R v Brown
[2015] NZHC 1155
•27 May 2015
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.
THE NAMES OF THE PARTIES HAVE BEEN ANONYMISED. THIS JUDGMENT MAY BE CITED AND REPORTED UTILISING THESE NAMES.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-009-6904 [2015] NZHC 1155
THE QUEEN
v
BROWN
Hearing: 22 April 2015 Appearances:
K B Bell for the Crown
S J Shamy for the DefendantJudgment:
27 May 2015
JUDGMENT OF NATION J
Introduction and Background
[1] The defendant has applied, pursuant to s 322 of the Children, Young Persons, and Their Families Act 1989 (the CYPFA), for a dismissal of charges he faces on the basis that the time that has elapsed between the date of the commission of the alleged offences and the hearing has been unduly protracted.
[2] The defendant faces the following charges:
(a) two representative charges of doing an indecent act on a child;1
1 Crimes Act 1961, s 132(3).
R v BROWN [2015] NZHC 1155 [27 May 2015]
(b) three charges of sexual violation by unlawful sexual connection;2 and
(c) three charges of sexual connection with a child.3
[3] The complainant is the defendant’s cousin. The alleged conduct is alleged to have occurred when the defendant and his cousin were staying at their grandparents’ farm property.
Chronology
[4] The first sexual conduct is alleged to have occurred in December 2005 when the defendant was aged 12 and the complainant was aged 6 ½. Because the defendant could not be criminally liable for the alleged offending until he reached the age of 14, the initial conduct is not the subject of criminal charges.
[5] The defendant turned 14 on 16 November 2007. This is the start date of the representative charges of sexual connection with a child under 12 and sexual violation. At this time, the complainant was aged 8 ½. In early 2010, the alleged offending apparently ceased.
[6] In August/September 2013, in response to questions from his parents, the complainant told his parents he was sexually abused. The complainant was aged 14. The defendant was aged 19.
[7] On 24 October 2013, the complainant was evidentially interviewed by a specialist child interviewer. The file was assigned to a detective on 22 November
2013. On 5 December 2013, the detective obtained a statement from the complainant to clarify some points made in the initial interview. On 17 May 2014, the detective met with the complainant and his parents to discuss the Court process and confirm whether the complainant wanted the matter to proceed to Court. The complainant asked for some time to think about it, and indicated that he would like
to discuss it with his counsellor.
2 Sections 128(1)(b) and 128B. Two of these are representative charges.
3 Section 132(1). These are alternative charges to the s 128(1)(b) charges, above. Again, two are representative charges.
[8] In May 2014, the complainant’s parents took him to counselling. In June
2014, the complainant informed the detective that he wished to take the matter to
Court.
[9] The detective interviewed the defendant on 19 December 2013, and again on
25 July 2014. Following the latter interview, the defendant was arrested. On 28 July
2014, the charges were filed in the District Court at Christchurch. The defendant was aged 20.
[10] On 5 August 2014, the defendant pleaded not guilty and elected trial by jury. On this same date, the defendant was remanded to the District Court for a case review on 6 October 2014, which was rescheduled to 5 November 2014.
[11] The prosecution filed its evidence in support of the charges on 20 November
2014.
[12] On 1 December 2014, Whata J considered the protocol annex and judicial recommendations and directed that these protocol offences should remain in the High Court for trial.4 His Honour noted that “[the] combination of young offender and young victim raises additional and unusual public interest considerations. The Registrar will look to give this priority.”
[13] On 13 February 2015, at pre-trial conference, Mander J confirmed a trial date of 13 July 2015. His Honour also scheduled a pre-trial hearing for 22 April 2015 to deal with this application and certain applications regarding admissibility of evidence.
Jurisdiction
[14] Section 322 of the CYPFA provides for the dismissal of charges against a young person as follows:5
4 Pursuant to s 68(1) of the Criminal Procedure Act 2011.
5 Section 2 defines a young person as a “boy or girl of over the age of 14 years but under 17 years”.
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.
