M v The King
[2024] NZHC 2220
•8 August 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: NO PUBLICATION OF A REPORT OF THE PROCEEDINGS IN THE YOUTH COURT REFERRED TO IN THIS JUDGMENT IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOT INCLUDE THE NAME(S) OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CARE OF
THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS ATTENDING. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000093 CRI-2023-404-000219
[2024] NZHC 2220
BETWEEN M and N-B Appellants AND
THE KING
Respondent
Hearing: 11 March 2024;
Further submissions 22 March 2024 & 19 April 2024
Appearances:
S Gray for the Appellants
N Walker for the Respondent
Judgment:
8 August 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 8 August 2024 at 2.30 pm Registrar/Deputy Registrar
M and N-B v R [2024] NZHC 2220 [8 August 2024]
[1] The appellants faced charges of sexual assault against a young complainant. Following a Judge alone trial at Manukau Youth Court, Judge P Recordon found the charges proved.1 The appellants were transferred to the District Court for sentencing.2 The appellant, Mr M, was convicted of sexual violation. The appellant, Mr N-B was convicted of assault with intent to commit sexual violation. Mr M was sentenced to 12 months’ home detention. Mr N-B was sentenced to 80 hours’ community work.
[2] For reasons which will emerge, nearly 12 months elapsed between the start of the trial and its completion. It commenced on 9 August 2021. It was not completed until 2 August 2022. Judgment was issued on 23 August 2022. Multiple delays of different origin explain this unusual course, not least New Zealand’s public health response to COVID-19.
[3] The appellants now appeal their convictions. Responsibly Ms Gray, for the appellants, accepts that the trial Judge was entitled to make the findings he did regarding the credibility and reliability of the complainant on the evidence before the Court.3 The appellants instead challenge three key decisions made during the trial which shaped the course of the proceedings and which they say ultimately led to a miscarriage of justice.4
[4]The respondent opposes the appeal.
Summary of the offending
[5]I take this summary from the decision of Judge Recordon.5
[6] After a house party in September 2019, the appellants and complainant went back to Mr M’s house for the night.
1 New Zealand Police v MM & WN-B [2022] NZYC 454.
2 R v MM & WN-B DC Auckland CRI-2021-292-000004, 14 February 2023. [Minute of Judge Recordon].
3 The appellants abandoned an earlier indication that the Judge’s verdicts would be challenged. At trial, the defence conceded that if the Judge accepted the evidence of the complainant and was satisfied beyond all reasonable doubt that what she said is the truth, then the charges against both defendants had been made out.
4 Criminal Procedure Act 2011, s 232(2)(c).
5 New Zealand Police v MM & WN-B, above n 1.
[7] The complainant’s evidence was that over the course of the night, various males entered her room and sexually assaulted her. Her evidence was that Mr M came into the room in which she was sleeping and pushed a grey La-Z-Boy armchair against the door to block the exit. She alleged that Mr M raped her. She gave evidence that Mr N-B came into room and asked for oral sex. When she said no, he grabbed an orange and black chainsaw from the closet and told her that he would cut off her head. He tried to start the chainsaw, could not get it going and finally gave up his effort. He then put the chainsaw back in the closet, told her she was a “little bitch” and to “stop crying”.
[8] Mr M’s evidence was that he took the complainant to a bedroom; she started kissing him; they moved to the bed, and he asked her if she wanted sex. When she declined, he left the room and went to sleep on the couch.
[9]Mr N-B did not give evidence.
[10] At the time of the offending, Mr M was 16 years and three months of age. Mr N-B was 16 years and nine months of age. At the time the decision was delivered, Mr M was 19 years and three months of age. Mr N-B was 19 years and nine months of age.
[11] In essence, the Judge accepted that the complainant was telling the truth about what happened to her. He found the delay in her complaint unremarkable for this kind of offending and “did not impact the narrative which builds and re-enforces the court’s feeling of a credible complainant”.6 He found that inconsistencies in her evidence were immaterial and explained in her evidence.7 Her description of the offending and the surrounding periods of time and incidents did not change under cross-examination and was for the most part consistent and compelling.8 Her account was also supported by evidence of where the La-Z-Boy and chainsaw were found by the police who conducted a search warrant at the address.
6 At [32].
7 At [31].
8 At [29].
Relevant Chronology
[12]The issues in this appeal mean that it is necessary to set out the key events.
[13] The offending was not reported to Police until February 2020 when a constable visited the complainant’s family address on an unrelated matter. The complainant’s mother told the constable that her daughter had recently disclosed that she had been sexually assaulted by Mr M.
[14] The complainant went to the police station a few days later and made a preliminary complaint. On 9 March 2020 she gave an evidential video interview. She named three young males who she said sexually assaulted her. She identified two of the three males by nicknames only but identified Mr M by name.9
[15] A few weeks later, New Zealand entered COVID-19 Alert Level 4 for the first time.
