Children, Young Persons, and Their Families Amendment Act (No 2) 2011

Reprint
as at 1 July 2013

Coat of Arms of New Zealand

Children, Young Persons, and Their Families Amendment Act (No 2) 2011

Public Act2011 No 83
Date of assent17 October 2011
Commencementsee section 2

Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This Act is administered by the Ministry of Social Development.


The Parliament of New Zealand enacts as follows:

1 Title
  • This Act is the Children, Young Persons, and Their Families Amendment Act (No 2) 2011.

2 Commencement
3 Principal Act amended
4 Amendments to principal Act
  • The principal Act is amended in the manner set out in the Schedule.

5 Application of amendments made by section 4
  • The amendments made by section 4 apply in relation to a proceeding being dealt with in the Youth Court before section 4 came into force in accordance with the provisions of sections 397 and 399 to 401 of the Criminal Procedure Act 2011.


Schedule
Amendments to principal Act

s 4

Section 2

Definition of indictable offence in subsection (1): repeal.

Definition of purely indictable offence in subsection (1): repeal.

Definition of summary offence in subsection (1): repeal.

Subsection (2)(d): omit information is laid and substitute charging document is filed.

Subsection (3): omit information is laid and substitute charging document is filed.

Section 38(4)

Omit summary.

Section 61(3)

Omit summary.

Section 64(2)

Omit summary.

Section 77(2)

Omit summary.

Section 89

Omit summary.

Section 156(3)

Omit summary.

Section 157(4)

Omit summary.

Section 175(2)

Omit Subsections (1) to (3) and (5) of section 20 of the Summary Proceedings Act 1957 shall apply and substitute Section 159 of the Criminal Procedure Act 2011 applies.

Section 198(1)(a)

Omit an information laid under the Summary Proceedings Act 1957 and substitute a charging document filed under the Criminal Procedure Act 2011.

Section 199(5)

Omit Sections 20, 38, and 39 of the Summary Proceedings Act 1957 and substitute Sections 159 and 161 to 165 of the Criminal Procedure Act 2011.

Section 206(1)

Omit summary.

Section 207D(1)(g)

Omit information laid and substitute charging document filed.

Section 207K(1)(f)

Omit information laid and substitute charging document filed.

Section 207Q(1)(d)

Omit information laid and substitute charging document filed.

Section 214(2)(a)

Omit purely indictable offence and substitute category 4 offence or category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years.

Section 240(2)

Omit section 31 and substitute section 30.

Section 245

Subsection (1): omit no information in respect of that offence shall be laid and substitute no charging document in respect of that offence may be filed.

Subsection (1)(a): omit informant and substitute person intending to commence the proceedings.

Subsection (1)(b)(i): repeal and substitute:

  • (i) the person intending to commence the proceedings or another person acting on that person's behalf; and.

Subsection (2): omit informant in both places where it appears and substitute person intending to commence the proceedings in each case.

Section 247(b)

Omit intended informant and substitute person intending to commence the proceedings.

Section 250(2)(b)(ii)

Omit informant or intended informant in and substitute prosecutor of, or the person intending to commence.

Section 251(1)(d) and (e)

Omit informant or intended informant in and substitute in each case prosecutor or the person intending to commence.

Section 263(1)(b)(i)

Omit informant or intended informant in and substitute prosecutor or the person intending to commence.

Omit informant or intended informant and substitute person.

Section 265(1)(d) and (e)

Omit informant or intended informant in and substitute in each case prosecutor or the person intending to commence.

Section 272

Subsection (1): omit Summary Proceedings Act 1957 and substitute Criminal Procedure Act 2011.

Subsection (1B)(b): omit (as applied by section 272A) and substitute or section 50 of the Criminal Procedure Act 2011.

Subsection (2): repeal and substitute:

  • (2) If a child of or over the age of 10 years is charged with murder or manslaughter, the provisions of this Act (other than sections 236, 238(1)(e), 239(2), 242(2), 276, 277, and 365(1)), and of any regulations made under this Act, apply accordingly as if that child were a young person.

Subsection (2A): omit Summary Proceedings Act 1957 and substitute Criminal Procedure Act 2011.

Subsection (3): omit irrespective of whether the offence is punishable on summary conviction or on indictment.

Subsection (4): repeal and substitute:

  • (4) If a young person is charged with murder or manslaughter, section 275 applies.

