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R v A (2001) 20 FRNZ 205 (HC)

Case summary provided by BROOKERS

Name: R v A
Reported: (2001) 20 FRNZ 205
File number: T001586
Date: 2 November 2000
Court: High Court
Location: Auckland
Judge: Williams J
Charge: Burglary; Sexual Violation
CYPFA: s2; s4(f)(ii); s208(h); s215; s221; s224
Key Title: Evidence; Jurisdiction of the Youth Court - Age; Objects; Principles; Reasonable Compliance; Databank Compulsion Order; Admissibility of statements

BROOKERS Summary:

Youth justice - Evidence - Application for orders that accused young person’s statement and blood sample be ruled admissible - Fifteen-year-old charged with burglary and sexual violation - Police led to believe accused was an adult and treated him as such - Special protection afforded to young persons - Reasonable compliance - Children, Young Persons, and Their Families Act 1989, ss 2, 4(f)(ii), 208(h), 215, 221(2), 222, 224; Crimes Act 1961, s 344A; Criminal Investigations (Blood Samples) Act 1995.

After a burglary was disturbed in the early hours of 8 April 2000, investigating police found A hiding in the garden of a neighbouring property and took him to the police station for questioning. When asked his age, A told police he was 22 years old when he was only 15. There was nothing about A which suggested to police that the information he had given them was incorrect. A was a sturdy, well-developed young man with every physical appearance of being older than 15 years of age. A’s 28-year-old de facto partner, who was pregnant with his child, also told police in her interview that A was 22. Although police gave A the usual cautions, A was not told that he could have a person nominated by him present while his statement was taken. The initial statements A made during the course of the morning were exculpatory, and A voluntarily agreed to a blood sample. A’s DNA matched a semen sample from an alleged rape committed during a burglary in the same street one month earlier. Consequently, A was charged with sexual violation by rape and burglary. He was permitted to speak to his de facto partner in an interview room before being questioned again. After a half-hour discussion with his partner, A made a statement to police effectively admitting his participation in both burglaries. The police sought an order stating that A’s statements and blood sample were admissible. Alternatively, a juvenile compulsion order was sought requiring A to give a blood sample.

[Note: Consistent with the format of the issued judgment, paragraph numbers rather than line numbers are used in this report.]

Held, ruling the statement admissible, the blood sample inadmissible, and granting a juvenile compulsion order:

(1) The overall thrust of the Children, Young Persons, and Their Families Act 1989 is that children and young persons should, unless there is clear indication to the contrary, be entitled to the protection which the statute provides. For the purpose of deciding whether a person is a "young person" under the Act, the term "marriage" does not extend to a person living in a "relationship in the nature of [(2001) 20 FRNZ 205, 206]marriage". Had Parliament intended young persons in a de facto relationship not to be covered, it would have said so. In the Act, Parliament set out an elaborate and detailed code of the way the authorities should treat children and young persons when offences are committed. That code is deliberately tailored to make the regime appropriate to the age and status of young persons. What is in issue is the extent to which they need the protective provisions of the Act. On the facts of this case, where all the evidence suggested to the police that the young person was conducting himself as a full adult, it may have been arguable that the protection of the statute should not apply to him, but these circumstances were sufficiently unusual that no broad exception should be made to the statute simply to accommodate that unusual situation. Extending the definition of "marriage" would also impose an additional obligation on police to ascertain whether the young person was in a relationship "in the nature of marriage", and this would be an unfortunate burden. The Act should supervene over what would amount to judicial legislation if the Court extended the definition of "marriage" and the definition of "young persons". (p 209, para 15; p 211, para 19; p 212, paras 21-22)

(2) The police breached s 215(f) by failing to inform A that he was entitled to have a person nominated by him present while his statement was taken, even though what occurred was not known to be a breach. In considering whether there was "reasonable compliance" under s 224, the whole of the circumstances should be taken into account. In this case, A was able to stand up for himself as was evidenced by his denials during the morning. Police knew A had been living his life as an adult and had no reason to suppose he was a young person. A was given the opportunity to consult with his de facto partner before he made the statement. In these unusual circumstances there was reasonable compliance, and A’s statements are admissible. (p 214, paras 30-32; p 214, para 35)

(3) It was accepted that there was no attempt at compliance with the requirements of the Criminal Investigations (Blood Samples) Act 1995 as far as juvenile compulsion orders are concerned. There is no saving provision in that Act allowing the Court to order that samples taken in breach of the statute can be admitted where there has been reasonable compliance. The sample given voluntarily by A was inadmissible. However, there was good cause to suspect that A committed the offences with which he is charged. The application for a juvenile compulsion order was granted and A was ordered to give a sample of blood. (p 215, paras 37-39)

Cases referred to

Adoption of T, Re (1992) 10 FRNZ 23, also reported as Re Adoption by Paul and Hauraki [1993] NZFLR 266
Excell v DSW (1990) 7 FRNZ 239; [1991] NZFLR 241
Gaskin v McRoberts (1991) 16 CRNZ 371
Police v C (1998) 16 CRNZ 139
Police v G [1997] 1 NZLR 455; (1996) 3 HRNZ 358
R v Accused (CA311/91) (1991) 8 FRNZ 119; 7 CRNZ 539
R v Irwin [1992] 3 NZLR 119; (1991) 8 FRNZ 487; 8 CRNZ 39
R v T [1999] 2 NZLR 602, also reported as R v Accused (CA302/98) (1998) 17 CRNZ 49 (CA)
Ruka v DSW [1997] 1 NZLR 154; (1996) 14 FRNZ 622; 14 CRNZ 196; [1996] NZFLR 913 (CA)[(2001) 20 FRNZ 205, 207]Thompson v DSW [1994] 2 NZLR 369; (1993) 11 FRNZ 402

Application

This was an application for an order that the young person’s statement and blood sample were admissible.