CYFS

Question 1

Place of Safety Warrants

Sec 39 (1) and (2) CYPF Act 1989

a) Who can issue it?
b) Who can apply for it?
c) When can you apply for it?

Answer 1

a) District Court Judge or if not available an issuing officer
b) Constable or Social Worker
c) reasonable grounds for suspecting a CYP is suffering, or likely to suffer ill treatment, neglect, deprivation, abuse or harm

Question 2

Place of Safety Warrants

Sec 39 (3) and (4) CYPF Act 1989

What does a place of safety warrant allow you to do?

Answer 2

3(a)Enter and Search, by force if necessary, any dwelling house, building, aircraft, ship, carriage, vehicle, premises or place
3(b) if believe on reasonable grounds the CYP has suffered, or likely to suffer ill treatment, serious neglect, abuse, serious deprivation, or serious harm you can
-remove or detain (force if nec) the CYP and place CYP in custody of Chief Executive (CE)
- if CYP in hospital direct Med Superintendant to keep that CYP in hospital

Question 3

Search without Warrant
Sec 42 CYPF Act 1989

When can you do it?
What can you do?
What are your obligations?

Answer 3

(1) Constable believe on reasonable grounds that it is critically necessary to protect a CYP from injury or death they may without warrant
- enter and search (force if nec) dwelling house, building, aircraft, ship, carriage , vehicle, premise or place
- remove or detain (force if nec) CYP and place CYP in custody of CE

(2) Produce evidence of ID and disclose powers
(3) written report to Commissioner within 3 days

Question 4

Unaccompanied CYP
Sec 48 CYPF Act 1989

When can you do it?
What can you do?
How long for?

Answer 4

(1) CYP found unaccompanied by parent/guardian/usual carer in a situation where the CYP physical or mental health is being, likely to be, impaired , a constable may (force as reasonably nec) take CYP and
- deliver to parent/guradian/usual carer if CYP agrees
OR if CYP does not want to, or parent/guardian/usual carer not willing or able - place is custody of CE by delivering to social worker

(2) if placed in custody of CE can be placed in residence until:
- CYP agrees to go home and parent etc willing
- application to Court for declaration under Sec 67
- 5 days if in need of care and protection, or 3 days all other cases

Question 5

Youth justice principles
Sec 208 CYPF Act 1989

8 principles

Answer 5

a) alternative measures instead of criminal proceedings unless public interest requires
b) criminal proceedings not just for reason of providing services to advance welfare of CYP
c) measures to deal with CYP should be designed to strengthen family etc of CYP and foster ability of families etc to develop own means of dealing with CYP offending
d) CYP committing offence should be kept in community if practicable and able to ensure safety of public
e) CYP’s age is a mitigating factor in determining whether to impose sanctions and nature of sanctions
f) sanctions imposed of CYP should maintain and promote dev of CYP within family etc and be as least restrictive as appropriate, and sanctions should address underlying cause of offending
g) in determining sanctions and measures consideration should be given to views of victim (encourage to take part in process) and should have proper regard for interests of and impacts on any victims
h) vulnerability of CYP entitles them to special protection during any investigation relating to offending

Question 6

Arrest of CYP without warrant
Sec 214 CYPF Act 1989

When can you arrest at CYP?
What are your obligations?

Answer 6

(1) Shall not arrest CYP unless satisfied on reas grounds
a) necessary to arrest CYP without warrant to:
- ensure appearance of CYP at Court OR
- prevent CYP committing further offences OR
- prevent loss/destruction of evidence to offence committed, or reas cause to suspect committed, or prevent interference with witnesses
AND summons would not achieve that purpose

(2) Subsec (1) does not prevent a constable arresting a CYP if reas cause to suspect Cat 4 offence or Cat 3 offence if life or 14yrs imprisonment AND constable believes on reas grounds arrest of CYP is required in public interest

written report within 3 days to Comm of Police or CE - must state reason for arrest

Question 7

Arrest of CYP in breach of bail condition
Section 214A CYPF Act 1989

New power of arrest

Answer 7

Constable can arrest a CYP if they have been released on bail and the constable believes on reas grounds that the CYP has breached a condition of bail and on 2 or more previous occasions and has breached a condition
(does not need to be the same condition)

