Module 1 - CYPF and Domestic Violence (Feb 2015) Flashcards Preview

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1

What is Section 39(3), CYPF Act 1989?

Place of safety warrants

(3) Any person authorised by warrant under this section to search for any child or young person may –
(a) Enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:
(b) If that person believes, on reasonable grounds, that the child or young person has suffered, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation, or serious harm, –
(i) Remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the [chief executive]; or
(ii) Where the child or young person is in a hospital, direct the Medical Superintendent of that hospital to keep that child or young person in that hospital.

2

What is Section 42, CYPF Act 1989?

Search without warrant

(1) Any constable who believes on reasonable grounds that it is critically necessary to protect a child or young person from injury or death may, without warrant, –
(a) Enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:
(b) Remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive.

(2) Every constable who exercises any powers conferred by subsection (1) of this section shall, on first entering any dwellinghouse, building, aircraft, ship, carriage, vehicle,
premises or place, and if requested, at any subsequent time, –
(a) Produce evidence of identity; and
(b) Disclose that those powers are being exercised under this section.

(3) A constable who exercises the power conferred by subsection (1) of this section shall, within 3 days after the day on which the power is exercised, forward to the
Commissioner of Police a written report on the exercise of the power and the circumstances in which it came to be exercised.

3

What is Section 48, CYPF Act 1989?

Unaccompanied children and young persons

(1) Where a child or young person is found unaccompanied by a parent or guardian or other person who usually has the care of the child or young person in a situation in which the child’s or young person’s physical or mental health is being, or is likely to be, impaired, a constable may, using such force as may reasonably be necessary, take the child or young person and –
(a) With the consent of the child or young person, deliver the child or young person into the custody of a parent or guardian or other person usually having the care of the child or young person; or
(b) If –
(i) The child or young person does not wish to be returned to a parent or guardian or other person having the care of the child or young person; or
(ii) No parent or guardian or other such person is willing or able to have custody of the child or young person, –
place the child or young person in the custody of the chief executive by delivering the child or young person to a Social Worker.

(2) Placement of a child or young person in the custody of the chief executive shall be sufficient authority for the detention of the child or young person by a Social Worker
or in a residence under this Act until –
(a) The child or young person agrees to being returned to a parent or guardian or other person usually having the care of the child or young person who is willing to have the care of the child or young person; or
(b) An application is made to the Court for a declaration under section 67 of this Act and the child or young person is brought before the Court for the purpose of determining whether the child or young person is to be held in custody
pending the disposal of the application; or
(c) Where the circumstances of the case indicate that the child or young person is, or may be, in need of care or protection, the expiry of 5 days after the day on which the child or young person was placed in custody, or in any other case, 3 days after that date – whichever first occurs.

4

What are the 9 principles of Section 208, CYPF Act 1989?

(a) The principle that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:

(b) The principle that criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance
the welfare of the child or young person, or his or her family, whanau, or family group:

(c) The principle that any measures for dealing with offending by children or young persons should be designed—
(i) To strengthen the family, whanau, hapu, iwi, and family group of the child or young person concerned; and
(ii) To foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons:

(d) The principle that a child or young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public:

(e) The principle that a child’s or young person’s age is a mitigating factor in determining—
(i) Whether or not to impose sanctions in respect of offending by a child or young person; and
(ii) The nature of any such sanctions:

(f) The principle that any sanctions imposed on a child or young person who commits an offence should—
(i) Take the form most likely to maintain and promote the development of the child or young person within his or her family, whanau, hapu, and family group; and
(ii) Take the least restrictive form that is appropriate in the circumstances:
(fa) The principle that any measures for dealing with offending by a child or young person should so far as it is practicable to do so address the causes underlying the child’s or young person’s offending.

(g) The principle that —
(i) in the determination of measures for dealing with offending by children or young persons, consideration should be given to the interests and views of any victims of the offending (for example, by encouraging the victims to participate in the processes under this Part for dealing with offending); and
(ii) any measures should have proper regard for the interests of any victims of the offending and the impact of the offending on them:

(h) The principle that the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

5

What is Section 214(1)-(3), CYPF Act 1989?

Arrest of child or young person without warrant

(1) Subject to sections 233 and 244 of this Act, 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) of this section 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 purely indictable offence, 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:

6

What is Section 215, CYPF Act 1989?

