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

EM-DM v NZ Police 4 February 2008, Youth Court, Manukau, CRN07292001132 CRI-2008-292-000017 Judge Malosi

Name: EM-DM v Police
Unreported:
File number: CRN 07292001132, CRI -2008-292-000017
Court: Youth Court
Location: Manukau
Date: 4 February 2008
Judge: Judge Malosi
Charge: Wounding with intent to cause GBH
CYPFA: s245(1 )
Key title: Family Group Conference- convened
Case Summary:

Decision:
Successful application by EM, a YP for dismissal of a charge of wounding with intent to cause GBH.
EM applied on the grounds that s245(1) had not been complied with.
The Police unsuccessfully opposed the application and unsuccessfully sought leave to withdraw the charge and start again if the Court found that it had no jurisdiction to hear the charge.

Facts
EM was involved in offending in 2007 and was sentenced to supervision with residence on 14 December 2007. On 14 September 2007, EM escaped from the custody of the Chief Executive and was apprehended on 18 September and remained in custody from that date.
On 20 September two people were interviewed in respect of a wounding charge. Both named EM as a participant. A FGC was held on 1 October in relation to EM’s earlier offending. The wounding charge was not discussed as the Police did not interview EM until 17 October 2007. The Police charged EM following the interview and on 19 October 2007 an information was laid in the YC. EM was summonsed to appear on 23 October, the same date that he was to appear on the earlier charges (which were the subject of the FGC on 1 October). The Detective’s affidavit acknowledged, amongst other things, that a FGC was not arranged in respect of the wounding charge and that he was not advised by anyone that he should speak to a Youth Justice Coordinator about convening an FGC.

Counsel for EM submitted that s245(1) is mandatory and cited Pomare v Pomare (unreported, Whangarei HC, AP8/02, 12 March 2002), in which compliance with the three cumulative steps in s245(1) was said to be ‘an essential prerequisite to laying a lawful information’.

Counsel for the Police submitted that the Court apply the purposive principles of the CYPFA and cited RSR v Police HC Tauranga, CRI 2007-470-000027, 20 October 2007), Police v L (19910 8 FRNZ 123 and Police v V [2006] 25 FRNZ where the Judge reasoned that the focus on cases where failure to comply with statutory obligations is in issue, should be on the cause, nature and consequences of non-compliance and then the implications of non-compliance could be addressed on the facts of each case and charges dismissed if warranted. Counsel argued on the basis of s248(3) of the CYPFA, which provides there is no requirement to convene a FGC if a FGC has been held within the preceding 6 weeks.

Decision

Dismissing the charge.

1. The gateway through which all young people must pass to the YC must be ‘vigilantly guarded’.

2. The reasoning in Police v V (above) could not have intended to apply to something so elementary as the processes be to followed in order to summons a YP to the YC. ‘The intention to charge process that must occur prior to charges being laid in Court (unless there has been an arrest or s248(3) applies) is much more fundamental than that.’

3. The importance of s245(1) is imbedded in the s208 youth justice principles.

4. There was no justifiable reason for circumventing the s245(1) procedures, and unless caught by s248(3), those steps are mandatory.

5. s245(1) had been breached in every respect. The Police had fallen ‘short of the mark in a monumental way’. While the complainant would be left without recourse through the YC, that was completely avoidable and hopefully ‘a mistake the Police will not repeat’.