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R v Police (1997) 14 CRNZ 590 (HC)

Case summary provided by BROOKERS

Name: R v Police
Reported: (1997) 14 CRNZ 590
File number: AP35/96
Date: 23 April 1997
Court: High Court
Location: Masterton
Judge: Neazor J
Charge: Indecent Act on Girl Under the Age of 12 Years
CYPFA:
Key Title: Evidence; Youth Court Procedure

BROOKERS Summary:

Procedure - Amendment of charge - Amendment made by Youth Court Judge as part of decision after evidence completed and information proved - Weight of authority against existence of power to substitute without giving defendant opportunity to be heard before a final decision made on the substituted charge - Whether s 204 can save a proceeding if omission or deficiency occurred at time when Judge had no jurisdiction to act - Summary Proceedings Act 1957, ss 43, 204.

Evidence - Child complainant - Jurisdiction of Youth Court to use videotaped evidence - Existing authority provides sufficient basis for Judge with jurisdiction to try case without jury to modify procedures required by Evidence Act provisions so far as circumstances of case make necessary - Evidence Act 1908, ss 23C-23F, 23H.

Videotape evidence - Child complainant - Jurisdiction of Youth Court to use videotaped evidence - Existing authority provides sufficient basis for Judge with jurisdiction to try case without jury to modify procedures required by Evidence Act provisions so far as circumstances of case make necessary - Evidence Act 1908, ss 23C-23F, 23H.

Evidence - Child complainant - Practice to be followed in Youth Court where child complainant gives evidence - Judge must obtain from complainant requisite promise to tell truth.

The appellant appealed against a determination by the Youth Court that he had committed the offence of doing an indecent act on a girl under the age of 12 years. The appellant was aged 15 at the time of the offence and 16 at the time of hearing. He was originally charged with attempting to commit sexual violaton, but this was amended by the Judge as part of his decision after the evidence was completed and the information was found to be proved. The appellant was sentenced to 3 months' supervision.

The complainant was aged 7 years 9 months at the time of the offending and 8½ at the time of hearing. After the police became involved, the complainant was interviewed by the Children and Young Persons Service on the basis that the interview would be recorded on videotape for use as an evidential video.

At the hearing in the Youth Court, the Judge recorded that a late application was made to him by the police to view the videotape. A request was made under s 23E Evidence Act 1908 that the complainant's evidence-in-chief be given by videotape [(1997) 14 CRNZ 590,591] and that when any oral evidence was given by her, she should be screened from the appellant. Counsel for the appellant reluctantly consented to both applications. The Judge decided that the complainant should not be present during the playing of the videotaped evidence.

The videotaped record of the interview was viewed by the Judge, who accepted it as evidence. The complainant did not view the videotape. The Judge then made inquiries of the complainant as a preliminary to determining whether she could give evidence, and sought from her a promise that she would tell the truth. It was determined that it was proper to accept her as a witness, a promise was obtained, and cross-examination by counsel for the appellant followed.

The appeal was based on the following grounds:

(a) The Judge should not have permitted the complainant's evidence to be admitted by way of videotaped record.

(b) The tape failed to comply with the minimum standards prescribed by the Evidence (Videotaping of Child Complainants) Regulations 1990.

(c) The Judge was wrong to admit the complainant's oral evidence as there was insufficient evidence for him to be satisfied that the complainant had understood the need to tell the truth and had promised to do so.

(d) The Judge was wrong to amend the charge and convict the appellant on it without complying with s 43 Summary Proceedings Act 1957.

(e) Either hearsay evidence about the appellant's alibi was wrongly admitted by the Judge or there was misconduct on the part of the prosecution.

(f) Complaint evidence given by the mother of the complainant was wrongly admitted and given weight contrary to the rules relating to complaint evidence.

(g) The decision was not supported by the evidence and the conviction ought to be set aside.

