Chapter 1 - Oranga Tamariki Act 1989

Question 1

What is th upper age limit shift from for care and protection provisions?

Answer 1

From 16 to 17 years.

Question 2

What is the delegation change in the act?

Answer 2

The cheif executivr can now delegate responsibility to other people.

Question 3

What is Sec.39 of this act and what is it about?

Answer 3

Place of Safety Warrants.

(1)Any DC Judge or, if no DC Judge is available, any issuing officer who, on
application is satisfied
that there are reasonable grounds for suspecting that a child or young person Is
suffering, or is likely to suffer, ill-treatment, neglect, deprivation, abuse, or harm may
issue a warrant authorising (any constable either by name or generally, or
the chief executive) to search for the child or young person.

Question 4

Who can apply Sec.39 warrant? and who can execute one?

Answer 4

Constable or the chief executive can apply for one.

Constable and social worker or any person authorised under a delegation by the cheif executive can execute one.

Question 5

What is the search power under Sec.39 - any person executing a warrant to seach for any children or young person?

Answer 5

(a) Enter and search, by force if necessary, any dwelling house, building, aircraft.
ship, carriage, vehicle, premises or place
(b) If that person believes, on reasonable grounds, that the child or young person
has suffered, or is likely to suffer, ill-treatment, serious neglect, abuse, serious
deprivation, or serious harm
(i)Remove or detain, by force if necessary, the child or young person an
place the child or young person in the custody of the chief executive, or
(ii)Where the child or young person is in a hospital, direct the Medical
Superintendent of that hospital to keep that child or young person in that
hospital

Question 6

What is Sec.42 of this act and what is it about?

Answer 6

Search without warrant.

(1) Any constable who BELIEVES ON REASONABLE GROUNS that is CRITICALLY NECESSARY to protect a child or young person from INJURY OR DEATH may, without warrant -
(a) Enter and search, by
force if necessary, any dwelling house, building, aircraft,
ship, carriage, vehicle, premises or place.
(b)Remove or detain, by force if necessary, the child or young person and place
the child or young person in the custody of the chief executive.

Question 7

Under Sec.42 what shall every constable do when execrised any power conferred by Subsection 1 of Sec. 42

Answer 7

Every constable shall on first entering any place and if requested at any subsequent time -

(a) Produce Evidence of ID.
(b) Disclose the powers are being exercised under this section.

The constable to complete a written report and forward to The commissioner of police within 3 days.

Question 8

What is Sec.48 of this act and what is it about?

Answer 8

Unaccompanied children and young person. (Can not be use in conjunction with crime investigation) - Police V D 3 May 2002.

Where a child or young person is found UNACCOMPANIED in a situation which the child or young person’s physical or mental health is being or likely to be impaired, A constable may, using reasonable force if necessary take the child or young person
(a) with their consent to their parent or guardian or the person usually having the care of the person.

Question 9

In what kind of situation that police can place the CY in the custody of the OT chief executive or her social worker？

Answer 9

(a) When the CY does not wish to be returned to a parent or guardian or care person.
(b) No parent or guardian or such person is willing or able to have custody of the CY.

Question 10

What is 9 principles of Section 208?

Answer 10

ACAKASAIS
A = Alternative mean of dealing matter
C = Criminal proceeding to provide better for CY.
A= Any measure for dealing with offending should be designed to STRENGTHEN the family and FOSTER the ability of the family.
K= Keep in community unless public safety at risk.
A= Age is mitigating factor to determining impose sanctions or not and the nature of the sanctions.
S= Sanctions imposed on a CY should be MAINTAINING AND PROMOTING the development of the CF and their family.
A= Any measures for dealing with offending by the CF is to address the underlaying issues of the CF.
I= In the determination of measure for dealing to offending by CF is to consider the interests and view of the victim and impact of the victim
S= Special protection to the CF who is still entitle during offence investigation.

Question 11

What is Sec. 214 of the OT act?

Answer 11

Arrest of child or young person without warrant

Question 12

Under Sec.214, What are the conditions need to be satisfied, on reasonable grounds before arresting a CY?

Answer 12

(a) That is nessary to arrest that CY without warrant for the purpose of
(i) Ensuring the appearance of the CY before the court.
(ii) Preventing that CF from committing further offences
(iii) Preventing the loss of destruction of evidence relating to an offence committed by the CY or to prevent interface with any witness.
(b) Way of summons would not achieve that purpose.

Question 13

Under Sec.214 what category of offences committed by CY does not need to satisfied the arrest conditions?