[16] The males who had only been identified by nicknames were subsequently identified by Police through social media. The complainant then identified the appellants by way of Police photo board procedures on 19 April 2020.
[17] On 26 May 2020, Police reassigned the file to a Detective who investigated the address where the offending took place. He concluded that it was at Mr M’s address. Police executed a search warrant at that address. Mr M was arrested and appeared in the Youth Court at Manukau. Police visited Mr N-B who declined to make a statement.
[18] On 8 July 2020, Mr M denied the offending in the Youth Court. Mr N-B denied the offending in the Youth Court on 25 September 2020 and filed an application for severance.
[19] On 6 October 2020, Mr M elected trial by jury. His charge was transferred to the District Court.
9 Charges against the third young male were dismissed before trial.
[20] On 20 November 2020, Mr N-B’s application for severance was granted. The Solicitor-General filed an appeal against this decision on 18 December 2020.10
[21] On 29 January 2021, Mr M applied to change his election from jury trial to Judge alone trial in the Youth Court. That application was granted. The charge returned to the Youth Court to be heard together with Mr N-B and the third young male.
[22] At a pre-trial hearing on 10 February 2021, youth advocates representing the young persons applied to adjourn the trial due to the unavailability of Mr M’s youth advocate on the scheduled trial date. The application was declined, and a new youth advocate assigned to Mr M.
[23] However, at a further pre-trial hearing and despite Police opposition the trial was vacated to allow more time for necessary pre-trial matters to be dealt with.
[24] The trial commenced on 9 August 2021. The complainant was called and gave supplementary evidence. She was cross-examined. Her evidence was completed by 10 August 2021. The next day, the Police called almost all its remaining witnesses. The officer in charge was due to give evidence the following day, 12 August 2021. During his preparation to give evidence, he discovered that screenshots of a Facebook conversation between the complainant and a witness had not been disclosed to the defence, despite having been forwarded to Police on 9 October 2020. It is accepted by all parties that this non-disclosure was an inadvertent error.
[25] The Police properly advised counsel for the prosecution, Ms Walker, immediately. Disclosure of the screenshots was made. The defence applied to abort the trial. The Police opposed the application.
First challenged decision
[26] A hearing in chambers took place the next day on Friday, 13 August 2021. The Judge declined to abort the trial; however, he provided the defence time to consider
10 On 9 February 2021 the Solicitor-General abandoned its appeal against the severance decision.
who they wished to recall in light of the new material.11 The trial did not resume until Tuesday, 17 August 2022.
[27] The complainant was re-called, along with other prosecution witnesses. Two prosecution witnesses were made available for further cross-examination at the request of the defence.
[28] At the end of that hearing day, there were still two witnesses left for the Police case. One was for cross-examination. The final witness was to be the officer in charge.
[29] At midnight on 17 August 2021, New Zealand returned to Alert Level 4 necessitating an adjournment of the trial part-heard.
[30] The Court scheduled the resumption of trial for 2 November 2021. Three days were allocated for its completion. It then became apparent that this date would not be available due to ongoing COVID-19 restrictions. A further date of 20 to 23 December 2021 was allocated. This too could not proceed due to ongoing restrictions and the non-vaccinated status of the appellants.
[31] At a case management conference on 21 December 2021, the parties discussed a possible resumption in late March 2022, being the earliest date when all counsel were available.
[32] On 25 January 2022, at a further telephone conference, the Police and youth advocates expressed the view that the trial should be aborted but for different reasons. The Judge called for written memoranda. In a change of position from that advanced at the telephone conference, the Police filed a memorandum taking the position that it was for the Court to reach a view. Ms Walker acknowledged the change but explained that the concerns of the Police were fair trial considerations from the prosecution’s perspective, not fair trial concerns more generally and if the Court was satisfied it could properly discharge its role as factfinder, the trial should continue.
11 R v MM & WN-B [2021] NZYC 612.
Second challenged decision
[33] On 3 March 2022, Judge Recordon issued a decision in writing declining to abort the trial then scheduled it to resume on 28 March 2022.12
[34] At call over on 21 March 2022, it was agreed that the trial could not resume on that date. The youth advocates were unable to get instructions from the appellants due to COVID-19 in the community and Mount Eden Corrections Facility where the appellants were in custody on unrelated matters.
Third challenged decision
[35] On 23 May 2022, the appellants and the third young male applied to have the charges dismissed pursuant to s 322 of the Oranga Tamariki Act 1989 (the Act).
[36] In a reserved written decision dated 31 May 2022, Judge Recordon declined the application in relation to Mr M and Mr N-B but granted it in relation to the third young male.13
[37] On 1 August 2022, the Judge alone trial resumed before Judge Recordon. The Police called two further witnesses. Mr M elected to give evidence. Mr N-B did not give or call evidence and the trial concluded on 2 August 2022.
