Chapter 1 - CYPS Case Law Flashcards
R v Kahu [1995] 2 NZLR 3 Court of Appeal powers under s39 Warrant
S39 place of safety warrant issued to social worker to uplift children and Police accompanied with a drug warrant but did not use it. When checking cupboards for food Police discovered cannabis. Social worker told the appellant to come clean and she admitted to having more cannabis in bedroom. Arrested for Cannabis and children uplifted and placed into care.
R v Kahu - On what grounds was the Police officer’s actions upheld?
Under s39 MVCOT Act 1989 the holder of the warrant (social worker and or Police) may check on the child’s physical condition, living conditions, food supply and other necessaries available for the child’s wellbeing. Therefor was entitled to check the supplies of food in the cupboards under s39
Pettus v R [2013] NZCA 157 Search without warrant
P and S were charged with manufacturing meth, possession of materials to manufacture and neglect of children. A warrant was executed on a property Police knew CYPs would be present and CYFS were asked to accompany. All inhabitants removed from property. P and S were taken to station and told their children were detained for the search then would accompany a CYFS workers. Lab equipment was located in property. blood, urine and hair samples taken from children but did not provide evidence for meth charges. P and S challenged the admissibility of the hair samples.
Pettus v R - On what grounds was the Police officers’ actions criticised?
Section 42 powers were not available to uplift the CYP in the circumstances as it was not critically necessary to protect them from injury or death and was not within scope of warrant.
S42 is an emergency provision for cases where the danger is so serious and imminent that to resort to less urgent remedies in the Act might not provide sufficient safety. A warrant could have been applied for under s39 and s40 to remove CYP.
Police v D [2002] Druce DCJ Detention under S48
CYP located drunk at party, details obtained, and s48. CYP passed to another officer but details not passed on by original officer. Taken to station into secure area to contact grandmother, at station got agitated, punched a police officer and charged with the offense.
Police v D - What were the Court findings on Police actions that were reasonable?
The court found Police acted reasonably in taking the CYP to the station as an intermediate to contacting his grandmother as no means of contact were available at scene.
Police v D - What Police actions were criticised? What are the limitations on s48 of CYP Act?
Police failed to:
• Consider CYP interest by taking him through secure entrance given he was cooperating at the time (force was not required) so he was detained beyond lawful authority.
• Ascertain if CYP preferred to be returned home or to social worker.
• Inform the CYP why he was detained and it was unlikely the CYP thought he was arrested
Police were criticised for:
• Suggesting further enquiries were necessary so detaining the CYP is blurring the powers of s48 by relying on it to detain the CYP.
• Police had no need to question the youth as they already had the information they required to return the youth to an appropriate person.
S48 Limitations are it is a Care and Protection and has no power to detain for investigation unless a Youth Justice power is applicable (s214).
Police v T-M (31 Jan 2002)YC Whangarei Boshier DCJ Arrest guidelines under s214, s48
Burgs had been happening in Whangarei CBD. T a CYP known to Police located while patrolling. He was S48 taken to station and interviewed about burgs then released. Interviewed again 3 weeks later then arrested for burg. All charges dropped by Police as there were problems with case. T’s councel made an application for cost to be imposed on Police. Police ordered to pay T $1000 for misuse of court process
Police v T-M - What were Judge Boshiers guidelines to Police on deciding whether or not to arrest a CYP?
Judge Boshiers guidelines:
• S48 should not be used for the sole purpose of taking a CYP into custody who is suspected of committing an offence.
• If offence suspected s214 must be with met and necessary.
• S208 principles require criminal proceedings should not be taken unless there is no less restrictive form appropriate in the circumstances.
Police v T [1998] DCR 538 s214 and detention in Police custody
Morning of 6th May 1998 T (who was on a supervision order and 17 actives) took $9 of biscuits and chips from a superette, leaving without paying while a Police officer was present. Officer told him to stop but he ran off, he was chased and arrested and placed in Police custody for just over 24 hours before appearing before court.
Police v T - On what grounds were the Police Officer’s actions criticised?
Police were criticised because he was not bought before the court in a timely manner within 24 hours of his arrest despite 214 being met. Failing to do so was a breach under the NZ BOR act.
Keeping T in Police custody for over 24 hours was a serious breach of the law.
Elia v R 92012 FRNZ (Court of Appeal); s215, s223
T and E charged with Agg Robbery and Agg wounding both 14 at time. Whilst officer were investigating the offenses they visiting T at home. When spoken to, T admitted involvement early on (s223). Rights given to him and advised not to say further until at station. Spoken to further at station with his mother, T admitted involvement in the robbery but not the wounding and indicated E was involved. E was spoken to the next day at station with his mother where he admitted involvement in Robbery. Officer stepped out for a bit but interview continued recording where E’s mother was heard urging E to say he wasn’t there. The officer advised that Es mother should be replaced as nominated person for the balance of the interview. She was replaced with by E’s auntie and the interview continued for several hours.
Elia v R - What did the judge rule around the admissibility of the defendant’s statement under s30 of the Evidence Act 2006?
The issue was the when the nominated person was changed Police failed to reinstate T’s rights so the first part of the interview was admissible but the second was inadmissible.
R v K (17 July 2002)CA 216/02 McGrath Robertson, Gendall JJ; S222 and choice of nominated person
K a child was a suspect for homicide. He was located by Police and agreed to accompany them to his fathers house where his father said he was with him at time of homicide. K agreed to go to station with father. At station police determined K’s father was a potential alibi witness and not a suitable nominated person. The father did not know where K’s mother lived but had an adult daughter who could be a nominated person. Police determined it was better to bring in an independent person who arrived and acted as nominated person. K admitted his part in the homicide and made a full video statement and reconstruction.
R v k - What was the legal issue around the video interview of the CYP?
The issue was K was not informed he was not obliged to accompany police to station for interview in the absence of arrest. A major mistake was failure to allow K the opportunity to nominate another person after his father was deemed unsuitable. High court held it but court of appeals overturned the decision ruling the video inadmissible.