Child or young person to be informed of rights before questioned by enforcement officer

(1) Subject to sections 233 and 244 of this Act, every enforcement officer shall, before questioning any child or young person [whom there are reasonable grounds to suspect of having committed an offence, or before asking any child or young person any question intended to obtain an admission of an offence], explain to that child or young person –
(a) Subject to subsection (2) of this section, if the circumstances are such that the enforcement officer would have power to arrest the child or young person
without warrant, that the child or young person may be arrested if, by refusing to give his or her name and address to the enforcement officer, the child or
young person cannot be served with a summons; and
(b) Subject to subsection (2) of this section, that the child or young person is not obliged to accompany the enforcement officer to any place for the purpose of
being questioned, and that if the child or young person consents to do so, that he or she may withdraw that consent at any time; and
(c) That the child or young person is under no obligation to make or give any statement; and
(d) That if the child or young person consents to make or give a statement, the child or young person may withdraw that consent at any time; and
(e) That any statement made or given may be used in evidence in any proceedings; and
(f) That the child or young person is entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any person nominated
by the child or young person in accordance with section 222 of this Act.

(2) Nothing in paragraph (a) or paragraph (b) of subsection (1) of this section applies where the child or young person is under arrest.

(3) Without limiting subsection (1) of this section, where, during the course of questioning a child or young person, an enforcement officer forms the view that there are reasonable grounds to suspect the child or young person of having committed an offence, the enforcement officer shall, before continuing the questioning, give the
explanation required by that subsection.

7

What is Section 215(a), CYPF Act 1989?

Subject to sections 233 and 244 of this Act, where –
(a) Any enforcement officer is questioning any child or young person in relation to that child’s or young person’s involvement in the commission of any offence or suspected offence; and
(b) That child or young person makes any enquiry of that enforcement officer, being an enquiry that relates (in whole or in part), or that may reasonably be taken as relating (in whole or in part), to any of the matters set out in any of paragraphs (a) to (f) of section 215(1) of this Act, –
that enforcement officer shall explain to that child or young person such of those matters as, in the circumstances of the particular case, are appropriate to the enquiry that was made.

8

What is Section 216, CYPF Act 1989?

Enforcement officer to explain rights to child or young person who is to be charged with offence

Subject to sections 233 and 244 of this Act, where –
(a) An enforcement officer is questioning a child or young person in relation to the
commission or possible commission of an offence by that child or young person; and
(b) That enforcement officer makes up his or her mind to charge that child or young
person with an offence, –
the enforcement officer shall explain to that child or young person –
(c) Except where the child or young person is under arrest, the matters specified in
paragraphs (a) and (b) of section 215(1) of this Act; and
(d) The matters specified in paragraphs (c) to (f) of section 215(1) of this Act.

9

What is Section 217, CYPF Act 1989?

Rights to be explained to child or young person who is arrested

Subject to sections 233 and 244 of this Act, every enforcement officer shall, on arresting any child or young person pursuant to section 214 of this Act, explain to that child or young person the matters specified in paragraphs (c) to (f) of section 215(1) of this Act.

10

What is Section 218, CYPF Act 1989?

Explanations to be given in manner and language appropriate to age and level of understanding of child or young person

Every explanation required to be given to a child or young person pursuant to section 215 [orsection 215A] or section 216 or section 217 of this Act shall be given in a manner and in language that is appropriate to the age and level of understanding of the child or young person.

11

What is Section 219, CYPF Act 1989?

Explanations not required if child or young person already informed of rights

Nothing in section 215 [or section 215A] or section 216 or section 217 of this Act requires any explanation to be given to a child or young person if the same explanation has been given to the child or young person not earlier than 1 hour before the later explanation would, apart
from this section, be required to be given.

12

What is Section 221, CYPF Act 1989?

Admissibility of statements made by children and young persons

(1) This section applies to –
(a) Every child or young person who is being questioned by an enforcement officer in relation to the commission or possible commission of an offence by that child or young person:
(b) Every child or young person –
(i) Who has been arrested pursuant to section 214 of this Act; or
(ii) Whom any enforcement officer has made up his or her mind to charge with the commission of an offence; or
(iii) Who has been detained in the custody of an enforcement officer following arrest pursuant to section 214 of this Act.

(2) Subject to sections 223 to 225 and sections 233 and 244 of this Act, no oral or written statement made or given to any enforcement officer by a child or young person to whom this section applies is admissible in evidence in any proceedings against that child or young person for an offence unless –
(a) Before the statement was made or given, the enforcement officer has explained in a manner and in language that is appropriate to the age and level of understanding of the child or young person, –
(i) Except where subsection (1)(b)(i) or (iii) of this section applies, the matters specified in paragraphs (a) and (b) of section 215(1) of this Act; and
(ii) The matters specified in paragraphs (c) to (f) of section 215(1) of this Act; and
(b) Where the child or young person wishes to consult with a barrister or solicitor and any person nominated by that child or young person in accordance with section 222 of this Act, or either of those persons, before making or giving the statement, the child or young person consults with those persons or, as the case requires, that person; and
(c) The child or young person makes or gives the statement in the presence of one or more of the following persons:
(i) A barrister or solicitor:
(ii) Any person nominated by the child or young person in accordance with section 222 of this Act:
(iii) Where the child or young person refuses or fails to nominate any person in accordance with section 222 of this Act, –
(A) Any person referred to in paragraph (a) or paragraph (b) of section 222(1) of this Act; or
(B) Any other adult (not being an enforcement officer).