[38] On 23 August 2022, Judge Recordon delivered his decision in writing with reasons.
[39] Then Mr M and Mr N-B were transferred to the District Court for sentencing. Sentencing took place on 28 March 2023.
Grounds of appeal
[40] The basis of the appeal revolves around the Judge’s decisions made during the trial. The three decisions are challenged on multiple grounds, individually and based
12 New Zealand Police v MM, IP & WN [2022] NZYC 86.
13 R v MM, WN-B & IP [2022] NZYC 219.
on their cumulative impact. The grounds overlap to a degree. By way of high-level summary, the first and second grounds of appeal challenge the Judge’s refusal to abort the trial in response to the two sequential applications by the appellants. The first application on 12 August 2021 alleged prejudice caused by late disclosure by the prosecution. The second application on 3 March 2022 was based on ongoing delay caused by COVID-19 which led to the hiatus of over eight months in the trial.
[41] The appellants argue that the Judge erred when he declined the first application because he did not take account of the effect of the late disclosure on defence counsel’s ability to properly prepare and effectively cross-examine the complainant. They say he erred when he declined the second application because he failed to treat as a primary consideration the impact of delay on the willingness and ability of the young appellants to engage meaningfully at their own trial.
[42] The third ground of appeal concerns the Judge’s refusal to dismiss the charges pursuant to s 322 of the Act. Ms Gray for the appellants characterises this challenge as a judicial review of the Judge’s exercise of discretion after he found that the hearing had been unnecessarily and unduly delayed from the laying of the charges.14 She submits that the discretion was exercised incorrectly because more weight should have been given to the reasons for the delay. In addition, the dismissal of charges against the third young person led to an irreconcilable result. Finally, the significance of the delay to these young persons was not properly weighed in accordance with the overriding youth justice principles.
[43] More holistically, Ms Gray submits that the Judge’s refusal to abort the trial and to dismiss under the Act results in a miscarriage of justice pursuant to s 232(2)(c) of the Criminal Procedure Act 2011.
Evidence in support of appeal
[44]Both Mr M and Mr N-B made affidavits in support of their appeal.
14 There is no right of appeal from dismissal of an application under s 322 of the Oranga Tamariki Act 1989.
[45] Mr M referred to the long pause in the trial due to COVID-19. He deposed that he struggled to understand what was happening in the trial from the first day, even before all the delay issues. He referred to the help given by the communications assistant which meant that he understood most of the evidence given but the discussions between the Judge and lawyers went over his head. He deposed to struggling to focus and the difficulty in keeping up. He said:15
Then the trial had to be put off because of COVID. When we started again, I had a very limited recollection of what had already happened. It had been almost a year. It felt like a distant memory. By then I had forgotten most of the details of [the complainant’s] evidence.
From there the trial seemed to finish quite quickly. I gave evidence. My lawyer had prepared a brief of evidence for me. Because of the interruption, by the time the trial started again I wasn’t interested in being there. I just wanted it to be over with.
[46] Mr N-B also deposed that he found the trial difficult to keep up with. He said that he remembered some of the earlier evidence, specifically the complainant’s evidence, and understood that he was offered the chance to hear it back again. However, by that point he, too, was “so done with the whole thing” that he just wanted it to be finished as quickly as possible.
[47] Mr N-B chose not to give evidence. He acknowledges in his affidavit that he does not know if his decision would have been different if there had not been any interruptions.
First decision under appeal – declining to abort the trial in response to late disclosure
[48] The first decision in the sequence was the Judge’s oral decision on 13 August 2021 not to abort the trial following the additional disclosure by Police after the complainant had finished giving her evidence and been cross-examined.16 The disclosure had been news to both defence and prosecuting counsel.
[49] The late disclosure in question is described as Facebook messaging between various of the witnesses including the complainant. Most relevantly, a message from
15 Affidavit of Mr M in support of appeal against conviction, dated 1 April 2024.
16 R v MM, & WN-B, above n 11.
the complainant in which she denied that Mr M had raped her. On the face of it, this appeared to contradict the allegations she made to Police.
[50] The defence argued that the late disclosure gravely impacted on how they prepared and presented the defence case through cross-examination. They protested that the ability to cross-examine the complainant again would not ameliorate the prejudice because the whole of the original cross-examination would have been structured differently had they been aware of the disclosed material at the outset.
[51] The prosecution resisted the assertion of prejudice. They analysed the messages and compared these to the complainant’s evidence already given. They submitted that this analysis showed consistency in that the complainant’s evidence was that she had not told others about the offending. Ms Walker maintained that no impact was lost by putting these matters to the complainant now. Had counsel been aware of the messages earlier, in line with her usual practice she would have tasked the officer in charge with asking the complainant for an explanation before she gave evidence-in-chief.
