Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

T H v Police HC Auckland CRI-2011-404-000015 [2011] NZHC 1349 (2 August 2011)

Last Updated: 6 November 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-000015}

T H

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 6 July 2011

Appearances: A Pinnock for the Appellant

J Jelas for the Crown

Judgment: 2 August 2011

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Tuesday, 2 August 2011 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Crown Solicitor, Auckland june.jelas@meredithconnell.co.nz

A L Pinnock, apinnock@xtra.co.nz

T H V NEW ZEALAND POLICE HC AK CRI-2011-404-000015 2 August 2011

[1] The appellant, who is now 20 years of age, was convicted in the Youth Court at Waitakere on 29 June 2010 of three representative summary charges of assault on three different child complainants under s 194(a) Crimes Act 1961 and 10 representative summary charges of forcing the three complainants to do an indecent act on him or doing an indecent act on the three complainants. Four of the indecent act charges were laid under ss 140 and 140A Crimes Act 1961 which were repealed as from 20 May 2005. The remaining six charges were laid under ss 132 and 134

Crimes Act 1961 which came into force on that date. The appellant was acquitted of two representative summary charges of indecent assault in relation to a fourth complainant and six more serious indictable charges of sexual violation in relation to the three complainants. The appellant had admitted two of the three assault charges but denied all other charges.

[2] On 20 December 2010, the appellant was sentenced to 12 months intensive supervision and 250 hours community work on each of the charges of which he had been found guilty and convicted.

[3] The grounds of appeal are that the Youth Court Judge erred in fact and law in:

(a) Finding the charges proven, that finding being unreasonable having regard to all the evidence, which could not reasonably have satisfied him of guilt to the required standard;

(b) Refusing the appellant leave pursuant to s 44 Evidence Act 2006 to cross-examine the three complainants as to their sexual experiences with others in a pre-hearing ruling on 16 February 2010 and on 17

February 2010 in the course of the hearing following the evidence of one of the complainants;

(c) Finding that the time that had elapsed between the commission of the offences and the hearing had not been unnecessarily or unduly

protracted in breach of s 322 Children, Young Persons and Their

Families Act 1989.

Factual background

[4] At the time of the alleged offences in 2005 the appellant was 14 years of age

and living with his parents in Massey. The appellant‟s mother had since

25 November 2003 been employed by a charitable trust that advocates for rangatahi in at risk situations and their whanau. She and her husband were care-givers approved by Child, Youth and Family Services (CYFS) to foster young people in need of care.

[5] One of the complainants, Z, came into the care of the appellant‟s parents on

5 August 2004. A second complainant, G, and his younger brother came into the care of the appellant‟s parents on 22 October 2004 while the third complainant, E, came into their care on 5 February 2005. E left the care of the appellant‟s parents on 9

July 2005 while the remaining children were uplifted from care on 18 November

2005 because of allegations of physical assault against the appellant‟s mother.

[6] Towards the end of July 2008 G made a disclosure to his current caregiver, triggering the investigation that resulted in the charges being laid.

Youth Court judgment

[7] The Court record shows that the hearing took place over 12 sitting days between February and June 2010. The evidence concluded on Thursday, 24 June

2010. Judge Callander then adjourned the case until Tuesday, 29 June 2010 when he gave an oral 159 paragraph judgment.[1]

[8] Judge Callander commenced by outlining the charges against the appellant and noted the ages of the appellant and the complainants. The Judge then referred to the appellant‟s denial of the allegations and stated that the veracity and credibility of

_{the complainants was the key to the case.}

[12] The defence position is that the boys had a motive to lie, a proclivity to make false allegations, with respect to the complainant E the propensity to fantasise about sexual activities. It is also argued that there has been a degree of transference and suggestibility in terms of the way in which the boys were interviewed.

[13] The boys all come from significantly disadvantaged and dysfunctional backgrounds. There was a suggestion that there had been prior sexual abuse but that does not form part of the case in terms of relevant material.

[10] Judge Callander then reminded himself of the onus and standard of proof and the approach to be taken by a decision maker to the evidence of the witnesses. He noted that he has never had the innate gift of being able to determine whether a witness is telling the truth or not and stated that he always had to do it the hard way by careful analysis of a witness‟ testimony.

[11] The Judge then referred to the three possible approaches to take to the evidence of the appellant. He noted that there were many charges and his job was to consider each one separately and come to a separate decision about each. He then referred to the possibility of using propensity evidence:[2]

... if I hold the view that a combined pattern of evidence establishes really a pattern of conduct on the part of [the appellant] which amounts to a propensity to act in a certain way.

[12] Judge Callander also set out the essential elements of the charges of assault, sexual violation by unlawful sexual connection and indecent acts. He then referred to the approach to be taken to the evidence of children and young persons and noted that it was not uncommon for persons not to make a complaint about sexual offending until years after the event.

