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H v Police [1999] NZFLR 966; 18 FRNZ 593 (HC)

Case summary provided by BROOKERS

Name: H v Police
Reported: [1999] NZFLR 966; 18 FRNZ 593
File number: AP 71/99
Date: 13 October 1999
Court: High Court
Location: Hamilton
Judge: Smellie J
Charge: Robbery; Burglary
CYPFA: s245; s247; s249; s250; s251
Key Title: Family Group Conference - Timeframes/limits; Family Group Conference - Attendance

BROOKERS Summary:

Children and young persons - Young person facing charges of robbery and burglary - Charges referred to Youth Court - Jurisdiction of Court to hear charges against young person because no family group conference had been held before the informations were laid against him - Failure to convene family group conference within 21 days of referral - Whether fatal to the hearing of the informations - Whether absence of young person’s family at the family group conference meant that the case had not been considered properly - Whether family group conference should have been adjourned - Children, Young Persons, and Their Families Act 1989, ss 2, 4, 5, 6, 208, 245, 247, 249, 250, 251, 258, 262, 351-360.

At the date of the alleged offending the appellant was 14 years of age. On 14 September 1998 a Youth Justice Co-ordinator accepted a referral from the informant pursuant to s 245 of the Children, Young Persons, and Their Families Act 1989 in respect of the appellant for the two alleged offences of burglary and robbery. After attempting to make contact with the appellant and his mother on a number of occasions the Co-ordinator convened a family group conference for 22 October 1998 and informed the appellant and his mother by letter. This was more than 21 days after the referral on 14 September 1998. On the day of the conference the Co-ordinator received a message that the appellant’s mother was unwell and unable to attend. As the Co-ordinator and the informant were of the view that the mother was making excuses, they decided to lay the matters in the Youth Court.

The appellant now appealed against two related judgments given in the District Court. The first concerned a challenge to the Court’s jurisdiction to hear charges of robbery and burglary against the appellant because no family group conference had been held before the informations were laid against him. The second challenged the finding of guilt in respect of the robbery.

The grounds relied upon were that as no family group conference was convened within the mandatory 21 days, the Court had no jurisdiction to entertain the informations laid; there was no consideration by a family group conference because of the absence of the appellant and his mother; there was no family group conference because a unilateral decision had been made by the Co-ordinator rather than the conference not to adjourn; the evidence relied on by the District Court Judge did not support proof of robbery beyond reasonable doubt.

Held

(1) Given the statutory history and the need to impose time limits to ensure that the conducting of family group conferences were not drawn out to unacceptable lengths, it was clear that s 249 (2) of the Act enacted mandatory time limits. Thus the failure to convene within 21 days invalidated the conference and therefore removed the jurisdiction of the Court to consider the information regarding the robbery.

(2) Even in the absence of the young person and his mother, the Youth Justice Co-ordinator and the Youth Aid police officer were able to make valid decisions at a family group conference. This was because it could not have been the intention of Parliament that a young person and his family could avoid the laying of an information in respect of alleged offending simply by staying away from a conference.

(3) While the lack of cooperation by the appellant and his family up to 22 October 1998 raised the suspicion that the explanation was not genuine, there was no reliable foundation upon which it could be dismissed out of hand. However any adjournment should be on the basis that it will be for a limited period and that further adjournments on the ground of ill health will only be considered upon production of a medical certificate and confirmation that no other family member can attend.

(4) There was sufficient evidence to support a conclusion that guilt had been proved beyond reasonable doubt.

Cases referred to in judgment

A Child CYPF 1/89, Re (1989) 6 FRNZ 44
Police v Linda & Graham (Youth Court, Wellington 11 July 1990, Judge Carruthers)
Trompert v Police (1984) 1 CRNZ 324

Appeal

This was an appeal against two related judgments of the District Court and concerned the Court’s jurisdiction to hear criminal charges against a young person because no family group conference had been held before the informations were laid and challenged the finding of guilt in respect of one of the charges.