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

Police v SM [1998] DCR 120 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v SM
Reported: [1998] DCR 120
File number: CRN 7048030108
Date: 7 November 1997
Court: District Court
Location: Otahuhu
Judge: Moore DCJ
Charge: Indecent Assault
CYPFA:
Key Title: Evidence

LEXISNEXIS Summary:

Evidence - Child witness - Application for order that 10-year-old complainant in summary trial for indecent assault give evidence by video tape and closed circuit television - Whether procedure set out in Evidence (Videotaping of Child Complainants) Regulations 1990 could be followed in a summary case - Ambit of judicial activism in this area of criminal procedure - Recent Court of Appeal and High Court decisions expanding the adjectival law outside the statutory regime - Evidence Act 1908, s 23C - Evidence (Videotaping of Child Complainants) Regulations 1990.

The defendant was charged with indecent assault of a 10-year-old girl and had exercised his right to be tried summarily. The prosecution submitted that the complainant should be able to give evidence-in-chief by videotape compiled in accordance with the Evidence (Videotaping of Child Complainants) Regulations 1990. The issue was whether the District Court had the power to permit this to be done in a summary trial.

Held: (ruling that the complainant could give her evidence by videotape and closed circuit television)

(1) The District Court was a Court of statutory jurisdiction and had no inherent jurisdiction. It did however have inherent power to do what was necessary to enable it to exercise the functions, powers and duties conferred upon it by statute. It also had the duty to see that its process was used fairly.

McMenamin v Attorney-General [1985] 2 NZLR 274, 276 and Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701, applied.

(2) There was a recent judicial willingness to be active in expanding the adjectival law. In particular there were Court of Appeal and High Court decisions allowing the giving of evidence outside the statutory regimes of the Evidence Act 1908. The Court of Appeal had allowed children who were the alleged victims of non-sexual abuse to be interviewed in accordance with the procedures prescribed in the Evidence (Videotaping of Child Complainants) Regulations 1990, although there was no statutory basis to have the evidence so placed before the Court as it was not a sexual case.

R v Moke and Lawrence [1996] 1 NZLR 263, R v Police (1997) 14 CRNZ 590, considered.

(3) The Evidence (Videotaping of Child Complainants) Regulations 1990 and provisions of the Evidence Act 1908 provided both a specific regime in respect of a particular type of case, namely an offence of a sexual nature which would ultimately be tried by jury, and at the same time afforded a measure of guidance as to the proper restraints and protections appropriate where the Court, in the exercise of its inherent powers, made orders in relation to the mode of adducing evidence in cases outside the statutory regime.

(4) The statutory regime provided by the Evidence (Videotaping of Child Complainants) Regulations 1990 was available where summary jurisdiction was elected.

Cases referred to in judgment

Accused (CA 60/97) v Attorney-General (1997) 15 CRNZ 148 (CA)
Clifford v Commissioner of Inland Revenue [1966] NZLR 201
Department of Social Welfare v Stewart [1990] 1 NZLR 697
McMenamin v Attorney-General [1985] 2 NZLR 274 (CA)
Palmer v Attorney-General [1992] 3 NZLR 375
Police v P [1992] DCR 433
Police v S [1994] DCR 257
R v Daniels (1993) 10 CRNZ 165 (CA)
R v Moke and Lawrence [1996] 1 NZLR 263 (CA)
R v Police (1997) 14 CRNZ 590

Application

This was an application for an order for a child complainant to give evidence in accordance with the provisions of the Evidence (Videotaping of Child Complainants) Regulations 1990 by videotape.