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T v Police (19 December 2005) HC, Auckland, CRI 2005-404-340, Simon France J

Case Summary provided by LINX

Name: T v Police
Unreported:
File number: CRI 2005-404-340
Court: High Court
Location: Auckland
Date: 19 December 2005
Judge: Simon France J
Charge: Sexual Violation
CYPFA: s322
Key title: Delay

LINX Case Summary: Sexual violation of 11 year old sister - appeal against conviction by a young person found guilty in the YC and sentenced in DC to 18 months imprisonment - whether breach of s25(b) New Zealand Bill of Rights Act 1990 (the Act) and of equivalent youth justice provisions - whether right of appeal against refusal of application brought under s 322 Children, Young Persons, and Their Families Act 1989 (CYPF Act) to dismiss charges because of delay - appellant aged 16 years 7 months at time of arrest, 17 years 3 months at time of defended hearing, 17 years and 10 months at time of transfer to DC, and 18 years 3 weeks at time of sentencing - impact of remand period on appellant said to have made appellant sad and suicidal - impact of delay exacerbated by fact appellant was subject to 24 hour curfew whilst on remand - HELD: ultimately it was a matter of balancing what generally was a lengthy but not unreasonable period, against the circumstances of detention - although YC procedures were applicable because of appellant's age at time of charging, Court was entitled to have regard to fact that for the bulk of the period he was older and fell outside the ambit of the CYPF Act - there had been no breach of s25(b) of the Act - Court was influenced in its final assessment by the particular age of appellant - had he been younger there would have been a different outcome - had there been a breach of s25(b) Court would not have considered that quashing the conviction was an appropriate response - the worst period of delay occurred after the defended hearing and did not prejudice the fairness of guilty determination - overall delay was not so excessive as to merit quashing the conviction absent actual prejudice to a fair trial - Court would instead have invited counsel to further address issue of sentence reduction - approach discussed in Du v District Court at Auckland & Anor [2006] NZAR 341, endorsed.

Decision: appeal dismissed.