Subsection (5): omit the information for that offence and substitute that charge.

Section 272A

Subsection (1)(b): repeal and substitute:

  • (b) sections 276(1)(a) and 277 do not extend or apply to the child as if the child were a young person; and.

Subsection (1)(c): omit an information charging the child with the offence even if it is a purely indictable offence and substitute a charge even if the offence is a category 4 offence.

Subsection (2): repeal.

Subsection (3): repeal.

Subsections (4) to (6): repeal.

Sections 273 to 276

Repeal and substitute:

273 Manner of dealing with offences (other than murder or manslaughter)
  • (1) This section applies if a young person is charged with an offence other than murder or manslaughter.

    (2) A Youth Court must hear and determine the charge unless—

    • (a) the offence is a category 3 or 4 offence and the young person elects trial by jury; or

    • (b) the court discharges the charge under section 282; or

    • (c) the charge is removed out of the Youth Court under section 277.

    (3) Subsection (2) is subject to section 272.

    Compare: 1974 No 72 s 34(1)

274 Young person may elect trial by jury in certain cases
  • (1) If a young person is charged with a category 3 or 4 offence, other than murder or manslaughter, the young person may elect to be tried by a jury for that offence.

    (2) The young person's election must be made and dealt with under section 50 of the Criminal Procedure Act 2011, which applies with all necessary modifications.

275 Manner of dealing with offence of murder or manslaughter, or where jury trial to be held
  • (1) This section applies if a young person—

    • (a) is charged with murder or manslaughter; or

    • (b) is charged with a category 3 or 4 offence, other than murder or manslaughter, and elects to be tried by a jury; or

    • (c) is to have a jury trial and be tried with a person with whom he or she is jointly charged, in accordance with section 277.

    (2) All applicable pre-trial processes must take place before a Youth Court, up to and including—

    • (a) in the case of a charge relating to a category 3 offence or category 4 offence (other than murder or manslaughter), transferring to the trial court after an adjournment for trial callover in accordance with section 57(3)(b) of the Criminal Procedure Act 2011; and

    • (b) in the case of a charge of murder or manslaughter, transferring the proceeding to the High Court in accordance with section 36(2) of the Criminal Procedure Act 2011.

    (3) For the purposes of the pre-trial processes referred to in subsection (2),—

    • (a) a Youth Court has all the powers of a District Court; and

    • (b) the Youth Court must be presided over by a Youth Court Judge, or, in the absence of a Youth Court Judge, by a District Court Judge.

    (4) In this section, applicable pre-trial processes include all applicable processes under subparts 1 to 4 of Part 3 of the Criminal Procedure Act 2011, any other provisions of that Act referred to in subsection (5); and those processes apply with the necessary modifications.

    (5) For the purpose of subsection (4), sections 60 to 62(1), 62(3) to 65, and 116 of that Act (which relate to sentence indications) apply despite Schedule 1 of this Act.

    (6) This section is subject to section 276.

    Compare: 1974 No 72 s 34(2)(a), (b)

276 Child or young person may forgo right to jury trial and elect to have proceedings determined by Youth Court
  • (1) This section applies if—

    • (a) a child aged 12 or 13 years charged with an offence specified in section 272(1)(b) or (c) elects trial by jury; or

    • (b) a young person charged with a category 3 or 4 offence, other than murder or manslaughter, elects trial by jury.

    (2) The child or young person may, without leave of the court, withdraw that election at any time before the proceeding is transferred to the trial court after an adjournment for trial callover in accordance with section 57(3)(b) of the Criminal Procedure Act 2011 and, if the child or young person does so, the proceedings continue in the Youth Court as if he or she had not made that election.

    (3) If the Youth Court proposes to adjourn the proceeding for trial callover, or the child or young person at any time before the proceeding is adjourned for trial callover indicates to the court that he or she wishes to plead guilty to the offence, the Youth Court must give that child or young person the opportunity of forgoing the right to trial by jury and of electing to have the charge heard and determined in a Youth Court by a Youth Court Judge.

    (4) If a young person elects to have the charge heard and determined in a Youth Court by a Youth Court Judge, the Youth Court has the jurisdiction to hear and determine the charge and otherwise deal with the young person in accordance with this Act.

