Rangatahi Flashcards
Youth
s39 Place of Safety warrants
Who besides a const may request a warrant if there are RGS a YP is suffering neglect or abuse?
Representative of the Chief Exec
If the person authorised to remove a child for care and protection does so who is the custody assigned to?
Place into custody of the CE
s42 Search without warrant
A const who removes a child at risk of death or injury is required to do three things, what are they?
- Produce evidence of identity
- State powers being used under the section
- Forward report to the Commissioner within 3 days of use of power + circs it was exercised
s214, s214A Arrest of CYP without warrant
Under s214A and S233 and 244 what grounds are required for arresting a CYP without warrant?
Officer is Satisfied on RG, arrest cyp to
- ensure appearance in court
- Prevent cyp from committing further offences
- Prevent loss / destruction of evidence or prevent interference with any witness
S214A CYPF New power of arrest
Cyp released on bail
Const BRG, Cyp has breached a condition of that bail
Cyp has on 2 or more previous occasions breached a condition of that bail (whether same or not)
s215 CYP 2b infrmd of ryts b4 being questioned by EO
s216 CYP who is to be charged with an offence
s217 CYP who is arrested
Under s233 and s244 where the EO asks questions re admission of an offence what explanations do they need to provide the CYP?
Arrest w/out warrant
a) f cyp rfuse 2 gv nme + adrs, cyp can’t be served with a summons
b) Cyp isn’t oblgd 2 acmpny EO 4 prpse of being questioned, if cyp cnsnts may w/drw consent at anytime
c) Cyp no obligations to make / give any statement
d) f cyp cnsnts mke/gve s8mnt can w/draw any time
e) Any s8mt mde may b usd as Ev in any prcdings
f) Cyp ntitled consult with + give statement in presence of barrister solicitor + any person nominated by cyp in accordance with sec 222
S221 Admissibility of statements made by CYP
Under s223 to 225 and s233 and 244 of CYP Act what are three factors the enforcement officer needs to abide by when taking statements from a CYP?
- B4 s8mt made or given Enf Off has explnd in manner + language appropriate age + level of undrstndg of cyp
- Whr cyp wants to consult with barrister solicitor or prsn nomin8d by cyp accord s222 or either of those persons b4 mkg the s8mt the cyp consults with those prsons or as case requires, that prsn
- Cyp makes or gives s8mt in presence of one or more of following –
i. barrister or solicitor,
ii. nominated person by cyp in accord with sec 222 of Act
iii. if cyp refuses or fails to nomin8 person in accord sec 222
a. any prsn refrred to n paragraph (a) or (b) of s222 or
b. any other adult (not being an En Off)
s222 Persons who may be nominated for the purposes of section 221 (2) (b) or (c)
Under what grounds may the enforcement officer decline to bring in a person nominated by the child/YP to be present when they make a statement?
Brg prsn atmpt / lkely atmpt prvert cors of jstce or
Cn’t wth resnabl dilgnce b lc8d or not avalbl n rsnbl priod of tym n circs
Enf Off may rfus 2 alow cyp 2 cnslt wth tht prsn
s233 Breath alcohol and blood alcohol and provisions of the Land Transport Act 1998
Does CYPF limit the enforcement officer in taking breath alcohol or blood alcohol from a YP in accordance with s68-72 Land Transport Act 1998?
Nothing n th prvisions of secs 214-232 limits or afects th pwrs of an Enf Off undr any of the provisions of sections 68 to 72 of the Land Transport Act 1998.
s234 – Custody of CYP following arrest
Under s235, 236, 244 if the EO isn’t able to deliver the CYP into the custody of their parent or guardian who else is legally able to take the CYP?
(a) Release the cyp; or
(b) Where the cyp may be released on bail under section 21 of the Bail Act 2000, release the cyp on bail; or
(c) Deliver the cyp into the custody of—
(i) Any PG/Op having the care of the cyp or
(ii) With the agreement of the cyp, any Iwi Social Service or Cultural Social Service; or
(iii) With the agreement of the cyp, any other person or organisation approved by the CE or a const for the purpose.
Section 235 - Cyp who is arrested may be placed in custody of CE
(1) Notwithstanding section 234 but subject to section 244, a const, re cyp hu been arrested, if sbsec (1A) applies,—
(a) mst plce cyp n cstdy of CE n acrdnce with sbsec (2);
(b) mst do asap + nt l8r thn 24 hrs afta th arest.
