R v DH
[2017] NZHC 3223
•19 December 2017
NOTE: NO PUBLICATION OF A REPORT OF THIS PROCEEDING IS PERMITTED UNDER S 438 OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES 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.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI 2017-485-62 [2017] NZHC 3223
THE QUEEN
v
D H
Hearing: 12 December 2017 Counsel:
E M FitzHerbert for Crown
S M Cooper and L Oosterhoff for DefendantJudgment:
19 December 2017
JUDGMENT OF SIMON FRANCE J
[1] In the early morning of 5 February, DH was in Wellington Central with some friends. They got into a scuffle or fight with two young men. In the course of the scuffle DH used the short blade of a multi-tool she was carrying to stab one of the men in the shoulder. It caused a one centimetre cut or wound that did not require stitching.
The width of the cut is indicative of the blade size.
R v D H [2017] NZHC 3223 [19 December 2017]
[2] DH was arrested on the night for assault. A month after the incident she was charged with wounding with intent to cause grievous bodily harm.1 The level of charge is significant because DH had just turned 13 at the time of the incident. Because she is still a child (as opposed to a young person) a lesser level of charge would not engage the jurisdiction of the Youth Court.2 This charge does, however, and DH was arrested at school. The charge progressed in the Youth Court and it has now been found that DH committed the offence.3
[3] Both prior to the incident, and in the month following the incident until her arrest at school, DH was a source of concern for the police. She lives in a suburb some distance out of Wellington Central but she and some friends were constantly coming into town and being found there in the early hours of the morning. The police were regularly driving them home. DH and her friends were often involved in incidents. It is clear that even at this young age DH drinks, and concerns about her behaviour were undoubtedly valid. What was happening was not good for her and there were inevitable risks that something such as the present incident could happen.
[4] DH was the subject of a care and protection plan (which plainly was not working), but her situation had not formally ever been before the Family Court.
[5] DH appeals the finding that she committed the offence. Four issues arise. The first concerns the decision to arrest her one month after the incident. There are two jurisdictional routes by which a child may be brought before the Youth Court. The first is pursuant to s 245 of the Oranga Tamariki Act 1989 (the Act) which prescribes prior consultation with the youth justice co-ordinator, and the holding of a family group conference. Following those processes, if commencing proceedings is still considered to be in the public interest, a charging document may be laid. The second route is by arrest under s 214 of the Act. That route bypasses the need for consultation and family group conference. That was used here and the Youth Court held the power
was exercised validly. DH appeals that finding.
1 Crimes Act 1961, s 188(1). Maximum penalty is 14 years’ imprisonment.
2 Section 272(1)(b) of the Oranga Tamaraki Act 1989 requires an offence punishable by a maximum of at least 14 years’ imprisonment.
3 New Zealand Police v DH [2017] NZYC 733 [DH conviction decision].
[6] The second ground of appeal challenges the Youth Court conclusion that the intention to cause grievous bodily harm was proved beyond reasonable doubt. It is submitted that the court’s reasoning paid too little regard to the limited thought processes of a child of this age.
[7] The third ground of appeal concerns the defence of self-defence. The Youth Court accepted that DH was acting in defence of others. However, it was considered that the force used was unreasonable. This conclusion is challenged, again by reference to the limited capacities and options available to a 13 year old.
[8] The final ground of appeal concerns the extra requirement for a defendant of this age that they know that the act constituting the offence was wrong or contrary to law.4 It is submitted that insufficient evidence was led by the Crown to prove this element beyond reasonable doubt.
Preliminary matters
[9] Two preliminary points are raised by the Crown concerning jurisdiction. The first concerns the wording of the appeal provision under the Act, s 351, which provides:
351 Appeals from decisions of Youth Court by young person
(1) Every young person who has been found by the Youth Court to have committed an offence may appeal to the High Court against–
(a) the finding of the court:
(b) any order made by the court based on that finding:
(c) both the finding of the court and any order made based on that finding.
