R v Hudson
[2007] NZCA 363
•27 August 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA431/06 [2007] NZCA 363
THE QUEEN
v
STEPHEN THOMAS HUDSON
Hearing: 18 June 2007
Court: O'Regan, Harrison and Heath JJ Counsel: R B Squire QC for Appellant
D R La Hood for Crown
Judgment: 27 August 2007 at 2.30 pm
JUDGMENT OF THE COURT
A The time for appealing is extended.
B The appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
R V STEPHEN THOMAS HUDSON CA CA431/06 27 August 2007
[1] This appeal against conviction following trial in the District Court requires us to resolve difficult issues of interpretation of the provisions in Part 4 of the Children, Young Persons, and Their Families Act 1989 (the Act). That part governs the procedure to be followed when a young person and an adult are jointly charged with a criminal offence. Unfortunately, the relevant provisions, ss 272 - 277 of the Act, do not deal clearly with this situation. The procedure leading to committal for trial which was followed in this case reflected the interpretation of these sections by a Youth Court Judge, Judge Bisphan, in Police v Manuel (1998) 16 CRNZ 62. A similar interpretation was adopted by Ronald Young J in his decision on an application made by the appellant for judicial review of his committal for trial: Hudson v Youth Court at Palmerston North [2007] NZFLR 331 (HC).
[2] Counsel for the appellant, Mr Squire QC, argued that both Judge Bisphan and Ronald Young J were incorrect in their interpretation of the relevant provisions, and that the process followed in the appellant’s case was flawed. He said the flaws were such that the District Court did not have jurisdiction to try the appellant. The appellant’s trial was therefore a nullity. He asked us to allow the appeal on that basis: s 385(1)(d) of the Crimes Act 1961, and to order a retrial in the Youth Court. He said that, if this course is followed, a Youth Court judge will then need to decide whether the case should be heard in the Youth Court or elsewhere: s 277(2) of the Act.
[3] The sole issue on appeal is this jurisdictional question: no issue is taken with the way in which the appellant’s trial was conducted or the sentence which was imposed on him. However, the appeal was filed more than three years out of time. It is therefore necessary for us to determine whether an extension of time to appeal should be granted.
[4] Mr Hudson had a right of appeal to this Court against his conviction. He did not exercise it after his trial. His appeal to this Court was received on 23 November
2006, more than three years out of time. His solicitor has filed an affidavit in this Court, explaining the delay. He says that the jurisdictional issues did not come to his attention until well after the appeal period had lapsed, and after undertaking research he instructed counsel who recommended an application for judicial review to the High Court. That application for review was heard by Ronald Young J in the High Court at Palmerston North, and his reserved judgment was issued on 16 October
2006. Mr Hudson was unsuccessful.
[5] Mr Hudson’s lawyers then determined that the appropriate means of bringing the matter before this Court was by way of an appeal against conviction. Given the unusual jurisdictional issues that the appeal raises, and the explanation provided by Mr Hudson’s lawyers for the delay, Crown counsel, Mr La Hood, did not object to our extending the time for appeal so that the matter could be considered on its merits. In the very unusual circumstances of this case, and in the light of the Crown’s concession, we extend the time for the filing of the appeal to 23 November 2006.
[6] The issues before us are essentially the same as those that were before Ronald Young J. So, although the case comes before us as an appeal against conviction, we have the benefit of Ronald Young J’s views on the very issues that we are required to determine.
Relevant provisions
[7] Because the analysis we are required to undertake to resolve the issue on appeal requires us to consider closely the relationships between the relevant sections, we set them out in full:
272 Jurisdiction of Youth Court
(1) Where any child who is of or over the age of 10 years is alleged to have committed an offence (other than murder or manslaughter)
proceedings shall not be commenced against the child under the
Summary Proceedings Act 1957.
(2) Where any child who is of or over the age of 10 years is charged with murder or manslaughter the preliminary hearing of the charge shall, subject to section 274 of this Act, take place before a Youth Court and the provisions of this Act (other than sections 275 and 276 of this Act) shall apply accordingly as if that child were a young person.
(3) Any young person charged with an offence other than— (a) Murder; or
(b) Manslaughter; or
(c) A traffic offence not punishable by imprisonment—
shall be brought before a Youth Court to be dealt with in accordance with the provisions of this Act irrespective of whether the offence is punishable on summary conviction or on indictment.