(1A) Ths sbsec aplys if –
(a) const BRG that —
(i) cyp isn’t lkly 2 apear b4 th Crt; or
(ii) cyp my comit frthr ofnces; or
(iii) it’s ncsry 2 prvnt —
(A) th los or dstrctn of Ev const hs RCS th cyp of hvg cmited; or
(B) intrfrnc wth any wtns n rspct of any sch ofnc; or
(b) cyp hs ben arstd under sec 214A + is lkly 2 cntinu 2 brech any cndtn of bail.
(2) A cyp shall be placed in the custody of the [CE] pursuant to this section by—
(a) Delivering the cyp to the CE (acting through his or her delegate) +
(b) Presenting 2 the [delegate], on the prescribed form, details relating to—
(i) CYP Id
(ii) The circs of the arrest; and
(iii) The time + date of Cort appearance having jurisdiction to which cyp was arrested.
(3) Placement of a cyp in the custody of the CE re sbsc(1) shall be sufficient authority for the detention of the cyp by [a delegate] or in a residence under this Act, or under the care of any suitable person approved by a [delegate].
(4) No const shall exercise the power conferred by sbsc (1) cause const blves that cyp in need of care or protection (as defined in section 14 of this Act).
Section 236 - Young person who is arrested may be detained in Police custody
(1) Nt wthstndg th prvsions of secti 234 and 235 of this Act but sbjct 2 sec 244 of ths Act, where CE (acting thu his / her delegate)] + a const, being a S/Sgt or const hu
(a) That a cyp hu ben arstd is lkly 2 abscond or be violent and
(b) Tht sutbl fciltes 4 th dtntn n safe cstdy of tht cyp r nt avlbl 2 th CE th cyp my, on th joint cert in th prscrbd form of [the delegate] + tht const, b dtaned n Police cstdy 4 a period excdng 24 hrs + until apernc b4 th Crt.
(2) [If a joint cert issued]under sbsec (1) shall, within 5dys after day on whch cert is isud, b frnshd by [the delegate] 2 th CE + by th const 2 the Commissioner of Police—
(a) A copy of the certi and
(b) A written report stating—
(i) The circs in which the cert came 2b issued; and
(ii) The duration of the period for which cyp has been detained, or is lkly 2b detained, in Police custody.
[(3) Any delegation by the CE of a function or power under this section must be made to a senior employee or senior employees of the department.]
R v Kahu [1995] 2 NZLR 3 Court of Appeal powers under s39 Warrant
On what grnds was the Police officer’s actions upheld?
Holder of wrnt under sec39 may check the supplies of food in the house + open cupboard 4 tht prpose
Pettus v R [2013] NZCA 157 Search without warrant
On what grounds was the Police officers’ actions criticised?
Sec 42 is an emergency provision, this power was not available – provision wen danger is serious or imminent
Sec 39 apropr8
Police v D [2002] Druce DCJ Detention under S48
What were the Court findings on Police actions? What Police actions were criticised? What are the limitations on s48 of CYP Act?
Sec 48 is Care + Protection
Plc actd resnbly tk cyp 2 stn as ntrmdry n rtrng him 2 grndmthr or if not agre plc n cstdy of SWkr
Plc faild cyp’s ntrst tkng hm cll blk area due 2 coopr8g at tym – tkg cyp n2 ths area ment cyp dtaind byond lwfl authority – dlvr 2 cre of pgcg
Plc fled 2 asrtan if cyp wntd 2b rtrnd hme of SWkr
No evdnc cyp nfrmd why he dtaned cud thnk he undr arrest
Plc sgestn frthr nqries blur prpos of cyp n plc stn, wrong to dtain byond sec 48 to prfrm invstigtion
No ned to qstn th cyp as thy hd info to rturn cyp 2 aprp8 prsn
Police v T-M (31 Jan 2002)YC Whangarei Boshier DCJ Arrest guidelines under s214, s48
What were Judge Boshiers guidelines to Police on deciding whether or not to arrest a CYP?
- Section 48 nt usd by plc offcrs 4 sole prpse tkng n2 cstdy CYP who’s sspctd of hvng cmitd a crme. Th sec is lmtd in scope + ment only 2 aply 2 unacmpnd CYP’s tht ned 2 b plcd n sfe sitn
- If a plc offcr bleves tht a CYP has cmted an offnc, arest may b consdrd but only if sec214 of Act wuld prmit it. Section 214 prvdes tht a CYP isn’t 2b arstd unles th oficr is stsfyd on RG tht arest is ncsry for:
(i) Ensurg th apernc of th CYP b4 th Cort; or
(ii) Prvntg CYP frm comtg frthr ofncs; or
(iii) Prvntg loss or dstrctn of evdnc or prvntg ntrfrnc wth wtnses.
