenge to admissibility of statement made by W; admissibility of statement challenged on grounds that:

  1. It was in breach of s 221 of the CYPFA as person nominated by W to be present, namely his parents, not present and the Police took no reasonable steps to contact them to ensure their presence;
  2. nominated person who did attend was unsuitable;
  3. nominated person failed to fulfil the role required by s 222(4) of the CYPFA;
  4. Police failed to notify the parents as required by s 229(1)(b) of the CYPFA and this amounted to unfairness so as to make the statement inadmissible; conflicting evidence.

Held:

  1. Evidence of nominated person and Police accepted; Police acted reasonably; evidence as to availability of W's mother at home not accepted;
  2. Nominated person, an experienced Youth Aid Officer, was a suitable person;
  3. Steps required under s 222(4) were taken;
  4. Context in which steps taken was basically fair. Law proceeds on assumption that the nominated adult must take a proactive role and ensure the accused is aware of their rights before and during questioning; ensure young person not disadvantaged because of their youth; not sufficient for the nominated person simply to monitor the procedure.

Decision:
Statement admissible.

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W v The Registrar of the Youth Court (Tokoroa) (CA) [1999] NZFLR 1000; 18 FRNZ 433

Case summary provided by LEXISNEXIS NZ

Name: W v The Registrar of the Youth Court (Tokoroa)
Reported: [1999] NZFLR 1000; 18 FRNZ 433
File number: CA 166/99
Date: 23 September 1999
Court: Court of Appeal
Location: Wellington
Judge: Thomas, Gallen and Doogue JJ
Charge: Robbery; Aggravated Robbery
CYPFA: s 4; s 5; s 276
Key Title: Jurisdiction of the Youth Court - s 276 offer/election; Objects; Principles

Summary:
Youth offenders - Appeal - High Court decision confirming decision of the Youth Court refusing to allow nine youths to be dealt with in the Youth Court and referring them to the District Court for sentencing - Youth Court Judge had considered it against public interest for the youths to be dealt with in the Youth Court - Serious offending by youths - Whether the Judge had sufficient regard to the general principles of youth justice - Whether the Judge had separately considered the circumstances of each of the youths - Comments concerning jurisdiction to appeal the exercise of the Youth Court Judge's discretion - Children, Young Persons, and Their Families Act 1989, ss 4, 5, 276(2).

The nine appellants in this case were all youths who had been charged with serious robbery and aggravated robbery offences in the Tokoroa region and who had appeared before a Youth Court Judge on the same day. For reasons primarily concerned with the public interest, the Youth Court Judge exercised his discretion to refuse to allow the youths to be dealt with in the Youth Court and referred them to the District Court for sentencing. The appellants had subsequently appealed to the High Court where it was held that the Youth Court Judge had not erred in the exercise of his discretion. The High Court considered that the Youth Court Judge had been at pains to consider each appellant's case on its merits. The appellants appealed the High Court decision, by way of judicial review, to the Court of Appeal. Counsel for the appellants submitted that the Youth Court Judge had erred in the exercise of his discretion by having insufficient regard to the general principles of youth justice, by not separately considering the circumstances of each of the youths, by not adequately considering the wide range of sentencing options available in the Youth Court and by placing too much weight on considerations relating to the public interest.

Held (dismissing the appeal):

  1. The Youth Court Judge was not in error in deciding, in the exercise of his discretion, to decline jurisdiction and refer the offenders to the District Court for sentencing; the Youth Court Judge had not given insufficient weight to the principles of youth justice. Whilst the emphasis of the Act is on restorative justice and the rehabilitation of young offenders there is also recognition in the legislation and case law that serious offending may call for stronger penalties than the Act provides. The Youth Court Judge had not failed to adequately consider the wide range of sentencing options available in the Youth Court and had had regard to the options available in the District Court. Although he did not deal with the nine youths separately, the Youth Court Judge had not failed to consider the case of each youth. The circumstances of each offender had been addressed and differences in culpability and attitude amongst them had been recognised. The Youth Court Judge had not given undue regard to the public interest. The Judge had been entitled to conclude that violent offending by youths in the Tokoroa area had reached alarming levels.
  2. There was merit in the Youth Court Judge's expressed view that it would be preferable for the same District Court Judge to hear and determine the sentences of all offenders.
  3. There is no jurisdiction to challenge the exercise of a Youth Court Judge's discretion under s 276(2) of the Children, Young Persons, and Their Families Act by way of appeal.