[15] Section 2(2) and (3) of the CYPFA provides:
(2) Where any proceedings are being considered or have been taken in respect of any offence allegedly committed by a person when that person was a child or young person, the age of that person at the date of the alleged offence shall be that person’s age for the purpose of –
(a) whether there is jurisdiction to take any proceedings in respect of that alleged offence, and, subject to paragraph (d), which court has jurisdiction in respect of proceedings that may be taken; and
(b) the proceedings taken, –
but nothing in this subsection shall –
…
(d) require any proceedings to be taken in a Youth Court if, at the time the charging document is filed, that person has attained the age of 18 years;
…
(3) Where any charging document is filed in a District Court pursuant to subsection (2)(d), section 322 shall apply, with all necessary modifications, to the proceedings.
(emphasis added)
[16] Section 2(3) was inserted in January 1995 by s 2(6) of the Children, Young Persons, and their Families Amendment Act 1994. In light of the procedural changes implemented by the Criminal Procedure Act 2011 (the CPA), s 2(6) was subsequently amended by s 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (the 2011 Amendment Act).
[17] Previously, the section had stated:
Where any information is filed in a District Court pursuant to subsection (2)(d), section 322 shall apply, with all necessary modifications, to the proceedings.
[18] Prior to the enactment of the CPA, charges were brought in the High Court or District Court after committal by way of indictment. Since the enactment of the CPA, charges are brought in the District Court by way of a charging document. This continues to be the form in which charges are brought in either Court as the proceedings go through to trial.
[19] In submissions for the Crown, Ms Bell advised me that the Court needs to consider whether it has jurisdiction to apply s 322 of the CYPFA in these proceedings. She submitted the Court does have such jurisdiction. Her submissions were summarised as follows:
10. It is submitted that this Court does have jurisdiction to consider a s322 discharge because:
a. The defendant was charged in the District Court;
b. The offending was alleged to have been committed when the defendant was a young person;
c. The charging document remains valid;
d. The section can be otherwise modified to confer power onto a High
Court Judge to give effect to the section.
[20] The issue for me is whether this Court is bound by the Court of Appeal judgment in R v M, which held that s 322 cannot apply once proceedings are before the High Court.6
[21] In R v M, the 14 years and 8 month old respondent was charged that in July
2009 he sexually violated the child complainant. The information was sworn in the Youth Court in October 2010. The respondent was committed to the High Court for trial, and the case was later transferred to the District Court. On 16 March 2011, an indictment was filed in the District Court. On 13 July 2011, the respondent filed an application for discharge under s 347 of the Crimes Act 1961.
[22] When it was heard, both the Crown and the defence agreed that s 322 should be applied. In reliance on Chisholm J’s judgment in CT v Attorney General, the Judge granted the application and discharged the respondent applying s 322.7
[23] Subsequently, the Court of Appeal expressly disapproved CT v Attorney- General and concluded that:8
6 R v M [2011] NZCA 673, [2012] NZAR 137.
7 CT v Attorney General [2011] NZLR 598. Judge O’Driscoll explicitly recorded his reservations about the correctness of this decision, but considered himself bound by it.
… the power under s 322 was not available to Judge O’Driscoll in the present case, because the respondent had been committed for trial in the District Court and the processes of that Court had engaged.
[24] In my view, R v M continues to be a binding authority for those situations where charges have been laid in the Youth Court because a defendant is under the age of 18. In those situations, an application may be made to a Youth Court Judge to dismiss the charges by reason of delay, pursuant to s 322. But, if the circumstances are such that the case will be heard by either the District Court or the High Court, s 322 will not be available. This would occur if, for example, the defendant elected trial by jury, or was charged with murder or manslaughter and the proceeding was
transferred to the High Court.9 That view accords with the Court of Appeal’s
conclusions in R v M.10
[25] The present situation is different from that dealt with in R v M. The current proceedings were commenced with charges being laid in the District Court, as they had to be, because the defendant was aged over 17 at the time the charges were laid. In these circumstances, a Court must give effect to s 2(3) of the CYPFA. Section 322 expressly empowers a Youth Court Judge to dismiss a charge on the basis that the time for instituting proceedings has been unnecessarily or unduly protracted. Pursuant to s 2(3), however, where charges have been laid in the District Court, s 322 is to be applied with all necessary modifications. Could such a modification permit a charge to be dismissed by a District Court Judge?
