Youth Court Decisions How to Use Full list of key titles CYPFA section Date

Police v BG (1993) 10 FRNZ 157 (DC)

Name: Police v BG
Reported: (1993) 10 FRNZ 157
File number: CRN 221901637-8
Date: 2 February 1993
Court: District Court
Location: Hamilton
Judge: Twaddle DCJ
CYPFA: s208(h); s215
Charge: Party to Assault with Intent to Injure; Threatening to kill
Key Title: Admissibility of statements; Reasonable compliance

Summary: BG (15) was one of four offenders charged with assault with intent to injure and threatening to kill; BG told police he was 17; a Police officer cautioned BG, told him of his right to contact a lawyer and took a written statement. Police officer told BG he was going to be charged with being a party to assault. BG then correctly advised that he was 15; Police officer did not explain s215 or take a new statement. Court considered whether written statement was inadmissible by reason of non-compliance with section 215 and, if so, whether the evidence established a prima facie case against BG.

Section 208(h) CYPFA entitles young people to special protection during the investigation of offences; the intention of the Legislature is to give young people an effective right to silence. Section 221(2) CYPFA provides that, with some express exceptions, no statement may be admissible unless the explanations required by s215 to s218 have been given; the Court has no discretion to determine the admissibility of a young person's statement. If specific explanation not given and the exceptions or reasonable compliance are not established then the statement must be ruled inadmissible; Police v Edge (Unreported, CA277/92, 17 December 1991, Cooke P), R v Irwin [1992] 3 NZLR 119, 122-123, Fisher J.

Held: The subjective belief of the Police officer as to BG's age is irrelevant. This is in accordance with the spirit of the CYPFA; a young person cannot waive their rights by lying; assumption of CYPFA is that a young person requires a careful explanation before exercising their right to silence.

Section 223 is inapplicable to BG's written statement and to his oral statement concerning his age prior to being cautioned. A "statement" for the purposes of the section is a statement which can be used to inculpate its maker in the commission of an offence. The section might apply where proof of age is an ingredient of an offence. However, this is not the case here. No reasonable compliance in terms of section 224, thus the Court has no discretion and must reject the statement: R v Irwin [1992] 3 NZLR 119.

Once the Police officer became aware of BG's real age he should have started again and given a full statutory explanation to BG. Sections 215 and 221 do not impose "mere formalities": P v Crime Appeal CA 311/91 (Unreported, 19 September 1991, Cooke P). If explanations had been given, the Court may have been able to conclude that the spirit and object of s215 of providing adequate protection to BG had been complied with and the statement may have been admissible.

Decision: Evidence inadmissible but prima facie case against BG exists because the evidence establishes that he was there and involved.