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TA v NZ Police (1 November 2004) FC, Auckland, FAM 2004-004-000891, Judge Fitzgerald DCJ

Name: Under the Children, Young Persons and Their Families Act 1989 TA v NZ Police
Unreported:
File number: FAM 2004-004-000891
Court: Family Court
Location: Auckland
Date: 1 November 2004
Judge: Fitzgerald DCJ
Charge: Unlawful Sexual Connection
CYPFA: s14(e); s18
Key title: Care and protection cross-over; Evidence; Child offenders

Summary: Police applied for declaration that TA (16) was in need of care and protection pursuant to s14(1)(e) CYPFA in relation to charges of unlawful sexual connection with a 6-year old boy alleged to have occurred when he was 13. Matter adjourned while further sexual offending charges against TA dealt with in YC and found “not proved”; delays. (1) Whether the application for declaration should be dismissed on the grounds that the delays are such that to allow matters to proceed would be vexatious, oppressive and an abuse of the procedure of the Court. (2) If the matter does proceed, whether the complainant can give evidence at the hearing by way of playing the evidential videotape and giving any further oral evidence, and being cross-examined, via closed circuit television.

(1) Police argue not in TA’s best interests to discharge the application without any inquiry into the veracity of the allegations. TA argues s207 CYPFA; Court has inherent power to dismiss proceedings as an abuse of process. Judge satisfied that there is jurisdiction to dismiss the application for a declaration but in exercising the power under s207, s5 and s13 principles are to be applied, subject to the paramountcy principle in s6. CYPFA s18(3) discussed - referral to be made by officer who carried out the inquiry and, as a result, formed the belief that the child was in need of care and protection; no miscarriage of justice caused by any delay that might have occurred here: s440 CYPFA. Under-resourcing not a valid reason for unreasonable delay para [39]; in proceedings involving children the need to prioritise time and resources is even greater; s5(f) & s200 CYPFA. Delay not so unreasonable as to amount to an abuse of process.

Submissions made concerning overlap between care and protection and youth justice provisions of the Act; care should be taken not to incorporate any more of the youth justice philosophy and law into care and protection cases than Parliament intended; discussion of care and protection and youth justice provisions of the Act. Section 5(f) and s200 do not make timeliness an absolute requirement; 60 day period in s200 to apply unless special reasons why a longer period is required but this should not be extended to excuse a failure to prioritise care and protection work; s14(1)(e) applications generally relate to a high risk group of children and matters concerning them should be determined quickly. The delays, both on their own and considered together with the other aspects of official delay referred to, are not such as to make allowing the application for declaration to proceed further oppressive, vexatious or an abuse of procedure of the Court.

(2) Mode of Evidence: Police applied under rule 57(1)(b) of the CYPF Rules for the evidence of the complainant, now aged 10, to be admitted in the form of the evidential interview videotape and for any further evidence to be given by closed circuit television; rule 57 does not now apply by virtue of rule 2(2)(aa)(I) of the CYPF Rules. Rule 170 and rule 299 Family Court Rules 2002. Re L [videotaped evidence] (1997) 15 FRNZ 637; Department of Social Welfare v Dt and Lt (1987) 2 FRNZ 712; Court must be mindful of its obligations to the complainant on the basis that s13(i) CYPFA incorporates s208(g) which requires the Court to have regard to the interests of victims and so the Court must consider it to be in the best interests of the complainant to give evidence in the manner proposed.

Rule 170(b) applies to enable an application to be made to the Court to have evidence tendered in the form of a videotape; contemplates a party being able to apply for directions as to the procedure by which the videotaping is to be carried out. Rule 170(b) is an empowering provision rather than a restricting one. Rule 299 authorises the giving of evidence in the form proposed here but it is also possible to allow the application by the exercise of the Court’s inherent powers to determine procedural matters: McMenamin v AG [1985] 2 NZLR 274; Moke v Lawrence, Grafton v Police (High Court, Christchurch, A88/01; 17 June 2002, Pankhurst J). Giving evidence in Court is stressful for children and the Court should use modern technology to minimise this stress whilst preserving TA’s right to a fair hearing.

Decision: (1) Application to dismiss the application for a declaration on the grounds of abuse of process and for being oppressive or vexatious is dismissed. (2) The complainant’s evidence will be given by the playing of the evidential videotape and then via closed-circuit television.