[26] Despite a concession made by counsel for the respondent in R v M, I note the
Court of Appeal’s comment that:11
… it seems to us to be highly unlikely that Parliament would have intended that, once a matter had been brought within the jurisdiction of the District Court, only a Youth Court Judge could exercise s 322 power.
[27] In Police v Turner, Judge Mahony applied s 322 in circumstances where a 23 year old defendant had faced charges in the District Court relating to burglaries
which he was alleged to have committed when he was 15 and 16. Judge Mahony’s
9 Children, Young Persons, and Their Families Act 1989, ss 272-277A.
10 R v M, above n 6, at [28], [29] and [31]-[32].
11 At [28].
decision was the subject of an appeal by way of a case stated to the High Court. Wild J dismissed the appeal. There was no issue either in the District Court or the High Court that Judge Mahony was entitled to apply s 322.12
[28] Judge Neave applied s 322 in this way in the District Court in Police v
Ponniah and Police v Watson.13
[29] I would have applied s 322 in the same way. With these charges having been laid against the defendant in the District Court, as they had to be, an application could have been made under s 322 for the dismissal of those charges. There is, however, an issue as to whether s 322 can now be applied after the prosecution has filed the evidence they intend to rely on for trial and the defendant has been remanded to the High Court for trial, initially through the remand to a pre-trial call- over conference date.
[30] Although the Court of Appeal judgment in R v M related to the situation where charges have been laid in the Youth Court, it has also been held to have authoritatively decided that s 322 could not be applied after a defendant has been committed for trial in either the District Court or the High Court.14
[31] In R v M the Court of Appeal did attach some significance to the fact that s 322 gave a Judge the power to dismiss an information as opposed to an indictment.15 The Court of Appeal said this was inconsistent with s 322 applying once a defendant had been committed for trial. With s 322 now referring to a charge and this being the form in which charges are to be put before the Court right through to trial, that distinction is no longer relevant in deciding whether s 322 can be applied at this stage.
[32] The Court of Appeal also justified the limited application of s 322 by stating that s 347 Crimes Act 1961, in conjunction with the inherent power of the Court to
12 Police v Turner [2006] DCR 599.
13 Police v Ponniah [2014] DCR 75; Police v Watson [2013] DCR 209.
14 R v Te Rito DC Tauranga CRI-2010-070-4244, 7 February 2012; R v Le Haase DC Christchurch CRI-2012-009-12358, 13 February 2015 at [13]; Police v Watson [2013] DCR 209; R v Tatana [2010] DCR 809 at [1]; R v N [2012] NZHC 2042 at [7].
stay proceedings to prevent an abuse of process, provided adequate remedies without the need for recourse to s 322.16 Further, in that context, the Court of Appeal noted that delay in instituting proceedings may impact more significantly on a young defendant than on an older one, and more readily produce prejudice.17
[33] That reasoning is still relevant because Parliament has continued to provide for the dismissal of charges through s 147 CPA. In that section, Parliament has expressly provided for the dismissal of charges (either on the Court’s own initiative or on the application of the prosecutor or defendant). This broad discretion may be exercised on the basis of any formal statements, oral evidence and any other
evidence and information provided by the parties.18
[34] Previously, the committal process involved a preliminary hearing, at which the evidence against the defendant would be produced to a judicial officer to determine whether there was sufficient evidence to commit the defendant to trial. This ensured that there was an opportunity at which the Court could have considered s 322 and decided whether to dismiss the charges.