(1A) For the purposes of subsection (1), an order made by the court based on that finding includes, without limitation, an order varying, or made in substitution for, an earlier order made by the court based on that finding.
(2) A young person may not appeal against a finding of the court until the young person has been dealt with by the court under section 283.
4 Crimes Act 1961, s 22.
(3) Nothing in subsection (2) shall prevent a young person who has not been dealt with by the court under section 283 within 1 month after the date of the finding of the court from appealing against the finding of the court.
(4) In any case where a young person has not been dealt with by the court under section 283 within 1 month after the date of the finding of the court and has not appealed to the High Court under subsection (3), the young person may appeal to the High Court in accordance with subsection (1) after the court has made any order or imposed any sentence on the young person.
[10] The uncertainty stems from the use of “young person” to the apparent exclusion of “child”. Neither party suggests this is the intended position. There are many obvious reasons why it would be wrong for a child to have no appeal rights, and no apparent reason at all why the child would not have any. For the purposes of this appeal provision, young person must be taken to cover all persons who have been found by the Youth Court to have committed an offence. This is consistent with s 272(2A)(b) which provides that the Act applies to children as if they were young persons.
[11] The second preliminary point concerns the challenge to the finding that the arrest was valid. This was determined following a separate hearing held prior to the offence hearing. The proposition is that there is no appeal provision concerning pre-trial matters. The concern is misplaced. This is not itself a pre-trial appeal. There has been a finding against which a right of general appeal lies. If the pre-trial matter impacts upon the validity of the finding, it can be advanced as a ground of appeal. Here the matter determined pre-trial goes to the jurisdiction of the Youth Court to consider the charging document. This is fundamental and can be a basis on which the finding is challenged on appeal.
Validity of arrest
[12] Section 214 of the Act is the governing provision. It provides:
214 Arrest of child or young person without warrant
(1) Subject to section 214A and sections 233 and 244, where, under any enactment, any enforcement officer has a power of arrest without warrant, that officer shall not arrest a child or young person pursuant to that power unless that officer is satisfied, on reasonable grounds,—
(a) that it is necessary to arrest that child or young person without warrant for the purpose of—
(i) ensuring the appearance of the child or young person before the court; or
(ii) preventing that child or young person from committing further offences; or
(iii) preventing the loss or destruction of evidence relating to an offence committed by the child or young person or an offence that the enforcement officer has reasonable cause to suspect that child or young person of having committed, or preventing interference with any witness in respect of any such offence; and
(b) where the child or young person may be proceeded against by way of summons, that proceeding by way of summons would not achieve that purpose.
(2) Nothing in subsection (1) prevents a constable from arresting a child or young person without warrant on a charge of any offence where—
(a) the constable has reasonable cause to suspect that the child or young person has committed a category 4 offence or category
3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years; and
(b) the constable believes, on reasonable grounds, that the arrest of the child or young person is required in the public interest.
(3) Every enforcement officer who arrests a child or young person without warrant shall, within 3 days of making the arrest, furnish a written report—
(a) where that enforcement officer is a constable, to the
Commissioner of Police:
(b) where that enforcement officer is a traffic officer who is a Police employee who is not a constable, to the Commissioner of Police:
(c) where that enforcement officer is an officer or employee of the Public Service, to the chief executive of the department of which that person is an officer or employee:
(d) where that enforcement officer is an officer of a local authority, to the chief executive of that local authority.
(4) Every report furnished pursuant to subsection (3) in respect of the arrest of any child or young person shall state the reason why the child or young person was arrested without warrant.
[13] In the present case, the Youth Court was satisfied s 214(2) applied.5 It did not consider an alternative argument under s 214(1). The requirement under s 214(2) is that the officer has reasonable grounds to suspect the commission of an offence punishable (here) by 14 years’ imprisonment and has reasonable grounds to believe arrest is required in the public interest.
