H v R

• Jurisdiction: New Zealand
• Judge: Glazebrook J
• Judgment Date: 03 July 2019
• Neutral Citation: [2019] NZSC 69
• Court: Supreme Court
• Docket Number: SC 97/2018
• Date: 03 July 2019

[2019] NZSC 69

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

Winkelmann CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 97/2018

Between

H (SC 97/2018)

Appellant

and

The Queen

Respondent

Counsel:

A M S Williams and A J Bailey for Appellant

C A Brook and P D Marshall for Respondent

Criminal law — rape conviction — dismissal due to time delay — s 322 Oranga Tamariki Act 1989

Appeal against conviction by Mr H, who was convicted in 2017, after a jury trial, of eight charges of sexual offending against his sister “Dianna” and his daughter “Emily” (not their real names). The offending was historic and took place over a period of two decades. The earliest offending, a rape of Dianna, occurred between 1 December 1955 and 21 July 1959. At the time of the rape, Mr H was aged between 16 and a half and 20 years old and Dianna between four and eight years old.

The approved question on which leave was granted to appeal was whether the charge of rape should have been dismissed under s 322 of the Oranga Tamariki Act 1989 because it may have been committed when Mr H was a “young person” (for these purposes a person aged between 14 and 17).

Section 322 provided that a charge against a young person may be dismissed if the time that had elapsed between the date of the commission of the alleged offence and the hearing had been unnecessarily or unduly protracted.

Both prior to trial in the High Court and at the end of the Crown case, Mr H applied for a stay of proceedings and a dismissal of the charges under s 147 of the Criminal Procedure Act because of the delay in bringing the charges. The High Court declined both applications.

The Court of Appeal dismissed Mr H's appeal against his subsequent convictions. In particular, the Court of Appeal held that the charge of rape should not have been dismissed under s 322 of the Oranga Tamariki Act as that provision did not apply to Mr H because he was charged as an adult. It said that s 322 applied only to cases before the Youth Court. Even if it did apply, s 322 would have little bearing on the case because Mr H had long been a mature adult. Finally, there were no other factors that could not be considered under the stay or s 147 dismissal procedures.

Held: Section 322 applied to Mr H because ss 2(2)(d) and 2(3) of the Oranga Tamariki Act provided that s 322, with all necessary modifications, applied to persons charged as adults with an offence committed as a young person.

While there was no question of fault on the part of the Crown, the proceedings had been unduly protracted in terms of s 322. While there could be common factors to be considered under s 322 of the Oranga Tamariki Act and under applications for stay or dismissal under s 147 of the Criminal Procedure Act, s 322 should be exercised independently.

Section 322 should be applied consistently with those youth justice principles still applicable to accused persons who are over the age of 17 at the time they are charged.

The Court accepted Mr H's submission that the general object set out in s 4(f)(ii) of the Oranga Tamariki Act was still relevant to those charged as adults. This provided that, where children or young persons commit offences, they were dealt with in a way that gave them the opportunity to develop in responsible, beneficial, and socially acceptable ways.

The reasons behind the principle contained in s 5(f) of the Oranga Tamariki Act, (that decisions should be made in a timeframe appropriate to a child's or young person's sense of time), would also still be relevant to those charged as adults. One important reason for the s 5(f) principle was to enable rehabilitation to occur in line with the general object in s 4(f)(ii). It also recognised that there were particular factors related to the stage of development that may have contributed to the offending of the child and young person which may be seen as reducing or explaining culpability and also as meaning rehabilitation was more likely.

The Court, however, refused to exercise the s 322 discretion to dismiss the charges against Mr H because the charge in question was very serious, Mr H was not very young at the time of the offending, being at least 16 and a half, and because he had continued to offend in a similar manner for an extended period after the rape of Dianna, showing that rehabilitation had not occurred.

The Supreme Court unanimously dismissed Mr H's appeal against the Court of Appeal's decision.