[35] Under the CPA, there is no longer the same pre-trial opportunity for a Judge to address the evidence and consider s 322. At the case review hearing, the Court must deal with any matter identified in the case management memorandum.19 This includes, where appropriate, the fact that either party considers there is a matter that requires judicial intervention, 20 but it is only where there is to be a Judge alone trial that the memorandum must contain notice of any pre-trial application the prosecutor or defendant intends to make.21 In the case of a proceeding culminating in a jury trial, the Court may then adjourn the proceedings for trial callover.22 However, in
specified circumstances, a registrar must exercise this power of the Court.23 One of
the circumstances is that neither party has given notice of an intention to make a pre-
16 At [31].
17 At [63].
18 Criminal Procedure Act 2011, s 147(2)-(3).
19 Section 57(1).
20 Section 56(1)(e).
21 Section 57(2)(a).
22 Section 57(3)(b).
23 Section 57(4).
trial application or that there is a matter that requires judicial intervention.24 It is only once the proceedings have been adjourned for trial callover that the prosecutor must file in the trial Court the formal statements that form the evidence for the prosecution.25
[36] Ultimately, then, a defendant is effectively committed to trial through being remanded to a pre-trial callover. As happened in these proceedings, that step can be taken without any consideration of the matter by a judicial officer.
[37] It is at this callover the Court will have the evidence which the prosecution is relying on to support the charges. It is that evidence which a Judge would have to consider on a s 322 application. The CPA and the Criminal Procedure Rules also mandate that the Court be given notice, through trial callover memoranda, of any
pre-trial applications that either the prosecutor or defendant intends to make.26
[38] With the enactment of the CPA and the 2011 Amendment Act, Parliament addressed the extent to which relevant provisions of the CYPFA would apply through the amendment to s 2(3) and the reference there to any “charging document” as distinct from an information. Parliament thus intended that s 322 should be available for a Judge to consider. With the avoidance of a preliminary hearing and the abolition of the committal process, the appropriate time for a Judge to consider a s 322 application would be at or after the pre-trial callover. It would thus be inconsistent with the CPA and the amendment to s 2(3) of the CYPFA for Courts to proceed on the basis that s 322 would not apply once the prosecution had filed all its evidence and the defendant had been remanded to a pre-trial callover.
[39] Further, it would be inconsistent with the legislation for the Courts to assume that, in respect to a protocol offence, s 322 should not apply where a High Court Judge has decided that the trial should take place in the High Court. This decision can be made without a hearing.27 Given the way in which protocol offences are
categorised and the level of trial court determined, I do not consider that Parliament
24 Section 57(4)(v) and (vi).
25 Section 85.
26 Sections 88(1)(a) and 88(2)(c); Criminal Procedure Rules 2012, r 5.8.
27 Sections 67 and 68.
would have intended that s 322 could no longer apply where a Judge determined that charges should be dealt with in the High Court.
[40] Pursuant to s 2(3) CYPFA, in the circumstances of this case, where the charging documents were filed in the District Court pursuant to s 2(2)(d), s 322 is to apply “with all necessary modifications, to the proceedings”.
[41] In light of these legislative changes, I consider that a Judge may apply s 322 at the pre-trial callover stage and at any stage up to the commencement of the trial. Consequently, the defendant can make an application pursuant to s 322 at this stage of the proceedings.
[42] The Crown and the defendant have both addressed the merits of the
defendant’s application on the basis s 322 applies.
The principles governing a s 322 application
[43] I now deal with the principles to be applied on an application of s 322.
[44] The principles and matters to be considered on a s 322 application are apparent from the legislation itself, and have been addressed in the judgments of Wild J in Police v Turner and Winkelmann J in Attorney-General v Youth Court at Manukau.28 I adopt the principles as formulated by Winkelmann J:
(a) Section 322 creates a discretion to dismiss charges. The discretion is only triggered if there is undue or unnecessary protraction of the relevant period of time.29
(b)The relevant period is the time elapsed between the commission of the alleged offence and the hearing of the charge.30
(c) To exercise the discretion to dismiss a charge, the Court must be satisfied that the protraction of this period was unnecessary or undue.31
28 Police v Turner, above n 12; Attorney-General v Youth Court at Manukau [2007] NZFLR 103.
29 Attorney-General v Youth Court at Manukau, above n 28, at [48].
(d)The test for assessing whether a delay is undue involves consideration of the following factors:32
(i) the length of the delay; (ii) waiver of time periods;
(iii) the reasons for the delay; including inherent time requirements of the case; actions of the accused; actions of the Crown; limits on institutional resources; and other reasons for delays; and
(iv) prejudice to the accused.