[14] In YP v Youth Court at Upper Hutt, Mallon J observed of the public interest limb:6
[57] An arrest under s 214(2) bypasses the steps that must be taken in s 245 before any information can be laid. Those steps include a requirement
that the informant believe that criminal proceedings against the young
person are “required in the public interest”. Where there is reasonable cause to suspect that a purely indictable offence has been committed, criminal proceedings will ordinarily be appropriate. When the arrest procedure is invoked the young person does not receive the potential benefit that may arise from consultation between the informant and a youth justice co-ordinator and consideration of the matter at a family group conference. The public interest in an arrest should therefore be such as to outweigh the objectives of those requirements in s 214.
[15] I respectfully agree, and also with the subsequent proposition that in considering the public interest regard must be had to the principles set out in ss 4, 5 and 208 of the Act.7
[16] In the present case, the Youth Court Judge wrongly held the s 208 principles to be irrelevant. The reasoning was that the core arrest power was found in the Crimes Act 1961, and so the Act’s principles did not apply. However, s 214 of the Act is a modification of the basic arrest without warrant power. It is a modification specifically addressed at the position of children and young persons, and it is a modification found in this Act. The purposes of this Act must inform any statutory test within the Act, and especially one which involves assessment of the public interest. Further, the High Court had previously held them to be relevant.8 The Youth Court erred in holding them to be irrelevant. The arresting officer had to have regard to them as part of her
decision to arrest.
5 New Zealand Police v DH YC Wellington CRI-2017-285-0008, 5 September 2017 [DH arrest decision].
6 YP v Youth Court of Upper Hutt HC Wellington CIV-2006-485-1905, 30 January 2007.
7 At [61].
8 YP, above n 3, at [61].
[17] The Youth Court also observed that if they were relevant, they would add nothing to the s 214(2) test of public interest.9 This is presumably a reference to the fact that principle (a) in s 208 says proceedings should only be instituted against a child if it is the public interest to do so. It is clear this overlap exists, but it is important to emphasise that the power is s 214 is to be exercised in accordance with all the Act’s purposes and principles. It is a decision under the Oranga Tamariki Act and that is an important context for decision makers to be aware of.
[18] This error means the Youth Court’s assessment must be considered afresh.
[19] The arresting officer10 here said the primary reason she considered it necessary in the public interest was because bail conditions could then be imposed which would prevent DH continuing to go into town at night. It was observed by the officer that she had been proved right as there were no records of DH coming into town at night since.
[20] I do not consider the correct decision was made here, but the issue on appeal is whether the officer’s belief that arrest was necessary in the public interest was based on reasonable grounds. This turns on whether the immediate imposition of bail conditions was sufficiently pressing to outweigh the objectives underlying the alternative procedure in s 245 of the Act. And further, sufficiently pressing to outweigh the recognised desirability of deferring the involvement of a young person, let alone a child, in formal court processes. The effect of side-stepping s 245 is to make that involvement inevitable without giving these other steps under s 245 a chance.
[21] Here the assessment of the officer also had to have regard to the fact that a month had elapsed since the incident. It was not as if DH’s identity had just become known, she was arrested for assault on the night. In reaching my assessment of
whether there were reasonable grounds:
9 DH arrest decision, above n 5, at [14].
10 I note the arresting officer did not herself complete the report required by s 214(3). The same thing occurred in YP, above n 3. It is a statutory obligation that should be complied with. In this case one then had the unacceptable situation of the arresting officer responding to a question about
the contents of the report by observing they were not her words.
(a) I have regard to the evidence of one further recorded instance of presence in town since the incident in question. It involved no offending but police needed to take DH home;
(b)I have regard to the officer’s evidence that she knew there were more instances of DH being in town at night during that period following the incident, albeit there is no record of these happening;
(c) I recognise that DH’s alleged offending could be seen as an inevitable outcome of her prior pattern of behaviour, so evidence that she was still going into town at night with friends could well point to a risk of her getting into another situation where bad decisions were made; and
(d)the officer says she spoke to the youth co-ordinator before arresting DH. This evidence would be irrelevant unless offered for the hearsay implication that the youth co-ordinator agreed with the decision. There was no direct evidence of this, nor was any record of the meeting or the fact of it occurring kept by the arresting officer. I would have taken a different view of this evidence if sitting at first instance, but do not consider on appeal it can be ruled inadmissible when no challenge was made. I therefore have regard to it.
