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

Police v K (7 August 2001) YC, Lower Hutt, Carruthers DCJ

Name: Police v K
Unreported
File number:
Date: 7 August 2001
Court: Youth Court
Location: Lower Hutt
Judge: Carruthers DCJ
CYPFA: s48
Charge: Assault with a weapon
Key Title: Care and protection cross-over - misuse of s48 CYPFA

Summary: K (15) was charged with assault with a weapon (a knife). K and another youth were with a Black Power gang member when a member of a rival gang jumped out of another car and started a fight. The rival gang member was bleeding badly by the end of the fight but the Black Power member later insisted he had not used a knife. The police officer was unsure whether the young people had been involved in the altercation. They searched K and found no knife. Police were concerned for K’s safety given the likelihood of a gang reprisal. The police officer told K that, pursuant to section 48 of the Act, "he had to accompany us back to the Station". K was advised of his rights and a nominated person was found for him. In a video interview K stated that he had stabbed the rival gang member in self-defence.

In considering whether K was validly taken to the police station and questioned under section 48 of the Act, and the admissibility of the resulting video statement, Judge Carruthers emphasised the proper use of section 48 CYPFA. Section 48 authorises Police to return young people at risk to their homes or to hand them over to social workers. The Judge made clear that as section 48 is a care and protection provision, it cannot be used to compulsorily detain a young person for questioning even where it is necessary to detain that young person for their own safety.

The Judge accepted a submission by Police that it had been appropriate to use section 48 at the commencement of the incident and that once the young person was safe at the police station it was open to Police to take action under the youth justice provisions of the Act. However, His Honour found that the Police had erred in not telling K that he was no longer being detained under section 48 once at the Police station and that he was free to go. K was, throughout, under the impression that he had been "arrested" under section 48. Further, this confusion was maintained when he was read his rights as to making a statement. Thus, Police needed to make clear to K why he was being taken into custody and, when section 48 no longer applied, he should have been advised of that fact and of the fact that he was free to leave the police station.

Decision: As K was not informed that section 48 no longer applied, this tainted the subsequent procedures and the admissions obtained. The Judge declined to exercise his discretion to admit the video statement evidence.