13

What is Section 222, CYPF Act 1989?

Persons who may be nominated for the purposes of section 221(2)(b) or (c)

(1) Subject to subsection (2) of this section, a child or young person may nominate one of the following persons for the purposes of section 221(2)(b) or (c) of this Act:
(a) A parent or guardian of the child or young person:
(b) An adult member of the family, whanau, or family group of the child or young person:
(c) Any other adult selected by the child or young person:
(d) If the child or young person refuses or fails to nominate any person referred to in any of paragraphs (a) to (c) of this subsection, any adult (not being an enforcement officer) nominated for the purpose by an enforcement officer.

(2) Where an enforcement officer believes, on reasonable grounds, that any person nominated by a child or young person pursuant to subsection (1)(a) or (b) or (c) of this
section, –
(a) If permitted to consult with the child or young person pursuant to section 221(2)(b) of this Act, would attempt, or would be likely to attempt, to pervert the course of justice; or
(b) Cannot with reasonable diligence be located, or will not be available within a period of time that is reasonable in the circumstances, – that enforcement officer may refuse to allow the child or young person to consult with
that person.

(3) Where, pursuant to subsection (2) of this section, a child or young person is not permitted to consult with a person nominated by that child or young person pursuant
to subsection (1) of this section, that child or young person shall, subject to subsection

(2) of this section, be permitted to consult with any other person nominated by that child or young person pursuant to subsection (1) of this section.

(4) It is the duty of any person nominated pursuant to subsection (1) of this section –
(a) To take reasonable steps to ensure that the child or young person understands the matters explained to the child or young person under section 221(2)(a) of
this Act; and
(b) To support the child or young person –
(i) Before and during any questioning; and
(ii) If the child or young person agrees to make or give any statement, during the making or giving of the statement.

14

What is Section 223, CYPF Act 1989?

Section 221 not to apply where statement made before requirements of that section can be met

Nothing in section 221 of this Act applies to an oral statement made by a child or young person spontaneously and before an enforcement officer has had a reasonable opportunity to comply with the requirements of that section.

15

What is Section 229, CYPF Act 1989?

Parents or guardians or other persons to be informed where child or young person at enforcement agency office for questioning in relation to commission or possible commission of offence or is arrested

(1) Subject to sections 233 and 244 of this Act, an enforcement officer shall, in relation to any child or young person who is at an enforcement agency office for questioning in relation to the commission or possible commission of an offence by that child or young person, or who is at an enforcement agency office following arrest, as soon as practicable after the child or young person arrives at the enforcement agency office for
questioning, or is taken to the enforcement agency office following arrest, or in the case of a child or young person who is arrested at an enforcement agency office, is
arrested, as the case may be, –
(a) Inform a person nominated by the child or young person in accordance with section 231 of this Act that the child or young person is at the enforcement agency office for questioning or has been arrested and that the child or young person may be visited at the enforcement agency office; and
(b) Where –
(i) The person nominated by the child or young person for the purposes of paragraph (a) of this subsection is not a parent or guardian or other person having the care of the child or young person; or
(ii) The child or young person refuses or fails to nominate any person in accordance with section 231 of this Act, –
unless it is impracticable to do so, inform the parents or guardians or other persons having the care of the child or young person that the child or young person is at the
enforcement agency office for questioning or has been arrested.

(2) Subject to sections 233 and 244 of this Act, every person who is informed pursuant to subsection (1)(a) of this section that a child or young person has been taken to an
enforcement agency office or arrested –
(a) Is entitled to visit that child or young person at the enforcement agency office; and
(b) Shall, as soon as practicable after that person arrives at the enforcement agency office to visit the child or young person, have explained to him or her by an enforcement officer, in language that can be understood by that person, the matters specified in paragraphs (c) to (f) of section 215(1) of this Act; and
(c) Subject to subsection (3) of this section, is entitled to consult privately with that child or young person during that visit.

(3) Nothing in subsection (2)(c) of this section entitles any person to consult privately with a child or young person (being a child or young person who has been arrested) –
(a) In the absence of any enforcement officer who is for the time being guarding that child or young person; or
(b) Otherwise than subject to such reasonable conditions as may be necessary to ensure the safety of the child or young person or to prevent the commission of any offence.

16

What is Section 231, CYPF Act 1989?