(e) In assessing whether there has been undue delay, the Court should have particular regard to the mandatory s 5(f) principle that decisions affecting a child or young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child's or young person's sense of time.33 Such a timeframe may be a quite short period, generally measured in months rather than years. This is important if memory is an important issue, given research which indicates that memory loss occurs in a decelerating curve, and that deterioration of children’s memory is more profound than the deterioration of an adult’s memory.34
(f) Courts must have regard to the qualification of this principle, namely, that decisions should be made taking into account a child’s sense of time “wherever practicable”. In certain circumstances, the s 5(f) principle will not have a major impact on the decision to be made
because it is not practicable for it to influence the decision. This may
31 At [50].
32 At [52], citing Martin v Tauranga District Court [1995] 2 NZLR 419 (CA); and Police v Turner, above n 12, at [23].
33 At [53]. Any Court which exercises powers conferred under the CYPFA must be guided by the principles listed in s 5, but s 5(f) is of special significance in assessing undue delay.
34 Police v Turner, above n 12, at [55].
occur where, for example, it has not been possible to bring a charge promptly after the alleged offending.35
(g)Unnecessary delay means no more than delay that could reasonably have been avoided. As Winkelmann J noted:36
It will usually mean delay caused by default or neglect. The delay must be more than trivial. It is not appropriate to impose upon the Police or the Court system a standard of perfection so that every delay, no matter how minor, will trigger the exercise of the discretion. Further, a delay caused by resource limitations will not usually be unnecessary delay. Police will inevitably have to allocate priorities between different investigations. For example it is likely that more serious crimes, such as homicides, will be given priority over less serious crimes when allocating resources.
(h)If the Court is satisfied of undue or unnecessary delay, the Court then has a discretion as to whether to dismiss.37
(i)When exercising this discretion, the Court is entitled to take into account the objects of the Act which include the provisions of s 4(f). This section provides that one of the primary objects of the CYPFA is to assist in the rehabilitation of young offenders by ensuring that they are held accountable and accept responsibility for their offending. As
Winkelmann J noted:38
There is a public interest in seeing those who commit offences dealt with through the justice system in respect of that offending. The more serious the offending, the greater the public interest… When an information is dismissed the young person ceases to be subject to the provisions of the Act designed to achieve these ends including the Family Conference regime. Complainants are also deprived of the restorative justice opportunities created by the Act. If the young person is not held accountable for his or her offending behaviour, that is ultimately to the detriment of the young person and society.
35 At [19], [28]-[30], [56]. In Police v Turner, the charges could not have been brought earlier because the alleged offending only came to the notice of the Police some six years after the event as a result of developments in technology associated with fingerprinting and a subsequent DNA identification of blood left at the scene of a burglary.
36 Attorney-General v Youth Court at Manukau, above n 28, at [54].
37 At [56].
(j)The seriousness of the alleged offending will be a factor to be taken into account in the exercise of the discretion although just what weight will be attached to that factor will depend upon the particular circumstances of the case.39
(k)Further, in exercising its discretion, the Court must recognise that, in contrast to all other matters relating to the administration or application of the CYPFA, the welfare and interests of a young person charged with an offence are not to be the first and paramount consideration.40
[45] Whether considering an application under s 322 of the CYPFA or under s 147 of the CPA, the Court is required to exercise its discretion. The Court must consider the prejudice a defendant will face if the matter proceeds to trial.
[46] Although the existence of specific prejudice to the young person caused by the delay will certainly be a factor weighing in favour of dismissal, the existence of specific prejudice is not a precondition to the exercise of the discretion to dismiss.41
[47] The relevant prejudice can be specific where the defendant can point to some particular disadvantage occurring as a result of the delay in bringing charges, such as the unavailability of witnesses who might have been called or the loss or destruction of relevant and important documentary evidence. Where specific prejudice is alleged, there must be a “fact-specific” enquiry to determine whether the defendant has been prejudiced.
