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

Police v TL & JV (25 November 2005) YC, Manukau, Judge D J Harvey

Name: Police v TL & JV
Unreported:
File number:
Court: Youth Court
Location: Manukau
Date: 25 November 2005
Judge: Harvey DCJ
Charge: Burglary
CYPFA: s5; s208; s249; s440
Key title: FGC timeframes/limits

Summary: JV and TL charged with burglary; charges not denied; FGCs not convened and held within statutory timeframes. Whether this failure to convene and hold FGC is so prejudicial to these proceedings that the Court is deprived of the ability to deal with the matter further as a result of provisions of the CYPFA. Police raised issue of whether flaw in procedure could be cured by section 440 CYPFA (a “slip” section). H v Police [1999] 18 FRNZ 593; Police v S (12 February 2004) YC, Lower Hutt, Walker DCJ; Police v RH (14 April 2004) YC, Wellington, CRN 3285035891, Walsh DCJ discussed; timeframes mandatory and imperative. H v Police distinguished. Discussion of statutory framework: CYPFA s5(a); s5(f); s208(a); s208(c); s208(d); s208(g); FGC of fundamental importance to the YC process; unique and real alternative to the traditional adversarial process. Discussion of FGC process; CYPFA ss245-271.

(1) Time limits are mandatory and conformity to them is critical to the entire process: “not just boxes that need to be checked” because of s246 and subsequently s270 – where charge is “not denied” there is only one chance to convene FGCs; once FGC convened and held the process may continue under s270 “but it is absolutely critical that it starts and that it starts properly”.

(2) The effect of FGC requirements pre-charge or pre-summons in H v Police mean that absent such pre-charge conference a jurisdictional foundation is absent and the proceedings are void.

(3) Failure to convene the FGC within mandatory time limits affects validity of other subsequent actions, such as the ability of the Court to make orders. Convening the FGC is critical but once done the YJC has a certain degree of flexibility in holding or adjourning FGCs thereafter.

(4) A Court cannot reconvene a FGC under s246 and s281 cannot be invoked to cover the situation where a FGC has not been convened or held under s246.

(5) The Court cannot determine the matter under section 281 CYPFA unless a FGC has been held or, in certain very limited circumstances, a FGC has been waived.

(6) A FGC held after late convening is not a valid FGC as time limits are critical.

(7) Section 440 CYPFA cannot be used to cure what is a fundamental defect on which the FGC regime is posited. Time limits not simply a “cog in the wheel” but fundamental elements of the process. “There is no justification whatsoever for any agency that is empowered by statute to perform certain duties to cast those duties aside, to rely upon a “slip” section, to blithely ignore what is required of them”.

Decision: Although the remedies posited in Police v S and Police v RH are available, matter adjourned pending argument on whether contempt of Court is available to be used in respect of FGC Co-ordinators who do not carry out their duties or abide by the directions of the Court under section 246.