Persons who may be nominated for the purposes of section 229(1)(a)

(1) Subject to subsection (2) of this section, a child or young person may nominate one of the following persons for the purposes of section 229(1)(a) of this Act:
(a) A parent or guardian of the child or young person:
(b) An adult member of the family, whanau, or family group of the child or young person:
(c) Any other adult selected by the child or young person:
(d) If the child or young person refuses or fails to nominate any person referred to in any of paragraphs (a) to (c) of this subsection, any adult (not being an enforcement officer) nominated for the purpose by an enforcement officer.

(2) Where an enforcement officer believes, on reasonable grounds, that any person nominated by a child or young person pursuant to subsection (1)(a) or (b) or (c) of this
section, if permitted to visit the child or young person pursuant to section 229(2)(a) of this Act, would attempt, or would be likely to attempt, to pervert the course of justice,
that enforcement officer may refuse to allow that person to visit the child or young person.

(3) Where, pursuant to subsection (2) of this section, a person nominated by a child or young person pursuant to subsection (1) of this section is not permitted to visit that
child or young person, any other person nominated by that child or young person pursuant to subsection (1) of this section shall, subject to subsection (2) of this section,
be permitted to visit that child or young person pursuant to section 229(2)(a) of this Act.

(4) It is the duty of any person nominated pursuant to subsection (1) of this section –
(a) To take reasonable steps to ensure that the child or young person understands the matters explained to the child or young person under section 221(2)(a) of this Act; and
(b) To support the child or young person –
(i) Before and during any questioning; and
(ii) If the child or young person agrees to make or give any statement, during the making or giving of the statement.

17

What is Section 233, CYPF Act 1989?

Breath-alcohol and blood-alcohol provisions of Land Transport Act 1998 not affected

Nothing in the provisions of sections 214 to 232 limits or affects the powers of an enforcement officer under any of the provisions of sections 68 to 72 of the Land Transport
Act 1998.

18

What is Section 234, CYPF Act 1989?

Custody of child or young person following arrest

Subject to sections 235, 236, and 244 of this Act, where a child or young person is arrested with or without warrant, a constable shall—
(a) Release the child or young person; or
(b) Where the child or young person may be released on bail under section 21 of the Bail Act 2000, release the child or young person on bail; or
(c) Deliver the child or young person into the custody of—
(i) Any parent or guardian or other person having the care of the child or young person; or
(ii) With the agreement of the child or young person, any Iwi Social Service or Cultural Social Service; or
(iii) With the agreement of the child or young person, any other person or organisation approved by the chief executive or a constable for the purpose.

19

What is Section 235, CYPF Act 1989?

Child or young person who is arrested may be placed in custody of chief executive

(1) Notwithstanding section 234 of this Act but subject to section 244 of this Act, where a constable has reasonable grounds for believing, in relation to any child or young
person who has been arrested, that—
(a) The child or young person is not likely to appear before the Court; or
(b) The child or young person may commit further offences; or
(c) It is necessary to prevent—
(i) The loss or destruction of evidence relating to an offence committed by the child or young person or an offence that the constable has reasonable cause to suspect the child or young person of having committed; or
(ii) Interference with any witness in respect of any such offence, –
the constable shall, as soon as practicable and not later than 24 hours after the arrest, place the child or young person in the custody of the [chief executive] in accordance with subsection (2) of this section.

(2) A child or young person shall be placed in the custody of the [chief executive] pursuant to this section by—
(a) Delivering the child or young person to a Social Worker; and
(b) Presenting to the Social Worker, on the prescribed form, details relating to—
(i) The identity of the child or young person; and
(ii) The circumstances of the arrest of the child or young person; and
(iii) The date and time of the intended appearance of the child or young person before the Court having jurisdiction in the matter in relation to which the child or young person was arrested.

(3) Placement of a child or young person in the custody of the [chief executive] under subsection (1) of this section shall be sufficient authority for the detention of the child
or young person by a Social Worker or in a residence under this Act, or under the care of any suitable person approved by a Social Worker.

(4) No constable shall exercise the power conferred by subsection (1) of this section merely because the constable believes that any child or young person is in need of care
or protection (as defined in section 14 of this Act).

20

What is Section 236, CYPF Act 1989?

Young person who is arrested may be detained in Police custody

(1) Notwithstanding the provisions of sections 234 and 235 of this Act but subject to section 244 of this Act, where a senior Social Worker and a constable, being a senior
sergeant or a commissioned officer, are satisfied on reasonable grounds—
(a) That a young person who has been arrested is likely to abscond or be violent; and
(b) That suitable facilities for the detention in safe custody of that young person are not available to the [chief executive],— the young person may, on the joint certificate in the prescribed form of that senior Social Worker and that constable, be detained in Police custody for a period exceeding 24 hours and until appearance before the Court.

