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Police v JVS [2013] WSDC 2 (18 October 2013)

YOUTH COURT OF SAMOA
Police v JVS [2013] WSDC 2


Case name: Police v JVS

Citation: [2013] WSDC 2

Decision date: 18 October 2013

Parties: POLICE (Informant) and JVS and TL young males (Young Persons)

Hearing date(s):

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUDGE MATA KELI TUATAGALOA

On appeal from:

Order:

Representation:
Ms Leone Mailo and Ms Brigitta Faafiti for the Police
Ms Hellene Wallwork for Young Person, JVS
Ms Treena Atoa for Young Person, TL

Catchwords:

Words and phrases:

Legislation cited:
Crimes Act 2013, ss.118(1), 33(2)
Young Offenders Act 2007, s.6(5)(6)(7)
Summary Proceedings Act 1957
Criminal Procedure Act
Children, Young Persons and Their Families Act 1989, ss.275, 276

Cases cited:
Police v Vailopa [2009] WSSC 69
Police v B [2008] WSSC 85
Queen v Fenton (CA 223/00, 14 September 2000)
Police v Manuel [1998] 16 CRNZ 62
R v Hudson [2007] NZCA 363
S v District Court at New Plymouth (1992) 8 CRNZ 241
Police v O [1993] DCR 1080
P v JR [2000] NZFLR
R v P (HC, Auckland S89/90, 14 September 1990)

Summary of decision:

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU


BETWEEN


THE POLICE
Informant


AND


JVS and TL young males
Young Persons


Counsel: Ms Leone Mailo and Ms Brigitta Faafiti for the Police
Ms Hellene Wallwork for Young Person, JVS
Ms Treena Atoa for Young Person, TL


Judgment: 18 October 2013


RESERVED JUDGMENT OF JUDGE TUATAGALOA

Introduction

  1. JVS (14 years old) and TL (16 years old), are jointly charged with an adult, Vilo Taimalie pursuant to sections 118(1) and 33(2) of the Crimes Act 2013 with being a party to causing serious bodily injury with intent, an offence which carries a maximum penalty of 10 years.
  2. Because JVS and TL are ‘young persons’ as defined in the Young Offenders Act 2007 they are, for now at least, being dealt with in the Youth Court whereas Vilo Taimalie is before the Supreme Court, there being no jurisdiction to determine his case in the Youth Court.
  3. All parties have pleaded not guilty to the charge.
  4. The Prosecution has made application for JVS and TL to be transferred to the Supreme Court for trial pursuant to s.6 (7) of the Act. Ms Wallwork on behalf of JVS and Ms Atoa on behalf of TL oppose the transfer.
  5. Section 6 (7) provides as follow:
  6. The primary issue for this Court to determine then is whether or not to exercise its discretion and transfer these young persons to the Supreme Court for trial together with the adult.

Agreed Points

  1. At the outset it should be noted that all Counsel concede the following points:

Prosecution Arguments

  1. Section 6 (5) and (6) provide as follows:
  2. The Prosecution submits that s. 6 (5)-(7) should be read as operating exclusively of one another. Each subsection provides for a different scenario.
  3. The main platform of the Prosecution submissions rests on the interest of justice. They rely on the following factors to persuade the Court to that view:

Defence Arguments

  1. Both Counsel for the Young Persons adopt a contrary stance. They submit that despite their clients being jointly charged with an adult the interest of justice lies with the charges against the Young Persons being retained in the Youth Court and not transferred to the Supreme Court.
  2. Ms Wallwork contends that “when something is done in a way that is most fair, equitable, is for the public good and promotes human rights” then the interest of justice is served. That is difficult to disagree with.
  3. Both she and Ms Atoa point out that the Youth Court was established by legislation for the very purpose of dealing with young persons in a manner that would address their needs and special circumstances. In other words they are not simply 'little adults'. As a result of having this specialist jurisdiction practices develop that are protective of Young Persons in the criminal justice system, for example the presence of parents or a guardian during an interview of Young Persons by the Police which was acknowledged by Nelson J in Police v Vailopa [2009] WSSC 69).
  4. Whilst Counsel for the Young Persons acknowledge the effect of retaining their clients in the Youth Court is two trials in separate jurisdictions, they submit that the Prosecution has failed to take into account Samoa's obligations under the United Nations Convention on the Rights of the Child.
  5. Ms Wallwork stresses that this is not an application for severance of adults who find themselves facing criminal charges with one another in either the District Court or Supreme Court. This is a situation where the presumption is that the Young Persons will be dealt with in the Youth Court and the adult in the Supreme Court. The only way for them to be tried together is if the Youth Court transfers under s.6 (5), (6) or (7). Given the statutory scheme of the Act that should be seen as the exception rather than the norm. The rest of Ms Wallwork arguments are summarized as follow:
  6. Ms Atoa submits that the strength of the Prosecution evidence is a relevant factor when considering whether or not to transfer under s.6. I agree that is the case. Generally speaking the more serious the charge and compelling the evidence against a Young Person the stronger the argument for transfer, but there will always be exceptions.
  7. Ultimately Ms Wallwork and Ms Atoa submit that all arguments of the Prosecution are outweighed by the interest of justice in seeing Young Persons tried in a jurisdiction which has specialty in dealing with young people, including crafting sentences focused as much on punishment as rehabilitation.