Question 8

Law Note Excerpt October 2013

Power of arrest for CYP breach of bail

Answer 8

must obtain approval from a Youth Aid Sergeant, or if not available their Supervisor or a qualified Youth Aid Officer

breaches before 4 Sept 2013 not counted

6D file must be created for each initial breach

if arrested under Sec214A and constable believes on reas grounds they are likely to continue to breach must place CYP in custody of CE in accordance with Sec 235 CYPF Act

Question 9

Questioning a CYP - obligations

Sec 215 CYPF Act 1989

Answer 9

(1) before questioning a CYP if reas grounds to suspect committed offence - before asking any question intended to obtain an admission explain:
a) if power of arrest, then can arrest if refuse to give name and address (doesn’t apply if already arrested)
b) CYP not obliged to accompany to any place for purpose of being questioned, if consent - can withdraw consent at any time (does not apply if already arrested)
c) CYP under no obligation to make statement
d) if CYP consents to make statement can withdraw consent at any time
e) any statement may be used in evidence in any proceedings
f) CYP entitled to consult with, and make statement in presence of barrister/solicitor/person nominated by CYP in accordance with sec 222
(3) if during questioning officer forms view there is reas grounds to suspect CYP committed an offence - officer must give explanations in (1) before continuing

Question 10

What happens if a CYP asks about their rights while being questioned?

Answer 10

Sec 215A CYPF Act 1989

If CYP asks officer anything about matters in Sec 215 (in whole or in part) then officer must explain again to the CYP those matters that were asked about

Question 11

What happens if during questioning the officer makes up their mind to charge a CYP with an offence?

Answer 11

Sec 216 CYPF Act 1989

Explain matters in s215 (a) and (b): if not under arrest (may arrest if don’t give name and address and not obliged to accompany, and if do can withdraw consent at any time)

Explain matters in s215 (c) - (f): not obliged to make statement; if give statement can withdraw consent at any time; statement may be used in evidence in any proceedings; consult with/make statement in presence of barrister/solicitor/person nominated by CYP in accordance with s222

Question 12

What do you have to explain to a CYP when they are arrested?

Answer 12

Sec 217 CYPF Act 1989

must explain matters in s215 (c) to (f); not obliged to make statement; if give statement can withdraw consent at any time; statement may be used in evidence in any proceedings; consult with/make statement in presence of barrister/solicitor/person nominated by CYP in accordance with s222

Question 13

How do we have to explain the matters outlined in s215; s215A; s216 and s217?

Answer 13

Sec 218 CYPF 1989

In a manner and in language that is appropriate to the age and level of understanding of the CYP.

Question 14

What is the exception to explaining matters to CYP provided for in Sec 219 CYPF 1989?

Answer 14

Nothing in S215; s215A; s216 or s217 requires any explanation to be given to a CYP if the same explanation has been given to the CYP within the last hour.

Question 15

Sec 221 CYPF 1989

Admissibility of statements made by CYP

Answer 15

(1) This section applies to any CYP who:
- is being questioned about commission of an offence;
- is arrested pursuant to s214
- the officer has made up mind to charge
- is detained pursuant to arrest

(2) subject to s222 no oral or written statement by a CYP is admissible unless
(a) BEFORE making statement the officer explained matters in s215 in a manner and in language that is appropriate to the age and level of understanding of the CYP ( (a) and (b) only to be explained if CYP not arrested)
(b) if CYP has asked to consult with barrister/solicitor/nominated person that this has occurred prior to statement being obtained
(c) CYP makes/gives statement in presence of barrister/solicitor OR person nominated by CYP in accordance with s222 OR if CYP failed/refused to nominate any parent/guardian/adult member of family/whanau/family group or any other adult.

Question 16

Who can be a nominated person?

Sec 222 CYPF Act 1989

Answer 16

CYP can nominate:

• parent or guardian
• adult member of family/whanau/family group
• any other adult selected by CYP

if CYP fails/refuses to nominate then enforcement officer can nominate any adult - not an enforcement officer

Question 17

When can an enforcement officer veto a nominated person?