Cases referred to in judgment:
Cooper v Police (High Court, Hamilton, AP 106/98, 12 November 1998)
R v M and C (1985) 1 CRNZ 694
R v P (High Court, Auckland, S 89/90, 14 September 1990, Gault J)
R v Police (1990) 6 FRNZ 538
S v District Court at New Plymouth (1992) 9 FRNZ 57

Appeal:
This was an appeal by way of judicial review from a decision of the High Court upholding a Youth Court Judge's decision to refer nine youth offenders to the District Court for sentencing.

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S v Police [2000] NZFLR 380 (HC)

Case summary provided by LEXISNEXIS NZ

Name: S v Police 
Reported: [2000] NZFLR 380
File number: AP 139/99
Date: 23 September 1999
Court: High Court, Auckland
Judge: Potter J
Key Title: Orders - Conviction and transfer to the District Court for sentencing - s 283(o): Serious assault (including GBH), Orders - type: Conviction and transfer to the District Court for sentencing - s 283(o): Other, Appeals to High Court/Court of Appeal: Jurisdiction, Family Group Conferences: Report from, Reports: Social Worker

Summary:
Youth Offenders - Sentencing - Injuring with intent to injure - Transfer to District Court for sentencing - Whether decision to transfer was wrong at law - Appellant had been involved in serious offending and only fell within the youth offender framework by a matter of days - Failure to give regard to matters essential to transfer decision - Social Worker had recommended discharge - Crimes Act 1961, s 189(2) - Children, Young Persons, and Their Families Act 1989, ss 283, 284.

Appeal:
This was an appeal against an order transferring sentencing from the Youth Court to the District Court.

The appellant appealed against a decision of the Youth Court to transfer sentencing to the District Court. The appellant had pleaded guilty to three charges of which the most serious was injuring with intent to injure under s 189(2) of the Crimes Act 1961. The other two charges related to recklessly driving a motor vehicle and presenting an airgun. The appellant had only fallen within the youth offender framework by a matter of days. A family group conference had been held and its recommendations were admonishment in respect of the charge of injuring with intent and a discharge in respect of the other two charges. A social worker was also commissioned to provide a report requested to gain the input of the victim who was in jail facing other charges. The report recommended a six month suspended sentence. The Youth Court Judge was concerned about the proximity of the charges and their seriousness. He found that the social worker's report gave him no information about the appellant. He declined to discharge the appellant and convicted him and transferred the matter to the District Court for sentencing.

The appellant appealed on the basis that the Youth Court Judge had failed to give adequate consideration to the principles of the Act and its system of restorative justice. It was submitted that the Judge had failed to have regard to the mandatory considerations under s 284(b) of the Act including the history, social circumstances and personal characteristics of the young person and also the family group recommendation as required by s 284(h). It was further argued that an order could not be made under s 283(o) unless the provisions of s 290(l) were satisfied. That required that the offences were purely indictable, that the circumstances were such that if the young person were an adult a full custodial sentence would have been imposed on conviction and that the Court be satisfied that because of the special circumstances of the offence or the offender any order of a non-custodial nature would be clearly inadequate. This was a case where if the appellant had been an adult offender s 5 of the Criminal Justice Act would have applied. However it was submitted that in this case there were special circumstances such as the fact that the appellant was acting under extreme provocation.

Held (quashing the transfer order and ordering a rehearing as to sentence before the Youth Court):

  1. The Youth Court Judge had been plainly wrong in ordering a transfer in this case. The decision was brief. It did not develop in any detail the matters which were necessary to found jurisdiction under s 290. While some matters were considered other relevant matters were not detailed. Though this was serious offending the appellant was entitled to have his case fully examined under the Youth Justice system before a transfer was ordered. As this did not occur the decision was incorrect.