(4) Where a young person is charged with murder or manslaughter the preliminary hearing of the charge shall, subject to section 274 of this Act, take place before a Youth Court.
(5) Notwithstanding subsection (3)(c) of this section, where a young person is charged with a traffic offence not punishable by imprisonment, a Youth Court shall hear and determine the information for that offence if—
(a) The young person is charged with any other offence, being an offence in respect of which the young person is required to be brought before a Youth Court to be dealt with; and
(b) Both offences arise out of the same event or series of events;
and
(c) The Court considers—
(i) That it is desirable that the charges be heard together; or
(ii) That the charges can be conveniently heard together.
273Manner of dealing with summary offences and indictable offences (other than purely indictable offences)
Where a young person is charged with a summary offence or an indictable offence (other than a purely indictable offence), a Youth Court shall, subject to section 272 of this Act, hear and determine the information unless—
(a) The offence is punishable by imprisonment for a term exceeding 3 months and the young person elects trial by jury under section 66 of the Summary Proceedings Act 1957; or
(b) The Court discharges the information under section 282 of this Act
274Manner of dealing with purely indictable offences or where person elects jury trial
(1) This section applies where—
(a) A young person is charged with a purely indictable offence;
or
(b) A young person elects trial by jury under section 66 of the
Summary Proceedings Act 1957.
(2) Subject to sections 275 and 276, where this section applies,—
(a) the preliminary hearing shall take place in accordance with Part 5 of the Summary Proceedings Act 1957, except that the hearing shall take place in a Youth Court which for that purpose shall have all the powers of a District Court and which shall be presided over by a Youth Court Judge or, in the absence of a Youth Court Judge, by a District Court Judge or by 2 or more Justices or by 1 or more Community Magistrates; and
(b) sections 329 and 438, and not section 138 of the Criminal
Justice Act 1985, shall apply in respect of the proceedings.
275Young person may forego right to jury trial and elect to have proceedings determined by Youth Court
(1) Where section 274 of this Act applies and the offence is not murder or manslaughter, if, when all the evidence has been given, the Youth Court is of the opinion that the evidence adduced by the informant is sufficient to put the young person on trial for the offence, the Youth Court may give the young person an opportunity of foregoing the right to trial by jury and of electing to have the information heard and determined in a Youth Court by a Youth Court Judge.
(2) If the young person accepts the opportunity given under subsection (1) of this section and elects to have the information so heard and determined, the Youth Court shall have jurisdiction to hear and determine the information and otherwise deal with the young person in accordance with this Act.
276 Young person may plead guilty and elect to be dealt with by
Youth Court
(1) Where section 274 of this Act applies and the offence is not murder or manslaughter, if, before the evidence has been given or while the evidence is being given or after all the evidence has been given, the
young person indicates to the Court that the young person desires to plead guilty to the offence, the Court may give the young person an opportunity of foregoing the right to trial by jury and of electing to be dealt with in a Youth Court by a Youth Court Judge.
(2) If the young person accepts the opportunity given under subsection (1) of this section and elects to be so dealt with, the Youth Court shall have jurisdiction to deal with the young person in accordance with this Act.
277Provisions applicable where young person charged jointly with person who is not a young person
(1) In any case where an information is laid charging a young person with any offence jointly with any other person or persons, the provisions of subsections (2) to (5) of this section shall apply if one or more of the persons jointly charged is not a young person within the meaning of this Act.
(2) In any case to which subsection (1) of this section applies, the information shall be submitted for the consideration of a Youth Court Judge, and the Youth Court Judge shall direct that the proceedings be heard in the Youth Court or elsewhere as the Youth Court Judge thinks fit.
(3) Where any such proceedings are directed to be heard in a Youth Court, the Youth Court Judge exercising jurisdiction in a Youth Court may, at any stage of the proceedings, make an order for their removal out of the Youth Court, and on the making of such an order the proceedings shall be held as if a Youth Court had not been established.
(4) In any proceedings to which this section applies, the powers of any Youth Court Judge in respect of any accused person who is not a young person shall be limited to such powers as are exercisable by the Youth Court Judge as a District Court Judge elsewhere than in a Youth Court.
(5) Where any accused person, not being a young person, is convicted in a Youth Court,—
(a) Any sentence imposed or order made shall be one that could have been imposed or made if that accused person had been convicted following a summary hearing in a District Court; and
(b) That accused person shall for all purposes, including section
71(2) of the Summary Proceedings Act 1957, be deemed to
have been convicted in a District Court.
