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The Attorney-General of New Zealand v The Youth Court at Manukau & N & S & E (18 August 2006, HC, Auckland, CIV 2006-404-2202, Winkelmann J)

Name: The Attorney-General of New Zealand v The Youth Court at Manukau & N & S & E
Unreported
File number: CIV 2006-404-2202
Court: High Court
Location: Auckland
Date: 18 August 2006
Judge: Winkelmann J
Charge: GBH with intent; injuring with intent; assault with a weapon; common assault
CYPFA: s322; s5(f)
Key title: Delay
Summary: Unsuccessful application for judicial review by Attorney-General against dismissal of Youth Court proceedings pursuant to discretion in s322 CYPFA. Proceedings related to incident in which N, S & E who were part of a youth gang, attacked and seriously injured several complainants.

The lower court Judge used the four stage test from Police v P & R [2004] DCR 673 and found that there (1) had been delay; (2) the delay had been unnecessarily or unduly protracted; (3) that prejudice had been caused to the young people because, due to the passage of time, at least one of the young people had lost some of the sentencing options which only remained available up until the age of 17.5 years; and (4) that the fact that the young people had lost something permitted to them by statute was sufficiently serious to warrant what must be the extreme step of halting the proceedings.

Winkelmann J: Four stage test from Police v P & R [2004] DCR 673 does not correctly articulate the provisions of s322 [para 47]). Section 322 creates a discretion to dismiss Informations which is only triggered if there is an undue or unnecessary protraction of the relevant period of time. In section 322, “hearing” refers to the hearing of the charge [para 48]. Thus, s322 relates to the period between the commission of the offence and the hearing of the charge.

Meaning of “undue” delay: Reasoning of Wild J in Police v Turner (HC, Palmerston North, CRI 2005-454-62, 3 May 2006) adopted as to meaning of “undue delay”. Test for “undue delay” from Canadian Supreme Court decision in R v Morin (1992) 71 CCC (3d) 1 and adopted in Martin v Tauranga District Court [1995] 2 NZLR 419 in relation to s25(b) Bill of Rights Act 1990, applicable. In Canadian Supreme Court Sopinka J articulated the following factors to be taken into account in determining whether the delay had become unreasonable:

1. The length of the delay;
2. Waiver of time periods;
3. The reasons for the delay, including

(a) inherent time requirements of the case;
(b) actions of the accused;
(c) actions of the Crown;
(d) limits on institutional resources; and
(e) other reasons for delays; and

4. Prejudice to the accused.

Wild J considered these factors, which must be considered against the s5(f) principle, are sensible, applicable and comprehensive.

Meaning of “unnecessary” delay: unnecessary delay means delay that could reasonably have been avoided. It must be more than trivial. A delay caused by resource limitations is not usually unnecessary delay. The suspected youth of an offender is one factor Police must take into account in allocating resources but not the sole factor. The Courts will not normally second guess the allocation of police resources, if satisfied that the need to investigate suspected youth offending very promptly is taken into account in allocating priorities for those resources [para 54].

At a certain point delay caused by resourcing constraints will be undue delay. The younger the child or young person the less tolerance there will be for delay because of the provisions as to fair trial rights for child and youth offenders. The lower court Judge had been entitled to conclude there had been unnecessary protraction of the relevant period as there had been avoidable delay from prosecutorial errors [para 64].

Prejudice: If unduly or unnecessarily protracted, there is a discretion as to whether the Information should be dismissed. In following the four-part test, the Judge erred in confining matters to be taken into account in the exercise of the discretion to consideration of whether the young person had suffered prejudice by reason of the delay. The existence of specific prejudice is a factor weighing in favour of dismissal but the existence of specific prejudice is not a pre-condition to the exercise of the discretion to dismiss [para 56]. There is a presumption that at a certain point in time general prejudice to the young person or child has been caused by the delay (HM Advocate v DP & SM [2001] SCCR 210). In case of egregious fault or neglect on the part of the police or the Crown, a Court may determine that the appropriate response is to dismiss the Informations, even though the delay may not be such as to cause prejudice.

Seriousness of Offence: Wild J in Turner (supra) held that the seriousness of the alleged offending was a factor to be taken into account in the exercise of the discretion, but cautioned that the weight attached to that factor will depend on the circumstances of the case. Wild J stated: “when I refer to “justice”, I mean justice for the prosecution, on behalf of the community, as well as justice for the alleged offender” [para 42]. Public interest greater where offending more serious.

First Ground of Review:

“The Judge applied a wrong principle of law in that he found instances of what he described as Police resourcing issues, and prosecutorial error, but failed to relate them to the test set out in s322. The Judge failed to take into account as relevant considerations the inherent complexity of the investigation, the difficulties of the investigations, and the effect of having 11 adult co-accused prosecuted alongside the young persons.”

First ground of review failed. The Judge should have considered the adequacy of the explanation given as to the resourcing constraints but the Judge did not err in finding unnecessary delay because he correctly identified avoidable delay arising from prosecutorial errors and related that delay to the test set out in s322.

Second Ground of Review:

“The Judge took into account an irrelevant consideration, namely that the young persons had been prejudiced by the delay because they were about to attain the age of 17 and a half years, and therefore the Court would have reduced sentencing options should sentencing be necessary.”

Second ground of review succeeded. The respondents did not suffer specific prejudice due to the provisions of s283 and s296 CYPFA as any sentence would ultimately take into account the level of the young person’s maturity at the time of the offending (s8(a), s9(2)(a) SA).

Exercise of Discretion:

If all relevant matters had been taken into account and irrelevant matters excluded from consideration, the discretion should have been exercised to decline to dismiss the Informations. However, 14 months have elapsed and a hearing would not now be likely to take place for another 6 to 9 months at which point a further s322 application would be likely to succeed.

Decision: Discretion exercised to decline to quash decision dismissing the Informations.