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Police v M (2001) 20 FRNZ 199; [2001] DCR 385

Case summary provided by BROOKERS

Name: Police v M
Reported: (2001) 20 FRNZ 199; [2001] DCR 385
File number: CRN0043004443
Date: 19 January 2001
Court: Youth Court
Location: New Plymouth
Judge: Harding DCJ
Charge: Sexual Violation - Unlawful Sexual Connection; Indecent Assault
CYPFA: s282; s283(o)
Key Title: Databank Compulsion Order; Databank Compulsion Order; Youth Court procedure

BROOKERS Summary:

Children and young persons - Jurisdiction - Youth Court - Application for DNA database compulsion order in relation to young person convicted of sexual offences - Whether Court’s acceptance of admission made in family group conference amounts to a finding of guilt - Children, Young Persons, and Their Families Act 1989, ss 282, 283(o); Crimes Act 1961, ss 128, 133; Criminal Investigations (Blood Samples) Act 1995, ss 2(a), 39, 40.

M was charged with sexual violation by unlawful sexual connection and indecent assault on a child under 12 under ss 128 and 133 Crimes Act 1961. In his initial Court appearance M did not deny the charges and indicated an intention to plead guilty. He was remanded to attend a family group conference and admitted the charges at the conference. When the matter returned to Court, PAFGC ("proved by admission at family group conference"), was noted on the record. The police applied for an order authorising the taking of a blood sample from M under s 39 Criminal Investigations (Blood Samples) Act 1995 ("DNA Act"). Section 40 permits taking blood, for DNA databank purposes, from persons convicted of certain specified offences, including sexual violation.

The issue for the Court was whether M had been "convicted" of the relevant offence and, accordingly, whether there was jurisdiction for such an order to be made. Under s 2(a) DNA Act "conviction" includes "a finding by a Youth Court that a charge against a young person is proved". The police submitted that the PAFGC notation was a "finding" in terms of s 2. The defence argued that something more than the acceptance of an admission by the Youth Court is required, namely a formal plea of guilty and a positive finding of guilt.

Held, allowing the application:

(1) The plain words of s 2 DNA Act include a finding by the Youth Court that a charge against a young person is proved within the definition of "conviction". No particular method of proof is required. (p 203; line 27)

(2) Although the Children, Young Persons, and their Families Act 1989 provides express recognition of the special position of young persons, and the need to provide special protection for them, that is a process which precedes a finding that the charge has been "proved". There is no reason why young persons who are found to have committed serious relevant offences should be excluded from provisions that are relevant to the whole population for the future prevention of crime. (p 203; line 30)[(2001) 20 FRNZ 199, 200]

(3) The finding of a charge proved in the Youth Court contains inherent safeguards to ensure the protection of young persons, including the appointment of a Youth Advocate to advise the young person at the family group conference when the charge is not denied. (p 203; line 37)

(4) "Guilt" is only found by the Youth Court under s 283(o) before a transfer to the District Court for sentence. If DNA were only able to be obtained from young persons who were transferred to the District Court there would be no need for the extended definition of "conviction" in the DNA Act. (p 203; line 40)

(5) There does not appear to be any proper basis to distinguish between relevant offences, as defined in the DNA Act, proved by a defended hearing in the Youth Court on the one hand, and admitted on the other. In both cases the Court is satisfied to the same standard and the record noted as the charge "proved". (p 203; line 44)

(6) Section 2(a) DNA Act is satisfied either by a finding by the Youth Court that the charge has been proved after a defended hearing, or by the positive acceptance in Court of the admission of the charge reported as the result from the family group conference, usually as PAFGC. Accordingly, jurisdiction exists for the application made by the police. (p 204; line 3)

Cases referred to

C v Police (2000) 19 FRNZ 357; 17 CRNZ 448; [2000] NZFLR 769
Police v S (2000) 19 FRNZ 72; [2000] NZFLR 188
Timo v Police [1996] 1 NZLR 103

Application

This was an application for a DNA databank compulsion order in connection with M as a result of his appearance in the Youth Court on a charge of sexual violation.