(2) Where a senior Social Worker and a constable issue a joint certificate under subsection (1) of this section, there shall, within 5 days after the day on which the certificate is issued, be furnished by the senior Social Worker to the [chief executive] and by the constable to the Commissioner of Police—
(a) A copy of the certificate; and
(b) A written report stating—
(i) The circumstances in which the certificate came to be issued; and
(ii) The duration of the period for which the young person has been detained, or is likely to be detained, in Police custody.

21

What does the case R vs Kahu relate to? CYPF

Powers under a sec39 warrant

The appellant was visited by a social welfare officer, who was acting on a place of safety warrant under s 39 Children, Young Persons, and Their Families Act 1989
(“the Act”). He was accompanied by a police officer who had obtained, but did not use, a warrant under the Misuse of Drugs Act 1975 and the Summary Proceedings Act 1957. The social worker explained that he had the right to enter the appellant’s house and check the food situation and see the children. He also explained that he could remove the child named in the warrant. The appellant agreed to the social worker and the police officer searching the cupboards for food. While they were doing so, the police officer discovered a plate of cannabis. On being advised to “come clean” by the social worker, the appellant showed the social worker and police officer a substantial amount of cannabis in her bedroom. She was cautioned, given Bill of Rights advice and arrested. The children were taken into social welfare custody.

The appellant appealed her conviction on the basis that the finding of the cannabis in the bedroom was a breach of s 21 New Zealand Bill of Rights Act 1990.

Held:
(1) (per Cooke P, Richardson, Casey, and Hardie Boys JJ) the discovery of the cannabis in the kitchen and the bedroom was not a result of an unreasonable search under s 21 New Zealand Bill of Rights Act 1990. A warrant under s 39 Children, Young Persons, and Their Families Act 1989 authorises the holder of the warrant not only to search for the child, but also to remove, by force if necessary, and place the child in the custody of the Director-General of Social Welfare. In order to form the requisite belief that the child is in an “at risk” position, the holder of the warrant must be entitled to exercise his or her best judgment on the information then available, and to take positive steps to that end. Those steps may appropriately include checking on the physical condition
of the child, the living conditions, food supply, and other necessaries available for the child’s wellbeing. This is implicit in the authority to search and the requirement that, having located the child, the person executing the warrant form an independent judgment as to whether the child should be removed or detained. Therefore, in
appropriate circumstances, governed by concerns for the welfare of the child as reflected in the criteria under s 39 Children, Young Persons, and Their Families Act 1989, the holder of a warrant under s 39 may check the supplies of food in the house and open cupboards for that purpose.

22

What does the case Police vs D relate to? CYPF

Detention under section 48

A youth was removed by police from private property (where he was unlawfully present in possession of alcohol, and drunk) and taken to a police station, pursuant to s 48 of the Children, Young Persons, and Their Families Act 1989 (“the Act”). Prior to being taken to the police station the youth advised a police officer present of his name, address and details of his grandmother, with whom he lived. His telephone number was also given. This information was not provided to the police officers who
transported the youth back to the police station. In the processing room at the station the youth was questioned about his details so that his parents or caregiver could be
contacted. The youth became agitated when being questioned in the processing room and punched a police officer. The youth was charged with assault on police. The
charge was defended on the basis that police had acted unlawfully.

The issue
Counsel for the youth submitted that police had unlawfully detained the youth and should have taken the youth home and not further questioned him at the police
station. Police submitted that the youth’s attendance at the station was necessary to facilitate police getting in touch with the caregiver (police having no reliable means
to contact the caregiver in public). Police also relied on a particular interest in the youth as he was one of the local youths on a “special list”.

Decision
The Court noted that:
· Section 48 is contained in Part II of the Act and its purpose is the care and protection of young persons.
· Section 48 requires the welfare and interests of the child to be put first.
· Section 48 does not authorise detention of a child or young person at police stations per se, although a police station may provide an intermediary means of delivering the child to their parent, guardian, caregiver or a social worker.
· Although police have an express power under s 48 to use such force as may reasonably be necessary in delivering the child or young person to the persons
stipulated in the section, police ought to minimise potentially harmful experiences, such as being exposed to other adult prisoners in police cells and or being placed in a high security environment.

The Court found that:
· Police acted reasonably in taking the youth to the station as an intermediate step in returning him to his grandmother or, failing her agreement to take him, to his
being placed in the custody of a social worker.
· Police failed to consider the youth’s interests in choosing to take him through the secure entrance (cell block area) to the police station, given that he was cooperating at the time.
· By taking the youth into the secure area, police detained the youth beyond their lawful authority, which was to deliver him into the care of a parent, guardian or
caregiver. The use of the secure area of the station would only be justified in the event that reasonable force became necessary to deliver him into the care of the
appropriate person.
· Police failed to ascertain whether the youth preferred to be returned home or to a social worker.
· There was no evidence that police informed the youth as to why he was being detained, and it was not unlikely that the youth considered he was under arrest.
· The police suggestion that further inquiries were necessary indicated that police were blurring the purpose of the youth’s presence in the police station. It was wrong to detain the youth beyond the purposes of s 48 so as to perform an investigation, where police were purporting to rely on s 48 for the detention.
· Police had no need to question the youth, as they had the information that they required to return the youth to the appropriate person.

