Children & Young Persons

Question 1

What do the provisions of S214(1) of the CYPFS Act 1989 state?

Answer 1

Where an enforcement officer has a power of arrest without warrant, they shall not arrest a CYP unless it is necessary to:
Ensure appearance before the Court
Prevent that CYP from committing further offences
Prevent loss/destruction of evidence (CYP’s offence)
Prevent interference with any witness (CYPS’s offence)
AND
Proceeding by way of summons would not achieve the above.

Question 2

What do the provisions of S214(2) of the CYPFS Act 1989 state?

Answer 2

Nothing in 214(1) prevents Police arresting when:
RGTS CYP committed cat 3/4 offence or life/14yrs, AND
RGTB arrest in public interest.

Question 3

What do the provisions of S214(3) of the CYPFS Act 1989 state?

Answer 3

Every enforcement officer who arrests a CYP must submit report to commissioner within 3 days.

Question 4

What are the three circumstances under which the principles to avoid arrest under S214(1) are waived?

Answer 4

1. Cat 3/Cat 4 offences (murder, sexual violation, agg rob)
2. Breath/Blood provisions in the LTA 1998
3. S342 (false/misleading information) of the Immigration Act 2009

Question 5

When a CYP is arrested, you must submit a report to the commissioner within 3 days. Who else must you notify within 3 days?

Answer 5

The O/C of your local Youth Aid section.

Question 6

What is found in S215 of the CYPFS Act 1989?

Answer 6

The rights of a CYP prior to questioning by an enforcement officer who has RGTS they have committed an offence.

Question 7

What do the provisions of S215A of the CYPFS Act 1989 state?

Answer 7

That Rights as per S215 are to be explained to CYP when they are being questioned about their involvement, and they ask what their rights are.

Question 8

What are the 5 situations where a CYP needs to have their rights explained to them?

Answer 8

1. Arrest
2. RGTS committed offence
3. Before questioning for admission
4. Form RGTS offence during questioning
5. When CYP makes an enquiry - only the rights enquired about need to be explained.

Question 9

What are the three situations when you do NOT have to give a CYP the S215(1) rights?

Answer 9

1. EBA
2. 342 Immigration Act
3. Has been given his/her rights within the previous hour.

Question 10

What does S216 of the CYPF Act state you must do when charging a CYP?

Answer 10

You must explain their rights to them again.

Question 11

What does S217 of the CYPF Act state regarding the explanation of rights to a CYP?

Answer 11

You must explain their rights to them when they are arrested.

Question 12

What does S218 of the CYPF Act state regarding the explanation of rights to a CYP?

Answer 12

They must be explained in a manner and language that is appropriate to the CYP’s age and level of understanding.

Question 13

Under which section of the CYPF Act is the CYP’s right to consult a solicitor found?

Answer 13

S227.

Question 14

What does S221 of the CYPF Act state regarding the admissibility of statements made by CYPs?

Answer 14

No statement made by a CYP is admissible unless:

• Their rights have been explained before statement.
• The CYP has been allowed to consult privately with solicitor and/or nominated person if they wish.
• The statement was made in the presence of one or more acceptable witnesses.

Question 15

Who are the 4 groups of people that may be a CYP nominated person under S222(1)?

Answer 15

1. CYP’s parent/guardian
2. Adult family member of the CYP
3. Any other adult selected by CYP
4. Any adult nominated by an enforcement officer (not another enforcement officer) where the CYP fails/refuses to nominate.

Question 16

Who are the two groups of people that an enforcement officer may refuse to allow to be a CYP nominated person under S222(2)?

Answer 16

1. Would attempt/likely to attempt to PCJ

2. Cannot be located/will not be available within a reasonable time

Question 17

What are the two duties of a CYP nominated person under S222(4) of the CYPFS Act?

Answer 17

1. To take reasonable steps to ensure that the CYP understands the admissibility of their statement under S221(2)(a) and
2. To support the CYP before/during questioning and during the making/giving of any statement.

Question 18

What was found in R v K (Michael Choy murder) with regard to admissibility of evidence from a CYP?

Answer 18

The Court of Appeal ruled the CYP’s statement and a video reconstruction inadmissible as there had been a failure by police to comply with the statutory obligations of S215 and S222 of the CYPF Act 1989.

Question 19

What does S223 state regarding spontaneous admissions? How does this effect the rights under S215?

Answer 19

They may be admissible if the statement is made before the enforcement officer has had a reasonable opportunity to comply with the requirements of S221 - the rights under S215 should be given as soon as practicable.

Question 20

What is the likely outcome of restricting the right of a CYP to choose the adult he or she wants present during interview?

Answer 20

The interview may be ruled inadmissible, including any confessions made.

Question 21

When questioning, arresting or charging a CYP, what are your obligations regarding informing their parents or guardians?

Answer 21

The parents/guardians/any person the CYP nominates must be informed of their questioning/arrest. When charged, the CYP’s guardians must be notified of the charge as soon as practicable.

Question 22

What is Doli Incapax?

Answer 22

An ancient common law presumption that children under a particular age are “incapable of evil” and as such should not be culpable for criminal acts/omissions.

Question 23

What are the two Doli Incapax presumptions in New Zealand, and where is their supporting legislation found?

Answer 23

1. Irrebuttable presumption that children under 10 cannot be held legally responsible for their actions (S21 CA1961).
2. Rebuttable presumption that children 10-13 cannot be criminally liable unless they knew their act/omission was wrong or contrary to law (S22 CA1961, S198 & 272 CYPF Act 1989)

Question 24

Who is responsible for rebutting the Doli Incapax presumption that children 10-13 cannot be criminally liable unless they knew their act/omission was wrong or contrary to law?

Answer 24

The Prosecution during Court proceedings.

Question 25

What are the three aspects of an offence that the prosecution must prove to ensure culpability for a child offender?

Answer 25

1. Mens rea AND
2. Actus reus AND
3. At the time of the offending, knowledge that the act/omission was wrong or contrary to law.

Question 26

List six options available to investigators looking to establish requisite knowledge (Doli Incapax) on the part of child offenders.

Answer 26

1. Actions of the child (ran away, hid evidence)
2. Type/Seriousness of offence (bribery/parties v assault)
3. Statements made by child (admissions/denials)
4. Previous misconduct (told in the past it was wrong)
5. Lay persons (evidence in CYPs of same age)
6. Medical specialists (psychologist/psychiatrist)

Question 27

What five points were established in R v J (NSW), regarding the rebuttable Doli Incapax presumption?

Answer 27

1. Permissible to rely on circumstances of offence
2. Evidence of others may be used.
3. Psychiatric assessment may be obtained
4. Evidence of flight insufficient (contradicts UK CL)
5. Closer CYP is to 14, easier to rebut presumption.

Question 28

List three investigatively important topics to cover during suspect interviews with a child.

Answer 28

1. Ensure rights given in manner/language child understands.
2. Cover child’s knowledge of offence in your preparation.
3. Use open TEDS questions

Question 29

What 4 things could you ask a child during an interview to establish whether they had the requisite knowledge (Doli Incapax) of wrongfulness of an act/omission?

Answer 29

1. The likely consequences of the act
2. What others would think of the act
3. Why they did what they did (throw away knife etc)
4. Any rules or laws