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

Queen v Stephen Thomas Hudson, 27 August 2007, CA431/06, [2007] NZCA 363, Court of Appeal, Wellington, O’Regan, Harrison, Health, JJ

Name: Queen v Stephen Thomas Hudson
Reported
File number: CA431/06, [2007] NZCA 363
Court: Court of Appeal
Location: Wellington
Date: 27 August 2007
Judge: O’Regan, Harrison, Heath JJ
Charge: Wounding with intent to cause grievous bodily harm
CYPFA: s277, s274,
Key title: Adult co-offender, Jointly Charged with Adult

Section 274 of the CYPFA should be given primacy of over s277 of the CYPFA.
An interpretation of ss272- 277 of the CPYFA, which reads s277 as being “subject to s274” is justified.

Whether the DC had jurisdiction to conduct the adult’s trial.
Whether an extension of time for the appeal would be allowed.

Case Summary:

Unsuccessful appeal against conviction following trial in the DC. The appellant, Mr H was aged 31 at the time of the offence and was jointly charged with S, a 16 year old girl. The charge was laid in the YC.

Depositions hearing was in the YC. The JP’s conducting the depositions neglected to make a s275 decision for S, the YP. A YC Judge remitted S back to JP’s for a s275 decision. S was offered and accepted YC jurisdiction and was remanded for a hearing in the YC. The charges were dismissed against S after a defended hearing.

Mr H was committed for trial to the HC after the establishment of a prima facie case.
Mr H was tried in the DC and, having been middle banded to that Court from the HC, and was found guilty, convicted and sentenced to 6 years imprisonment.

Counsel for the Mr H submitted that where there is a joint charge of an adult and a YP, for a purely indictable offence, if a YP is offered YC jurisdiction, so must the adult. Then the adult’s charge would be determined in the YC also, so that there would be no jury trial for the adult.
Mr H argued there are effectively two regimes and that where adults are charged with YP, there is a quite separate process allowing the adult to be dealt with along with the YP in the YC. Counsel for the Mr H argued the process followed in the appellant’s case was flawed, such that the DC did not have jurisdiction and the jury trial was a nullity. He submitted that the appeal should be allowed and a retrial should be ordered in the YC.

Crown submissions were that if applied literally s277 would conflict with s272(4) of the CYPFA and would curtail the procedural protections of ss275,276 and would prevent adults being tried by a jury if charged indictably and would also remove the ability of adults to elect trial by jury (under s66 Summary Proceedings Act 1957) if jointly charged summarily with a YP. It would provide an incentive to commit offences with children as s277(2) provides that the adult would be subject only to DC summary penalties.

Decision

The time for appealing extended, but appeal dismissed.
The decision was essentially a contest about the primacy of 2 provisions:- s274,- where a YP is charged with a purely indictable offence, or trial by jury is elected; and, s277, which on its face governs all cases where a YP is charged with an adult.

1. Given the compelling policy reasons, s274 should be given primacy over s277 of the CYPFA. Given the protective mechanisms in the CYPFA of ss275, 276 which operate only when the s274 process is followed, the CA did not consider that the s274 process could be bypassed where a YP was charged jointly with an adult.

2. It is customary process to conduct a single depositions hearing for parties charged with a summary offence. Section 277(5) clearly contemplates that an adult may be tried in the YC if jointly charged with a YP for a summary offence and there is no reason why a similar regime should not apply to preliminary hearings. There is no disadvantage to the adult, as s274 imports all the requirements of Part 5 of the Summary Proceedings Act 1957.

3. Section 274 governs the process to be followed for depositions hearings (for YP and adult) where a YP and adult are charged with a purely indictable offence, or where the YP (purely indictable offence) has elected trial by jury.

4. The CA’s reading requires that the words “subject to s274” to be read into s277.

5. The conduct of the appellant’s case was in accordance with the requirements of s272 and the trial Court had jurisdiction to conduct the appellant’s trial.

Practical Effect of Decision

Depositions hearings involving YP and adults for purely indictable offences or where the YP has elected trial by jury will be heard together in the YC.
If a prima facie case is established, the adult must thereafter be dealt with in the adult Court and will be committed for trial in the adult Court, but the YP can be dealt with thereafter in the YC.
In the case of a jury trial, convenience and the need to avoid two trials would usually result in the YP being committed to trial in the adult Court as well, with YC jurisdiction not offered under s275.