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

Police v S and M (1993) 11 FRNZ 322 (YC)

Case summary provided by BROOKERS

Name: Police v S and M
Reported: (1993) 11 FRNZ 322; [1993] DCR 1080
File number: CR207/89
Date: 2 November 1993
Court: Youth Court
Location: Otahuhu
Judge: Harvey DCJ
Charge: Sexual Violation – Rape; Indecent Assault; Detaining Girl under Age of 14 with Intent to have Sexual Intercourse
CYPFA: s275
Key Title: Reports – Cultural; Jurisdiction of the Youth Court – s275 offer/election
Brooker’s summary:

Children, young persons, and their families - Youth justice - Exercise of discretion under s 275 - Young persons charged with serious sexual violation - Victim and defendants wanted Youth Court proceedings - Weight to be accorded to resolution of dispute between families and Samoan custom - Law must be applied evenly - Youth Court not appropriate in circumstances - Defendants not permitted to forgo the right to jury trial - Children, Young Persons, and Their Families Act 1989, s 275.

The defendants, S and M, were two Samoan boys charged with sexual violation by rape, indecent assault, and detaining a girl under the age of 14 years with intent to have sexual intercourse. The complainant was a 14-year-old Samoan girl. The charges were all laid indictably and were purely indictable. The complainant and the defendants requested that the discretion under s 275 Children, Young Persons, and Their Families Act 1989 be exercised, and that the matter be dealt with in the Youth Court. The defendants submitted that many of the outstanding issues had been addressed within the context of the Samoan culture and that the Youth Court system was complementary to the Samoan method of dispute and conflict resolution. They argued that the equilibrium between the Samoan aiga (extended family) would have to be restored, which could only be successful if the damage from the hearing was minimised, and that the sentencing process of the Youth Court was in line with the objects and principles of the Children, Young Persons, and Their Families Act.

Held, committing the defendants to the High Court for trial:

1) The law is applied evenly to all defendants, regardless of race, religion, or cultural background. The process undertaken within the defendants' community is designed to resolve differences between the families of the victim and defendants. The criminal law is based upon the State taking action on behalf of its members for violations of minimum standards of conduct prescribed in the Crimes Act 1961. If the State failed to take such action it could be seen as failing to provide for the safety of the community.

(2) There were two issues to consider in deciding whether to exercise the discretion under s 275 Children, Young Persons, and Their Families Act 1989: (a) whether the young person should be allowed to forgo the right to trial by jury; and (b) what the sentencing options will be in the event that a guilty verdict is returned or the charge is found proven.

(3) The matter should not remain in the Youth Court because of the seriousness of the charges, the part allegedly played by the defendants, the circumstances giving rise to the charges, the likely consequences that could [(1993) 11 FRNZ 322, 323]be visited on the defendants should they be found guilty, and the public interest which demands that for allegations of such a severe nature a forum appropriate to the charges should be provided.

Cases referred to

Kent v US 383 US 541 (1966)
Police v Ioka 27/5/91, Judge Harvey, YC Otahuhu CRN1248012415
Police v James (a young person) (1991) 8 FRNZ 628
Police v M (1990) DCR 544
Police v Richard 12/6/90, Judge Lee, YC Upper Hutt CRN9278003995/6; CRN9278004028
Police v Tarawa 27/3/91, Judge McElrea, YC Henderson CRN1290005211-14
R v Accused(CA265/88) (1988) 4 CRNZ 36 (CA)
R v Pora 14/9/90, Gault J, HC Auckland S98/90
R v Talataina (1991) 7 CRNZ 33
R v Wilson; R v Amohanga (1988) 5 CRNZ 165 (CA)
Rihari v Police 11/5/90, Fisher J, HC Rotorua T14/90
Tugaga v Police 14/12/89, Holland J, HC Christchurch AP225/89

Hearing

This was a hearing to determine whether the defendants should be tried in the Youth Court and forgo their right to a jury trial.