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H v Police</em [1999] NZFLR 966; 18 FRNZ 593 (HC)

Case summary provided by BROOKERS

Name: H v Police
Reported: [1999] NZFLR 966; 18 FRNZ 593
File number: AP 71/99
Date: 13 October 1999
Court: High Court
Location: Hamilton
Judge: Smellie J
Charge: Robbery; Burglary
CYPFA: s 245; s 247; s 249; s 250; s 251
Key Title: Family Group Conference - Timeframes/limits; Family Group Conference - Attendance

Summary:
Children and young persons - Young person facing charges of robbery and burglary - Charges referred to Youth Court - Jurisdiction of Court to hear charges against young person because no family group conference had been held before the informations were laid against him - Failure to convene family group conference within 21 days of referral - Whether fatal to the hearing of the informations - Whether absence of young person's family at the family group conference meant that the case had not been considered properly - Whether family group conference should have been adjourned - Children, Young Persons, and Their Families Act 1989, ss 2, 4, 5, 6, 208, 245, 247, 249, 250, 251, 258, 262, 351-360.

At the date of the alleged offending the appellant was 14 years of age. On 14 September 1998 a Youth Justice Co-ordinator accepted a referral from the informant pursuant to s 245 of the Children, Young Persons, and Their Families Act 1989 in respect of the appellant for the two alleged offences of burglary and robbery. After attempting to make contact with the appellant and his mother on a number of occasions the Co-ordinator convened a family group conference for 22 October 1998 and informed the appellant and his mother by letter. This was more than 21 days after the referral on 14 September 1998. On the day of the conference the Co-ordinator received a message that the appellant's mother was unwell and unable to attend. As the Co-ordinator and the informant were of the view that the mother was making excuses, they decided to lay the matters in the Youth Court.

The appellant now appealed against two related judgments given in the District Court. The first concerned a challenge to the Court's jurisdiction to hear charges of robbery and burglary against the appellant because no family group conference had been held before the informations were laid against him. The second challenged the finding of guilt in respect of the robbery.

The grounds relied upon were that as no family group conference was convened within the mandatory 21 days, the Court had no jurisdiction to entertain the informations laid; there was no consideration by a family group conference because of the absence of the appellant and his mother; there was no family group conference because a unilateral decision had been made by the Co-ordinator rather than the conference not to adjourn; the evidence relied on by the District Court Judge did not support proof of robbery beyond reasonable doubt.

Held:

  1. Given the statutory history and the need to impose time limits to ensure that the conducting of family group conferences were not drawn out to unacceptable lengths, it was clear that s 249 (2) of the Act enacted mandatory time limits. Thus the failure to convene within 21 days invalidated the conference and therefore removed the jurisdiction of the Court to consider the information regarding the robbery.
  2. Even in the absence of the young person and his mother, the Youth Justice Co-ordinator and the Youth Aid police officer were able to make valid decisions at a family group conference. This was because it could not have been the intention of Parliament that a young person and his family could avoid the laying of an information in respect of alleged offending simply by staying away from a conference.
  3. While the lack of cooperation by the appellant and his family up to 22 October 1998 raised the suspicion that the explanation was not genuine, there was no reliable foundation upon which it could be dismissed out of hand. However any adjournment should be on the basis that it will be for a limited period and that further adjournments on the ground of ill health will only be considered upon production of a medical certificate and confirmation that no other family member can attend.
  4. There was sufficient evidence to support a conclusion that guilt had been proved beyond reasonable doubt.

Cases referred to in judgment:
A Child CYPF 1/89, Re (1989) 6 FRNZ 44
Police v Linda & Graham (Youth Court, Wellington 11 July 1990, Judge Carruthers)
Trompert v Police (1984) 1 CRNZ 324

Appeal:
This was an appeal against two related judgments of the District Court and concerned the Court's jurisdiction to hear criminal charges against a young person because no family group conference had been held before the informations were laid and challenged the finding of guilt in respect of one of the charges.

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