[8] It was common ground that the regime created by these provisions where one or more young persons are charged (but no adult is also charged) operates as follows:
(a) Where a young person is charged with murder or manslaughter, the preliminary hearing takes place in the Youth Court (s 272(4)) but otherwise the young person is tried and sentenced in the High Court under the provisions in Part 5 of the Summary Proceedings Act 1957, which apply by virtue of s 274(2)(a);
(b) Where a young person is charged with a purely indictable offence or an offence in respect of which the young person elects trial by jury, the preliminary hearing must take place in the Youth Court (s 274(2)). However, the young person may, at the discretion of the Youth Court, be given the opportunity to forego the right to trial by jury and to elect to be tried and sentenced in the Youth Court by a Youth Court judge (s 275(1)). Although provision is made for a District Court judge, Justices of the Peace or Community Magistrates to preside, it is desirable that a Youth Court Judge should preside at such a hearing;
(c) Where a young person is charged with a summary offence, or an indictable offence other than a purely indictable offence in respect of which the young person does not elect trial by jury, the charge is heard and determined in the Youth Court (s 273).
[9] However, where a young person and an adult are charged jointly, a complication emerges. It is this complication that we must resolve in this appeal. We start by setting out the process which was followed in the present case.
The process followed in this case
[10] Mr Hudson, who was aged 31 at the relevant time, was charged with wounding with intent to cause grievous bodily harm, which is a purely indictable offence. Subsequently the information was amended so that he was charged jointly with S, a 16 year old girl. As S was a young person as defined in s 2 of the Act, the charge was laid in the Youth Court. It was, as required by the Summary Proceedings Act, laid indictably. In July 2002, a date was given for the preliminary hearing in the Youth Court for September 2002. The information for S was notated “17/9/02 deps
Y.C.T”. This appeared to be a notation that the depositions would be in the Youth
Court. No similar notation appeared on the information relating to Mr Hudson.
[11] The preliminary hearing took place on 17 September 2002, with two Justices of the Peace presiding. Although the hearing took place in the District Court building at Palmerston North, the evidence before the Court is that the Justices of the Peace made it clear at the commencement of the hearing that they were sitting in the Youth Court. This is confirmed by the fact that the first page of the evidence itself refers to the Youth Court. At the end of the preliminary hearing the Justices of the Peace made a notation on the information for Mr Hudson to the effect that he had pleaded not guilty, a prima facie case had been established, he had been committed to the High Court on 31 October 2002 at 9.30 am and that he was remanded in custody. The notation on the information for S was to the effect that a prima facie case had been established and that she was remanded on bail to the Youth Court. A few days later another notation on the information relating to S, signed by a Youth Court Judge, says “Remand back to JPs for section 275 decision”.
[12] On 27 September 2002 the proceedings relating to S came back before the Justices of the Peace and, after considering submissions from counsel for S, they decided to offer her the opportunity to be tried in the Youth Court. She accepted the offer and was remanded for hearing in the Youth Court. Subsequently, a defended case was heard in the Youth Court and the information was dismissed.
[13] The trial for Mr Hudson took place before a Judge and jury in the District Court, having been middle banded to that Court from the High Court (pursuant to s 168AA of the Summary Proceeding Act). S gave evidence for the prosecution. Mr Hudson was found guilty; he was convicted and sentenced to imprisonment for six years.
Appellant’s arguments
[14] Mr Squire submitted that s 277 deals with all matters where a young person and an adult are charged jointly, other than murder or manslaughter, in respect of
which the specific provisions of s 272(2) take precedence over the general provisions of s 277.
[15] Mr Squire said that in all cases other than murder and manslaughter, s 277, being a specific provision dealing with the position where a young person and an adult are charged jointly, overrides the provisions which would otherwise apply if the young person had been charged alone or jointly with another young person. He said the application of s 277 is mandatory in all cases of joint charges against a young person and an adult, whether the offence is purely indictable, summary/indictable or summary.