[52] The Judge’s oral decision delivered the same day as the application implicitly referred to the test for aborting Judge alone trials followed in R v Bublitz.17 He acknowledged that had this been a jury trial it probably would have been aborted. He reasoned that the messages were not inconsistent with the complainant’s evidence that she did not tell anyone about what happened other than one friend. Neither was the material inconsistent with the defence’s argument that sex did not occur. As the messages did not “go to that denial”, they did not alter the defence position.
[53] Turning to the question of prejudicial delay, the Judge observed that there was time to re-call witnesses and hear from the remaining witnesses. He said:18
[8] [The trial] has got to be fair and you have got to be given the rights under the law that your lawyers have repeated so accurately and well and I think it is in everyone’s best interests that this trial continues in a fair way, and
17 R v Bublitz [2017] NZHC 1059.
18 R v MM & WN-B, above n 11.
I think as a judge alone sitting in the case, I can take everything into account and come to a fair decision at the end. It is not ideal but I think I can do it.
[54]He distilled and determined the key issue in the following paragraph:
[15] It is not complex and the facts at issue are relatively straightforward. I do not think there is any effect on unfairness, having in an already naturally confused trial the different views made more complex by having to go through certain witnesses’ new evidence, no effect by having to do that. I do not think there is any risk of me being confused by what is likely to happen in the re- call with this evidence being put to them.
[55] Before this Court, Ms Gray reiterates the submissions made in the Youth Court as to prejudice. She emphasises the foundational principle that the defence must have all relevant disclosure before trial for good reason. She submits that the Judge did not place enough weight on the impact of late disclosure on cross-examination and placed no weight on whether counsel’s preparation and presentation of the case would or could have been different had the disclosure been made appropriately. She submits that it was artificial to say that the defence case had not begun since the cross-examination presaged the defence case.
Determination of first appeal ground
[56] I find no error in the Judge’s approach. The additional time afforded the defence to address the evidence and availability of the witnesses to be recalled (including the complainant) was sufficient to address any prejudice otherwise arising. The complainant was cross-examined again for approximately one hour and 40 minutes. Other witnesses were made available for further cross-examination at the request of the defence. In short, the potential for unfairness was sufficiently remedied.
[57] I respectfully adopt the reasoning of Woolford J in R v Bublitz that the fact that counsel could have structured their cross-examination differently had the disclosure been made earlier is not enough to show a material impact on the fairness of the trial.19 I agree with the Judge that those messages would not have had a great impact on priority and narrative, particularly in a Judge alone trial.20
19 R v Bublitz, above n 17 at [48].
20 R v MM & WN-B, above n 11 at [14].
[58]I therefore reject the first ground of appeal.
Second decision under appeal – declining to abort the trial for delay
[59] At the time of the second application to abort the trial, it was tentatively scheduled to resume on 28 March 2022. The Judge recorded that defence counsel had indicated that the young persons would likely give evidence.
[60] Defence counsel argued that the constant adjournments and delays caused by COVID-19 lock-downs adversely impacted the appellants’ ability to meaningfully participate in the trial. They said that the period of delay made it impossible to restore the young people to the position they would have been in to effectively respond to the Crown case. Further, their memory of the Crown evidence would be severely diminished over the six-month period.
[61] Defence counsel also indicated that they had struggled to speak with the appellants over the intervening lock-down periods, noting that two of the three young persons required communication assistants. This included Mr M but not Mr N-B.
[62] The Judge recorded that at a teleconference on 25 January 2022, both the Crown and defence indicated they wished to abort the trial and “start again” but for different reasons. As noted above, the concern of the defence youth advocates was their struggle to get the young people to participate meaningfully in the trial. The Crown’s concern appeared to be that the Judge may place undue emphasis on the defence evidence as it would be fresher in his mind. The Judge then noted that the Crown position had shifted after the teleconference and now took the view that if the Judge was confident that he could still properly discharge his role as factfinder then the trial may continue.
[63] The Judge observed that all or some of the appellants were not currently vaccinated against COVID-19 and did not wish to be tested if the case recommenced.
[64] The Judge’s analysis began by noting the power to abort a jury trial found both in s 22 of the Juries Act 1981 and the inherent power of the Court to control and
regulate its own processes. He acknowledged the test set out in R v Marshall.21 He then made reference to R v Bublitz, noting that the absence of any comparative legislative provision governing the process of aborting a Judge alone trial leaves the option of relying on the inherent power of the Court.22
[65]The Judge went on to say:23
[16] The threshold for aborting a trial is high, and it has been described as an option of ‘last resort’. The focus must be on the impact of the conduct at issue on the trial. In R v Sullivan, Heath J made the point that “It would be rare to abort a trial conducted without a jury given the greater degree of flexibility inherent in such a trial.” Nevertheless, the test is into so high as that for a stay. Though it requires some of the same considerations as an application for a stay, it governs a lesser remedy. (References omitted).