JUDGMENT OF THE COURT

REASONS

( Given by Glazebrook J)

Table of Contents

Para No.
Introduction	[1]
Legislation	[5]
Background facts	[10]
Offending against Dianna	[10]
Offending against Emily	[13]
Procedural history	[14]
Court of Appeal judgment	[19]
Issues	[23]
Application of s 322	[24]
The Crown's position	[24]
Mr H's position	[26]
Our assessment	[28]
What are the principles to be applied?	[31]
Relationship of s 322 with s 147 of the Criminal Procedure Act and stay jurisdiction	[35]
Submissions	[35]
Decisions of the High Court	[37]
Our assessment	[39]
Has the time elapsed been unnecessarily or unduly protracted?	[42]
Submissions	[42]
Our assessment	[43]
Should the charge have been dismissed?	[46]
Suppression	[50]
Background	[50]
Our approach	[54]
Result	[59]

Introduction

1 In 2017 Mr H 1 was convicted after a jury trial on eight charges of sexual offending against his sister “Dianna” and his daughter “Emily” (not their real names). 2 He was sentenced to seven years' imprisonment. 3

2 Mr H's appeal against conviction and sentence was dismissed by the Court of Appeal on 20 September 2018.

3 On 21 February 2019, this Court granted Mr H leave to appeal against one of the convictions: for the rape of Dianna. 4 This offending was alleged to have occurred between 1 December 1955 and 21 July 1959 when Mr H was aged between 16 and a

half and 20 years and Dianna was aged between five years and four months and eight years and 11 months. 5

4 The approved question on which leave to this Court was granted was whether, in dealing with the question of delay, the Court of Appeal correctly dealt with Mr H's age at the time of the offending. This includes the question of whether s 322 of the Oranga Tamariki Act 1989 applies.

Legislation

5 Section 322 of the Oranga Tamariki Act provides:

322 Time for instituting proceedings

A Youth Court Judge may dismiss any charge charging a young person with the commission of an offence if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.

6 A young person, for the purposes of Part 5 of the Act where s 322 is situated, is defined in s 2(1) as a person over the age of 14 years but under the age of 17 years. Also in s 2(1), a child is defined as a person under the age of 14 years. 6

7 Section 2(2) and (3) are also relevant:

(2) Where any proceedings are being considered or have been taken in respect of any offence allegedly committed by a person when that person was a child or young person, the age of that person at the date of the alleged offence shall be that person's age for the purpose of––

(a) whether there is jurisdiction to take any proceedings in respect of that alleged offence, and, subject to paragraph (d), which court has jurisdiction in respect of proceedings that may be taken; and

(b) the proceedings taken,––

but nothing in this subsection shall––

(c) require or authorise any family group conference in respect of the alleged offence before or at any stage of the proceedings

if, at the time the conference would otherwise be required, that person has attained the age of 18 years; or

(d) require any proceedings to be taken in the Youth Court if, at the time the charging document is filed, that person has attained the age of 18 years; or

(e) derogate from the provisions of section 6 of the Sentencing Act 2002 (which shall apply in respect of proceedings under Part 4 as if the proving of a charge was a conviction).

(3) Where any charging document is filed in the District Court pursuant to subsection 2(d), section 322 shall apply, with all necessary modifications, to the proceedings.

8 Mr Williams, for Mr H, submits that the following sections are also important in interpreting the scope of s 322: 7

(a) Section 4(f)(ii) which is a general object under the Oranga Tamariki Act. It aims to ensure that where children or young persons commit offences:

… 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:

(b) Section 5(f) which notes the principles to be applied in exercise of powers conferred by the Oranga Tamariki Act:

… the principle that decisions affecting a child or young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child's or young person's sense of time:

9 Section 147(1) of the Criminal Procedure Act 2011 (CPA), under which Mr H twice applied for a dismissal of the charges against him, 8 provides:

(1) The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.

Background facts

Offending against Dianna

[10] Dianna claimed that Mr H had sexually abused her from 1955 to 1967. The first charge was one of rape and was the most serious of the alleged offending. The rape allegedly...