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Police v T [2006] DCR 599 (HC)

Case summary provided by LEXISNEXIS NZ

Name: Police v T
Reported: [2006] DCR 599
File number: CRI 2005-454-62
Court: High Court
Location: Wellington
Date: 4 April, 3 May 2006
Judge: Wild J
Charge: Burglary (x2)
CYPFA: s322; s5(f)
Key title: Delay

LexisNexis Case Summary:

This was an appeal by way of case stated. The respondent T was charged in 2005 with two offences of burglary that occurred in 1999 and 2000 respectively when T was under the age of 16. The burglaries were unsolved until the police in 2005, using technology not available to them at the time of the burglaries, matched T’s palm print with a palm print left at the scene of the 2000 burglary. A DNA sample taken on his arrest linked him to the scene of the 1999 burglary. The District Court dismissed the charges under s 322 of the Children, Young Persons and Their Families Act 1989 (the Act), which continued to apply. Section 322 provides that a Youth Court Judge may dismiss an information if satisfied that the time that has elapsed between the offence and the hearing “has been unnecessarily or unduly protracted”.

Held (dismissing the appeal)

1 The Judge was wrong in holding that the phrase “unduly protracted” in s 322 of the Act related only to the fact of delay alongside s5(f) of the Act (which states the principle that decisions affecting a child or young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child’s or the young person’s sense of time). The fact that Parliament had not simply prescribed a limitation period suggested that it had in mind a more broadly based assessment of whether the time elapsed was unduly protracted. The factors that were relevant were the length of the delay, waiver of time periods, the reasons for the delay, and any resulting prejudice to the accused (see paras [18], [22], [23]).
Martin v District Court at Tauranga [1995] 2 NZLR 419 (CA) applied.

2 The Judge did not give sufficient weight to the words “wherever practicable” in s5(f) of the Act. It was not practicable for a Court to make decisions affecting T within age-appropriate frames, because the charges had not been, and could not be, brought while the requisite technology was not available to the police to enable them to apprehend the suspected offender (see para [28]).

3 The Judge was correct in holding that prejudice to a defendant arising from delay was a relevant, but not a necessary, precondition for a finding that the lapse of time was unnecessarily or unduly protracted (see para [33]).

4 The Judge was correct in holding that the seriousness of the alleged offence was a factor that should be taken into account under s 322. However, this was not to suggest that the seriousness of the alleged offending was a factor more important than any others (see para [44]).

5 The Judge was correct in holding that the lapse of time in the present case was unduly protracted. The primary factor was the lapse of five and six years, which overwhelmed the countering considerations of a sound explanation for the delay and the seriousness of the charges (see para [66]).

Other cases referred to in judgment
BGTD v Youth Court at Rotorua (High Court, Rotorua M 119/99, 15 March 2000, Robertson J)
HWT v Police (High Court, Auckland, CRI 2005-404-340, 19 December 2005, Simon France J)
Police v BRR (1993) 11 FRNZ 25.
Police v DH [1995] NZFLR 473.
Police v P (2004) 20 CRNZ 1005.
R v M (District Court, Blenheim, CRN 421-8004-914, 20 June 1995, Judge McAloon).
R v Shaheed [2002] 2 NZFLR 377 (CA).
U v R [1995] NZFLR 966.

Appeal
This was an appeal by way of a case stated from the decision of a District Court Judge dismissing two charges of burglary laid against the respondent T.