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

NZ Police v DN (26 November 2003) FC, Manukau, CYPF 092/36/03, Judge Malosi DCJ

Name: Under the Children, Young Persons and Their Families Act 1989 NZ Police v DN
Reported: Police v N [2004] NZFLR 1009
File number: CYPF 092/36/03
Court: Family Court
Location: Manukau
Date: 26 November 2003
Judge: Malosi DCJ
Charge: Including Wilful Damage; Dangerous Driving
CYPFA: s14(e); s18; s198(b); s249; s250; s251; s253
Key title: Care and protection cross-over; Victims; Child Offenders; Family Group Conference – Attendance; Family Group Conference – Timeframes/limits

Summary: Interface between s14(1)(e) and youth justice provisions of CYPFA. DN allegedly committed 14 offences while 11 years old including wilful damage, dangerous driving of a stolen vehicle while pursued by Police. Police applied for a s78 interim custody order and an application on notice for a declaration upon the grounds set out in section 14(1)(b)(d)(e) and (f) CYPFA. FGC directed, psychological, social worker and cultural reports sought (s178, s186). By time of FGC 25 offences were put to DN and admitted by him. FGC held, after delay to obtain all reports; YJC made decision to have no victims present for several reasons including the large number of offences, a Vietnamese interpreter was necessary which would lengthen the proceedings considerably and a two-staged process of FGC was desirable to enable the first FGC to ascertain whether DN admitted the offences as per s259 of the Act.
FGCs are the jewel in the CYPFA crown and crucial to the reconciliation between the wrongdoer and the victim; s72(1); s251; s208(g) CYPFA. If DN had denied the offences at the FGC, a defended hearing would have proceeded for those offences to be determined by a Judge. Counsel submits the FGC is a legal nullity as victims not invited; s440 CYPFA unable to remedy the situation; fundamental principles of the Act contravened constituting a miscarriage of justice. Police agree. CYF argue the two-step approach was a common sense response to a difficult situation. Held: Section 250 CYPFA is clear that the YJC was required to “make all reasonable endeavours” to consult with victims; no effort was made as YJC decided not to invite any victims. Section 270 CYPFA; power to reconvene cannot be used to remedy blatant defect in the process of convening the conference. Section 253(3) CYPFA; held that absence of victims at FGC did materially affect the outcome; failure to consult with and invite victims led to a miscarriage of justice – conference therefore deemed invalid as to s14(1)(e). To start from scratch and hold a valid FGC would be an abuse of process.

Time limits for convening s14(1)(e) FGCs. Narrow reading of s249(1) CYPFA shows the 21 day time limit only applies to FGCs to which s247(a) applies, that is, those triggered by a s18(3) consultation between the Police and a YJC; planned consultation abandoned here after offending escalated. Child appropriate timeframe must be adopted but cannot import the specific timeframe from s249(1). Delay unreasonable; FGC for the purposes of s14(1)(e) was also invalid for failure to convene and hold in a timeframe appropriate for DN. FGC was properly convened and held so far as the grounds under s14(1)(b),(d) and (f).

Decision: Directions and orders including: The application for declaration upon the grounds contained in s14(1)(e) is dismissed. A declaration pursuant to s67 upon the grounds set out in s14(1)(b),(d) and (f). The s78 interim custody order is discharged. Section 101 custody order in favour of the Chief Executive, to be reviewed in 6 months time.