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Police v W [1999] NZFLR 577; (1998) 18 FRNZ 203 (DC)

Case summary provided by LEXISNEXIS NZ

Name: Police v W
Reported: [1999] NZFLR 577; (1998) 18 FRNZ 203
File number: CRN 8277008566
Date: 14 December 1998
Court: District Court
Location: Tokoroa
Judge: Whitehead DCJ
Charge: Aggravated Robbery
CYPFA: s221; s234; s235; s236; s237; s238
Key Title: Admissibility of statements; Custody - CYFS; Police cell custody; Rights

LEXISNEXIS Summary:

Children and young persons - Young person arrested on serious charge - Young person held overnight in police cells - Whether young person should have been held - Admissibility of statements made by young person to police - Young person’s rights under Bill of Rights Act 1990 and Children, Young Persons, and Their Families Act 1989 accorded to him - Whether young person’s solicitor or mother should have been contacted prior to him making his statements - Conduct of CYPS staff - Children, Young Persons, and Their Families Act 1989, ss 215, 221, 222, 224, 234, 235, 236, 237, 238, 321, 436 - New Zealand Bill of Rights Act 1990.

W, a young person, was charged with the aggravated robbery of a Putaruru residence. He had been interviewed three times by the police, once before being charged and twice after his arrest. On the uncontested evidence of the police officer, he had on each occasion been made aware of the Bill of Rights, the general caution and the rights under the Children, Young Persons, and Their Families Act 1989 to the young person. On the latter two interviews that had been verified and corroborated by the evidence of the nominated person.

At issue in this hearing was the admissibility of statements made by W and whether W should have been held in the police cells overnight following his arrest. The nearest District Court to where W was arrested was not sitting on the date in question. The police officer had taken no steps to inquire as to the possibility of a Court being convened either before a Judge or a Justice of the Peace to determine issues of bail. The police were going to oppose bail due to the seriousness of the charge and W’s past history of offending. The police officer did consult with a social worker who advised that there were not sufficient facilities available for W’s detention and safe custody. The social worker then signed a certificate pursuant to s 236 of the Children, Young Persons, and Their Families Act 1989 enabling W to be held for a period in excess of 24 hours and until appearance before a Court.

Also at issue at this hearing was whether W’s solicitor and mother should have been contacted when he asked to speak to the police on the occasion of his second and third interviews.

Held

(1) The combination of the violent nature of the offence and the current spate of aggravated robberies within the Tokoroa area gave reasonable grounds for the police and the social worker to believe that the young person may be likely to abscond or be violent. Given the unavailability of suitable facilities for the detention and safe custody of the young person available to the Director-General, the failure to bring the young person before the Court on the day of his arrest was not fatal to his detention as, in terms of s 237, he shall be brought before a Youth Court "as soon as possible".

(2) From the evidence it was clear that the young person made a decision in the form of an expressed acknowledgment on the second interview, and in respect of the third interview, acquiesced in his declination not to consult a lawyer and there was nothing on the evidence that would enable the Court to conclude that the statutory provisions had been breached. The same applied in respect of the absence of his mother.

(3) In each interview the young person had been provided, in a manner and language appropriate to his age and understanding, his rights under the Bill of Rights Act, the general caution required to be given, and the Children, Young Persons, and Their Families Act. The young person’s statements were admissible in evidence and did not contravene the provisions of the Children, Young Persons, and Their Families Act.

(4) Objections as to the involvement by CYPS staff immediately prior to and during the interviews were rejected. There was no conflict of interest in the social worker signing the s 236 certificate and her subsequent attendance on the second interview.

Cases referred to in judgment

R v Irwin [1992] 3 NZLR 119
R v S (1997) 15 CRNZ 214 (CA)
R v Tepere [1997] 1 NZLR 341

Application

This was a hearing to determine a number of preliminary issues relating to the arrest and charging of a young person on a charge of aggravated robbery, including the admissibility of statements made to the police and whether the requirements of the Children, Young Persons, and Their Families Act 1989 had been complied with.