[66] The Judge accepted that relevant considerations must include the youth justice principles set out in the Act and s 25 of NZBORA.
[67]The Judge observed that no party was at fault for the delay and that:24
[30] If the primary concern regarding the fairness of the trial is the overall delay and its impact on the young people, then continuing the trial should be the preferred outcome. Aborting the trial will only create further delays due to scheduling issues associated with the current COVID-19 related backlog in cases and personnel issues.
[68] He indicated that he could allow the young people to re-hear the evidence of some of the Crown witnesses and to hear the recording of the complainant’s evidence again. He emphasised his confidence that he could execute his role in an impartial way given the extensive notes he had taken and his ability to re-read the notes of evidence.
[69] He then dealt with the ability of the young persons to effectively participate in their trials against the backdrop of the Ministry of Justice’s COVID-19 response framework, observing that the physical presence of the young people at court can be facilitated notwithstanding their lack of vaccine passes and refusal to submit to testing.
21 R v Marshall [2004] 1 NZLR 793 (CA) at [15].
22 R v Bublitz, above n 17 at [39].
23 New Zealand Police v MM, IP & WN, above n 12.
24 New Zealand Police v MM, IP & WN, above n 12.
[70]Finally, the Judge noted:
[35] As a final point in terms of the public interest, I consider that it is a very real likelihood that the young complainant in the case will have to testify in another lengthy trial if this one was to be aborted. For a young complainant to have to give evidence in court repeatedly, in a case of serious sexual offending, would be significantly traumatic regardless of the time that has passed. Avoiding the unnecessary repeated cross examination of the young complainant is a priority of the court.
[71] Declining to abort the trial and re-start, the Judge invited the parties to indicate whether they wished to recall a witness and, if so, to what extent.
[72] Ms Gray submits that the Judge erred in concluding that a fair trial was still possible. She refers to the observations of the Court of Appeal in Nonu v R in respect of issues of fitness, drawing an analogy between participants who only superficially appear to participate for reasons of fitness and young persons who are not effective participants for reasons of interruption and ongoing delays.25 She says that re-hearing some of the evidence and the recording of the complainant’s evidence was insufficient. All the evidence would need to be reheard otherwise the prosecution case would be disjointed and out of context. She maintains that whilst the interests of the complainant were an important factor, this should have been trumped by the young persons’ right to a fair trial and therefore the Judge erred in finding the former was the priority of the Court.
Determination of second appeal ground
[73] The exercise faced by the Judge was forward-looking. I find that the Judge was correct to find that the opportunity for a fair trial was not irretrievably lost by the delays to that point. As Ms Walker points out, there was no cogent evidence before him that the appellants had withdrawn from the proceedings in such a manner that they could not meaningfully participate at their own trial because of delay. It was understandable that the Judge considered that continuing the trial was in the overall interests of justice. Moreover, re-starting the trial later would not have remedied the appellants’ purported withdrawal from the proceedings. The measures that the Judge was prepared to take for the appellants to re-hear evidence would have ameliorated
25 Nonu v R [2017] NZCA 170 at [26] and [29].
the impact of delay. Finally, the interests of the complainant were described as “a priority” and not “the priority”.26 I do not read the decision as stating that the complainant’s interests trumped the fair trial rights of the appellants.
[74] In short, I find no identified error nor any unfairness for the appellants meeting the threshold to justify aborting the trial at that stage. I dismiss the second ground of appeal.
Third decision under appeal – did the Judge err when he declined the application for dismissal of charges under s 322 of Oranga Tamariki Act 1989?
[75] The appellants, along with the third young person charged, applied to dismiss the charges under s 322 of the Act. This section reads:
322 Time for instituting proceedings
A Youth Court Judge may dismiss any charge charging a young person with the commission of an offence if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.
[76] The Judge found there had been an unnecessary and undue protraction of the case given the 32 months which had elapsed between the time of the alleged offending and the hearing of the application. He found that the delay was caused by the combination of: 27
(a)Judicial resourcing problems of the Court;
(b)COVID-19 measures taken by Parliament to protect the public; and
(c)Police failures in disclosing relevant material until the trial was underway.
[77] He had regard to the rights in s 25(b) and (i) of the New Zealand Bill of Rights Act 1990 (NZBORA) and the principle that decisions in the Youth Court should be
26 New Zealand Police v MM, IP & WN, above n 12 at [35].
27 R v MM, WN-B & IP, above n 13 at [28] and [30]–[31].
made and implemented promptly, and in a timeframe appropriate to the age and development of the charged young people.28
[78] No issue has been taken with the Judge’s evaluation of the first step of the enquiry under s 322 of the Act.