Answer 13

(a) 3 and 4. Maximum penalty of 14 years of imprisonment (at least).
(b) Officer believes on reasonable rounds that the arrest of the CY is required in the public interest.

Question 14

Under Sec.214 What shall officer do after arresting a CY without warrant?

Answer 14

Complete a written report within 3 days of making the arrest to the Commissioner of Police.

Question 15

What is Sec. 214A of the OT act? What is it about?

Answer 15

Arrest of CY in breach of bail.

A constable may arrest a CY without a warrant if
(a) the CY has been released on bail

(b) the constable believes, on reasonable grounds that
(i) the CY has breached a condition.
(ii) the CY has breached on 2 or more previous occasions.

Question 16

(Police Practise) Who give authority to arrest under Sec.214A?

Answer 16

Youth Aid Sgt > Supervising Sgt > a qualified Youth Aid Officer.

Question 17

What is Sec.215 of OT act? What is it about?

Answer 17

Youth rights

ANNWSC

(a) arrested if the person refused to give name and address.
(b) Not obliged to accompany for questioning and can draw consent anytime.
(c) No obligation to make statement
(d) Withdraw making statement consent at any time.
(e) Statement may be used in evidence.
(f) Consult lawyer and/or nominated person and give statement in the presence of above person(s).

Question 18

What is Sec.215A of OT act? What is it about?

Answer 18

Rights to be explained to CY on request.

Youth rights to be explained on request if CY asked.

Question 19

What is Sec.216 of OT act?

Answer 19

Officer to explain right to CY who is to be charged with offence.

Question 20

What is Sec.217 of OT act?

Answer 20

Rights to be explained to CY who is arrested.

Question 21

What is Sec.218 of OT act?

Answer 21

Explanations to be given in manner and language approbate to age and level of understanding of CY.

Question 22

You explained the Youth rights to the CY that you arrested, Do you still need to give him rights again?

What if the rights was given more than 1 hour ago?

Answer 22

No.

Question 23

What is Sec.221 of OT act?

What are the conditions need to be complied with before making the CY statement to be admissible?

Answer 23

Admissibility of statements made by children and young persons.

(a) Youth Right be be given and explained in a maker and in language that is appropriate to the age and level of understanding of the CY; and
(b) CY has to speak to lawyer and/or nominated person first. ; and
(c) CY statment made in the presence of lawyer and/or nominated person. (Section 222 applies)

Question 24

Under Sec. 222 of OT act, who can be the nominated person.

Answer 24

(a) Parent or guardian
(b) Adult family member
(c) Any adult selected by CY
(d) If refused or failed to nominate by CY, Officer to nominated

Question 25

Under sec.222 of OT act, on what conditions that an officer may refuse to allow the CY to consult with the nominated person?

Answer 25

If officer believes on reasonable ground that the nominated person

(a) would attempt or would be likely to attempt to pervert the couse of justice.
(b) can not be located or will not be available.

Question 26

If the nominated person was refused by the officer, can CY choose again? (Sec.222 sub(3))

Answer 26

Yes.

Question 27

What is the duty of the nominated person?

Answer 27

(a) To help CY understand their rights.
(b) To support the CY
(i) before and during any questioning.
(ii) if the CY agrees to make or give any statement, during giving the statement.

Question 28

Under sec.223, what is spontaneous admission about?

Answer 28

An oral spontaneous admission statement made by CY is still admissible if officer has not had a reasonable opportunity to comply with the requirement of Sec.221.

Question 29

Under Sec.229 of OT act, what shall police do if a CY is at enforcement agency office for questioning of offence(s) or is arrested?

Answer 29

Parents or guardian or other persons to be informed where CY at enforcement agency office for questioning of offence(s) or is arrested.

Question 30

What is the difference for Sec. 222 and Sec.231?

Answer 30

Both Section are about who can be nominated person. Only difference is Sec.222 is for admissibility of statement and Sec.231 is for CY at Police Station for questioning or is arrested.

Question 31

Under Sec.234 of OT act, What shall a constable do following the arrest of the CY with or without warrant?

Answer 31

(a) Release the CY or
(b) Release the CY on bail or
(c) Release the CY to
(i) Parent or guardian or care taker or
(ii) Social service which is agreed by CY. or
(iii) Any organisation or person which is agreed by CY and approved by the Chief executive of OT or a constable.

Question 32

What is Sec.235 of OT act about?

Answer 32

CY who is arrested may be placed in custody of chief executive of OT. (Overwriting principle of Sec.234).

Question 33

Under Sec.235, What are the conditions need to satisfy to be able to place the CY into OT’s custody?