[NB. Th sec also prvdes if th ofnc comtd is purly indictable + publc ntrst rquirs an arst b mde, then a polc ofcr my arst CYP wthot wrnt.]
- Sec 208 CYPF Act rqurs crim procedgs shud nt be init8d unls thr ar no othr mens of delg with matter + any prcdgs tkn mst tke least rstrctv frm apropr8 2 th circs.
- ………
- Plc my nt arst a yp smply as mens of rqurg a yp 2 fce th cnsquncs of ofndig in a Yth Cort. Ths is n cntrast 2 adlts hu my b arstd 4 ths purpose.
- Genrlly, unlss th CYP is arstd as prmtd by sec 214, police plc ofcrs ncountrg criml ofndg by a cyp must cnslt a Yth Jstc Coordtr wth view 2 cnvng a FGC b4 layng of chrgs n a Yth Cort is cntmpl8td. It’s
- ne of the roles of the FGC is 2 dscus th offndg and dcyd whthr info shud b laid (s 245 CYPF Act).
Police v T [1998] DCR 538 s214 and detention in Police custody
On what grounds were the Police Officer’s actions criticised? What was the serious breach of the law?
Failure to bring the defendant to Court constituted a breach of the young person’s rights under the New Zealand Bill of Rights Act to have the matter dealt with on the same day.
The young person had spent 24hrs in custody (police cells)
Elia v R 92012) FRNZ (Court of Appeal); s215, s223
What did the judge rule around the admissibility of the defendant’s statement under s30 of the Evidence Act 2006?
Section 215 of the CYPFA requires that an explanation must be given “before the statement was made or given”.
R v k (17 July 2002)CA 216/02 McGrath, Robertson, Gendall JJ; S222 and choice of nominated person
What was the legal issue around the video interview of the CYP?
The High Court a breach of the Act as K was not informed he not obliged to accompany police to the police station for an interview and in the absence of arrest leave the police station.
A major mistake identified by the High Court was the failure to allow K the opportunity to nominate another person after his father was deemed unsuitable
S v Police (2006) Baragwanath and Health JJ; Spontaneous admissions s 223
What grounds did the High Court have for not accepting the offender’s confession to the Police Officer and the videotaped interview
Youth court proceedings
In both sets of Youth Court proceedings, S challenged the admissibility of his admissions both during the drive around and in the video interview. Both Judges ruled against those evidential challenges.
S subsequently pleaded guilty to one charge and the other was found proved. Each Judge convicted S and transferred him to the District Court for sentence.
S appealed to the High Court against the convictions. The issues on appeal
The two main issues on appeal were:
• Given the police officer’s assurances he did not intend charging S for any of the matters they were discussing, were the admissions S made about the aggravated robberies while driving ‘spontaneous’ for the purposes of section 223 of the CYPF Act? Under section 223, any oral statements made spontaneously and before an officer has had a reasonable opportunity to comply with the requirements of section 221 (admissibility of statements made by children and young persons), may be exempt from the usual section 221 requirements.
• If S’s admissions made while driving around in the car were not ‘spontaneous’, was any evidence gathered in the course of the subsequent videotaped interview tainted or inadmissible?
High Court decision
On the first issue, the High Court said it was a question of fact whether a statement can be construed as ‘spontaneous’, as entirely without external stimulus or constraint.
The Court held that the offer of immunity plainly influenced S’s decision to point out and explain where the aggravated robberies occurred and, in that sense, his admissions were not made spontaneously.
The ‘spontaneous’ provisions of section 223 therefore did not provide an exemption from the conditions of admissibility stipulated by section 221(2) (which include the requirement for a statement to be made in the presence of a barrister, solicitor or nominated person).
On the second issue, the High Court found that the non-spontaneous admissions of aggravated robbery were the effective cause of the officer’s continuing interview and particularly the part that occurred at the police station when the formal admissions to that aggravated robberies were videotaped. That evidence was therefore excluded also.
Comment
Staff wishing to resolve cases by seeking admissions and indicating an intention not to charge should ensure that they are very specific about the boundaries of that offer.
Sec 236 of Children, Young Person + their Families Act 1989 – Young person who is arrested may be detained in custody
Sgt Harris has arrested William who is 14 yrs old, a joint certificate has been signed authorising Police to hold William in Custody longer than 24 hours
Sgt Harris must furnish a copy of the joint certificate + a copy of the report to the Commissioner of Police within what period of time
Within 5 days after the day on which the certificate was issued
