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Police v P and R [2004] DCR 673

Case summary provided by LEXISNEXIS NZ

Name:Police v P and R
Reported: [2004] DCR 673, (2004) 20 CRNZ 1005
File number: CRN 3077009228
Date: 22 January 2004
Court: Youth Court
Location: Manukau
Judge: Harvey DCJ
Charge: Aggravated Robbery
CYPFA: s5(f); s322
Key Title: Delay

LEXISNEXIS Summary:

This was an application by P and R to dismiss a charge against of aggravated robbery. The application was based upon the delay in the investigation and charging. It was argued that the delay in bringing the charge was of such a substantial nature that it was against s322 of the Children, Young Persons and Their Families Act 1989.

It was alleged that on 28 October 2002 an armed robbery occurred where offenders with an imitation pistol robbed the complainant of $40 cash and his wallet. The complainant told police that two of the offenders were aged about 16 and the police were provided with details regarding the vehicle used. On 3 November 2002 the police received information about the vehicle and were provided with the names of possible suspects. Nothing more happened in the investigation until 1 April 2003. Inquiries continued but from 8 May until 24 July there was a further delay when the police made no progress. A line of inquiry was followed on 20 July 2003. On 2 October 2003 a search warrant was executed, and R was arrested and first appeared in Court the next day. J was arrested on 3 October 2003 and brought before the Court that day.

Counsel for R submitted that under s322 and s5 where there were decisions affecting a child or young person, that they should be made and implemented within a time-frame appropriate to the child or young person’s sense of time wherever practicable. It was argued that the delay here was inexplicable and unnecessary. It was submitted that the seriousness of the offence should have no impact when considering whether to apply s322. R was 16 years and ten months when the allegation arose, but was not interviewed till nearly a year later. It was argued that the delay meant he did not have the sentences available to him under the Youth Court jurisdiction, and that he did not have the advantages of the process within the Youth Justice system, which resulted in significant prejudice.

For P, his counsel endorsed what H’s counsel said. It was submitted that the information which led to the arrests on 3 October 2003, was available at the time investigations were occurring in late October and early November 2002. P, it was claimed, had also been prejudiced as a result of delay because he was 17 on 16 June 2003.

The police submissions attempted to explain the delay as one of lack of resourcing on the part of the police. There were a large number of murder investigations involving numerous suspects, and the resources in the area were stretched to the limit. The police argued it would be unfair to start the clock ticking from the date of the offence because identity was an issue and inquiries had to occur. There had been a period of eight months when the file was unallocated and nobody was working on it, but extra police were brought into the region to address the backlog in September – December 2003 which showed an awareness of the problem and that steps were taken to resolve it, which meant the Court should be reluctant to stay proceedings on the basis of delay.

Held (dismissing the charges)

(1) What had to be considered was: (a) whether or not there was a delay; (b) if it was unnecessarily or unduly protracted; (c) if there was prejudice caused; and (d) whether the prejudice was significantly serious enough to warrant the extreme step of halting the proceeding (para [8]). In such circumstances and applications, cases needed to be considered on an individual basis. It was incorrect to approach delay on a "formulaic" basis as a shorter period of time could be just as unjust as a longer period of time (see para [50]).

(2) Here there was a delay of nearly 12 months in the investigative process. There was information available shortly after the offence that gave the police the name and possible identities and locations of various possible offenders. It appeared this information was not acted on because more serious crimes intervened. However, given that the information was available in November 2002 the delays and follow-up in this particular case were unnecessary. The delays fell within s322 as the investigation was unduly protracted. As a result of the delays both the accused had been prejudiced (see para [51], [4], [55]).

(3) Different rules applied to young people, and the benefits of the Youth Justice System were not available to these accused due to the delays. It was a denial of justice that the remedies available in the Youth Court were no longer available to P and R because of the passing of time, and their ages. They had been denied the opportunity of having their case examined in terms of the processes set out in the Act as a result of the delays in the investigative process (see paras [57] and [58]).

(4)The implications of consistent application of the law and even-handedness in the justice system, and general principle of certainty would fall by the wayside if a rule that applied to one case did not apply to another on the basis that the case in question was more serious or more socially acceptable (para [36]). Differentiating between offences and the application of rules on the basis that some offences were more serious, is a matter of concern as it is an uneven approach to the application of legal rules. There were major difficulties here in complying with s322, and even though it was a serious offence, the rules had to be applied equally across the board. Therefore, both the informations were dismissed.

Cases referred to in judgment

Martin v Police (High Court, Wellington A283/00, 19 December 2000, Wild J).
Martin v Tauranga District Court [1995] 2 NZLR 419.
Police v BRR (District Court, Papakura 23 July 1993, Judge D J Harvey).
Police v D [1998] NZFLR 577
Police v D [2000] NZFLR 237
Police v DH [1995] NZFLR 473
Police v DS (Youth Court, Manukau 24 October 2003, Judge Thorburn)
Police v F (Youth Court, Manukau 1 July 2002, Judge Thorburn)
R v McKenzie (Youth Court, Blenheim, 20 June 1995, Judge McAloon).
R v Shaheed [2002] 2 NZLR 377
Watson v Clarke [1990] 1 NZLR 715

Application

This was an application to dismiss charges against the accused for aggravated robbery, in that the charges went against s322 of the Children Young Persons and Their Families Act 1989.