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R v Accused (Fryer) (1991) 8 FRNZ 119 (CA)

Case summary provided by BROOKERS

Name: R v Accused (Fryer)
Reported: (1991) 8 FRNZ 119
File number: CA311/91
Date: 19 September 1991
Court: Court of Appeal
Location: Wellington
Judge: Cooke P, Gault, Holland JJ
Charge: Rape
CYPFA: s215; s224
Key Title: Nominated Person; Reasonable Compliance; Rights

BROOKERS Summary:

Youth justice - Rights of accused - Young person accused of rape interviewed by police - No express reference made to entitlement to presence of barrister or solicitor or person nominated by young person under Act - But young person given clear indication that legal advice could be obtained - Mother present throughout interview - Finding of reasonable compliance upheld - Children, Young Persons, and Their Families Act 1989, ss 215, 224.

The defendant, a 14-year-old boy charged with raping a 7-year-old girl, was interviewed in the presence of his mother. When first questioned he denied responsibility, claiming an alibi. At the beginning of the interview, he was cautioned that he need not say anything unless he wanted to, but anything that he did say might be used in evidence and that he was entitled to legal advice. He was also told that his mother would remain throughout the questioning and that if he consented to give a statement he could withdraw his consent at any time. The interview lasted an hour, after which the detective went away to check on the alibi which was found to be false. The interview resumed. Another warning in the standard form was given to the defendant but nothing more was said which could have amounted to compliance with the requirements of s 215(1)(f) Children, Young Persons, and Their Families Act 1989 (ie that the young person was entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any person nominated by the child or young person in accordance with s 222 of the Act). The defendant then made plain and frank admissions of guilt in answer to questions. The High Court, in a pretrial ruling, admitted police evidence of the admissions made by the defendant young person on the basis that there had been reasonable compliance in terms of s 224 with the requirements imposed by s 215. This was an application for leave to appeal from that ruling.

Held, declining the application:

Although there was considerable deviation from the requirements of s 215 (arising from the fact that there was no express reference to entitlement to the presence of a barrister or solicitor or to any person nominated by the young persons), on the evidence before him, the High Court Judge was entitled to find reasonable compliance in terms of s 224. The spirit and object of hte relevant part of the Act being that adequate protection be provided for children or young persons in police interviews regarding a possible offence, enough was done here to ensure no significant contravening of the purposes and the provisions of the Act (although the case is not far from borderline).[(1991) 8 FRNZ 119, 120]

There was a clear indication that legal advice could be obtained and, although the boy was not invited to nominate any person for consultation or attendance, the mother was manifestly the very sort of person contemplated by the Legislature.

Obiter, this is far from suggesting that these sections impose mere formalities and may be disregarded with impunity by investigating police officers. A factor of importance here is that, the Crown having tendered evidence to discharge the burden of showing reasonable compliance and having adduced enough evidence to establish that prima facie, no evidence in response was called for the accused. The impression which is left is that the points arising under the Act are more of a technical nature in this case and that nothing substantially unfair or seriously contrary to the purposes of the Act took place.

Application

This was an application for leave to appeal from a pretrial ruling determining that certain police evidence was admissible at the trial despite non-compliance with s 215 Children, Young Persons, and Their Families Act 1989.

The facts appear from the judgment.