[79] Noting that the assessment was “finely balanced” the Judge ultimately decided to dismiss the charges against the third young person but not in respect of the appellants. His reasoning is encapsulated in the following paragraphs:29
[40] I find that there has been undue and unnecessary delay from the laying of the charges. The principal undue delay is due to resourcing problems and the inevitable intervention of COVID-19 restrictions, but there has been some further unnecessary delay caused by late disclosure. I note that there may not have been bad faith on the part of the police, or the Crown, in the failures of disclosure, but no bad faith is required to find fault in the process.
[41] I find that the young people have been prejudiced by the delay. The young people are either aged over 18, or are very close to that age, and have very limited time remaining for them to have the benefit of youth court sentencing principles. Given that the allegations are serious and that a substantial sentence would be likely if the charges were proved, that sentence would be materially affected by the cut-off date for the Act sentencing principles at age 19.
[42] I have regard to the seriousness of the charge, and both the strong public interest in holding the young people to account and the interests of the complainant. This is the strongest factor weighing in favour of continuing the charges.
[43] The matter is finely balanced, but I ultimately find that the factors weighing towards continuing with the charges against MM and WNB do outweigh those in favour of dismissing them. Due to the lower seriousness of the charges against IP, and the fact he has not again come to the attention of courts or the police, I find that the factors weighing towards dismissing the charges against him outweigh those in favour of continuing.
[80] This second part of the assessment under s 322 – the exercise of discretion – is the focus of the appellants’ challenge.
[81] Ms Gray refers to the youth justice principles which are relevant on an application under s 322. These were summarised by the Supreme Court in
28 At [32].
29 R v MM, WN-B & IP, above n 13.
H (SC97/2018) v R.30 She submits that the Judge’s assessment should have given more weight to the reasons behind the delay, in particular the “tardy” disclosure. She says that but for this factor, there would have been no need to re-call witnesses and the trial would have concluded before interruption by COVID-19 measures. She suggests that this ought to have been the decisive factor favouring dismissal of the charges.
[82] Ms Gray also takes issue with the dismissal of charges against the third young person (the co-accused), which she describes as irreconcilable on a parity basis. She says the Judge erred in considering new charges faced by the appellants which were entirely different in nature and therefore of limited relevance to the assessment.
[83] In sum, Ms Gray contends that there were factors which, if properly considered, told in favour of dismissal of the charges. These included the loss of Youth Court sentencing outcomes, reduced ability to promote a sense of accountability, the period of delay and the vulnerability of Mr M given his cognitive and communication deficiencies.
Preliminary – a contested approach
[84] While there is little between the parties in terms of the principles engaged under s 322, they disagree on the approach to this aspect of the appeal.31 Ms Gray submits that whether the Judge’s exercise of his discretion was an error should be assessed only in light of information before the Court at the point that decision was made. She says that subsequent events, including what took place at the trial itself, are not relevant when the question is whether the discretion should have been exercised in favour of dismissing the charge.
[85] Ms Walker submits that this appeal is advanced under s 232 of the Criminal Procedure Act 2011. Thus, the question for this Court is whether there has been any “error, irregularity, or occurrence in relation to or affecting the trial” that:32
(a)has created a real risk that the outcome of the trial was affected; or
30 H (SC97/2018) v R [2019] NZSC 69, [2019] 1 NZLR 675.
31 This issue arose at the hearing. I requested further written submissions directed to this issue.
32 Criminal Procedure Act 2011, s 232(4).
(b)has resulted in an unfair trial or a trial that was a nullity.
[86] It follows that the breadth of relevant matters is potentially greater than if the assessment is more narrowly focused on whether the Youth Court Judge erred in the exercise of his discretion at the point of time at which it was exercised. Ms Walker draws an analogy with appeals against conviction which take place against the backdrop of previously declined stays. For instance, in CT (SC88/2013) v R the Court observed:33
[5] The results of the stay applications can be regarded as subsumed in the verdicts of guilty, and… the ultimate question for this Court is whether there was a miscarriage of justice. That said, we consider it will be helpful for trial judges if we confront directly the correctness of the stay decisions.