[16] On this interpretation of s 277, the following regime applies where a young person and an adult are charged jointly with any offence other than murder or manslaughter:
(a) The information must be submitted to the Youth Court judge who must direct that the proceedings be heard in the Youth Court or elsewhere as he or she thinks fit: s 277(2). This direction applies both to the adult and the young person, so the result may be that the adult is dealt with in the Youth Court, and if convicted can be sentenced under s 277(5);
(b) If the Youth Court judge directs that the proceedings be heard in the Youth Court under s 277(2), the only way in which the proceedings can be removed from the Youth Court is by an order made by a Youth Court judge under s 277(3). That means that s 274 cannot apply where a young person and an adult are charged jointly, because s 274 requires that a preliminary hearing take place in the Youth Court, whereas s 277(2) makes it a matter of discretion as to whether the proceedings should be dealt with in the Youth Court or elsewhere. That also means that the rights of election provided for in ss 275 and
276 are not available to a young person where the young person is charged jointly with an adult, and a Youth Court judge has directed that the proceedings be heard in the Youth Court under s 277(2),
unless there is a subsequent order for removal under s 277(3). It also follows that, where a direction has been made under s 277(2) that the proceeding be heard in the Youth Court, only a Youth Court judge has jurisdiction to deal with the proceedings.
[17] Mr Squire said that the process which was followed in this case was flawed in a number of respects. In particular:
(a) As S was charged jointly with the appellant, it was not appropriate that the process outlined in s 274 was followed. Rather, there was a mandatory requirement that the matter be submitted for the consideration of a Youth Court judge under s 277(2), so that that judge could direct that the proceedings be heard either in the Youth Court or elsewhere. Although it is not entirely clear, it is at least arguable that there was a submission of the information to a Youth Court judge in this case, and that the judge directed that the proceedings be heard in the Youth Court;
(b) When the matter came before the Justices of the Peace on
17 September 2002, they dealt with the charges as if the hearing were a preliminary hearing under Part 5 of the Summary Proceedings Act, and at the conclusion of that preliminary hearing they found a prima facie case established against the appellant and S. They then committed the appellant to the High Court for trial and remanded S to the Youth Court, with the consequence that she subsequently was allowed to elect under s 275 to have the information heard and determined in the Youth Court;
(c) Neither of these courses was permitted because, once a Youth Court judge had made a direction under s 277(2) that the information against S be dealt with in the Youth Court, that meant that only a Youth Court judge had jurisdiction to hear the proceedings against both S and the appellant. The Justices of the Peace who convened the preliminary hearing therefore acted without jurisdiction;
(d) In addition, there was no basis on which the Justices (or even a Youth Court judge) could have treated the hearing as a preliminary hearing under the Summary Proceedings Act because Part 5 of the Summary Proceedings Act is not incorporated into s 277, and s 209 of the Summary Proceedings Act therefore prevents the application of Part 5 of the Summary Proceedings Act to the hearing of charges in the Youth Court as directed under s 277(2);
(e) There was no order for removal of proceedings from the Youth Court in this case. Such an order can only be made by a Youth Court judge so the decision by the Justices to commit the appellant for trial in the High Court cannot be treated as an order for removal under s 277(3);
(f) This means that the committal of the appellant for trial in the High Court was without jurisdiction and unlawful, and the High Court therefore had no jurisdiction. The subsequent middle banding of the case to the District Court must also therefore have been without jurisdiction, and the District Court could not have had jurisdiction to try the appellant;
(g) Permitting S to be given the option of foregoing her right to trial by jury and electing to have the charge heard and determined in the Youth Court under s 275 was also without jurisdiction. However, Mr Squire did not suggest that this was a matter which this Court needed to determine in the present appeal, and we do no more than note that that is the logical consequence of the application of s 277 in the present case if the interpretation of s 277 suggested by Mr Squire is correct.
[18] In summary, the argument for the appellant is that ss 274 and 277 create two different regimes that operate exclusively of one another:
(a) The s 274 regime applies where a young person is charged with a purely indictable offence or elects trial by jury under s 66 of the
Summary Proceedings Act. In such a case, the preliminary hearing takes place in the Youth Court (which has the powers of the District Court), the safeguards in ss 275 and 276 apply, as do the procedural provisions from Part 5 of the Summary Proceedings Act. It does not address the situation that arises when a young person is charged jointly with an adult;
(b) Where the young person is charged jointly with an adult, s 277 applies. As a result, the Summary Proceedings Act does not apply by virtue of s 209 of that Act which provides:
209 Act not to apply to Youth Court unless provided
Except as expressly provided in the Children, Young Persons, and Their Families Act 1989, nothing in this Act shall apply to proceedings in any Youth Court.