[22] These factors satisfy me that the officer had reasonable grounds under s 214(2)(b) of the Act.
[23] The statutory test focuses on the officer’s belief being based on reasonable grounds. This allows scope for competing views on the wisdom of the decision without making it unlawful. I have noted I consider it was an incorrect decision, but that is not the appellate issue. I consider it was a wrong decision because greater weight should have been given to keeping a child out of the Court system, and to giving the Act’s alternative processes a chance. I am unconvinced that after a month had already elapsed it was imperative to sidestep the other route and am surprised the youth co-ordinator agreed. I also am influenced by my view that the incident was overcharged in order to meet the jurisdictional limit.
[24] The reality with these sorts of violent events is that there is a wide range of charges that can be laid. The Crimes Act provides a combination of different acts with different mental states. The present combination of wounding plus intention to cause grievous bodily harm is the most serious combination and the only one that meets the jurisdictional limit. It is a charge I have not previously seen attached to a single strike with a short blade of this type where the injury was to the shoulder and resulted in a one centimetre cut that required no stitches. That said, the use of a knife leaves open the charge that was laid.
[25] This ground of appeal fails. The Youth Court applied the wrong test when assessing the arresting officer’s actions, but by a narrow margin the correct assessment does not produce a different conclusion.
Conviction finding
[26] The second ground of appeal is whether intention to cause grievous bodily harm was established.
[27] DH testified. Her evidence was not wholly rejected by the Court because the Judge did accept her evidence that she was acting in the defence of another. As regards her intention when she stabbed the victim, DH said:
Q. Okay. Well, you’ve been – so you’re saying your friends were being pushed around, yes?
A. Yeah.
Q. And you said about helping them so what do you mean by that? A. Trying to stop it, trying to stop the guys from hurting my friends. Q. Mhm and how did you try and do that?
A. Um, with the, the knife. Q. Mhm.
A. Yeah. And I just, I was trying to help them but if I, like, hit him I know that he could easily overtake me so I decided to pull out my knife and, yeah.
Q. What were you trying to do?
A. Trying to save my mates from getting hurt.
Q. And did you think about any other way of doing it?
A. Yeah, well, I tried, like, hitting him but then I knew if he turned around he could’ve got a better shot at me so I didn’t wanna try that.
Q. Why didn’t you want to try that?
A. ‘Cos I know that he could overtake me, yeah. Q. And did you mean to hurt him?
A. Nope. I wasn’t thinking about it at the time. Q. What were you thinking?
A. I was just thinking that I had to save my mates from getting hurt even more.
Q. And what happened – so you’re thinking about that and so what happened?
A. And then – oh wait, what does that mean?
Q. So you were thinking about stopping him and so you said about the knife so what happened?
A. And then I hit him at the back. Q. Mhm.
A. And then it didn’t stop and I just stepped back and I just started watching and then we all started separating and I saw the guy running and, yeah.
Q. So you saw the guy running and –
A. I saw him injured at the back and I was shocked and I stood there and then I just ran, I started running like back and forward.
[28] In cross-examination DH was not specifically asked about nor challenged on this evidence that she did not intend to hurt the victim. On the question of intention, the Youth Court Judge found:11
[19] [D] was just 13 and in considering what she intended, I need to exercise considerable caution by reason of her age. Life experience, the ability to weigh up options and decide on a course of action, may not be features of a child’s thought processes. I also need to distinguish between the ability to form an intention and the ability to consider risk and consequences.