[87] There is no right of appeal in respect of dismissal of an application to bring proceedings to an end under s 322. Any challenge is limited to judicial review to determine whether something has gone wrong in the processing of information that resulted in the decision; whether it be a finding that the decision maker has misapplied the law; failed to have regard to something that should have been taken into account; misunderstood or overlooked relevant facts, failed to apply a policy or convention or failed to act in accordance with something that was said or promised to a claimant such that, short of pure irrationality, the decision could generally be described as being unfair and deserving a remedy.34
[88] The question on an application for a stay of proceedings for delay is a forward-looking exercise in which the Court assesses whether a defendant could receive a fair trial. A miscarriage of justice analysis asks whether the trial, as it ultimately turned out, was fair. In that sense it is a backward-looking exercise. The difficulty with this analogy is that the exercise of discretion under s 322 of the Act is not confined to the question of whether the young person could have a fair trial. The detailed provisions of the Act overlay fair trial considerations under s 25 of NZBORA. Delay for a young person can also cause prejudice that may not be present with similar or even greater delays involving adult defendants.35
33 CT (SC88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465.
34 Green v District Court of New Zealand [2021] NZHC 2756 at [60]; Jessica Gorman and others
McGechan on Procedure (online ed, Thomson Reuters) at [JR Intro.06(6)].
35 S v Youth Court at Manukau [2022] NZCA 63 at [61].
[89] I propose to approach this part of the appeal as Ms Gray contends. That is, having regard to only the information before the Court at the point at which the decision was made and focusing on whether the Judge was correct in his refusal to dismiss the charges. This contrasts with the more holistic approach required within the rubric of a miscarriage of justice analysis in respect of the earlier decisions not to abort the trial. For completeness, I intend to then stand back and assess whether the trial overall was unfair because of the delays experienced.
[90] The information before the Court at the relevant time included the evidence given at the initial part-heard trial. That is, the evidence of the complainant both in chief and under cross-examination.
Determination of third ground of appeal
[91] Section 208(1) of the Act states that, when exercising the powers in the Act concerning the jurisdiction of the Youth Court, the Court or decision maker “must weigh the four primary considerations under s 4A(2)”. The four mandatory considerations set out in s 4A(2) are:36
(a)the well-being and best interests of the child or young person; and
(b)the public interest (which includes public safety); and
(c)the interests of any victim; and
(d)the accountability of the child or young person for their behaviour.
[92] None of these considerations have primacy but must be weighed together.37 These considerations partially overlap with the general purposes, principles and duties set out in s 4(1)(i) of the Act. Section 5 of the Act sets out the principles to be applied by “[a]ny court” or person when exercising powers under the Act. Those principles include that the well-being of a child or young person must be at the centre of decision
36 At [47].
37 R v DG [2021] NZHC 438 at [65].
making that affects them; that a child or young person’s place within their community should be recognised; and in particular, how a decision affects the stability of a child or young person, and the impact of disruption on this stability should be considered.
[93] As stated by the Court of Appeal in S v Youth Court at Manukau, when weighing the four primary considerations set out in s 4A(2) and the principles in s 5 of the Act, the Court should also have regard to the principles set out in s 208(2) of the Act.38 Those relevant principles read:
208 Principles
…
(2)When weighing those 4 primary considerations, the court or person must be guided by, in addition to the principles in section 5, the following principles:
(a)that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:
…
(e)that a child’s or young person’s age is a mitigating factor in determining—
(i)whether or not to impose sanctions in respect of offending by a child or young person; and
(ii)the nature of any such sanctions:
(f)that any sanctions imposed on a child or young person who commits an offence should—
(i)take the form most likely to maintain and promote the development of the child or young person within their family, whanau, hapu, and family group; and
(ii)take the least restrictive form that is appropriate in the circumstances:
(fa) that any measures for dealing with offending by a child or young person should so far as it is practicable to do so address the causes underlying the child’s or young person’s offending:
(g)that—
38 S v Youth Court at Manukau, above n 35 at [45].
(i)in the determination of measures for dealing with offending by children or young persons, consideration should be given to the interests and views of any victims of the offending (for example, by encouraging the victims to participate in the processes under this Part for dealing with offending); and
(ii)any measures should have proper regard for the interests of any victims of the offending and the impact of the offending on them:
[94] The Court of Appeal also clarified that the reference to “the hearing” in s 322 refers to the date that a charge is determined. Thus, the hearing occurs when charges are dismissed under s 322 or, if not dismissed, when the young person’s trial is conducted.39
[95] When the Judge dismissed the application under s 322 there was no fixed date for the resumption of the trial. He recorded that the Registry was exploring possible dates between June and October 2022. As noted, the trial resumed on 1 August 2022, concluded on 2 August 2022 and judgment finding the charges proven was delivered on 23 August 2022.
[96] Whilst the Judge had regard to the seriousness of the offending and concomitant high public interest in the investigation and prosecution, the nature of the (then alleged) offending was not determinative. Instead, it was one of many factors requiring consideration. The seriousness of the charges did have a related and important consequence, being the transfer of the sentencing decision to the District Court, which, as Ms Gray properly acknowledged, was always a likelihood. 40
[97] The dismissal of charges against the third young person does not bear on the question of error. Although he faced two charges, they were significantly less serious charges. This of itself tipped the balance in favour of dismissal. In addition, there was information available to suggest that the third person displayed greater rehabilitative potential – a factor recognised by the Supreme Court in H (SC97/2018) v R.41 I do not consider that the Judge erred by referencing other charges faced by Mr M and
39 At [53].
40 The proved charges were transferred to the District Court in February 2023 for sentencing.
41 H (SC 97/2018) v R, above n 30 at [33].
Mr N-B, or that doing so materially informed the exercise of discretion or infringed the principle of presumption of innocence.
