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Trifilo v Police (30 November 2005) HC, Auckland, Simon France J

Case summary provided by LEXISNEXIS NZ

Name: Trifilo v Police
Reported: [2006] DCR 796
File number: CRI 2005-404-340
Court: High Court
Location: Auckland
Date: 30 November 2005
Judge: Simon France J
Charge: Sexual Violation
CYPFA: s322, s351
Key title: Delay

LEXISNEXIS NZ Summary: The appellant was convicted in the Youth Court of sexual violation. The matter was set down for a family group conference and then a disposition hearing under s 283 of the Children, Young Persons and Their Families Act 1989 (the Act) at which time the Court would determine whether to deal with the matter within the Youth Court jurisdiction or transfer the appellant to the District Court for sentencing. Prior to the disposition hearing counsel for the appellant indicated that she wished to pursue an application under the Act which allows an information to be dismissed if the Youth Court is satisfied that a hearing has been unnecessarily or unduly protracted due to delay. The application was heard at the same time as the s 283 hearing. The defended hearing Judge took three months to deliver his findings and then the disposition hearing took another three months. Counsel for the appellant considered that this extra period “more than tipped the scales” so she pursued the application. The Judge who presided over the s 283 hearing was doubtful as to whether it was permissible to bring such an application at that point, or to base it on delay occurring after the defended hearing, but heard and declined it on the merits. Counsel for the appellant then filed a conviction appeal a few days after the Court’s decision under s 283 to transfer the appellant to the District Court for sentencing. A hearing was set down to be heard on 11 November 2005. Both parties filed written submissions and it was clear that at that stage the second ground of appeal was being seen by counsel as a direct appeal from the decision of the District Court on the s 322 application. By the time of the hearing, the Crown had reached the view that there was no jurisdiction to appeal a ruling given under s 322 of the Act. Objection was taken and the Judge agreed. By consent the appeal proceeded on ground (i). Judicial review was considered to be the appropriate route to challenge ground (ii) and counsel for the appellant immediately filed that application. Prior to the Judge issuing his ruling on ground (i), counsel for the appellant indicated that she wished to further litigate the jurisdiction point about appealing a s 322 ruling. Prior to this hearing, the previous Judge dismissed the appeal on ground (i) and noted that ground (ii) had not been considered. Written submissions were filed in advance of the ground (ii) jurisdiction hearing. At the commencement of that hearing, France J indicated a firm view that there was no capacity to appeal a decision made under s 322 but that it was possible to advance delay arguments and a s 25(b) New Zealand Bill of Rights Act breach, in the context of a general conviction appeal. Counsel were in a position to immediately argue the substantive merits so, by consent, that is what happened.

Held (appeal dismissed)

1 The decision to decline a stay is not operative. The information has been determined. It is the finding of guilt that is operative, and the appellant was in custody by reason of that conviction and subsequent sentence. The s 322 application was an attempt to prevent the information being determined; once the information is determined, the stay application becomes merely part of the historical landscape.
Herewini v Ministry of Transport [1992] 3 NZLR 482 cited.

2 The plain meaning of s 351 of the Act was that “finding” refers to the hearing at which the young person was found to have committed an offence. Subsection (1) refers to the finding and an order based on that finding. Further, subss (2) and (3) discuss delay between the finding of the Court and the s 283 disposition hearing. Section 283 hearings occurring after a person has been found guilty of the offence. This further strengthens the inference that s 351 provides an appeal from the finding of guilt. A stay application under s 322 was not an order (or refusal of one) based on that finding. The fact that the present appellant made his application after the determination of guilt (which along with the Youth Court the Court doubted was possible) did not alter this. It was the nature of the application that is pivotal, and an application to dismiss the informations for delay was, in the Court’s view, subsumed into a determination of those informations (see paras [11], [12], [13], [14]).

3 If the delay arose prior to the defended hearing, then obviously s 322 was the appropriate vehicle. If that claim was made and was unsuccessful, the Court was not suggesting that later events (other than a conviction appeal) provided an opportunity to relitigate an unsuccessful application. However, if there had been further delay since the defended hearing there were opportunities outside s 322 – for example, the sentencing or a conviction and sentence appeal, or, the Court suggested, the s 283 disposition hearing. Whilst each occasion had its own inherent limits in terms of the options available to the Court to remedy delay, there remained considerable scope for a Court to give relief if a breach has arisen subsequent to the verdict (see paras [17] and [18]).

4 An issue as to whether it was permissible to consider pre-charge delay arises since the wording of s 25(b) talks of everyone “charged with an offence” and the “determination of the charge”. Both suggest that the relevant period of delay must be after a charge has been laid.
Holland v District Court of Whangarei (High Court, Auckland, M1107/00, 20 September 2000, Randerson J) followed. (see para [20]).

5 Concerning post-conviction delay, the issue of whether s 25(b) extended beyond verdict was recently determined in Taito v R.
If s 25(b) incorporated delay in the hearing of an appeal it followed that it must also incorporate delay in the period between conviction and sentence. Each was an integral step in the “fair trial” process as the term has been interpreted in Taito. No doubt when the particular period of delay arises will be relevant to the appropriate remedy, but that is a separate issue from whether there has been a breach (see paras [21], [22]).

6 The Court was of the view that the same assessment as was made in Police v Waitohi et al (High Court, Whangarei, AP 36/03, 28 September 2003, Frater J) could be made of the period here from defended hearing judgment to sentence. Accordingly, the Court considered none of the periods standing in isolation were of undue length.
Nor did the Court consider the overall period in itself, amounted to a breach. The Court was conscious the period in Waitohi was 19 months from start to appeal, and this was considered undue. However, the Court considered it was quite different when part of that period related to a Crown sentence appeal for which there had been unnecessary delay. A sterner assessment of the reasonableness of that period was to be expected. Further, unlike Waitohi, the present case included a defended hearing (see paras [44], [45]).

7 The Court concluded that there had been no breach of s 25(b) of the New Zealand Bill of Rights Act. It was apparent that the Court’s primary concern had been the combination of time period plus conditions on remand. Whether the conditions made an otherwise reasonable period unreasonable could only be a matter of general assessment. The Court was influenced in its final assessment by the particular age of the appellant. Had he been young there would have been a different outcome (see para [49]).

Obiter
For completeness, the Court recorded that there had been a breach it 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 the determination of guilt. The overall delay was not so excessive as to merit quashing the conviction absent actual prejudice to a fair trial. The Court would instead have invited counsel to further address it on the issue of sentence reduction. Du v District Court at Auckland referred to (see para [50]).

Other cases mentioned in judgment
Dyer v Watson [2004] 1 AC 379 (PC).
HM Advocate v D P and S M [2001] SCCR 210.
Martin v Tauranga District Court [1995] 2 NZLR 419 (CA).

Appeal
This was an appeal against conviction in the Youth Court for sexual violation.