[19] The non-applicability of the Summary Proceedings Act is based in the fact that that Act is not mentioned in s 277. Further, the safeguards in ss 275 and 276 do not apply. Rather than it being mandatory for the preliminary hearing to be held in the Youth Court, it becomes a matter of discretion for the Youth Court Judge.
[20] In his decision on Mr Hudson’s application for judicial review, Ronald Young J said that this argument was to the effect that s 277 was a “mini-code”. Mr Squire said that did not accurately describe his argument. He did not suggest s 277 was a “mini-code”, but rather that it was a provision which, read literally, must be applied in all cases (other than murder or manslaughter) where a young person is charged jointly with an adult.
The Crown’s position
[21] Counsel for the Crown, Mr La Hood, argued that s 277 must be given a narrow interpretation, because the literal interpretation for which Mr Squire contends would lead to a number of difficulties. He placed particular emphasis on three issues.
[22] First, even on the appellant’s approach, s 277 cannot be applied literally because it conflicts with s 272. Section 277(2) provides that where a young person and an adult are charged jointly, the information is submitted for the consideration of a Youth Court Judge, who in his or her discretion directs the proceedings to be heard in the Youth Court or anywhere else. However, s 272(4) requires that where a young person is charged with murder or manslaughter, the preliminary hearing of the charge shall take place before the Youth Court. Section 272(4) gives the Judge no discretion to remove the proceedings. Mr Squire acknowledged that in this respect, ss 277 and 272 were inconsistent, and that, given the clear requirements of s 272 and the primacy accorded to s 272 by the wording of s 272(2), that section must apply in a case involving a young person who is charged jointly with an adult with murder or manslaughter.
[23] Second, if interpreted as the appellant suggests, s 277 would curtail procedural protections that the law offers to both young people and adults. In its terms, s 277 is not subject to ss 275 and 276, which create opportunities for young persons charged indictably to forego their rights to a jury trial and be dealt with summarily by the Youth Court, and for them to plead guilty and be dealt with by the Youth Court. Therefore, s 277 would obstruct the ability of young persons to avail themselves of the protections created by the Act if they are jointly charged with an adult. Likewise s 277 could remove the ability of adults to elect trial by jury if they are jointly charged with a young person: if a Youth Court judge under s 277(2) directs that the proceedings shall be heard in the Youth Court, an adult might lose his or her rights of rights of election under s 66 of the Summary Proceedings Act.
[24] Third, on the appellant’s interpretation, s 277 would create an incentive for adults to commit crimes in concert with young persons. Pursuant to s 277(5), an adult convicted in a Youth Court is subject only to penalties that the District Court can impose in its summary jurisdiction. Therefore, if an adult commits a crime with a young person and, pursuant to s 277(2), a Youth Court judge determines the proceedings shall be heard in the Youth Court, the adult would escape the indictable jurisdiction notwithstanding the seriousness of his or her offending (see, for example, the concerns of Judge McElrea in Police v W [1996] NZFLR 902 at 905 (DC)).
[25] Mr La Hood submitted that s 277 was essentially an administrative provision, which must be read together with the specific and detailed procedural requirements in ss 272 – 276. He argued that the latter sections must take precedence over s 277. In essence, the Crown contends for the interpretation of s 277 in Manuel, as reinforced by Ronald Young J in Hudson. We understand that the practice of the Youth Court since the decision in Manuel is consistent with the interpretation of s 277 in that case.
Legislative history
[26] Mr La Hood submitted that the legislative history of ss 272 – 277 makes it clear that s 277 should be made subject to the procedural protections in ss 272 – 276. The equivalent to s 277 was first enacted as s 20 of the Child Welfare Amendment Act 1927, although it lacked an equivalent to s 277(5). Section 20 was re-enacted in substantially identical terms as s 34 of the Children and Young Persons Act 1974, but with the addition of the equivalent to s 277(5), s 34(7). The 1974 legislation also introduced the equivalents to ss 272(4), 275 and 276. The equivalent of s 272(4) in the 1974 Act (namely, s 25(4)) specifically reversed the effect of s 22 of the 1927
Amendment Act, which had provided that no proceedings relating to a charge of murder or manslaughter could be heard in a Children’s Court.