Sec 222 (2) CYPF Act 1989

Answer 17

If officer believes on reasonable grounds that
(a) nominated person may attempt to pervert the course of justice if allowed to consult with the CYP

(b) nominated person cannot with reasonable diligence be located, or will not be available within a period of time that is reasonable in the circumstances

the enforcement officer may refuse to allow the CYP to consult with that person

Question 18

What happens if an enforcement officer refuses to allow a CYP to consult with the nominated person

Answer 18

Sec 222(3) - CYP can chose another nominated person

Question 19

What are the duties of nominated persons?

Answer 19

Sec 222 (4) CYPF Act 1989

• to take reasonable steps to ensure that the CYP understands the matters explained to them
• to support the CYP before and during questioning and if they agree to make/give any statement, during that statement

Question 20

What is outlined in Sec 223 CYPF Act 1989?

Answer 20

Nothing in S 221 regarding admissibility of statements applies to an oral statement made by a CYP spontaneously and before an officer has had a reasonable opportunity to comply with the requirements of that section.

Question 21

Sec 229 CYPF Act 1989

What must you do when you have a CYP at a station for questioning or is at station after being arrested?

Answer 21

(1) as soon as practicable after CYP arrives at station inform a person nominated by CYP in accordance with s231 that the CYP is there and can be visited
- if that person nominated is not the CYP parent/guardian/main carer - or CYP fails/refuses to nominate then you must also notify parent/guardian/main carer that the CYP is at station for questioning or been arrested.

(2)the person nominated by CYP is entitled to visit CYP at station; as soon as practicable after arriving at station must be advised of matters in s215 in a language that can be understood by that person; and is entitled to consult privately with CYP

Question 22

When can a nominated person not consult privately with a CYP under sec 229 CYPF Act 1989?

Answer 22

(3) if CYP is arrested and
- under guard of officer;
- subject to such reas conditions as may be necessary to ensure safety of CYP or to prevent commission of any offence

Question 23

Who can a CYP nominate for purpose of sec 229 (1) (a) CYPF Act 1989?

Answer 23

Sec 231 (1) CYPF Act 1989

• parent or guardian of CYP
• adult member of family/whanau/family group of CYP
• any other adult selected by CYP
• if CYP fails/refuses to nominate - any adult (not officer) nominated by an enforcement officer

(2) if officer believes on reas grounds that person nominated by CYP may attempt to pervert course of justice they can refuse to allow that person
(3) if person not allowed CYP can nominate another person to visit them

Question 24

What are the duties of a nominated person pursuant to sec 231(1) CYPF Act 1989

Answer 24

(4) to take reasonable steps to ensure CYP understands matters explained to them under sec 221(2) (a) AND to support CYP before and during questioning and if they agree to make statement - during the statement.

Question 25

What does Sec 233 CYPF Act 1989 state?

Answer 25

Nothing in s214-232 limit or affects the powers of an enforcement officer under any of the provisions of s68-72 of the Land Transport Act 1998.

Question 26

What must you do with a CYP once they have been arrested?

Answer 26

Sec 234 CYPF Act 1989 (subject to sec 235)

a) release CYP OR
b) release CYP on bail under sec 21 Bail Act 2000
c) deliver CYP into custody of parent/guardian/main carer OR Iwi/Cultural Social Service (consent of CYP) OR any other person/organisation approved by Chief Executive of Constable (consent of CYP)

Question 27

Sec 235 CYPF Act 1989

When can you keep a CYP in custody?

What are our obligations if we keep a CYP in custody?

Answer 27

If constable believes on reas grounds that CYP is likely to not appear; commit further offences; or to prevent loss/destruction of evidence or interference with witnesses

OR CYP has been arrested under S214A and is likely to continue to breach bail

THEN constable MUST place CYP into custody of Chief Executive as soon as practicable and no later than 24 hours after arrest.

This is done by delivering CYP to social worker and giving social worker (on prescribed form) details relating to identity of CYP, circumstances of arrest; date of intended appearance in Court

Question 28

When can a Young Person be detained in Police Custody?