Held, (1) it is not necessary to rely on any inherent jurisdiction in deciding whether the Youth Court has jurisdiction to receive evidence under s 23E Evidence Act and the regulations, as this case is within the categories referred to in s 23C Evidence Act and ss 23C to 23F and 23H are not limited in application to jury trials. Principles derived from Clifford v CIR and R v Moke provide sufficient basis for a Judge who has jurisdiction to try the case without a jury to modify the procedures required by the Evidence Act provisions so far as the circumstances of the case make necessary. If that is wrong, the decision in Moke would give the Court jurisdiction. It should be noted by the prosecution that s 23D requires the prosecutor to apply to the Judge for directions as to the mode of a young complainant giving evidence in sexual cases when there has been a committal for trial. The same step should be taken in advance of trial when a case is to be heard in the Youth Court. (p 597, line 45)

Clifford v CIR [1966] NZLR 201 (CA)

R v Moke [1996] 1 NZLR 263; (1995) 13 CRNZ 386; 14 FRNZ 75 (CA) applied

(2) With regard to the fact that the child did not see or hear the video and that the child was not qualified as a witness before the videotape was played as evidence, the reason for the Judge's direction was understandable. However, the proper course in the Youth Court is usually to follow the practice laid down in R v Lewis and R v S (CA105/92); that unless there is some particular reason in any case, before the child complainant gives evidence, the Judge must obtain from him [(1997) 14 CRNZ 590,592] or her the requisite promise to tell the truth. In this case, there was a procedural error under s 440 but no miscarriage of justice, so the video evidence should not be excluded. (p 598, line 12; p 599, line 27)

R v Lewis [1991] 1 NZLR 409; (1990) 6 CRNZ 350 (CA) referred to

R v S (CA105/92) [1993] 2 NZLR 142; (1992) 9 CRNZ 201 (CA) referred to

(3) It was open to the Judge to accept that the interviewer complied with the requirements of the regulations and that the videotaped record was admissible. (p 601, line 34)

R v S (CA105/92) [1993] 2 NZLR 142; (1992) 9 CRNZ 201 (CA) applied

(4) Whether a child witness is capable is always a difficult decision for a Judge to make because it has to be made on the basis of what the Judge knows of the child as a result of his or her questions (and in this case from what was on the videotape). In this instance, the Judge was not wrong to accept that the child was able to give evidence. (p 602, line 4)

(5) The substance of authority in New Zealand is against the Judge having power to amend or substitute the offence charged, once the proceedings in open Court have been concluded by reserving decision. A strong support for such a view is that, unless special steps are taken, the benefit of the protection of s 43 Summary Proceedings Act will be lost. The weight of authority is against there being power to substitute without giving the defendant the opportunity to be heard before a final decision is made on the substituted charge. It cannot be the case that s 204 could ever save a proceeding if the omission or other deficiency occurred at a time when the Judge had no jurisdiction to act. (p 605, line 15)

(6) In view of the determination that the conviction cannot stand, it is unnecessary to make any decision on the other grounds of appeal. (p 605, line 36)

Statutes and regulations referred to

Children, Young Persons, and Their Families Act 1989,s 275, 440
Crimes Act 1961, ss 129, 133(1)(b)
District Courts Act 1947
Evidence Act 1908, ss 23C, 23D, 23E, 23F, 23H
Oaths and Declarations Act 1957,s 13
Summary Proceedings Act 1957, ss 43, 204, First Schedule
Evidence (Videotaping of Child Complainants) Regulations 1990, reg 5(1)(c)

Cases referred to

C v DSW [1990] 3 NZLR 203; (1989) 5 FRNZ 536
Clifford v CIR [1966] NZLR 201 (CA)
MOT v Nicol [1980] 1 NZLR 436 (CA)
R v Accused (CA245/90) [1991] 2 NZLR 649; (1990) 6 CRNZ 354 (CA)
R v Accused (CA32/91) [1992] 1 NZLR 257; (1991) 7 CRNZ 230 (CA)
R v Blackmore [1994] 1 NZLR 268; (1993) 10 CRNZ 575 (CA)
R v Kestle [1973] 2 NZLR 606 (CA)
R v Lewis [1991] 1 NZLR 409; (1990) 6 CRNZ 350 (CA)
R v M E F [1992] 2 NZLR 372
R v Moke [1996] 1 NZLR 263; (1995) 13 CRNZ 386; 14 FRNZ 75 (CA)
R v S (CA105/92) [1993] 2 NZLR 142; (1992) 9 CRNZ 201 (CA)
Transport Ministry v Maud [1975] 1 NZLR 97[(1997) 14 CRNZ 590,593]

Appeal

Appeal against determination by Youth Court that appellant committed an offence under s 133(1)(b) Crimes Act 1961.