[27] The upshot of this legislative history is this: the procedural protections in ss 274 — 276 were gradually added to the legislation over a period of 62 years, whereas the equivalent to s 277 has featured in the legislation throughout that time (except for s 277(5)). This provides some (limited) support for the proposition that Parliament intended that the procedural protections added to the statutory scheme dictating the Youth Court’s jurisdiction effectively act as limits upon the wide- ranging joint charging provisions in s 277.
The Manuel solution
[28] Prior to Manuel, ss 272 – 277 (and their predecessors in the 1974 Act) had been the subject of conflicting decisions in the High Court. In Nathan v Police HC
WHA A6/88 24 February 1988 at 4 – 5, Sinclair J considered that s 34(4) of the
1974 Act, which is equivalent to s 277(2) of the 1989 Act, meant a Youth Court judge could permit proceedings against adult offenders to be heard in the Youth Court. However in C v District Court at Dunedin (1993) 10 CRNZ 260 at 264
Holland J, obiter, raised the possibility that s 277 did not necessarily apply in the situation where a young person was charged indictably with an adult.
[29] In Manuel, Judge Bisphan held that once depositions are heard, the Youth Court has no power to direct that an adult can be tried in the Youth Court where he or she is charged jointly with a young person. The Judge reached this conclusion for the following reasons:
(a) One of the primary purposes of the Act is to ensure that young persons are dealt with by the Youth Court. The Act is not aimed at having adults dealt with in the same way;
(b) Section 277 deals with forum only. Depositions for adults charged with young persons are heard in the Youth Court as a matter of convenience;
(c) Trial by jury is an entrenched part of the criminal law. Parliament cannot have intended by implication to deny an adult accused his or her right to a trial by jury. Such an interpretation would run contrary to ss 6 and 24(e) of the New Zealand Bill of Rights Act 1990;
(d) There is no provision in s 277 to the effect that an adult might consent to waiving his or her right to trial by jury;
(e) The mandatory provisions in s 168A of the Summary Proceedings Act as to committal are specific provisions whereas s 277 is general in its application and concerned with forum in any event.
[30] Judge Bisphan thought that s 277 yielded to ss 273 and 274 (and therefore, to ss 275 and 276, insofar as s 274 is made subject to those provisions). He interpreted s 277 as applying in cases of
(a) Murder and manslaughter up to and including depositions; (b) Purely indictable offences up to and including depositions;
(c) Indictable offences where trial by jury is elected up to and including depositions;
(d) Indictable offences where summary jurisdiction is elected; (e) All other offences.
[31] This decision was followed by Judge McElrea in Police v Andrew [2000] DCR 607 (YC) (although Judge McElrea had decided Police v W, which Manuel declined to follow). However, Judge McElrea did appear to differ from Judge Bisphan in one respect. In Andrew, Judge McElrea at 610 interpreted Judge Bisphan’s categories at [30] above as suggesting that where a young person and an adult are charged jointly with a purely indictable offence, the Youth Court judge might give a direction that depositions are to be held somewhere other than the Youth Court. Judge McElrea disagreed with that suggestion, saying that s 275 could only be honoured if depositions in such cases are conducted in the Youth Court. With respect to Judge McElrea, we do not read Judge Bisphan as suggesting anything to the contrary in Manuel. In any event, we agree that depositions under s 274 must be held in the Youth Court.
Our approach
[32] We see the competing arguments essentially as a contest about the primacy of two provisions which are expressed in absolute terms but which cannot both be applied literally in the circumstances of this case. On the one hand s 274, on its face, governs cases where a young person is charged with a purely indictable offence, as S
was in this case, or where trial by jury has been elected. There is nothing in s 274 indicating that its requirements are inapplicable if an adult happens to be charged jointly with the young person. On the other hand, s 277, on its face, governs all cases where a young person is charged jointly with an adult. There is nothing in s 277 indicating that its provisions are inapplicable if the offence happens to be a purely indictable offence or trial by jury is elected.
[33] Given the compelling policy reasons highlighted by Judge Bisphan and Ronald Young J, we consider s 274 should be given primacy. This leads to essentially the same result as that outlined in Manuel, but is less intrusive on the wording of the statute than the liberal interpretation of s 277 evinced by Manuel.
