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

Police v T-M (31 January 2002) YC, Whangarei, CRN 1288016733-37, Boshier DCJ

Name: Police v T-M
Unreported
File number: CRN 1288016733-37
Date: 31 January 2002
Court: Youth Court
Location: Whangarei
Judge: Boshier DCJ
CYPFA: s48, s214
Charge: Burglary
Key Title: Care and protection cross-over - misuse of s48 CYPFA; Arrest without warrant

Summary: A police officer found T-M in central Whangarei some time after midnight and, believing that he was responsible for earlier burglaries, invoked section 48 of the Act and required T-M to return with him to the police station. He interviewed T-M until 5.30am when he returned him to his uncle’s address. Several weeks later the police officer interviewed T-M again, at his house. Having taken a statement the police officer then arrested T-M for burglary. The police officer filed a report indicating that he had exercised the power of arrest because T-M was a repeat offender, there was a need to prevent further offending and he wanted to ensure T-M appeared in Court. The charges were denied but, prior to a defended hearing, the Police sought leave to withdraw, acknowledging problems in the preparation of the case.

Judge Boshier held that section 48 should not be used for the sole purpose of taking a child or young person into custody when they are suspected of having committed a crime. Section 48 provides for the delivery of unaccompanied children and young people, who are discovered in a situation where they are at risk, to their parent, guardian, caregiver or social worker. In this case, T-M was unlawfully taken into custody and questioned at length in connection with a number of burglaries pursuant to section 48.

On the second occasion, T-M was arrested because he was a repeat offender, police believed there was a need to prevent further offending and police wanted to ensure T-M appeared before the Court. Judge Boshier stated that section 208 of the Act requires that criminal proceedings should not be initiated unless there are no other means of dealing with an issue and any proceedings should take the least restrictive form. T-M had not been dealt with according to these principles and, further, his arrest had been unlawful pursuant to section 214.

Judge Boshier found that the reasons given by the police officer for the arrest did not comply with this section. In this case, further offending was not imminent and arrest was not necessary to ensure the appearance of T-M before the Court. His Honour stated that where no alternatives exist and arrest is warranted, Police must firstly consult a Youth Justice Co-ordinator and discuss the offending at a Family Group Conference before contemplating the laying of charges in a Youth Court (s245).

The Judge concluded that charges could not be brought against T-M in the Youth Court unless arrest had been used in the restricted manner laid down in the Act or a Family Group Conference had been held and recommended that such charges should be laid. Neither course had been adopted in this case. Consequently, the police officer was not justified in arresting T-M, there had been a clear and serious misuse of the procedure and the case should not have come to Youth Court as it did.

Decision: the Police were wrong to have laid charges against T-M and they were ordered to refund the Youth Advocate's fees to the Department for Courts.