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Police v D (3 May 2002) YC, Kaitaia, CRN 4229004579, Druce DCJ

Name: Police v D
Unreported
File number: CRN 4229004579
Date: 3 May 2002
Court: Youth Court
Location: Kaitaia
Judge: Druce DCJ
CYPFA: s48
Charge: Assaulting a police officer in the execution of his duty
Key Title: Care and protection cross-over - Misuse of s48 CYPFA

Summary: Police removed D (16) from private property where he was found to be unlawfully present, drunk and in possession of alcohol. D told a police officer his name, address, phone number and the details of his grandmother with whom he lived. This information was not passed to two other police officers. The officers took D to a police station pursuant to section 48 of the Act. Despite other alternatives being available, D was taken into the police station through a secure entrance at the back of the building. D was questioned about his details so that his caregivers could be contacted. Police telephoned D's grandmother and told her that he was in the cells to which she said she would collect him in the morning. D became agitated during questioning and punched a police officer. D was charged with assault and the charge was defended on the basis that police had acted unlawfully.

Having noted the key cases of Ruissen v Minister of Police (1990) 7 FRNZ 9; Police v Kepa 7/8/02 Judge Carruthers, Youth Court, Lower Hutt and Police v Tangi-Metua 31/1/02 Judge Boshier, Youth Court, Whangarei CRN: 1288016733-37, Judge Druce emphasised that section 48 was one of the care and protection provisions of the Act. He read that section subject to sections 4, 5, 6 and 13 and noted particularly section 6 which provides that "the welfare and interests of the child or young person shall be the first and paramount consideration having regard to the principles set out in section 5 and section 13 of the Act".

The Judge stated that there is no authorisation in section 48 permitting Police to detain children or young people at a police station as such, but it may be permissible as an intermediary means of delivering that young person to his parent, guardian, caregiver or social worker. The authority to detain a child or young person for questioning exists no further than is necessary for obtaining sufficient identifying information to deliver the child to their specified caregiver. Further, the welfare principle dictates that the Police ought to minimise a young person’s exposure to potentially harmful experiences such as being placed in a high security environment.

The Court found in this case that although it had been reasonable for the Police to take D to the police station as an intermediate step towards returning him to his specified caregiver, they had erred on a number of other points, notably:

• The Police failed to adequately consider D's welfare and interests by taking him into the police station through the secure entrance, given that he was co-operating at that time. By taking D into the secure area, police detained him beyond their lawful authority, which was to deliver him into the care of a parent, guardian or caregiver. The secure area of the station would only be justified in the event that reasonable force became necessary to deliver him into the care of the appropriate person (as per s48(1)).

• Police evidence that "further inquiries" were necessary indicated that police were blurring the purpose of the youth's presence in the police station. Section 48 should not be used to detain young people for purposes beyond returning them to designated caregivers.

• D was not informed as to why he was being detained and it is likely that he thought he was under arrest. However, he had none of the advantages concerning arrest available to him under ss214-219 of the Act. This amounted to a clear breach of section 22 of the Bill of Rights Act.

The Court applied the balancing exercise in R v Shaheed [2002] 2 NZLR 377 and of particular relevance to the Judge’s decision was that:

• The Police and the Court were obliged to give paramouncy to D's interests and welfare.

• There was no urgency or immediacy of danger to the Police or the public at the time which might otherwise make excusable the breach to D's rights.

• This was not a trivial breach but an unlawful detention of a young person aged 16 years 2 months.

• D's caregiver was given insufficient information as to D’s legal status or the consequences of her declining to accept him back into her care. Her refusal should have meant that he was placed in the care of a social worker.

• A social worker did not become involved until the following morning.

Consequently, although the Police did not act in bad faith, there was a serious breach of D's rights.

Decision: The evidence obtained relating to the alleged assault of the police officer by D was therefore excluded by the Court and the Information dismissed.