Answer 33

(a)If the constable believes on reasonable grounds that:
(i)The CY is not likely to appear before the court or
(ii)The CY may commit further offences or
(iii)It is necessary to prevent
(A)Loss or destruction of evidence.
(B)Interference with any witness.

(b)The CY has been arrested under 214A and is likely to continue to breach.

Question 34

Under Sec.235 of OT act, what is the principle of placing the CY into OT custody after arrest.

What is the time limit of that?

Answer 34

It is to place the CY into OT custody as soon as practicable if Sub (1A) of Sec.235 satisfied.

No later than 24 hrs after the arrest.

Question 35

Under Sec.235, What shall a constable do when placing a CY in the custody of OT?

Answer 35

(a) Delivering the CY to the chief executive(acting through her delegate. (OT social worker.))
(b) prsenting to the delegate in document of details as:
(i) ID of CY
(ii) Circumstances of the arrest
(iii) Time and date for the court.

Question 36

Can a constable exercise the sec.235 sub (1) power if he or she believes that any CY is in need of care or protection?

Answer 36

No. Youth Justice Power can not use for Care and Protection of the CY. Wise versa, Care and protection power can not be use to aid in an CY offence investigation.

Question 37

Under Sec.236, what are the conditions need to be satisfy to be able to detain a CY in Police custody for more than 24hrs?

Answer 37

(a) That a young person who has been arrested is likely to abscond or be violent and
(b) That suitable facilities for the detention in safe custody of that young person are not available to the chief executive.

Question 38

Under Sec.236, Who are responsible to make a joint certificate so that the CY can be detained in Police custody for more than 24hrs?

Answer 38

Police constable and the delegate of OT Chief executive.

Question 39

Under Sec.236, how many days for a constable to notify Police commissioner if a joint certificate was issued? and how to notify?

Answer 39

5 days.

(a) A copy of the certificate
(b) A written report of circumstances and duration of the period of CY being detained.

Question 40

R v Kahu [1995] 2 NZLR 3

Power under a Sec.39 Warrant, What is the key finding(s) of the Case

Answer 40

Sec.39 Warrant holder is entitle to search cupboards for food in order to form an independent judgement as whether a child should be removed.

Question 41

Pettus v R [2013] NZCA 157

Power under Sec.42 of OT act, what is the key finding(s) of the case.

Answer 41

Sec.42 has high threshold unless the constable believes on reasonable ground that it is critically necessary to protect a child from injury or death.

In the case, the child was already removed from the property and it was not critically necessary to protect the child from injury or death. Therefore, Sec.42 shall not be exercised under the circumstances.

Question 42

Police v D (3 May 2002)

Power under Sec. 48 of OT act, what is the key finding(s) of the case.

Answer 42

Sec.48’s purpose is the care and protection of young person. It does not authorise detention of a CY at police station so as to perform an investigation.

Question 43

Police v T-M (31 January 2002)

Power under Sec. 208, 214 and 48 of OT act, what is the key finding(s) of the case.

Answer 43

Sec.48’s purpose is the care and protection of young person. It does not authorise detention of a CY at police station so as to perform an investigation.

Under Sec.214 conditions need to be satisfied by a constable on reasonable ground before arresting a CY.

Under Sec.208 other means of dealing with the matter should be considered.

Question 44

Police v T [1998]

Power under Sec.214 and detention in police custody

Answer 44

Under Sec.214 conditions need to be satisfied by a constable on reasonable ground before arresting a CY.

CY was not brought to court in a reasonable time frame, but instead, he had been placed into police cell over 24hrs period which breached the CP’s rights under the NZ bill of right act.

An over 24hr detention that had no joint certificate from Police and OT.

Question 45

Elia v R (2012)

What is Police obligation under Sec.215?

Answer 45

Every officer shall before questioning CP whom there are reasonable ground to suspect of having committed an offence, or before asking CP question intended to obtain an admission, explain to that CP:

ANNWSC

Youth right to be provided again if change of nominated person.

Question 46

R v K (17 July 2002)

What are the rules around Sec.222 and choice of nominated person

Answer 46

Any person can be nominated by CP, police has no right to veto CP’s decision unless that person would attempt or pervert the course of justice, or can not be found, or will not be available within a period of time.

Police can not nominate a person for CP unless he/she refused to do so.

Question 47

S v Police (14 March 2006) Spontaneous admissions

In this case, officer offer immunity to some cases, but the youth admitted to agg rob. The judge ruled the admission was not spontaneous, why is that?

Answer 47

Spontaneous admission has to be made without external stimulus or constraint.