[48] General or “presumptive” prejudice occurs where the delay has, in the circumstances, seriously impaired the defendant’s ability to meet the charges brought, although no single identifiable disadvantage can be identified. Presumptive prejudice results:42
… inevitably from the delay and the consequential impairment of the memory of witnesses and accused as well as the stress and interference with the family and social life of the accused, and also the complainant.
39 At [59]; Police v Turner, above n 12, at [42].
40 Children, Young Persons, and Their Families Act 1989, s 6.
[49] In relation to prejudice, the Court of Appeal in R v M accepted that:
[62] … the pressure of facing a serious charge is significant and that any delay causing the prolonging of the time during which the respondent faces the prospect is, itself, prejudicial. ...
[63] But the respondent is not an adult. And s 25(i) requires a child-centred approach. For any person facing trial, the inevitable uncertainties, restrictions on liberty and an inability to plan for the future make an early trial preferable. That reflects the greater significance of time periods to young people and to adults, and the likely greater pressure on a young person facing a serious charge than would be felt by an adult in similar circumstances. A delay that may be unexceptional for an adult may have a significant impact on the life of a young person because of their different perception of time relative to their life as a whole.
[50] In HM Advocate v DP & SM, Lord Reed articulated the nature of presumptive prejudice in non-exhaustive terms which Winkelmann J cited with approval in Attorney-General v Youth Court at Manukau.43
[51] The loss of certain sentencing options which might have been available in the
Youth Court is to be regarded as a neutral factor in assessing prejudice because:44
… the loss of these options through unnecessary or undue delay will not prejudice a young person who will continue to be treated in a manner that is appropriate to his or her age at the relevant time.
The culpability of the young person is however a matter that will continue to be defined by reference to their age at the time of the offence. Irrespective of whether there has been delay in reaching the disposition stage, the ultimate sentence imposed will still take account of the young person’s relative maturity at the time they committed the offence (ss 8(a) and 9(2)(a) Sentencing Act 2002). In this way, there is no specific prejudice in relation to the nature of the sentence ultimately imposed.
The principles to be applied on a s 147 application
[52] For completeness, I will also deal with the principles to be applied on an application of s 147.
[53] Section 147 of the CPA confers a broad discretion on the Court to dismiss a charge. Without limiting this discretionary power, s 147(4) lists three particular
43 HM Advocate v P [2001] ScotHC 115, 2001 SLT 924 (HCJ) at [12], quoted in Attorney-General v Youth Court at Manukau, above n 28, at [56].
44 At [72]–[73].
contexts in which a Judge may dismiss a charge. None of these situations are applicable. Under s 147, the Court may still dismiss a charge where the continuation of the proceedings would be an abuse of process. Here, it is arguable that delay has occasioned procedural abuse, as this trial will deal with charges in relation to alleged offending when the defendant was a young person. There will be a period of over five years between the end of the alleged offending and the trial.
[54] Delay in the commencement of proceedings is not, in itself, sufficient to warrant the dismissal of a charge. It must be shown that the effect of the delay is that the prosecution is now oppressive because the defendant cannot have a fair trial.45
[55] The critical question is whether the circumstances are such that the defendant has been prejudiced in the preparation or conduct of his defence by the lapse of time. As noted above, delay may impact more significantly on a young defendant than on an older one and more readily produce prejudice.46
[56] There may be specific prejudice or general or presumptive prejudice in the manner already referred to.
[57] Although some of the above principles relate to specific provisions of the CYPFA, those principles may still be properly considered on a s 147 application. While s 5(f) CYPFA requires the Court “wherever practicable” to have regard to a child’s sense of time, on a s 147 application the age of the child must be considered.47 Section 25(i) of the New Zealand Bill of Rights Act 1990 provides that everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child's age.
[58] Further, while s 4(f) CYPFA refers to the purpose of that Act in assisting the rehabilitation of young offenders by ensuring accountability and responsibility for
their offending, Winkelmann J’s statements as to the public interest in this regard are
45 Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CPA147.10], referring to R v Accused [1991] 3 NZLR 405 (CA) at 407.