Comment
· Section 48 of the Act is to be used for the limited purpose of returning a child or young person to an appropriate person where the child or young person’s
physical or mental health is being, or is likely to be, impaired.
· Section 48 only allows the police to ‘take’ the child or young person and with their consent return them home.
· If they do not wish to be returned home then police shall place the child or young person in the ‘custody’ (not in police cells) of the chief executive by delivering them to a social worker.
· The Courts will take a dim view where police use the section for other purposes. Consideration should be given to arrest, where necessary, but it must be justified under s 214 of the Act.
· If the child or young person is arrested under s 214 they can be released without charge under s 234 (a).

23

What does the case Police v T-M relate to? CYPF

Arrest guidelines under s214

Background
A number of burglaries had been reported in the central Whangarei business district over a relatively short period of time. During routine patrolling of the district, T who
was known to police as a youth offender, was seen in central Whangarei in the early hours of the morning.
Police invoked s 48 of the CYPF Act and required T to return to the police station where he was interviewed about the recent burglaries. Approximately 3 weeks later
the police went to T’s address. He was interviewed a second time during which a signed statement was obtained from him. T was then arrested for burglary.

Proceedings
T denied the charges, however, before the matter proceeded to a defended hearing, the police sought leave to withdraw the charges, acknowledging that there were
problems with the police case.
Subsequently T’s counsel made an application for costs to be imposed on the police. In a subsequent hearing on the issue of costs, Judge Boshier found the police had
misused the court process and ordered the police to pay costs of $1000.

Decision
In his written decision on the issue of costs Judge Boshier commented on the fact that when arresting a child or young person (‘CYP’) the police must find a demonstrable need to arrest as limited by s 214 CYPF Act. In his decision the Judge gave the following guidelines to assist frontline police when deciding whether or not to arrest a CYP.

1 Section 48 should not be used by police officers for the sole purpose of taking into custody a CYP who is suspected of having committed a crime. The section is limited in its scope and is meant only to apply to unaccompanied CYP’s that need to be placed in a situation of safety.

2 If a police officer believes that a CYP has committed an offence, arrest may be considered but only if section 214 of the Act would permit it. Section 214 provides that a CYP is not to be arrested unless the officer is satisfied on reasonable grounds that the arrest is necessary for:
(i) Ensuring the appearance of the CYP before the Court; or
(ii) Preventing the CYP from committing further offences; or
(iii) Preventing the loss or destruction of evidence or preventing interference with witnesses.
[NB. The section also provides that if the offence committed is purely indictable and the public interest requires an arrest be made, then a police officer may arrest a CYP without warrant.]

3 Section 208 of the CYPF Act requires that criminal proceedings should not be initiated unless there are no other means of dealing with a matter and any proceedings
taken must take the least restrictive form appropriate to the circumstances.

4 Section 214 enables police to arrest young people but only in certain situations. Arrest will most often arise where at the time a person is encountered, an offence has just been committed, and there is every indication that further offending is imminent.
Arrest might also occur where police have no confidence that because of the young person’s past or other factors, they will appear in Court if later they are required to do
so.

5 Police may not arrest a young person simply as a means of requiring a young person to face the consequences of offending in a Youth Court This is in contrast to adults
who may be arrested for this purpose.

6 Generally, unless the CYP is arrested as permitted by section 214, police officers encountering criminal offending by a child or young person must consult a Youth Justice Coordinator with a view to convening a Family Group Conference before the laying of charges in a Youth Court is contemplated. It is one of the roles of the FGC to discuss the offending and decide whether an information should be laid (s 245 CYPF Act).

24

What does the case Police v T relate to? CYPF

s 214 and detention in police custody

The defendant, T, was a young person of 14. On 6 May 1998 he was leaving a Superette with two packets of biscuits and one packet of chips without paying. A police officer who happened to be in the Superette, instructed him to stop. T did not.
He discarded the food items as he was jumping a property fence, was apprehended, arrested, placed in police custody and charged with shoplifting of goods worth nine
dollars. At the time T was the subject of a supervision order relating to 17 charges. T remained in police custody until he was brought to Court, just over 24 hours later.
The Youth Advocate questioned the basis of the arrest, the fact that T was not brought to Court and dealt with promptly and the basis of T’s continued detention in
police custody. The police submitted that the arrest was necessary to stop T from committing further offences.
Held (finding procedural failures by the police, granting bail to defendant, directing a Family Group Conference and directing that the decision be sent to the appropriate
authorities)

(1) The continuation of the arrest unnecessarily was in breach of the letter and the spirit of s 214 of the Children, Young Persons, and Their Families Act (the Act). While the
initial arrest might have been justified by the fact that the defendant was trying to escape, the time-frame in question must be the time between the arrest and when the defendant could be brought to Court. The mere fact that the defendant had other charges and was the subject of a supervision order did not mean that he could be
arrested whenever he re-offended. A single charge of shoplifting was not such as to suggest that the defendant without arrest would continue shoplifting or commit any
other offence.