[13] The Judge then reminded himself of the use that could be made of lies. He stated that he had reflected on the mode of evidence and then talked about representative counts. Finally, he recorded that there was no issue with identification

_{in the case.}

[14] At para [72] Judge Callander recorded that the appellant admitted the common assaults on two of the complainants and noted that there were two specific instances of assault on each boy by way of punching. He noted that the appellant was angry with them over issues that need not to be addressed. He stated that these were quite separate to the sexual offences and did not indicate any propensity towards sexual activities – “simply that he got angry on one of those occasions”.

[15] The Judge then stated that the fundamental issue in the case was whether the evidence of the various Crown witnesses established a reliable framework of consistent testimony as to the offences in question. After referring to a chronology and the ages of the complainants Judge Callander found that there was no collusion between the complainants. He also later discounted any possible revenge motive for the complaints.

[16] Thereafter, Judge Callander raised a number of concerns about the evidence of the complainants. First, he found that there was a degree of exaggeration “by at least the older boys”.[3] Secondly, the Judge was concerned by the description of the frequency of the sexual offences as occurring “all the time – at night and every day, during the week, Saturday and Sunday”.[4] He stated:

I reached the finding that there was an exaggeration on the part of E in quite a significant way and that what he says occurred with frequency could not have indeed occurred.[5]

[17] Thirdly, there was an inconsistency between the evidence of the complainants

[96]...[E] says he saw [the appellant] sodomising G and Z but Z did not confirm that.

[97] G said that [the appellant] was doing to E what Z was doing to him, but Z did not describe having done anything to G, so there is an inconsistency there between the boys as to some of the details there.

[18] Fourthly, Judge Callander was troubled about the opportunity for sexual offending in the home. He asked:[6]

Could it be that this extensive, almost daily sexual abuse was occurring with great repetition in this house without adults in the family observing it and reacting to it?

[19] The Judge noted that the primary caregiver there on a daily basis was the appellant‟s mother and she said in her evidence that that just could not have happened.

[20] There followed at para [102] a key finding by Judge Callander:

[102] I am of the view that obviously there were occasions where it must have happened because kids will get up to mayhem as soon as parents backs are turned, even for short periods of time. But the issue here is not, I think, whether it happened at all but the extent of it and whether E, in particular, and the other boys to a lesser degree have enhanced their allegations by adding to the frequency and embellishing what has been said in simpler terms.

[21] Having made this key factual finding, however, Judge Callander goes on to voice other concerns in addition to the four earlier concerns he had expressed. First, the screams that the complainants said they uttered from the rumpus room were never heard. Secondly, a relative had a bedroom in the immediate vicinity and he says that “nothing happened to his hearing or to his attention”.[7] Thirdly, E was said to be a fantasist and undoubtedly the younger complainants would have looked to him for some sort of leadership in terms of their group reaction, one to the other. E‟s mother confirmed that he was a boy that did fantasize. Fourthly, no facial bruises, nose bleeds, cuts or bleeding into underwear that would be indicative of sustained

abuse was noticed by the appellant‟s mother or other caregivers.

[22] Judge Callander then turned to the evidence of the appellant at interview and in Court. The Judge stated:[8]

... [the appellant] seemed to me to be genuinely distressed and even at times almost tearful at the allegations that were being put to him. Thus in terms of his demeanour he came across as a witness that could be accepted. I say that subject to what lies ahead in this decision.

[23] Judge Callander then referred to the co-incidence of the four complaints in the following passage:

[113] Obviously any Judge asks the question, “Why would these four young people, even after the passage of several years, have come up with these serious allegations of sexual offending?” Either they are all lying quite independently of one another, or they have got it badly wrong and there is a degree of co-incidence in what they have independently told the social workers or interviewers.

[114] That obviously is a factor of concern to the Court because one has to look at the realities of life that it is not unusual indeed when there is no collusive behaviour for four young people at different times to come up with allegations of sexual offending. That offending may well be presented in a different way by the boys as to frequency and degree, but is nonetheless made.

[115] I am mindful that these boys, as I have said, came from difficult backgrounds. Indeed that is why they were in care in the first place. Their behavioural problems are factors to be borne in mind but ultimately the test is whether their version of events can be accepted either whole or in part as I have already suggested. I could see no motive on their part for them to make false accusations against [the appellant].

[24] In the above passage, the Judge seems to accept that the evidence of each of the other complainants could be used as propensity evidence in considering the evidence of any one of the complainants.

[25] Thereafter, however, Judge Callander raises yet more concerns about the evidence of the complainants in addition to the eight earlier concerns he had expressed. First, he notes that there were many opportunities for the complainants to mention the abuse to trusted adults, but they did not do so. Secondly, Judge Callander accepted that G had been seen as a liar.[9]

He was considered by one of the social workers as being a prolific liar and thus had a propensity to lie.

