Oranga Tamariki Act 1989, Section 238

Question 1

Under sub-section (1) of S. 238 of the OT Act 1989, what are the responsibilities of the Court before the C or YP’s appearance?

Answer 1

The Court shall:

(a) Release the C or YP or
(b) Release the C or YP on bail or
(c) ORDER that the C or YP be DELIVERED into the CUSTODY of the P or G or other persons having the care of the C or YP or ANY person APPROVED by the Chief Executive or
(d) Subject to S. 239(1), order that the C or YP be DETAINED in the custody of the Chief Executive, an Iwi Social Service, or a Cultural Social Service; or
(e) Subject to S. 239(2), order that the YP be detained in Police custody.

Question 2

Under sub-section (2) of S. 238 of the OT Act 1989, what does that section relate to regarding custody of a C or YP pending appearance?

Answer 2

If a C or YP appears before the Youth Court charged with the commission of an offence that the Commissioner of Police determines under S. 29A of the Victims Rights Act 2002 to be a specified.

Question 3

Under sub-section (2), what are the responsibilities of a Prosecutor under sub-section (a)(i) and (ii) of S. 238 of the OT Act 1989?

Answer 3

(a) Before the Court makes an order under sub-section (1), the prosecutor MUST,

(i) make all reasonable efforts to ascertain the views (if any) each Victim and
(ii) inform the Court of those views

Question 4

Under sub-section (2), what are the responsibilities of the Commissioner of Police under sub-section (b) (i) and (ii) of S. 238 of the OT Act 1989?

Answer 4

(b) After the Court has made an Order under sub-section (1), the Commissioner of Police MUST inform each Victim -

(i) the order made by the Court, and
(ii) any conditions of bail imposed by the Court that -

(A) relate to the SAFETY and SECURITY of the Victim or 1 or more members of the Victim’s IMMEDIATE FAMILY
(B) require the C or YP not to associate with, or not to contact, the Victim or 1 or more members of the Victim’s IMMEDIATE FAMILY.

Question 5

Under sub-section (3), what is the purpose of sub-section (2) of S. 238 of the OT Act 1989?

Answer 5

Nothing in sub-section (2) PREVENTS the Court from making an Order under sub-section (1), even though the Court has not been informed of the views of any Victim.

Question 6

Under sub-section (4) of S. 238 of the OT Act 1989 what is the Courts responsibility regarding bail of the C or YP?

Answer 6

The Court MUST NOT REFUSE bail to a C or YP merely because the Court considers that the C or YP is in need of Care or Protection.

Question 7

Under sub-section (5) of S. 238 of the OT Act 1989, what are the meanings provided FOR IMMEDIATE FAMILY and SPECIFIED OFFENCE?

Answer 7

In this section -
IMMEDIATE FAMILY has the meaning given S. 4 of the Victims’ Rights Act 2002
SPECIFIED OFFENCE has the meaning given in S.29 of the Victims’ Rights Act 2002.

Question 8

What is the meaning of the IMMEDIATE FAMILY in relation to a Victim under S. 4 of the Victims’ Rights Act 2002?

Answer 8

Means:
A member of the Victim’s family, whanau, or other culturally recognized family group, who is in a close relationship with the Victim at the time of the offence; and includes a person who is -
- the Victim’s spouse, civil union partner, or de facto partner
- the Victim’s child or step-child or
- the Victim’s brother or sister or step-brother or step-sister or
- a parent or step-parent of the Victim or
- a grand-parentmof the Victim

Question 9

What is the meaning of SPECIFIED OFFENCE under S. 29 of the Victims’ Rights Act 2002?

Answer 9

• An offence of a sexual nature
• An offence of serious assault
• An offence that has resulted in serious injury to a person, in the death of a person, or in a person becoming incapable
• An offence of another kind, and that has led to the Victim having on-going fears, on reasonable grounds for his or her physical safety or security OR for the physical safety or security of 1 or more members of his or her immediate family.