5. Oranga Tamariki Act 1989 Flashcards
What does the term “Doli Incapax” mean?
What are the NZ specific interpretations of it.
Ancient common law presumption that children under a particular age are “incapable of evil”.
- Children under 10 are not legally culpable (s21 Crimes Act 1961)
- Children between 10 and 13 - prosecution must also prove CYP knew that their actions were wrong/unlawful.
What is s214(1)(a) and (b) of the Oranga Tamariki Act 1989 relate to?
Grounds for warantless arrest for CYP.
(1)(a) Can arrest CYP if satisfied on reasonable Grounds it is required to:
(i) Ensure appearance at court
(ii) Prevent further offending
(iii) Prevent CADD evidence/witness interference, AND
(b) where CYP may be proceeded against by way of summons, the summons would not achieve that purpose.
What does s214(2) of the Oranga Tamariki Act 1989 relate to?
(2) Nothing in s214(1) prevents an officer from arresting a CYP if:
(a) RCTS Cat 3/4 offence committed with 14+ year imprisonment penalty, AND
(b) In the public interest.
How long do you have to furnish a report to the Commissioner of Police after a CYP arrest under s214 of the Oranga Tamariki Act 1989?
3 days
What does s214A of the Oranga Tamariki Act 1989 relate to?
Arrest of a CYP for breaching bail.
Can arrest a CYP for breaching bail provided they have breached on two previous occasions.
Requires approval: YA SGT/ SGT / YA Officer.
What does s215 of the Oranga Tamariki Act 1989 relate to?
CYP to be informed of their rights before being questioned by an enforcement officer.
Also applies when the officer forms RCTS the CYP has committed an offence.
What does s215A of the Oranga Tamariki Act 1989 relate to?
CYP to be provided with their rights again upon request.
What does s216 of the Oranga Tamariki Act 1989 relate to?
CYP must be given their rights when an officer decides to charge them with an offence.
What does s217 of the Oranga Tamariki Act 1989 relate to?
Statutory obligation to provide the CYP with their rights upon arrest.
What does s218 of the Oranga Tamariki Act 1989 relate to?
Rights should be provided to the CYP in a manner and language that is appropriate to their age and level of understanding.
What does s219 of the Oranga Tamariki Act 1989 relate to?
Don’t need to provide the CYP with their rights again if provided within the last hour.
What does s221 of the Oranga Tamariki Act 1989 relate to?
Admissibility of CYP statements.
For an written/oral statement to be admissible you must:
1) provide CYP with their BOR prior to making the statement, and
2) CYP has been allowed to consult privately with a lawyer and/or nominated person before making the statement, and
3) the statement has been made in the presence of one or more acceptable witnesses
What does s222 of the Oranga Tamariki Act 1989 relate to?
Nominated persons.
CYP may nominate a person to support them. May be:
1) Parent or guardian
2) Adult member of their family (20 YO +)
3) Any other adult nominated by the CYP (20 YO +)
4) Where the CYP doesn’t nominate a person, any adult nominated by the officer (Although can’t be an officer).
What grounds may you refuse a nominated person under s222 of the Oranga Tamariki Act 1989?
1) Likely to pervert the course of justice.
2) Can not, with reasonable diligence be located
3) Not available within a reasonable period of time.
What does s223 of the Oranga Tamariki Act 1989 relate to?
Spontaneous statements.
Spontaneous statements may be admissible if the officer hasn’t had a chance to comply with the s221 obligations.
What does s227 of the Oranga Tamariki Act 1989 relate to?
Statutory obligation for an officer questioning/arresting a CYP to inform them of their right to consult with a lawyer.
What does s229 of the Oranga Tamariki Act 1989 relate to?
If the CYP comes to a Police Station for questioning or is arrested, the CYPs parents/guardian or nominated person (as per s231) must be notified.
What does s230 of the Oranga Tamariki Act 1989 relate to?
Any communication between the CYP and the person visiting pursuant to s229 is inadmissible.
What does s231 of the Oranga Tamariki Act 1989 relate to?
Adults that may be nominated by the CYP to recieve the arrest/questioning notification from Police (s229).
Same criteria as set out in s222.
What does s232 of the Oranga Tamariki Act 1989 relate to?
Must inform (written or orally) the CYP’s guardian as soon as practicable after the CYP has been charged with an offence.
The principal to avoid arrest under s214 of the Oranga Tamariki Act 1989 is waived if the CYP is being held in relation to what three provisions?
1) Category 3 or 4 offence (14+ years imprisonment) and arrest is in the public interest.
2) Breath/Blood alcohol provisions in the Land Transport Act 1998.
3) s342 of the Immigration Act 2009 (false details).
Explain the “four thresholds” for providing CYP rights under the Oranga Tamariki Act 1989, and how s219 affects them.
Four thresholds:
1. Before questioning (s215)
2. After enquiry (s215A)
3. On deciding to charge (s216)
4. On arrest (s217)
If each of these thresholds are more than one hour apart, then the relevant explanations (BOR etc) must be given on each occassion.
Less than 1 hour, don’t need to provide again.
Case law:
Police v H²
The Prosecutor must prove beyond reasonable doubt that the requirements of s214(1)(a) and (b) of the Oranga Tamariki Act 1989 have been satisfied.
If not proved, the charging document is invalid and Youth Court has no jurisdiction.
What does s214B of the Oranga Tamariki Act 1989 relate to?
Arrest of 17-year-olds without warrant for breach of bail.
Ideally should be handled without the Youth Court; however, consideration should be made to the Victims, and holding the young person to account.
