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Police v Andrew [2000] DCR 607 (YC)

Case summary provided by LEXISNEXIS NZ

Name: Police v Andrew
Reported: [2000] DCR 607
File number: CRN 922008506
Date: 20 August 1999
Court: Youth Court
Location: Napier
Judge: McElrea DCJ
Charge: Sexual Violation
CYPFA: s275; s277
Key Title: Purely indictable procedure; Jurisdiction of the Youth Court - Age; Adult co-offenders

LEXISNEXIS Summary:

Children and young persons - Jurisdiction of Youth Court - All four defendants alleged to have taken some physical part in offences - Two defendants likely to be transferred to District Court from Youth Court because they would be 18 by the time the matter was heard - Whether indictable offence can be divided to be heard in the Youth Court - Whether depositions must be held in the Youth Court - Serious charges of sexual violation of unconscious victims - Children, Young Persons, and Their Families Act 1989, ss 275,277,283(o).

Six defendants, four of whom were aged under 17 at the time of the offending, were charged with sexual violation by means other than rape. The violations were of a serious nature and were carried out on two victims who were unconscious through the imbibing of excessive alcohol. All four youth offenders took an active part in the assaults and either victim could have died from intoxication.

The question before the Court involved the jurisdiction of the Youth Court. Firstly whether the Youth Court had jurisdiction to hear depositions where some of the defendants were youths and some adults; and secondly whether it was appropriate when the charges were proceeding indictably, to divert the hearing of charges against the young persons to the Youth Court from the District Court or High Court, which would inevitably involve severance of trials.

Held: (accepting that depositions should be held in the Youth Court but refusing the Youth Court jurisdiction to hear the charges)

(1) Section 275 of the Children, Young Persons, and Their Families Act 1989 required a Youth Court Judge to hear and preside over depositions of young persons so that he or she can then make the decision as to whether Youth Court jurisdiction was being offered to the young person. In all cases where young persons were involved in purely indictable matters jointly charged with adults, the depositions must be conducted in the Youth Court.

(2) It follows that the two defendants who were aged 17 years or over at the time of the alleged offending must be tried by Judge and jury either in the High Court or the District Court.

Police v Manuel (1998) 16 CRNZ 62, followed.

(3) There were several considerations to weigh in deciding whether to exercise the discretion and grant the four youth defendants a separate hearing in the Youth Court. Firstly the nature of the offence; secondly the part the defendants played; thirdly the sentencing consequences; fourthly the forum in which the case was likely to be heard first; fifthly one has to consider the principles of the Children, Young Persons, and Their Families Act.

Police v Richard (Youth Court, Upper Hutt, 12 June 1990, Judge Lee), adopted.

(4) Having looked at all those aspects the question of severance arose because to offer the young people Youth Court jurisdiction would involve having two trials instead of one.

(5) Weighing all those matters in the balance, there was a compelling case for saying that all defendants should be tried together in a jury jurisdiction and that none of the young persons should be offered the opportunity of forgoing the right of trial by jury and having their case dealt with in the Youth Court.

Cases referred to in judgment

Police v Manuel (1998) 16 CRNZ 62
Police v Richard (Youth Court, Upper Hutt 12 June 1990, Judge Lee)
Police v W (1996) NZFLR 902

Application

This was an application by the Crown to determine the jurisdiction of the Youth Court to hear depositions and charges proceeding indictably where some of the offenders were adults and some young persons.

References

See District Courts Practice (Criminal) para CYS275-7; 277.3; 283.6 , 283.8