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NZ Police v HK (10 December 2004) FC, Manukau, CYPF 2003-055-27, Judge Malosi DCJ

Name: Under the Children, Young Persons and Their Families Act 1989 NZ Police v HK
Unreported:
File number: CYPF 2003-055-27
Court: Family Court
Location: Manukau
Date: 10 December 2004
Judge: Malosi DCJ
Charge: Sexual Violation
CYPFA: s14(e); s18; s198(b)
Key title: Care and protection cross-over; Evidence; Child Offenders

Summary: HK allegedly committed sexual offences against two sisters when he was aged 12. Police applied pursuant to s67 CYPFA for a declaration that HK in need of care and protection relying on s14(1)(b)(d) & (e) CYPFA. Application made on behalf of HK for the s14(1)(e) ground to be dismissed. (1) Whether or not in bringing this s14(1)(e) application there has been an abuse of process on account of failure to adhere to law; (2) and/or delay of such magnitude that the application should be dismissed. HK denied the charges. Section 18(3); s70(2) CYPFA; in circumstances where the Police apply without notice for an interim custody order and contemporaneously for declaration prior to a FGC having been held, they must still make a referral to a YJC: s18(3); s70(3) is clear that there the responsibility shifts to the Registrar to refer the matter for the purposes of the FGC; Registrar failed to comply with s70(3). Time from date of complaint to application for declaration was about 6 months; having regard to the careful and proper manner in which inquiries were undertaken the timeframe was not unreasonable nor prejudicial to HK. Section 200 CYPFA 60-day time limit, “special reasons”; attempt at engaging HK in therapeutic process pre-declaration was unfruitful but worth trying and consistent with the paramountcy principle. No s322 CYPFA equivalent allowing a FC Judge to dismiss s14(1)(e) applications for delay; s207 CYPFA; argument for dismissal founded on abuse of process. Section 322 delay cases of little assistance as s14(1)(e) applications remain care and protection matters not youth justice matters. Allegations against HK are well-known in his neighbourhood; he is steadfast in his denial of the allegations; if the s14(1)(e) application proceeds he may clear his name or, if the allegations are proved, an appropriate plan can be put in place for HK to address the issues; either way would be consistent with s6 of the Act. Thus, the application for a declaration on the s14(1)(e) ground can proceed.

Evidence; Rule 299, Rule 170: Family Court Rules 2002. Police seek directions for the evidence in chief of the two child complainants to be admitted at hearing in the form of the videotapes of their interviews at the Evidential Video Unit and that the rest of the evidence of all of the children be given by way of closed circuit television. It is possible to interpret r170 and r299 as applicable to adults only because of the existence of these specific regulations in relation to the videotaping of the evidence of child complainants; nonsensical to suggest evidential video interviews, carried out in accordance with the Evidence (Videotaping of Child Complainants) Regulations cannot be submitted into evidence in a Family Court proceeding if prior approval for the interview is not sought; would bring “already groaning system to a standstill”. Child complainants and witnesses should not have less protection than they would have in other jurisdictions.

Consideration of s198(1); s178 report prior to hearing will not assist the Court or the Police.

Decision: The application to dismiss the s14(1)(e) ground is dismissed. The complainant’s evidence-in-chief may be given in the form of the videotape interviews carried out at the Evidential Video Unit, and any further evidence and cross examination conducted through closed circuit television. The two child witnesses may give all of their evidence by way of closed circuit television; application for s178 report dismissed.