Legal Principles

  1. In Police v B [2008] WSSC 85 at paragraph 18 His Honour, Chief Justice Sapolu said of the Young Offenders Act 2007 that:
  2. Clearly that was not intended to give immunity to Young Persons from sanctions, including imprisonment when that was warranted but clearly rehabilitation was intended to assume priority. After all, if we lose hope for our young people what hope do we have for our future as a nation?
  3. The Court accepts the general proposition for adults that when jointly charged the starting point is that their trials will be heard simultaneously. The Prosecution rely on the New Zealand Court of Appeal case of Queen v Fenton (CA 223/00, 14 September 2000, Tipping J) at paragraph 25:
  4. Ms Wallwork submits that the leading case is Police v Manuel [1998] 16 CRNZ 62, a New Zealand Youth Court case, where three young people and an adult jointly faced an injuring with intent to injure charge. The young people were given the opportunity to forgo jury trial and have their cases determined in the Youth Court. The adult was committed for trial in the High Court, there being no jurisdiction for him to be tried in the Youth Court.
  5. Judge Bisphan in Manuel (supra) at p.64 said:
  6. The Judge in Manuel had the advantage of hearing evidence at a depositions hearing (no longer available in New Zealand) and found the Prosecution evidence to be contradictory/unsatisfactory. In determining whether or not to offer the young people Youth Court jurisdiction he took into account the following factors:
  7. This approach was approved by the Court of Appeal in R v Hudson [2007] NZCA 363. Ms Wallwork implores this Court to adopt the New Zealand approach which elevated the rights and protections for young people above the seriousness of the alleged offence and being jointly charged with an adult.
  8. Although significant changes to the New Zealand Youth Court jurisdiction have come into existence this year as a result of amendments to their Criminal Procedure Act it is worthwhile looking at what was in place before that. The relevant provisions of their Children, Young Persons and Their Families Act 1989 (the equivalent of our Act) were as follows
  9. By virtue of s.274 a young person could elect trial or under s.275 seek the opportunity to forgo trial and be dealt with in the Youth Court. Deposition hearings for indictable charges were routinely conducted in the Youth Court with any adults jointly charged. Once a prima facie case had been established the Youth Court Judge then proceeded to determine the issue of jurisdiction. The adult, if a prima facie case had been established, was committed for trial regardless of the decision in relation to the young person.
  10. If however the young person and adult faced a summary charge only, and the young person did not elect trial, the hearing took place in the Youth Court.
  11. A decision under s.275 by two Justices of the Peace that the Youth Court jurisdiction was inappropriate, based solely on the fact that the offence of aggravated robbery was too serious to permit this course of action, was held by Barker J in S v District Court at New Plymouth (1992) 8 CRNZ 241, 244 to be “too simplistic” and that the severity of the offence must be balanced against the benefit to the young person in being dealt with in a Youth Court. In addition, the young person who was only 14, and had been charged as a secondary party had not been taken into account.
  12. In Police v O [1993] DCR 1080 Judge Harvey declined to offer Youth Court jurisdiction having regard to the gravity of the charges, the alleged role of the young people, the likely consequences should they be found guilty, the public interest in leaving open the possibility of imprisonment for those who are found to have committed a serious crime. At pg 331 of his judgment he said:
  13. The mere fact that the New Zealand Court of Appeal has said that a particular form of offending will normally result in a term of imprisonment does not create an automatic assumption that a young person will be transferred to the District Court or High Court. In P v JR [2000] NZFLR for instance, the Youth Court offered jurisdiction to a young person despite the offence being a serious one, but then went on to impose the highest sentence available namely supervision with residence.
  14. In R v P (HC, Auckland S89/90, 14 September 1990) Gault J held that:

Discussion:

  1. The Prosecution argue that it is ‘in the interest of justice’ to transfer the young offenders to the Supreme Court to be heard together with the adult offender. Counsels for the young persons on the other hand are saying that it is ‘in the interest of justice’ to have the young persons tried in the Youth Court and not to be transferred to the Supreme Court.
  2. The case before the Youth Court is about transfer not about severance because the young persons are and should be charged in the Youth Court in order for the Court to exercise s.6 (7) relied upon by the Prosecution.
  3. The severance of trials cases are all charged and laid in one jurisdiction whereas under the Young Offenders Act it specifically say for young persons to be charged in the Youth Court. In the present case the charges are (or should be) laid in two jurisdictions that of the Youth Court for the young persons and the Supreme Court for the adult co-offender.
  4. The starting point is that all young persons individually or jointly charged with an adult must be charged in the Youth Court then the issue to transfer to the Supreme Court is considered. His Honour, Chief Justice in Police v B [2008] WSSC 85, paragraph 15:
  5. Severance of trials in the Youth Court comes in to play where two young persons are jointly charged and where the Court may consider transferring one of the jointly charged young person to the Supreme Court under section 6(5).
  6. The cases referred to by the Prosecution in their submissions are where:
  7. Nevertheless, the principles and issues that arise in cases of severance of trials are no different from those considered ‘in the interests of justice’ when exercising the discretion to transfer under s.6 (7).
  8. The applicant for transfer and not the young persons is to persuade the presiding Judge why it is in the interest of justice to exercise the discretion under s.6(7). Whether or not to transfer is a matter of judicial discretion and it depends on whether the ends of justice would be best served.
  9. A summary of factors or principles is adopted by the New Zealand Youth Court in determining the issue of whether or not it should accept jurisdiction under sections 275 (election of court for trial) and 276 (election of court when guilty) of the Children, Young Persons and Their Families Act 1989. This list is also useful in the Samoa Youth Court to consider when determining whether or not to exercise the discretion to transfer under section 6. These principles are:
  10. The Prosecution submits that s.6 (5) to (7) operate exclusively of each other. I do not entirely agree. I believe there is a link between subsections (5) and (7). That is, the young offenders have pleaded not guilty and as such the seriousness of the offence and the circumstances of the young offenders in subsection (5) must be looked at when considering the issue of what is in the interest of justice in subsection (7).
  11. Given the evidence (trial documents) before the Court at this time it appears that the Prosecution will have some difficulty discharging the burden of proof. There are no eye witnesses to the actual assault on the complainant. At best the evidence puts the Young Persons with the adult offender on the night in question, and having some interaction with the complainant or victim but not violent in any way. In fact it is clear from the evidence that the complainant was drunk and was acting in an imposing and threatening way.
  12. As it stands any imprisonment to be imposed by the Supreme Court (if transferred) and found guilty will most likely be not more than 5 years. A District Court Judge presiding in the Youth Court is clearly able to deliver this sentence.

Conclusion:

  1. The Young Offenders Act 2007, which established the Youth Court as a Division of the District Court, marked Parliament’s recognition of the vulnerability of young persons charged with criminal offending and the desirability of protecting their rights and interests with those vulnerabilities in mind. That goes some considerable way to meeting Samoa’s obligations under the United Nations Convention on the Rights of the Child.
  2. Section 5 sets out the breadth of the Youth Court jurisdiction. With the exception of a charge of murder which must be laid in the Supreme Court, all other charges brought against a young person ‘shall’ be laid in the Youth Court and dealt with in accordance with the provisions of the Young Offenders Act. The effect of that is the Youth Court has jurisdiction to deal with charges normally outside of the District Court’s jurisdiction of 5 years imprisonment.
  3. The presumption then is that all young persons (except those facing a murder charge) are to be dealt with in the Youth Court. That is the starting point irrespective of whether or not a young person is jointly charged with an adult.
  4. The discretion of the Court to transfer a young person to the Supreme Court under s.6(5) – (7) for either trial or sentence is an unfettered one. It is well settled however, that the exercise of that discretion must be fair and transparent. That does not lend itself to precise rules but rather depends on where interests of justice lie.
  5. Essentially the Prosecution argue under s.6(7) that it is in the interest of justice to transfer these young persons for hearing together with the adult co-offender in the Supreme Court. They place particular emphasis on the balance of convenience argument, namely the desire to avoid witnesses having to give evidence twice.
  6. Ultimately, I have not been persuaded towards that view for the reasons given in this judgment, which I now summarize:
  7. Accordingly, the application by the Prosecution is denied.
  8. I thank all Counsels involved for their well prepared written submissions on an important issue for the Youth Court not previously argued.

(JUDGE MATA KELI TUATAGALOA)

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