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Police v Edge (1992) 9 FRNZ 659 (CA)

Case summary provided by BROOKERS

Name: Police v Edge
Reported: (1992) 9 FRNZ 659
File number: CA277/92
Date: 17 December 1992
Court: Court of Appeal
Location: Wellington
Judge: Cooke P, Richardson, Casey, Hardie Boys, Gault JJ
Charge:
CYPFA: s2; s208; s215; s221; s245; s272
Key Title: Admissibility of Evidence; Jurisdiction of the Youth Court - Age
Brooker’s summary:

Children and young persons - Statutory interpretation - Appeal from case stated - Seventeen-year-old interviewed about crime allegedly committed while a young person - Whether to be treated as "young person" under Act - Children, Young Persons, and Their Families Act 1989, ss 2(2), 208, 209, 211, 215, 221, 245, 272; New Zealand Bill of Rights Act 1990, ss 23(1)(b), 25(i); Summary Proceedings Act 1957, ss 107, 144.

In June 1992, the High Court (see (1992) 9 FRNZ 297), by way of a case stated and following the decision in Police v W (cited below), upheld a District Court's ruling that a statement made by a 17-year-old youth to a police officer in relation to a crime alleged to have been committed by him when he was aged 16 was inadmissible under s 221 Children, Young Persons, and Their Families Act 1989 ("the Act") because the interviewing officer did not comply with s 215 of the Act. This application for leave to appeal from the High Court decision was granted by the Court of Appeal which went on to deal with the appeal.

Held, (Gault J dissenting) allowing the appeal:

(1) The meaning of s 2(2) of the Act must be considered against the background of the statute as a whole. The key words are "where proceedings ... are contemplated or taken". The word "contemplated" is to be seen in context. The context is that before proceedings are taken other measures are to be considered (ss 209, 211, and 245 where appropriate). The word "contemplated" must therefore refer to an event, ie to the initiation of procedures under the Act, and not to a state of mind. The starting point is an allegation by or to a person in authority that a particular child or young person has committed a particular offence. It is at this point that the obligation to consider alternative sanctions arises under s 209, as does the obligation to consult and to hold a family group conference under s 245. It is therefore at this stage that s 2(2) comes into play. If at this stage the suspect is a child or young person, all subsequent procedures must be conducted on the basis of the suspect's age at the time of the offence.

(2) In this case, no proceedings had been taken and none were contemplated before the respondent was interviewed. As he was not then a young person, s 2(2) had no application and neither did s 215. Thus there was no obligation to give him the warnings prescribed by that section. It follows that the view that the case should go to the Youth Court was erroneous.

(3) On this analysis Police v W was incorrectly decided as in that case proceedings had neither been taken nor contemplated while the offender was a child or young person.[(1992) 9 FRNZ 659, 660]

(4) There is no disharmony between this decision and s 25(i) New Zealand Bill of Rights Act 1990 which recognises "the right, in the case of a child, to be dealt with in a manner that takes account of the child's age". Here, certain procedures cut off at age 17. It is to be assumed that they are no longer appropriate past that age. This will be so whenever the offence was committed.

Obiter, while this appeal is not concerned with the jurisdiction of the Youth Court, it is inescapable that the construction which this decision has placed on the Act so far as it affects this appeal applies equally to the provisions as to the jurisdiction of the Youth Court. If amendment of the statute is in contemplation, it is desirable that it address the point in a way that puts the legislative intent beyond question.