    (5) If a child elects to have the charge heard and determined in a Youth Court by a Youth Court Judge, the Youth Court has the jurisdiction to hear and determine the charge and otherwise deal with the child in accordance with this Act as if he or she were a young person (but subject to section 272A(1)(a), (c), and (d)).

Section 277

Repeal and substitute:

277 Provisions applicable where child, young person, or adult jointly charged
  • (1) If a child or young person is charged with any offence jointly with any other person or persons (whether 1 or more young persons, adults, or children), this section applies.

    (2) If a child is jointly charged with any other person or persons, and that child is not charged with murder or manslaughter or does not elect jury trial, that child must be tried in the Youth Court along with any co-defendants who are also not to have a jury trial.

    (3) If a child is jointly charged with any other person or persons, and that child is to have a jury trial, that child must be tried in the same court as any co-defendants who are also to have a jury trial.

    (4) Subsection (5) applies if a young person is jointly charged with any 1 or more of—

    • (a) an adult who is to have a jury trial; or

    • (b) another young person who is to have a jury trial; or

    • (c) a child who is to have a jury trial.

    (5) Subject to subsections (2) and (3), the young person must be tried with the person or persons with whom he or she is jointly charged and who are to have a jury trial, and by the same court that is to try those persons unless the Youth Court, in the interests of justice, orders otherwise.

    (6) Subject to subsections (2) and (3), if an adult is jointly charged with 1 or more children or young persons, the following provisions apply:

    • (a) if any of the co-defendants is to have a jury trial, the adult must be tried with that person in the same court; and

    • (b) if none of the co-defendants is to have a jury trial, and the adult either does not or is not eligible to elect to be tried by a jury, the adult must be tried with the co-defendants in the Youth Court, unless the Youth Court, in the interests of justice, orders otherwise.

    (7) If none of subsections (2), (3), (5), and (6) applies, the persons charged must be tried in a Youth Court by a Youth Court Judge.

    (8) In any proceedings to which this section applies, the powers of any Youth Court Judge in respect of any defendant who is not a child or young person are limited to such powers as are exercisable by the Youth Court Judge as a District Court Judge elsewhere than in a Youth Court.

    (9) If any defendant, not being a child or young person, is convicted in a Youth Court,—

    • (a) any sentence imposed or order made must be one that could have been imposed or made if that defendant had been convicted following a trial in a District Court; and

    • (b) that defendant must for all purposes, including section 184 of the Criminal Procedure Act 2011, be deemed to have been convicted in a District Court.

    (10) If an adult is tried with a child or young person in the Youth Court under subsection (6)(b) or (7), the following apply in respect of the adult, with the necessary modifications:

    • (a) all applicable pre-trial processes under subparts 1 to 3 of Part 3 of the Criminal Procedure Act 2011; and

    • (b) sections 60 to 62(1), 62(3) to 65, and 116 of that Act (which relate to sentence indications).

    (11) This section is subject to sections 272A, 274, and 275.

New section 277A

Insert after section 277:

277A Place and level of trial court for jury trial
  • (1) This section applies if a young person is to be tried by a jury.

    (2) If the offence with which the young person is charged is a category 4 offence, the trial must take place in the High Court at the place nearest to the Youth Court from which the proceedings are to be transferred.

    (3) If the offence with which the young person is charged is a category 3 offence,—

    • (a) the level of trial court is a District Court, unless an order is made under section 68 or 70 of the Criminal Procedure Act 2011 that the trial be held in the High Court; and

    • (b) the place of trial is,—

      • (i) in the case of a District Court trial, the District Court nearest to the Youth Court that adjourned the proceeding for trial callover in accordance with section 57(3)(b) of the Criminal Procedure Act 2011 that has jurisdiction to conduct jury trials; or

      • (ii) in the case of a High Court trial, the High Court at the place nearest to the Youth Court that dealt with the pre-trial processes in accordance with section 275(2).

    (4) This section is subject to—

    • (a) any order made under section 4A of the District Courts Act 1947 or section 157 of the Criminal Procedure Act 2011; and

    • (b) section 139(1) of the Criminal Procedure Act 2011; and

    • (c) any regulations made under section 387 of the Criminal Procedure Act 2011 that prescribe a different place of trial.

Section 278

Subsection (1): omit an information is laid and substitute a charging document is filed.

Subsection (3): omit summary.

Section 279

Omit information laid and substitute charging document filed.

Omit that information and substitute the charge.

