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

Police v RH (14 April 2004) YC, Wellington, CRN 3285035891, Walsh DCJ

Name: Police v RH
Unreported
File number: CRN 3285035891
Date: 14 April 2004
Court: Youth Court
Location: Wellington
Judge: Walsh DCJ
CYPFA: s249
Charge: Assault with intent to injure
Key Title: Family Group Conferences - Timeframes/limits

Summary: RH (a young person) was arrested and charged with assault with intent to injure; charge "not denied"; RH accepted offer of Youth Court jurisdiction. A FGC was directed on 17 December 2003 under s246(b)(i) CYPFA. It was convened outside the 14-day timeframe in s249(4)(b) of the Act. The delay in convening the conference was due to a combination of Police failure to get certain information to the youth justice co-ordinator (‘YJC’) quickly, unavailability of the victim, RH, his parents and the Youth Advocate due to the Christmas break, and difficulty fixing a convenient time for the FGC because RH’s parents worked at different times.

Judge Walsh confirmed the reasoning in Police v S (12 February 2004, Youth Court, Lower Hutt, Judge Walker) that it is not an abuse of process for a Youth Court Judge to exercise the discretion to grant leave to withdraw a charge following an arrest where a Court-directed FGC has not been held in time.

Police v S and Police v RH herald a significant change in approach to the issue of Court-directed FGCs, convened out of time. Judges are no longer bound to simply dismiss the charges; in appropriate cases, it is now clear that a Judge may exercise his or her discretion to grant leave to withdraw them.

On the facts before him in Police v RH, however, Judge Walsh held that such leave would not be granted and that a failure to meet statutory timeframes for convening a Court-directed FGC meant the charge would be dismissed.

Leave to withdraw not an abuse of process

Judge Walsh rejected an argument made by the Youth Advocate that it would be an abuse of process to grant leave to withdraw an Information where a young person had been arrested and a Court-directed FGC had not been convened in time. He noted that:

• Section 36 of the Summary Proceedings Act gives Judges a discretion to grant leave to withdraw a charge and that provision applies to Youth Court Judges (by virtue of s321(1) and Schedule 1, cl. 2 of the Act).

• Whether to grant leave under s36 is a matter for judicial discretion.

• If a particular exercise of discretion is challenged, the focus must be on whether there was an improper exercise of the discretion not on whether the exercise was an abuse of process.

• To establish an improper exercise of the discretion, it must be shown that a Judge acted unreasonably (as per established principles, e.g. by failing to take account of relevant factors or taking into account irrelevant factors).

• Any exercise of the discretion under the Act must take account of the competing interests of the victim, young person and public.

Judge Walsh compared the often quite different timeframes for arrest (under s214) and intention to charge (under s245) cases. In arrest cases, he said, it was possible that some unforeseen circumstance might arise (e.g. sudden illness or bereavement) that would justify granting leave to withdraw an Information where delay had caused FGC timeframes not to be met. Where, however, leave was sought as a "backstop" for the Police (or any other party) because there had been institutional tardiness, it should not be granted.

Decision: Judge Walsh held that the delay in the case before him was such that it contravened the mandatory time limits in the Act and could not be "cured". He noted, obiter, that the case was one that might better have been dealt with by the intention to charge procedure in s245 (with its more generous timeframes) rather than by arrest under s214.

Judge Walsh observed that no application had been made for leave to withdraw the Information, but that, in any case, no such leave would have been granted in this case because there were no "reasonably compelling reasons" to do so, taking into account the victim’s interests but also the overall delay. Information dismissed.