11 DH conviction decision, above n 1 (footnote omitted and emphasis added).
[20] It is well established that the underdeveloped brain of a 13-year old may not enable reasoning as to consequences and risk assessment. There may be overlap in some circumstances between forming an intention to cause a certain result, and understanding the likely consequences of a course of action.
[21] Inferring intention from the nature of an act may be legitimate reasoning in the case of an adult who would know, for example, that firing a shotgun at close range at a person would cause really serious harm. But such inferential reasoning may not be legitimate with a child.
[22] I consider that it is legitimate to rely on [D’s] stated purpose in using the knife as an indicator of her intention. She intended to use the knife to stop an attack on her friends. She intended to do more than she could with her bare hands and she intended to avoid the victim retaliating. This required stabbing to the extent that he would stop what he was doing. A stabbing of that nature would cause really serious harm. I am satisfied beyond reasonable doubt that when [D] stabbed the victim, she intended to cause grievous bodily harm.
[23] I do not consider that [D] being shocked by what she had done when she saw the amount of blood means that the action had gone further than she had intended at the moment of the stab. On seeing the amount of blood, she may well have reflected on the consequences for her and the victim.
[29] Paragraphs [19]–[21] quoted above represent a concise and accurate summary of the issues involved in assessing intention when dealing with young people or children. The normal process of drawing inferences is that considerable weight is given to the obvious consequences of an act. Because they are obvious, the starting point (not a presumption) is that an ordinary person recognises and intends those consequences because they are the ones obviously likely to happen. That starting point has considerably less legitimacy with a child who does not and cannot think like an adult.
[30] Although [22] of the ruling under appeal correctly begins with a focus not on inference but on what D actually said, I consider the latter part falls into the error of drawing an inference without sufficient regard to these limits. The desire to stop the victim hurting her friends, and the use of the short blade, is the basis of the inference that D intended to cause really serious harm in order to achieve this purpose. It is not expressly considered in the ruling that the 13 year old may not have thought at all about how her actions would achieve this, let alone that she wanted to cause really serious harm (as opposed to injury or even distraction) to achieve this.
[31] DH said she did not mean to hurt him, and she was not thinking about it at the time, she just wanted to use the knife to stop her mates getting hurt. With a sober adult one might view that with some scepticism, but the evidence has all the hallmarks of a child’s viewpoint on things.
[32] This is a general appeal. Recognition must always be given to the advantages a trial Judge has but here several points suggest less weight need be given to that:
(a) the Judge does not make a general credibility finding against DH; (b) the Judge does not expressly reject this aspect of her testimony; (c) the Judge accepts other parts of her testimony; and
(d)this aspect of her evidence was not subject to any direct challenge in cross-examination.
[33] Given these matters, the consistency of DH’s testimony with what is known about the way young people think and reason leads me to the view that the prosecution did not prove an intention to cause really serious harm. An inference of intention to injure may have been irresistible given it was a deliberate stabbing but an intention to cause really serious harm is not apparent from the injury caused, the weapon used or DH’s own evidence.
[34] For this reason, the appeal will be allowed. It is not necessary to consider the other challenges. I observe, however, that the self-defence matter is not straight-forward given that the Court accepted DH was acting in defence of another. In its analysis the Court misstated the test as regards assessing whether the force used
was reasonable.12 Accordingly, a fuller review on appeal would be necessary. I am
12 DH conviction decision, above n 1, at [19]. The Youth Court observes in the context of reasonableness of the force that DH had no basis to apprehend an urgent need to use a weapon. However, once it has been found that DH was acting in self-defence, reasonableness is to be assessed against the circumstances as she believed them to be regardless of whether that perception was reasonable. The fact that DH’s alleged apprehension was unreasonable would go to the genuineness of the belief but not to the reasonableness of force used to give effect to that belief.
advised DH is due to appear in the Youth Court today, and so it is preferable to release the judgment as a matter of priority.
Conclusion
[35] The appeal is allowed and the finding that DH committed the charged offence is quashed.
Simon France J
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