46 At [CPA147.10], referring to R v M, above n 6, at [63].
47 R v M, above n 6, at [43], quoted in R v N, above n 14, at [7].
relevant in the case of anyone charged with criminal offending.48 The public’s interest in ensuring that those found guilty of criminal offending are held accountable and take responsibility for their actions, and the desirability of achieving their rehabilitation, are all recognised in the provisions of the Sentencing Act.
The circumstances of this case
[59] Against those statements of principle, I deal with the particular circumstances of this case.
[60] The delay between the making of a complaint to the Police and the hearing of the charges at trial is some 21 months. The delay between the making of the complaint and the laying of charges was nine months. I do not consider there was either unnecessary or undue delay in respect of either period.
[61] Appended to the Crown submission on this application was an affidavit from the detective who interviewed both the defendant and complainant. She was attached to the Child Protection Team of the Criminal Investigation Branch. She outlined the course of the investigations and enquiries over the period from 23
October 2013 to the arrest of the defendant on 25 July 2014.
[62] Mr Shamy, for the defendant, did not suggest the Police had been dilatory in the way the case had been handled or investigated. He emphasised that the application was being made on the basis of undue delay between the alleged offending and the time the charges would go to trial. That period is some seven years and ten months from when the offending is alleged to have begun in December
2005 and five and a half years from when it ended.
[63] That period is significant for both the complainant and the defendant, being a considerable proportion of their lives. By the time of trial, the defendant will be aged 21. The complainant will have just turned 16.
[64] There is prejudice to the defendant in having to face a jury trial as an adult in relation to conduct which is alleged to have occurred when he was between 14 and
48 Attorney-General v Youth Court at Manukau, above n 28, at [60].
17 years of age, and as an adolescent, well short of maturity. That prejudice is exacerbated by the defendant’s apparently troubled family background. With CYFS involvement, it appears he had to be removed from his mother’s home because of problems associated with her drug abuse.
[65] I have also had regard to the stress which the complainant must be facing and will continue to face if these charges proceed to trial, and the ordeal that he will have to face in having his allegations firmly tested, as they will have to be in the context of a criminal trial. Moreover, I have considered the extent to which the complainant’s relationships with his extended family must have been damaged through the way his allegations have resulted in serious criminal charges being brought against his cousin.
[66] There is the additional risk that, even if the complainant’s allegations are true, the evidence may be insufficient to satisfy a jury that the charges have been proved beyond reasonable doubt. The ensuing acquittal would leave the complainant further damaged.
[67] Nevertheless, I must have regard to the fact that, at the age of 14 the complainant chose to go to the Police with his allegations. In doing so, he had the support of his parents, which he values. The complainant has said he feels less troubled through having told others about what he claims was done to him.
[68] The charges could not have been brought by the Police any earlier because the complainant did not disclose the offending until August/September 2013 when, in response to questioning by his parents, he told them he had been abused. It was accordingly “not practicable” for these charges to be brought any earlier. It is well recognised that, with sexual abuse offending, there can be good reasons why a complainant delays making or fails to make a complaint of such offending. Judges are entitled to recognise that through the advice they can give a jury, pursuant to s 127 of the Evidence Act 2006.
[69] The alleged offending is serious. If the offending occurred as the
complainant describes, the public, the complainant and the complainant’s family
have an interest in ensuring the defendant is held accountable for his actions. The community has an interest in ensuring that, if a young person has engaged in the sort of conduct and to the extent which is alleged in this case, he receives the counselling or other intervention that will ensure he does not reoffend.
[70] The overarching purpose of the CYPFA is to “promote the wellbeing of children, young persons and their families”.49 Accordingly, the Court should take into account the particular damage that might occur within this family if, as a result of the charges not proceeding to trial, the complainant is disbelieved by close relatives and is thus blamed for the stress that a number of people within his wider family would have undoubtedly suffered as a result of the defendant facing these
charges.
[71] In the particular circumstances of this case, the defendant is unlikely to be prejudiced in his defence. The offending is alleged to have occurred in situations where he was alone with the complainant. Whether other witnesses could remember specific times when they were alone together is unlikely to be of significant probative value to the Crown in proving the offending. There could have been completely innocent explanations for the times they were alone together.