[34] Under Manuel, the words “any case” in s 277(1) would need to be read as “any case in the summary jurisdiction or any case in the indictable jurisdiction up to the conclusion of depositions”. However, under the wider reading of s 274, no such convoluted reading would be required. Rather, s 274 would operate as the dominant provision, encompassing s 277 as an administrative provision dealing with the discrete situation of joint charges. In other words, s 274 says that it applies where a young person is charged with a purely indictable offence or elects a jury trial under s 66 of the Summary Proceedings Act. Given the protective mechanisms in the Act provided under ss 275 and 276, which operate only when the s 274 process is followed, we do not consider that the s 274 process can be bypassed where the young person is charged jointly with an adult.
[35] Once it is determined that s 274 must apply in relation to the young person the following question then arises: what process should be followed in relation to the adult? In our view it is implicit in s 274 that the customary process of a single depositions hearing for parties who are jointly charged should take place. As s 274 requires that hearing to be in the Youth Court for the young person, that necessarily means the adult must also be subject to that process. Section 277(5) clearly contemplates that an adult may be tried in the Youth Court if he or she is jointly charged with a young person and there is no reason in principle why a similar regime should not apply to preliminary hearings.
[36] There is no disadvantage to the adult in this: s 274 imports all of the requirements of Part 5 of the Summary Proceedings Act and the presiding judicial officer has the same powers as he or she would have if the depositions hearing were conducted under the Summary Proceedings Act. Only the venue is different.
[37] We conclude that s 274 governs the process to be followed for depositions hearings (for both the young person and the adult) where a young person and an adult are jointly charged with a purely indictable offence, or where they are jointly charged with an indictable offence and the young person has elected trial by jury. This conclusion reflects the absence of any provision indicating that there should be separate deposition hearings for the adult and the young person, the important protections for the young person in the s 274 process and the lack of any disadvantage to the adult from that process being adopted. It is also supported by analogy with s 277(5): if the Act contemplates that young persons and adults will be dealt with together in the hearing of summary charges, there is no reason why this should not also happen in preliminary hearings conducted in the Youth Court.
[38] Effectively our reading of s 274 requires the words “subject to s 274” to be read into s 277. The reference to s 274 makes s 274 the dominant provision and s 277 the servient one where a young person and an adult are jointly charged. This brings the relationship between s 277 and s 274 into line with that between s 277 and s 272: s 272(4) takes primacy over s 277, such that when a young person is charged with murder or manslaughter the preliminary hearing unquestionably takes place in the Youth Court, as Parliament expressly provided and as Mr Squire acknowledged. The primacy of s 272 over s 277 is clear from the wording of s 272(2).
[39] Judge Bisphan, in Manuel at 67, suggested that s 277(5) invited the conclusion that s 277 is not limited to summary proceedings. We do not agree. However, what s 277(5) makes clear is that a joint hearing of an adult and a young person can be held in the Youth Court on summary charges. Any finding of guilt on the part of the adult is treated as a conviction following a summary hearing in a District Court. The point that can be taken from s 277(5) is that an interpretation of s 277(1) which entitles the Youth Court to conduct a preliminary hearing involving
both young person and adult is entirely compatible with the procedure adopted in the summary jurisdiction.
[40] We also consider that s 277(4) supports our interpretation. That subsection confirms that, however the young person is dealt with, the Youth Court judge’s powers are exercisable only within the jurisdiction of the District Court in respect of the adult. The Youth Court judge would have no power to deal with the adult within the Youth Court framework. Our interpretation ensures that the same regime applies in relation to offences in respect of which a jury trial is required or elected.
Support from statutory scheme
[41] Judge Bisphan’s conclusion that s 277 is concerned only with forum finds support in the statutory scheme. Section 321 of the Act provides that the District Courts Act 1947 and the Summary Proceedings Act shall apply mutatis mutandis to proceedings in the Youth Court. Likewise, s 274(2) incorporates by reference the procedure in Part 5 of the Summary Proceedings Act and ensures that the Youth Court has the powers of the District Court (as does s 321). These incorporations of the summary procedure for adults charged alone complement the provisions in s 283 of the Act, which permit Youth Court judges to impose lighter penalties on young persons (or even not to impose penalties), as well as to impose a sentence that would be available in the District Court if the young person were an adult. That is subject to the rule that unless an offence is purely indictable, a young person may not be sentenced to imprisonment: R v Chand-Whakaue [2007] NZCA 216.
Departures from ordinary meaning in statutory interpretation
[42] It is clear from our approach above that we are adopting an interpretation that compensates for what we consider to be an oversight by the drafters of ss 272 – 277. This requires us to consider in what circumstances it is appropriate for a Court, in discharging its interpretative function, to add, omit or substitute statutory words.