Section 280(2)

Omit information laid and substitute charging document filed.

Omit information and substitute charge.

Section 280A

Heading: omit informant and substitute person who commenced proceeding.

Subsection (2): omit informant in and substitute person who commenced.

Subsection (3): omit an information laid and substitute a charging document filed.

Subsection (3)(a): omit information and substitute charge.

Subsection (3)(b): omit information and substitute charge.

Subsection (4): omit An informant and substitute A person.

Subsection (5): omit informant in and substitute person who commenced.

Section 281A(a)

Omit information and substitute charge.

Section 282

Repeal and substitute:

282 Power of court to discharge charge
  • (1) If a charging document is filed charging a young person with an offence in category 1, 2, or 3, a Youth Court, after an inquiry into the circumstances of the case, may discharge the charge.

    (2) A charge discharged under subsection (1) is deemed never to have been filed.

    (3) If it is satisfied that the charge against the young person is proved, the court may make an order under any of the provisions of section 283(e) to (j)—

    • (a) when it discharges the charge; or

    • (b) at any earlier time after it completes the inquiry referred to in subsection (1).

    (4) The court must not exercise the power in subsection (3)(b) unless section 281(1) is complied with.

Section 283

Paragraph (d): omit summary hearing and substitute trial.

Paragraph (g): omit section 404 of the Crimes Act 1961 and substitute section 377 of the Criminal Procedure Act 2011.

Paragraph (o): repeal and substitute:

  • (o) exercise the powers conferred by one of the following subparagraphs:

    • (i) the court may order that the young person be brought before a District Court for sentence or decision, and may enter a conviction before doing so; and the Sentencing Act 2002 applies accordingly if—

      • (A) the young person is of or over the age of 15 years; or

      • (B) the young person is of or over the age of 14 years and under the age of 15 years and the charge proved against him or her is a charge in respect of a category 4 offence or category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:

    • (ii) the court may, in the case of a young person charged with a category 4 offence or an offence for which the maximum penalty available is or includes imprisonment for life and if the court considers that a sentence of imprisonment for life may be appropriate, order that the young person be brought before the High Court for sentence or decision and may enter a conviction before doing so; and the Sentencing Act 2002 applies accordingly if the young person is of or over the age of 14 years.

Section 285(6)

Insert or the High Court after District Court.

Omit purely indictable offence and substitute category 4 offence or category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years.

Section 291

Heading: insert or High Court after District Court.

Section 294

Omit information and substitute charge.

Section 321

Heading: repeal and substitute:

Application of Acts relating to bail, criminal disclosure, criminal procedure, and District Courts

Subsection (3): repeal and substitute:

  • (3) In any provisions so applied, District Court Judge, Judge, and judicial officer, for the purposes of this Act, mean a Youth Court Judge exercising jurisdiction in a Youth Court.

Section 322

Omit information and substitute charge.

Section 329(1)(c)

Omit informant and substitute prosecutor.

Section 354

Subsection (1): omit by way of case stated for the opinion of the High Court.

Subsection (2): omit informant and substitute prosecutor.

Subsection (2): omit by way of case stated for the opinion of the High Court.

Section 355

Repeal and substitute:

355 Application of Part 6 of Criminal Procedure Act 2011
  • (1) The provisions of Part 6 of the Criminal Procedure Act 2011,—

    • (a) so far as they relate to appeals against conviction and sentence, apply as far as applicable with the necessary modifications to every appeal under section 351, 352, or 353 of this Act:

    • (b) so far as they relate to appeals on questions of law only, apply as far as applicable with the necessary modifications to every appeal under section 354 of this Act.

    (2) Subsection (1) is subject to this Part.

    (3) In the application of the provisions of Part 6 of that Act, those provisions must be read as if—

    • (a) references to a District Court were references to a Youth Court; and

    • (b) the Registrar of the District Court of which the Youth Court in which the case was heard and determined is a division were the Registrar of that Youth Court; and

    • (c) references to a District Court Judge or Justice or Justices or Community Magistrate or Community Magistrates were references to a Youth Court Judge exercising jurisdiction in a Youth Court.

Section 360(3) and (4)

Repeal and substitute:

  • (3) If an appeal is abandoned under the Criminal Procedure Act 2011, the Registrar of the relevant appeal court must send a notice to that effect to the principal manager.