(2) Failure to bring the defendant to Court constituted a breach of the young person’s rights under the New Zealand Bill of Rights Act to have the matter dealt with on the same day. A person arrested in the morning ought to be dealt with that afternoon except possibly in unusual circumstances.

(3) The fact that the young person had spent 24 hours in police custody including a night in police cells was a serious breach of the law. Given the very limited grounds for the Court to remand a young person in police custody under s 239(2) of the Act, the police should be particularly careful not to hold young persons in custody unnecessarily.

25

What are some considerations in regards to Sec.234 of CYPF Act?

Release, Bail or Custody following Arrest without Warrant

Section 234 CYPF Act is the starting point and requires that where a child or young person is arrested (with or without warrant) the Police officer must either:
(a) release the child or young person; or
(b) be Police bailed if eligible under section 21 of the Bail Act; or
(c) deliver the child or young person into the custody of parents/guardian, or (with the agreement of the child/young person) an Iwi or cultural social service, or any other person/agency approved by the chief
executive or Police officer.
However, note that section 234(b) is not an available option where a child or young person is arrested for breach of bail conditions.
This is because Police bail under section 21 of the Bail Act is only available where the person is charged with an offence for which that person may be proceeded against summarily. A breach of a bail condition, made under the
provisions of the Bail Act is not, in itself, an offence. A breach of a condition will expose the defendant to a procedure (arrest) which will eventually result in the
bail bond being certified and the defendant’s criminal record being noted.
However, there is no conviction recorded and no penalty imposed for breach of a bail condition.

26

What does the case R v K relate to? CYPF

s 222 and choice of nominated person

Background
K, a child, was a suspect for homicide. He was located by police and agreed to accompany the police officer to his father’s house nearby. The father claimed that K had been home the night of the homicide and K confirmed that.
Nevertheless, K and his father agreed to come to the police station. On the way to the police station K was advised that he did not have to make a statement, that he could stop making the statement at any time, that what he said could be used as evidence in a court case, and that he was entitled to consult and instruct a lawyer and any
nominated person in private.
At the station it was determined that K’s father was a potential alibi witness and therefore not suitable to act as the “nominated person”.
The father said he did not know where K’s mother lived but did have an adult daughter who lived with him. Police then determined that it would be better to bring
in an independent person.
An independent person arrived and acted as the “nominated person” for K. K admitted his part in the homicide and made a full video statement, he also took part in a subsequent video reconstruction relating to the homicide.

Proceedings
The Defence objected to the admissibility of the video statement and video reconstruction.
The High Court held that there had been a breach of the Act as K was not informed that he was not obliged to accompany police to the police station for an interview
and in the absence of arrest leave the police station.
A major mistake identified by the High Court was the failure to allow K the opportunity to nominate another person after his father was deemed unsuitable.
However, the High Court admitted the video statement and reconstruction on the basis that there had been compliance with s 215 (rights of child or person prior to
being interviewed) and s 222 (nominated adult), under s 224 (reasonable compliance) of the Act.
The Court of Appeal overturned the High Court decision and ruled the video interview and video reconstruction inadmissible. The Court of Appeal stated at page 15:
“In failing, however, to ask the appellant to choose which family member of adult he wished to support him, the police dispensed with a procedure that was central to the statutory scheme.
As already indicated, a failure to that degree puts the police outside of the scope of the broad coverage of reasonable compliance with s 221(2)(c), under s 224.
The support role that could reasonably be expected of a fair minded stranger is not what the legislature had in mind, other than in situations where the young person refused or failed to nominate someone to whom he or she was close to or at least known. Nor do we accept that the Act contemplates that judgments should be made by the police as to the suitability of family members for the role, by reference to whether they have custody or care of the child or not.”

Comment
When informing a child or young person of their right to have a nominated adult present during an interview, it is not for police to veto their choice of adult, unless that person would attempt (or be likely to attempt) to pervert the course of justice, see s 222(2)(a), or cannot with reasonable diligence be found, or will not be available
within a period of time that is reasonable in the circumstances, see s 222(2)(b).
The police should only nominate an adult when the child or young person refuses to do so, see s 222(1)(d), or when s 222(2)(a) or (b) is satisfied and the child or young person has no one else that they wish to nominate.