Answer 28

Sec 236 CYPF Act 1989

if a senior social worker and a constable (inspector or above) are satisfied on reas grounds that a YP who has been arrested is likely to abscond or be violent AND that suitable facilities for the detention in safe custody of that YP are not available to the Chief Executive THEN YP may be detained in Police custody for longer than 24 hours and until appearance in Court

-when senior social worker and constable (inspector or above) issue a joint certificate for this to happen they must give copies to CE and Comm of Police within 5 days - must also explain the circumstances and how long the YP has been detained and how long it is likely to continue

Question 29

R v Kahu (1995)

powers under a s39 place of safety warrant CYPFs

Answer 29

social worker had s39 warrant, constable went with him who had but did not use MODA/SPA warrant. Social worker explained he had right to enter and see child, and check for food etc, and remove child if nec - searched cupboards for food, found cannabis, appellant showed social worker and constable more cannabis in bedroom - cautioned/BOR/arrested - children into custody - appealed conviction based on breach of Sec 21 BOR

HELD: not an unreasonable search - searching food for cupboards to determine if child at risk is okay in appropriate circumstances - holder of the warrant must be entitled to exercise best judgement on the information available - ie checking living conditions/food supply and physical condition of child. This is implicit in authority to search and the requirement that, having located the child, the holder of the warrant must form an independent judgment as to whether child should be removed

Question 30

Pettus v R (2013)

Search without warrant CYPFs

Answer 30

P and S charged with Manufacturing Meth, poss of material for manufacture and ill treatment and neglect of children. Police suspected P and S were making meth and observed them leaving hardware store with materials required. Search warrant executed at house. CYF workers present during search as Police knew kids would be there - P and S informed kids would be detained for search then accompany CYF workers. Blood, urine and hair samples obtained from children - challenged admissibility of evidence obtained on warrant and admissibility of hair samples

HELD: powers under s42 CYPF Act 1989 should not have been used to remove children as it was not “Critically necessary to protect them from injury or death” - Sec 42 is an emergency provision where danger is imminent and serious - should have used other remedies for removal - eg s39 place of safety warrant or s40 warrant.

Very high threshold for intervention without warrant under s42 is to be contrasted with lower threshold for intervention with a warrant under ss39 or 40

Question 31

Police v D (2002)

Detention under s48 CYPF Act 1989

What are the facts of the case and the issue that was debated?

Answer 31

Youth removed by police from private property - he was unlawfully present, in possession of alcohol and drunk. Youth taken to Police station under s48. Youth had told an officer present at address of name address and phone number of his grandmother with whom he lived - but this info not passed to officer who took him back to station - placed in processing room and questioned again as to care givers details - angry and agitated and punched officer.

ISSUE: counsel submitted police had unlawfully detained youth and should have taken home not to station. Police said youth’s attendance at station was necessary to facilitate getting in touch with grandmother (no phone in public)

Question 32

Police v D (2002)

Detention under s48 CYPF Act 1989

What was the decision of the Court?

Answer 32

• sec 48 is a care and protection provision and requires welfare and interests of child to be put first
• does not authorise detention of CYP in station per se, but can be used as an intermediary means of delivering child to parent/caregiver/social worker
• police should minimise potentially harmful experiences - such as being exposed to adult prisoners in a cell block.
• in this case police acted reasonably in taking youth to station as intermediary step but failed to consider interests in choosing to take youth through secure entrance into secure block - by doing this they detained youth beyond lawful authority
• use of secure part of station could only be justified if reas force became necessary to deliver youth to appropriate person
• police failed to ascertain whether youth preferred to be dropped home or to a social worker
• no evidence police told youth why he was detained - reas for youth to think he was under arrest
• police had no need to question the youth - they blurred purpose of s48 - not to perform an investigation
  ##s48 has a limited purpose of returning CYP to an appropriate person when CYP’s physical or mental health is being impaired; s48 only allows police to take CYP home, or deliver to social worker

Question 33

Police v T-M (2002)

Facts

Answer 33

FACTS: burglaries to central Whangarei business area; T seen in area in early hours of morning; known youth offender. Police invoked s48 and required T to return to station where he was interviewed over burglaries - 3 weeks later police went to T’s address - interviewed 2nd time and statement obtained - arrested.
- police withdrew charges for other reasons - but defence sort costs due to misuse of court process

