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YP v Youth Court at Upper Hutt & Attorney-General (30 January 2007, HC, Wellington, CIV-2006-485-1905) Mallon J

Name: YP v YC at Upper Hutt & Attorney-General
Unreported:
File number: CIV-2006-485-1905
Court: High Court
Location: Wellington
Date: 30 January 2007
Judge: Mallon J
Charge: Wounding with Intent to cause GBH
CYPFA: s214
Key title: Arrest without Warrant
Case Summary: Judicial review application of YC decision. Whether arrest lawful; consequence of lawfulness of arrest on charges.

YP (16 at time of offending) and brother involved in altercation between “white power” and “black power” groups. Brother seen with screwdriver in hand and injuries from the screwdriver were inflicted on two boys in the “white power” group; death threat appeared on victim’s website. Plaintiff arrested on two charges of wounding with intent to cause GBH; bail; bail breached, further offending. Plaintiff’s brother initially charged with wounding with intent to cause GBH; at depositions agreement reached and brother admitted an amended charge of wounding with intent to injure.

Section 214(1) CYPF Act; under s214(2) the arresting officer must have reasonable cause to suspect under s 214(2)(a) and the belief on reasonable grounds under s214(2)(b). Arresting officer here did not have a reasonable cause to suspect purely indictable offence committed; she acknowledged that she did not consider the public interest. Thus, officer did not comply with s214(2).

Second defendant argued that the Police officer had in substance considered and weighed all the necessary interests when the arrest was made. ITW v Police (HC, CH, CIV-2003-409-35, 11 September 2003) distinguished; arrest not obviously required to ensure the offender did not escape. Second defendant argued that two Police officers assessments can constructively be added together. Divergent authority between UK and NZ on whether arresting officer must exercise their discretion independently discussed. Judge concluded the two Police officer’s knowledge and assessment should be added together – between the two of them there needed to be reasonable cause to suspect and the belief on reasonable grounds required by s214(2).

There was reasonable cause to suspect purely indictable offence (s214(2)) despite various Police views over the course of the investigation as to the correct charge. Police are entitled to develop their thinking on a charge as an investigation progresses.

Section 214(2): arrest required in the public interest. “Public interest” not defined in CYPF Act suggesting it is to be interpreted broadly. Youth justice principles discussed; matter not urgent or serious at outset and nothing changed apart from victim’s mother’s complaints to justify a different view. Gang tensions involved thus it would have been appropriate to consider alternative approaches at FGC unless arrest necessary in the public interest.

Fact that offence purely indictable does not of itself mean that an arrest is required in the public interest. Arguments as to the plaintiff’s subsequent re-offending not of assistance to the second defendant; the matter must be viewed at the time the arrest was made. At time of alleged offending the plaintiff was already charged with an aggravated robbery; arresting the plaintiff enabled a curfew to be imposed as a condition of bail; thus, some basis for a belief that there was a risk of further offending if the plaintiff was not arrested. Gang friction and death threat provided some basis for belief that there was a risk of interference with witnesses.

Second component of section 214(2) complied with. Section 214(3) not complied with. Consequences of non-compliance discussed but as s214(2) complied with and not s214(3), the decision to arrest was lawful. Non-compliance with s214(3) does not invalidate the earlier lawful arrest. Section 440 CYPF Act.

Decision: Order declaring there was non-compliance with s214(3); further relief claimed by plaintiff declined.