[72] In an initial interview, the defendant was adamant that the alleged conduct did not occur and would not have occurred. In a second interview he was arguably more equivocal and on a number of occasions said he could not remember being involved in the alleged conduct. Proof of the charges is likely to depend crucially on a jury’s assessment of the complainant and the evidence he gives. Accordingly, if delay makes it more difficult for a young person to remember events such as those alleged, so as to raise doubts as to the reliability of his memory and his credibility, the delay may potentially be to the defendant’s advantage rather than disadvantage.
[73] With the support of expert evidence from psychiatrists and psychologists specialising in the area, judges, juries and appellate Courts have long recognised that complainants can give reliable evidence as to sexual abuse which occurred when
they were very young. This is the case even if such evidence is given many years
49 Children, Young Persons, and Their Families Act 1989, s 4.
after the event, and when there has been greater potential for intervening events or experiences to impact on the reliability of memory of the original events.
[74] Appellate Courts have also demonstrated confidence in a jury’s ability to assess the credibility of crucial witnesses and of complainants in cases such as this. It would thus be wrong for me to proceed on the basis that there would be unfair prejudice and a risk of an injustice simply because a jury will have to determine whether the particular charges have been proven primarily on their assessment of a complainant’s credibility. Such a situation is not unusual.
[75] I have also read a transcript of the evidential interview with the complainant. He made his initial allegation to his father in response to being asked whether he had been sexually abused. This occurred when the complainant was in a situation where he may have wanted to provide an excuse for his behaviour. Despite that, his evidence from this interview does not raise, on its face, issues of inherent improbability, physical impossibility, post-event reconstruction or memory recovery, which can be real issues in considering a complainant’s credibility in such cases.
[76] To the extent that Parliament has recognised there can be risks associated with delay, it has indicated the period which might elapse before particular caution has to be exercised is ten years.50 The greatest delay in this case is from when the conduct is alleged to have started (December 2005) to the hearing (July 2015), a period of nine years seven months.
[77] Some of the above considerations would be less significant if, upon being confronted with these allegations, the defendant had admitted them and had then, with the support of his family, participated in a treatment programme such as STOP. This would have ensured that the defendant took responsibility for what he had done, and received the help needed to significantly reduce his risk of recidivism. Such a response would have also reduced the risk of the complainant being blamed within the family for telling others, including the Police, of what had occurred. Those factors were significant to Judge Neave in the District Court when he applied s 322
to dismiss charges against a young man in R v Ponniah.51
50 Evidence Act 2006, s 122(2)(e).
51 R v Ponniah, above n 13, at [24]-[25].
[78] I have to exercise my discretion in a situation where a troubled young teenager has made allegations of serious sexual offending over a number of years and the defendant has denied the offending and is thus taking no responsibility for what is alleged.
[79] In the particular circumstances of this case and given the particular nature of the offending which is alleged, in my view, the delay between the alleged offending and the date of trial is not, of itself, sufficient reason to dismiss the charges. For that reason I do not consider, applying s 322, the charges should be dismissed or the defendant discharged. If s 322 had not been available, given the submissions received by both parties, I would have dealt with this as an application under s 147. However, I would also have refused an application under that section.
[80] I am also required to give a ruling as to admissibility of propensity evidence and the mode in which the complainant’s evidence will be given. I will deal with these issues separately.
Suppression and anonymisation
[81] I make an order suppressing the name and any information that may lead to the identification of the defendant, such order to continue until further order of the Court. I note also the comments of Priestley J in Brown v Argyll on the problems which result from unmemorable “clusters of initials”.52 To comply with the relevant legislation, and to concurrently ensure that the case is not reported under yet another set of meaningless initials, I have, in the intituling of this judgment, referred to the defendant under the fictitious name “Brown”. Accordingly, and as noted in the suppression banner, this judgment may be cited and reported as R v Brown.
Solicitors:
Bridgeside Chambers, Christchurch
Raymond Donnelly & Co, Christchurch
52 Brown v Argyll (2006) 25 FRNZ 383 (HC) at [3].
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