Question 34

Police v T-M (2002)

Guidelines

Answer 34

HELD: police must find a demonstrable need to arrest as per s214 - provided a series of guidelines:

1. s48 not to be used for purpose of taking into custody a CYP suspected of committing a crime - it is only for unaccompanied CYP’s needing to be placed in situation of safety
2. If believe CYP committed offence consider arrest under s214 - only if reas grounds that arrest nec to ensure appearance in Court, prevent further offences, prevent loss/destruction evidence or interference with witnesses (unless cat 3 and in public interest or cat 4 offence)
3. s208 - criminal proceedings only initiated if no other means of dealing with matter - must take least restrictive form appropriate to circumstances
4. repealed
5. cannot arrest YP simply as means of requiring YP to face consequences of offending in Court (can do this with adults)
6. unless arrest permitted by s214 Police must consult Youth Justice Coordinator with view to having FGC before laying charges in a Youth Court - it is one of roles of FGC to discuss offending and decide if charges should be laid

Question 35

Police v T (1998)

s214 CYPF Act 1989 and detention in police custody

Answer 35

FACTS: T was 14yrs - shoplifted and told to stop by officer who saw him do it; ran, apprehended, arrested, police custody - held in police cells until Court, just over 24 hrs later. T had supervision order and 17 other charges.

HELD: 1) continuation of arrest in breach of spirit of s214 of act - initial arrest justified as trying to escape but not enough to suggest T would continue to shoplift if not arrested.

2) failure to bring T to Court the same day was a breach of NZBORA - if arrested in morning should be in court in afternoon unless unusual circumstances.
2) 24 hrs in police custody and night in police cells - serious breach of the law - s239(2) gives very limited grounds for police to hold CYP in police custody.

Question 36

Elia v R (2012)

Sec 215 and Sec 223 CYPF Act 1989

Answer 36

FACTS: E and T were involved in a robbery of a takeaway shop where the owner was stabbed 11 times. Officer visited T at home as potential witness - spoke in presence of mother - T became nervous and upset after officer mentioned the robbery - then T said he may have been involved. Statement continued at station after S215 explained and mother still present - T said E was also involved.
E spoken to in presence of mother - returned to station with mum as support person - when officer briefly left room E’s mother appeared to urge him to say he was not there - overheard by officer - support person changed.

HELD: First admission of T was inadmissible because officer should have given s215 warnings after he became nervous and upset - rest of his admissions were not in breach of CYPF Act.
First admission of E was admissible but should have given s215 warnings again after support person changed so rest of E’s admissions are inadmissible.

Question 37

R v K (2002)

Choice of nominated persons

Answer 37

FACTS: K, a child, was suspect for a homicide. Agreed to return to station with his father - but father was a potential alibi witness so not a suitable support person.
Father indicated that he had an adult daughter who lived with them, but police chose to bring in an independent person - K made full video statement and participated in a video reconstruction.

HELD: major mistake in not letting K chose his own nominated person - police dispensed with a procedure that was central to the act. - it is not for police to veto their choice of adult unless that person would attempt to pervert course of justice; cannot with reas diligence be found, not available within reas period of time - police only nominate the adult when CYP fails/refuses to do so; or satisfied CYP has no one else they wish to nominate

Question 38

S v Police (2006)

Spontaneous Admissions Sec 223 CYPF Act 1989

Answer 38

FACTS: Officer spoke to S about unresolved car conversions and burlgaries - advised of s215 rights and told him he did not intend charging him with these offences - while driving round showing off locations S disclosed two aggravated robberies. Officer said this was more serious and told S that any further information in relation to those charges may result in charges - went to station, reminded of s215 rights, gave video interview with nominated person

HELD: the offer of immunity plainly influenced S’s decision to confess to agg robberies - therefore they were not spontaneous admissions under s223 - evidence was excluded.

COMMENT: staff wishing to resolve cases by seeking admissions and indicating an intention not to charge should ensure they are very specific about the boundaries of that offer.