[43] In Inco Europe Ltd v First Choice Distribution (a firm) [2000] 2 All ER 109 at 115 (HL) Lord Nicholls of Birkenhead considered that before doing so, the court had to be sure of three things:
(a) The intended purpose of the statute or provision in question;
(b) That by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and
(c) The substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.
These three criteria substantially echo those stated by Lord Diplock in Jones v
Wrotham Park Settled Estates Ltd [1980] AC 74 at 105 (HL).
[44] The question in the present case is whether words can be added to make it clear that s 277 is servient to s 274. Professor Burrows QC (in Statute Law in New Zealand (3ed 2003) at 210 – 216) highlights three concerns which are relevant to the present case.
[45] First, it is said that words cannot be read into a statute unless they give effect to implications arising from the express words of the statute.
[46] Second, it is said that far-reaching qualifications are permitted where the purpose of the Act requires it. The decision of the Full Court of this Court in R v Wall [1983] NZLR 238 is important. At issue was s 26 of the Misuse of Drugs Amendment Act 1978, which provides:
Where a private communication intercepted in pursuance of an interception warrant or an emergency permit discloses evidence relating to any offence other than a drug dealing offence, no evidence of that communication, or of its substance, meaning, or purport shall be given in any Court.
[47] Of the three counts in the indictment that the accused contested, one concerned an offence of procuring drugs rather than dealing them. The Crown relied upon a tape recording of an intercepted conversation between the accused and an
accomplice in prosecuting all three counts. This Court held that the communication was admissible notwithstanding s 26. Cooke J for this Court said that a strictly literal interpretation of s 26 could not represent Parliament’s intention. It would lead to absurd results. For example, a person lawfully overheard confessing to both murder and drug dealing would be treated more favourably than a person who confessed to drug dealing alone. Therefore, this Court qualified s 26 by inserting the words “except in any criminal proceedings for a drug dealing offence” at the end of the section.
[48] Third, Professor Burrows points out that if legislation infringes a value that is fundamental in our legal system (as s 277 does in the present case – namely the right to a jury trial) a strained interpretation is permissible to minimise the infringement. This coheres with the most basic principle that Parliament is never presumed to legislate in repugnance of fundamental rights (and, accordingly, gap filling here cannot be regarded as revolutionary: see Glazebrook “Filling the Gaps” in Bigwood (ed) The Statute: Making and Meaning (2004) at 156). Lord Hoffmann stated this principle as follows in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 131 (HL):
Fundamental rights cannot be overridden by general or ambiguous words … [I]n the absence of express language or necessary implication to the contrary the Courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
[49] Unless the contrary intention appears, an enactment by implication imports principles and rules of criminal law: see Bennion Statutory Interpretation (4ed 2002) at 923. This includes, of course, the right to trial by jury.
[50] It seems to us that the overall inquiry is on statutory purpose. Once this is deduced, the inadvertence of the drafter, and the words he or she would have used had he or she turned his or her mind to the matter, can be easily inferred. Wall appears to suggest that the more important the purpose, the farther the court can go, as does the common law principle that Parliament is never presumed to legislate in repugnance of fundamental rights.
[51] In the present case, the purpose of the Act is clear. Section 4(f) of the Act states that one of its general objects is:
(f) Ensuring that where children or young persons commit offences,— (i) They are held accountable, and encouraged to accept
responsibility, for their behaviour; and
(ii) They are dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways.
[52] We have carefully considered whether our interpretation of ss 272 – 277, which effectively reads into s 277 the qualification “subject to s 274” is justified. We are fortified in our conclusion that it is by the fact that the alternative interpretation suggested by Mr Squire requires similar interference with the actual words of the sections. In effect, that interpretation reads into s 274 the words “unless the young person is jointly charged with an adult”. The reality is that the words of the sections cannot be made to work in the present situation without some form of judicial embellishment. We are satisfied that our approach is more consistent with the purpose of the Act than that for which the appellant contended.
Result
[53] We conclude that the conduct of the appellant’s case was in accordance with the requirements of s 274 and that the trial Court had jurisdiction to conduct the appellant’s trial. We extend the time for appealing, but dismiss the appeal.
Solicitors:
Peter S Coles, Palmerston North for Appellant
Crown Law Office, Wellington