[98] I am not persuaded by the argument that ‘but for’ the Police error in disclosure, delay would not have arisen in this case. The disclosure issue was not causative in the only sense that matters. It was not the sort of delay seen in the cited case of Police v JB.42 In that case two-thirds of the delay was attributable to Police failings in the investigation. In the present case, delay was the product of multiple causes including the election of trial by jury, then reversal of that election and the non-availability of previous youth advocates. That in no way amounts to criticism of the appellants, Mr M and Mr N-B, but illustrates the artificiality of solely blaming the delay on the disclosure issue. In my assessment, the most significant cause of delay was the unfortunate and unforeseen public health crisis wrought by COVID-19 and related issues. For instance, I note that the trial was unable to resume for a period due to the vaccination status of the young people.
[99] The Youth Court Judge did not fail to consider or give insufficient weight to the cognitive and communication difficulties of Mr M in his decision. On the contrary, he recognised the vulnerabilities of Mr M and the third young person, over and above that which accrues by virtue of their youth.43 He specifically endorsed the comment by another experienced Youth Court Judge that deficits in intellectual and communicative functioning exacerbate the already severe impact of delay on a young person.44
[100] Standing back to assess the balancing exercise undertaken by the Youth Court Judge, I am unable to discern any error of principle or approach. I agree with the way in which the Judge weighed the mandatory considerations in s 4A(2) of the Act. I also agree with the way in which he viewed the interests of the young complainant who had already given evidence twice, having been recalled after the disclosure issue arose. As stated by the Court of Appeal in S v Youth Court at Manukau “[t]he courts must
42 Police v JB [2023] NZYC 110.
43 R v MM, WN-B & IP above n 13 at [38].
44 At [38].
recognise the courage of complainants who inform authorities of allegations of serious sexual offending.”45
[101] Finally, I find no error in the assessment of the level of prejudice resulting from the delay. There is no basis for departing from the Judge’s assessment that this prejudice is outweighed by the factors supporting the continuation of the charges. In this regard the difference between the maturity level of a 16-year-old (age when the incidents took place) and 19-year-old (age at trial) is less important than the difference between offending at 13 or 14 years old and facing a trial in relation to that offending at age 18 years.46 Additionally, the defences advanced did not involve consent, whether actual or reasonable belief in consent. The Crown’s burden was to prove only that the sexual conduct complained of occurred. This too must be weighed in the balance. It was not a case where a young person was faced with asserting a reasonable belief in consent three years after the events in question.
[102] For completeness, notwithstanding the approach to this question set out in paragraph [89] above, I have also considered whether the recognised delays collectively caused a miscarriage of justice. In particular, whether the predicted disengagement of the young people because of delay eventuated and affected the outcome of the trial.
[103] Having reviewed the notes of evidence, I am not satisfied that the anticipated disengagement occurred. Mr M gave evidence at the resumed trial. Mr N-B did not, however he does not now say that he would have but for the delay.
Outcome
[104] I am satisfied that the trial did not miscarry because of a regrettably delayed process. Accordingly, I dismiss the appeals.
45 S v Youth Court at Manukau [2022], above n 35 at [93].
46 See for instance S v Youth Court at Manukau, above n35.
Name suppression
[105] I note that the appellants currently have interim name suppression. Section 438 of the Oranga Tamariki Act 1989 only prohibits reports of proceedings under that Act. On transfer or committal to the District or High Court that section ceases to apply.47 The suppression of the identity of a defendant in those cases falls to be determined by the application of the Criminal Procedure Act 2011.
[106] In K (A Young Person) v R,48 in the context of a sentence appeal, the High Court held that although s 438 only applied in the Youth Court and not on transfer or committal, suppression should nonetheless continue in the case of an appeal from the Youth Court. In that case the appellant was appealing a sentence imposed in the Youth Court and the appeal was allowed.
[107] I intend to adopt the approach of continuing suppression at this stage. I invite the Crown to advise the Court of its position in relation to permanent name suppression within 21 days of this judgment. Counsel for the appellants may respond within a further 14 days of receipt of the Crown memorandum. If necessary, I will convene a telephone conference between the parties to determine the next steps in relation to suppression issues.
............................................................
Walker J
47 R v M (CA689/11) [2011] NZCA 673, [2012] NZAR 137
48 K (A Young Person) v R [2012] NZHC 2950 at [40].
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