27

What does the case S v Police relate to? CYPF

“spontaneous admissions”, s 223

Background
A police officer visited S at his home to discuss unresolved police investigations into car conversions and burglaries. S was 15-years-old at the time and therefore a
“young person” within the meaning of the Children, Young Persons, and Their Families Act 1989 (“CYPF Act”).
The officer advised S of his rights under section 215 CYPF Act (including that he was not obliged to make a statement) and invited S to accompany him and show him
where various offences had been committed.
The officer told S he did not intend charging him with any of the offences they were discussing.
During the course of their drive, S unexpectedly disclosed that he had committed two aggravated robberies. The aggravated robberies were not the type of offences the
officer had in mind when assuring S he would not be charged.
The officer told S he wanted to discuss the aggravated robberies further but because they sounded more serious than the other unrelated matters they had been discussing, any information provided from that point might result in charges.
S agreed to go with the police officer back to the police station. There S was reminded of his rights under section 215 and access to a “nominated person” was facilitated. Subsequently, a videotaped interview took place in accordance with section 221 of the CYPF Act. During the interview, in the presence of the “nominated person”, S confessed to the aggravated robberies.

Youth court proceedings
In both sets of Youth Court proceedings, S challenged the admissibility of his admissions both during the drive around and in the video interview. Both Judges ruled against those evidential challenges. S subsequently pleaded guilty to one charge and the other was found proved. Each Judge convicted S and transferred him to the District Court for sentence.
S appealed to the High Court against the convictions.

The issues on appeal
The two main issues on appeal were:
· Given the police officer’s assurances he did not intend charging S for any of the matters they were discussing, were the admissions S made about the aggravated
robberies while driving ‘spontaneous’ for the purposes of section 223 of the CYPF Act? Under section 223, any oral statements made spontaneously and before an officer has had a reasonable opportunity to comply with the
requirements of section 221 (admissibility of statements made by children and young persons), may be exempt from the usual section 221 requirements.
· If S’s admissions made while driving around in the car were not ‘spontaneous’, was any evidence gathered in the course of the subsequent videotaped interview tainted or inadmissible?

High Court decision
On the first issue, the High Court said it was a question of fact whether a statement can be construed as ‘spontaneous’, as entirely without external stimulus or
constraint.
The Court held that the offer of immunity plainly influenced S’s decision to point out and explain where the aggravated robberies occurred and, in that sense, his
admissions were not made spontaneously.
The ‘spontaneous’ provisions of section 223 therefore did not provide an exemption from the conditions of admissibility stipulated by section 221(2) (which include the requirement for a statement to be made in the presence of a barrister, solicitor or nominated person).
On the second issue, the High Court found that the non-spontaneous admissions of aggravated robbery were the effective cause of the officer’s continuing interview and
particularly the part that occurred at the police station when the formal admissions to that aggravated robberies were videotaped. That evidence was therefore excluded
also.

Comment
Staff wishing to resolve cases by seeking admissions and indicating an intention not to charge should ensure that they are very specific about the boundaries of that offer.

28

What is the Police Family Violence policy statement?

Family violence is a high priority for Police

Family violence is a high priority for Police and reducing the number and impact of family violence occurrences is a key Police strategy. Police is committed to a prompt, effective and nationally consistent approach to family
violence occurrences in collaboration with other agencies and with community partners.

29

What are the Principles that guide Police practice in regards to Family Violence?

Safety
Collection of risk information
Accountability
Working collaboratively

30

What are the 5 steps that should be done while attending a Family Violence incident where there are firearms?

1 Always consider firearms or other weapons may be involved or that the suspect has access to these. Check NIA.

2 Check whether a Police safety order or a protection order is in place. If a Police safety order has been issued, any firearms licence held by that person will be suspended for the duration of the order. Where a
protection order is in force, any firearms licence held by the respondent will be revoked. Check any licence endorsements, including any in relation to secure storage.

3 Consider whether there are sufficient safety concerns to warrant the issuing of a Police safety order or, where there is sufficient evidence to arrest, making an application for a protection order. In either case all
firearms, ammunition, or explosives in the possession or control of the suspect must be surrendered to Police or seized pursuant to s60A (b)(i) Arms Act 1983.

4 If you exercise the power to seize, report to the Commissioner within 3 days by submitting a Firearms Search and Seizure form accessed via the Bulletin Board using the “Create” and “Notification” feature.

5 Following surrender or seizure of firearms, complete enquiries (including the views of the victim) to determine whether any licensed firearms holder is considered to be a ‘fit and proper’ person to hold a firearms licence. If appropriate, take revocation action pursuant to s27 and s27A Arms Act 1983. This may include informing and/or seeking assistance of the Police Arms Officer.