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

Police v VL (1 August 2006, HC, Auckland, CRI 2006-404-95/96, Hansen J)

Name: Police v VL
Unreported:
File number: CRI 2006-404-95/96
Court: High Court
Location: Auckland
Date: 1 August 2006
Judge: Hansen J
Charge: Burglary
CYPFA: s4; s5; s208; s246; s247(d); s249
Key title: FGC - Timeframes

Case Summary: Appeal by way of case stated against decision in Police v TL & JV (25 November 2005, YC, Manukau, Harvey DCJ). Joint burglary charges had been dismissed in the Youth Court because Court directed Family Group Conferences not convened and held, thus failure to comply with s249 CYPFA time limits. Whether failure to comply with time limits should, in all cases, bring the proceedings to an end. Chief Executive of CYFS given leave to appear.

Objects and principles in sections 4, 5, 208 CYPFA discussed - FGCs are the key mechanism by which these principles are given effect. Not helpful to categorise statutory obligations as mandatory or directory but should consider a “spectrum of possibilities” from cases in which fundamental obligation so flagrantly ignored that subject may treat it as having no legal effect, to cases where defect in procedure so trivial that procedure may proceed without remedial action (London and Clydeside Estates Limited v Aberdeen District Council [1979] 3 All ER 876; [1980] 1 WLR 182). See also New Zealand Institute of Agricultural Science Inc v Ellesmere County [1976] 1 NZLR 630, 636. “More important to focus on the consequences of the non-compliance” (Warwick Henderson Gallery Ltd v Weston, CA80/04, 14 November 2005 [17] – [20] in which Baragwanath J referred to R v Secretary of State for the Home Dept, ex parte Jeyeanthan [2000] 1 WLR 354). Nothing in the legislation suggests this approach would be misplaced here.

Hansen J noted, obiter, that s245(2) CYPFA [Note: this should be s245(1)] states “no information … shall be laid” unless three conditions are met and this “spells out the consequence(s) of non-compliance” with intention to charge FGC time limits. Hansen J further noted that the legislation is silent on the consequences of non-compliance with time limits for Court ordered FGCs and that the nature, causes and consequences of non-compliance with these FGCs may therefore be examined to determine where non-compliance lies on the “spectrum of possibilities” [para 17]. H v Police [1999] NZFLR 966, (1999) 18 FRNZ 593 distinguished.

Hansen J stated, obiter, that section 249(2) time limits are not mandatory but effect of non-compliance described by Smellie J in H v Police (supra) upheld - non-compliance invalidates the FGC and removes the jurisdiction of the Court to consider the information.

Failure to convene FGC may have no practical consequence but if strict compliance with time limits enforced young persons, families, victims and community may be denied CYPFA interventions due to “administrative oversight, resourcing difficulties or other causes …” Judge reported that when cases not convened or completed in time “judges routinely dismiss charges” [para 20].

Avoiding rigours of strict compliance with time limits by allowing charges to be re-laid is to risk an abuse of process which could inadvertently result in delays, contrary to the scheme and purposes of the CYPFA, while achieving strict compliance with time limits [para 22].

Second or further FGC not an available option to remedy non-compliance with time limits because direction to hold FGC not spent if time limits not complied with. Direction to convene FGC will remain in force even if the FGC is not convened within the time stipulated in s249(4) [para 24].

Decision (upholding the appeal):

1. The time limits in section 249 CYPFA are not mandatory.

2. If there has been non-compliance with statutory time limits the status of the proceeding should be determined on the facts of each case and by reference to the following principles:

a) The extent of the delay;
b) Reasons for failure to convene FGC within time;
c) Consequences of non-compliance – here seriousness of offending and personal circumstances of offender of relevance.

“In each case a judgment must be made which seeks to give effect to the objects of the legislation while achieving an appropriate balance between the interests of the offender, victims and those of the wider community. If the cause and consequences of non-compliance involve an unacceptable intrusion into the rights of the offender, it will be appropriate to dismiss the charge.” [para 26]

Consequences of failure to convene FGC within stipulated time depend on when FGC is actually held and completed. Failure to convene in time may not result in effective delay if FGC completed within time stipulated in section 249(6).

The statute contemplates delay; s249(6) “unless special reasons”. If special reasons exist there will be compliance with the statute; if not, “non-compliance may nevertheless be excused, depending (as with a failure to convene in time) on the extent of delay and its consequences.

Question of fact and degree in each case whether non-compliance with time limits in question is sufficiently serious to justify dismissal.

3. Second or subsequent FGC cannot and need not be directed pursuant to section 246 CYPFA if an initial conference has not been convened or held as directed. The original direction for an FGC stands.

4. The provisions of section 281B cannot be used to direct a second (or subsequent) FGC if there has been non-compliance with the statutory time limits under section 249 CYPFA.

5. Section 440 can be used to remedy failure to comply with the statutory time limits under section 249 CYPFA.