Section 376(5)

Omit subsection (4B) or (5A) of section 142 of the Criminal Justice Act 1985 and substitute section 173(2), 174(1), or 175(2) of the Criminal Procedure Act 2011.

Section 385(3)

Omit section 142A of the Criminal Justice Act 1985 and substitute section 34A of the Corrections Act 2004.

Section 438(5)

Omit summary.

Section 439(2)

Repeal and substitute:

  • (2) Despite subsection (1), on the application of either party, a rehearing of a charge may be granted under section 177 of the Criminal Procedure Act 2011.

  • (3) For the purposes of this section, section 177 of that Act must be treated as applying in relation to all offence categories.

  • (4) If the proceedings should have been dealt with in a District Court or the High Court, the proceedings must be remitted to a District Court or the High Court, as the case may require, to be reheard in that Court.

Section 440

Omit information and substitute charging document.

Section 445

Omit Summary Proceedings Act 1957 and substitute Criminal Procedure Act 2011.

Section 446(1) and (2)

Omit summary.

Section 456A(1)(a), (1)(b), and (5)(b)

Insert or the Criminal Procedure Act 2011 after Summary Proceedings Act 1957 in each place where it appears.

Schedule 1

Repeal and substitute:

Schedule 1
Provisions applied to Youth Courts and to proceedings in such courts

s 321

  • 1 The District Courts Act 1947, except that—

    • (a) where any provisions of this Act conflict with any of the provisions of the District Courts Act 1947, the provisions of this Act prevail:

    • (b) nothing in section 22 of the District Courts Act 1947 applies in respect of Youth Court Judges or the business of Youth Courts.

  • 2 Section 10, 13, Part 2, subparts 1 to 4 of Part 3, subparts 1 and 3 of Part 4, and subparts 1 and 2 of Part 5 of the Criminal Procedure Act 2011, except that—

    • (a) charging documents against children or young persons must continue to be filed in District Courts even though they may be heard and determined in Youth Courts:

    • (b) unless a District Court Judge orders otherwise, charges that are within the jurisdiction of the Youth Court must be heard and determined in the Youth Court that is a division of the District Court in which the charging document is filed:

    • (c) section 35 of that Act does not apply:

    • (d) sections 37(4), 38, and 40 of that Act do not apply:

    • (e) section 53 of that Act does not apply:

    • (f) sections 54 to 57 of that Act apply to a proceeding only if, and to the extent that, a Youth Court Judge directs that those provisions apply:

    • (g) sections 60 to 62(1), 62(3) to 65, and 116 of that Act (which relate to sentence indications) apply at the discretion of the Judge:

    • (h) section 106 of that Act does not apply:

    • (i) section 137 of that Act applies as if the proving of a charge were a conviction:

    • (j) section 114(1) of that Act does not apply, but section 114(2) of that Act applies only in respect of a defendant who pleads guilty to a charge of murder or manslaughter:

    • (k) sections 119 and 121 to 130 of that Act (which relate to a defendant who does not appear) do not apply:

    • (l) sections 139(2) and 140 of that Act do not apply:

    • (m) section 147(5) of that Act does not apply:

    • (n) section 177 of that Act applies to all offence categories as if the proving of a charge were a conviction:

    • (o) section 178 of that Act applies as if the proving of a charge were a conviction:

    • (p) section 184 of that Act does not apply.

  • 3 Part 3 of the Bail Act 2000 except that—

    • (a) neither a Justice nor a Community Magistrate may exercise any of the powers conferred by section 33:

    • (b) the provisions of section 30 apply as if there were inserted in that section, as subsections (1A) and (1B), the following subsections:

    • “(1A) Despite anything in subsection (1), if the hearing is adjourned for the purpose of enabling a family group conference to be held under the provisions of the Children, Young Persons, and Their Families Act 1989, the defendant must be excused from attending at the time and place to which the hearing is adjourned if, before that time, the Youth Justice Co-ordinator convening that conference notifies the Court, in writing, that the proceedings of that family group conference will not be completed by that time.

    • “(1B) If, under subsection (1A), the defendant is excused from attending any hearing, and the Court adjourns that hearing, the Registrar must notify the defendant of the time and place to which the hearing is adjourned.”

  • 4 The Criminal Disclosure Act 2008.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011. The reprint incorporates all the amendments to the Act as at 1 July 2013, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)