By Anna Longdill
Appeal against conviction entered in High Court after appellant pleaded guilty to injuring with intent to injure charge relating to offending when aged 17 – appellant originally charged in Youth Court and transferred to High Court when later charged with murder (acquitted at trial) – should the High Court have transferred the appellant (then aged 19) back to the Youth Court under s 276A Oranga Tamariki Act 1989? – does the entry of a conviction in the High Court constitute a miscarriage of justice? – impact on name suppression
H (SC1/2024) v R [2024] NZSC 62
Haze Peihopa died after being stabbed by T (aged 20) in a group fight in Whangarei on 12 June 2021. T was charged with (and later convicted of) murder.
The appellant in this case, H, was also involved in the fight. He was 17 years old at the time. H kicked Peihopa once in the upper torso after he had been stabbed and then fled the scene. The evidence did not establish that H knew that Peihopa had been stabbed.
H was originally charged in the Youth Court with injuring with intent to cause grievous bodily harm. He was entitled to automatic name suppression under s 438(3) Oranga Tamariki Act 1989.
Months later, police also charged H with being a party to the murder of Peihopa. His charges were then transferred to the High Court. Name suppression continued. On the first day of trial, H (then aged 19) pleaded guilty to a reduced injuring charge (injuring with intent to injure). He was acquitted at trial on the murder charge.
The statutory scheme of the Oranga Tamariki Act 1989 creates three prerequisites for mandatory transfer back to the Youth Court: (a) the initial transfer out was under s 275 or s 276AB; (b) the reasons for that transfer no longer apply; and (c) the Youth Court still has jurisdiction in respect of the transferred charge.
If those prerequisites are met, transfer back to the Youth Court must take place unless retention is required in the interests of justice.
In H’s case, no application was made for the injuring charge to be transferred back to the Youth Court, and it was not considered by the High Court.
Rather, H was sentenced in the High Court in March 2023 (aged 19). His counsel sought a discharge without conviction (H had no previous convictions) and permanent name suppression. Brewer J declined both applications. H was convicted and discharged.
H appealed both determinations. The Court of Appeal, by a majority, dismissed his appeal.
The Supreme Court granted leave for H to appeal.
Both the appellant and the Crown agreed that the first two prerequisites for transfer back to the Youth Court were clearly met in this case.
In relation to the final prerequisite (the Youth Court still having jurisdiction), the Court of Appeal had concluded that it didn’t (as H had turned 19).
The Crown accepted that the Court of Appeal was wrong on this issue – the Youth Court had jurisdiction (the defining jurisdictional consideration for the Youth Court is age as at alleged offending), but it might be precluded from making some of the disposition orders under s 283 Oranga Tamariki Act because H had turned 19.
Applicable principles: New Zealand Bill of Rights Act 1990, s 25(i); Oranga Tamariki Act 1989, ss 2, 5, 272, 275, 276A, 282, 283, 284, 296; Criminal Procedure Act 2011, ss 36, 233, 241, 380A – Approach to s 276A Oranga Tamariki Act? (the statute is clear that retention must be required in the interests of justice: it must be clear that the interests of justice cannot properly be served by disposition in the Youth Court. The starting point is that the interests of justice are generally best met by bringing the defendant back to the Youth Court as the specialised processes and outcomes available are attuned to young persons) – Should H have been transferred to the Youth Court? (Yes. Given the facts found by the judge and his intended disposition of the matter under the sentencing Act, there was no realistic prospect that the Youth Court would have needed to be able to resort to one of the precluded orders (orders of an enduring nature, eg, alcohol and drug rehabilitation, parenting education etc). In the circumstances, it could not be consonant with the interests of justice for H to be denied the benefit of the Youth Court jurisdiction) – Does the entry of a conviction in the High Court constitute a miscarriage of justice? (Yes. The consequence of non-transfer back to the Youth Court was a conviction which would not otherwise have been entered) – Approach to name suppression? (As H’s name and identifying particulars would automatically have been suppressed under s 438(3) Oranga Tamariki Act if he had been transferred back (as should have occurred), he must now be given permanent name suppression)
Held: The appeal against conviction is allowed and a discharge without conviction is substituted. A permanent suppression order is made under s 233(3)(e) and s 241(2) of the Criminal Procedure Act.
Note: The court outlined the approach that should be taken in such situations:
[34] Rather, given the mandatory direction of s 276A(2), the judge determining transfer back in this case needed to consider whether the inability of the Youth Court to make one of the precluded orders (or other sentencing options open to the High Court) meant the interests of justice required the proceeding to be retained in the High Court. That would have required the judge here to make a judgment as to whether, in all the circumstances of the offending, there was a realistic prospect that the Youth Court might otherwise wish to make such an order and that its inability to do so would be contrary to the interests of justice. That enquiry is necessary as part of the wider question of whether retention is in fact required in the interests of justice. And that wider question must also examine whether it is truly consonant with the interests of justice that a young offender who could and should otherwise be dealt with in the Youth Court – the reasons for transfer away from it having now ended – should now be denied the benefit of that jurisdiction.
0 Comments