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

R v O [1999] DCR 434 (DC)

Case summary provided by LEXISNEXIS NZ

Name: R v O
Reported: [1999] DCR 434
File number: T 982505
Date: 20 April 1999
Court: District Court
Location: Auckland
Judge: McElrea DCJ
Charge: Indecent Assault
CYPFA: s322
Key Title: Jurisdiction of the Youth Court - Age; Delay; Rights

LEXISNEXIS Summary:

Criminal procedure - Discharge - Abuse of process - Alleged offending occurred before defendant turned 17 years of age - Defendant initially charged in District Court - Proceedings re-laid in Youth Court but discharged as defendant had turned 18 years of age - Delay of 26 months from date charges first laid - Denial of right to Family Group Conference - Children, Young Persons, and Their Families Act 1989, s 332 - Crimes Act 1961, s 347 - New Zealand Bill of Rights Act 1990, s 25(b).

The defendant applied for a discharge under s 347 of the Crimes Act 1961 on the grounds of abuse of process. The defendant was charged with three counts of indecent assault. The alleged offending came to light after the defendant turned 17 years of age, with the offending having been committed before the defendant turned 17. The defendant was aged 17 years and five months when charges were first laid. The defendant was initially, but mistakenly, charged in the District Court on middle band matters that were referred to the High Court. Shortly before trial in the High Court it was held that those proceedings were a nullity because of the defendant’s young age. The proceedings were re-laid in the Youth Court, but were ultimately dismissed on the grounds that the Youth Court did not have jurisdiction, the defendant having turned 18 years of age. The charges were then re-laid again in the District Court. The procedures had taken a total of two and a half years.

Held (granting application for discharge)

1. The right to have the matter considered by a family group conference if it was not denied, the right to a family group conference before any summons was issued, and the right to be dealt with promptly, were important rights that ensured that matters concerning young persons were, where possible, dealt with by the family group conference process with its restorative justice underpinning.

2. It was profoundly unsatisfactory for the Court to have to choose between denying the complainant a trial of his allegations and requiring the defendant to proceed when delays not of his making had denied him rights which the law provided to all young persons. But it seemed repugnant to justice that the defendant should be forced on to trial in the adult jurisdiction by virtue of mistakes made by other people which together had deprived him of his rights given by law.

Observations

1. The defendant lost the potential benefit of the Youth Court in at least two respects - a conference convened prior to issuing a summons may have concluded that no charges need be laid, ie that the matter could have been dealt with on a diversionary basis; and if charges were laid, the defendant might have been advised not to deny the charges and to see if a satisfactory community based outcome could have been agreed at a family group conference.

2. There were three different legal bases for the application being advanced. One was the inherent power to dismiss for abuse of process; the second was s 25(b) of the New Zealand Bill of Rights Act 1990 affirming the right to be tried without due delay; and the third was s 332 of the Children, Young Persons, and Their Families Act 1989 which provided that a Youth Court Judge might dismiss any information charging a young person with the commission of an offence if the Judge was satisfied that the time that had elapsed between the date of the commission of the alleged offence and the hearing had been unnecessarily or unduly protracted.

3. The application was for a discharge under s 347 of the Crimes Act 1961. There was the alternative course of granting a stay. There was no reason why a defendant in this situation was not entitled to a complete discharge rather than a stay which simply left the proceedings afoot without bringing them to trial. Section 347(1)(c) entitled a Judge in his/her discretion after perusing the depositions and consideration of such other evidence and other matters as were submitted for consideration by the prosecutor or the accused, to direct that no indictment should be filed, or if it had been filed to direct that the accused should not be arraigned thereon, and in either case to direct that the accused be discharged. Those provisions were wide enough to encompass the [current] situation.

4. The same result would probably have been reached applying the cases under the New Zealand Bill of Rights Act 1990, dealing with undue delay.

R v Drew (1998) 4 HRNZ 614, referred to.

Cases referred to in judgment

Martin v Tauranga District Court [1995] 2 NZLR 419
R v Drew (1998) 4 HRNZ 614

Application

The defendant applied for a discharge under s 347 of the Crimes Act 1961 on the grounds of abuse of process.