His current caregiver indicated that his chronic substance abuse may well have affected his memory and perception of events. Judge Callander stated:[10]

That worried me in terms of the accuracy of any recall he had those years later of what had allegedly occurred.

[26] After referring to more concerns, including a false allegation by him against his current caregiver, the Judge concluded:

.

[122] The allegation by G against [his current caregiver] himself was of concern and it was another factor that added to my overall perception of G as a witness. In short I guess what I am saying is that a witness like G with his troubled background has to be assessed very carefully in terms of whether he is lying or embellishing or genuinely believes in his own perhaps incorrect version of events.

[27] Thirdly, Judge Callander referred to the difficulty in some parts of the evidence as to the manner in which the complainants were in fact approached by social workers and interviewed.

The tainting of young witnesses is a recognised concern by professionals...[11]

[28] He stated:

[125] There is a proper protocol for the way in which young witnesses are to be interviewed and approached. I think there was a failing here in terms of that approach in terms of the boys being told that there had already been a complaint by G. It can be a dangerous approach with some kids especially I think with E and the nature of his background and personality.

Judge Callander then reiterated that he was troubled in a general sense about the testimony of E.[12]

[29] As to Z, the Judge stated he did not seem to want to make any complaint at all and showed great reluctance to do so. He stated:

[128] Young ZW: he did not seem to want to make any complaint at all and showed great reluctance to do so. He seemed to be quite unhappy about even leaving the H home. He did not make a complaint until after he was told again that G and E had both made complaints so that there was a degree of prompting or leading which may well have tainted his response to the later questions.

[129] It was not in fact until February last year, after he had been told about the „so called‟ bad things that had happened to G and E that he came up with the things that he said had occurred, that he was possibly even coloured in what he said by conversations that he had had with G and E and not were things had actually come to his direct attention.

[30] The circumstances surrounding the interview of the fourth complainant were then noted by Judge Callander. The Judge then turned again to the evidence of the appellant and reiterated that he presented in a way that seemed to him, in terms of his demeanour, to indicate that he was in fact denying the events in a truthful way. Nonetheless, Judge Callander stated that he had come to the view that he lied to him about some aspects of the case and that he could not accept everything he said at face value.

[31] Judge Callander then referred to the evidence of children and stated that one of the things he had noticed over the years was that children sometimes do tend to incorporate false information into their account as their recollection of the original events begins to fade. His Honour then made a second key factual finding:

[146] Coming to, I think, the final conclusion I have come to a clear view here in terms of the overall perspective I have of the case that the boys themselves have not lied about some of the events that have been the subject of this case, but they have embellished in a number of significant ways that leave me dubious as to whether some of the more significant charges against T are made out as, I repeat, I have to be sure that these charges have been proved.

[147] I am satisfied there was sexual activity downstairs in the H house, nowhere near as often or as frequent as has been suggested by some of the boys. I believe there has been exaggeration and some „gilding of the lily‟, I am not able to determine exactly the extent of that, but I am dubious about some of the more serious allegations particularly those that are the subject of the indictable charges such as the sodomy and fellatio issues.

[148] I have got to the point, basically, where I could not see any proper response from the Court in terms of a finding beyond a reasonable doubt in terms of those cases where there may well be doubts about exaggeration or

„gilding of the lily‟.

[149] I had the responsibility of trying to get things right. Judges do not always get things right because we have to try to make a judgment call about people and in many respects Judges are no better at that than are the average intelligent community members.

[150] I am therefore not satisfied beyond a reasonable doubt as to whether the more grave allegations are made out. I am comfortable with and find some of the lesser allegations to be established.

[151] I will now go through the charges and give my findings.

[32] The specific findings were as follows:

[152] There is no need for me to talk in terms of EF about the assault because that was admitted.

[153] I am satisfied beyond a reasonable doubt that [the appellant] did in fact masturbate E. I am also satisfied that there was the forcing of him to masturbate [the appellant] himself. I am satisfied in terms of Information

956 that there was again the masturbation of E, and again in Information 957 (these are all representative accounts of course as well) satisfied that those

are also established beyond a reasonable doubt.

[154] I have a significant doubt about whether there was the sodomising of E (Information 959) that is the sexual connection by penis in anus. I similarly have a doubt about Information 958 – the fellatio charge. Information 955 has been acknowledged by the Crown as not being proved – that was again, fellatio of E by [the appellant], there was simply no evidence of that, so I did not need to consider that in the course of my deliberations.

[155] In terms of the GE charges, I am satisfied beyond a reasonable doubt that there was proper proof of the charge Information 953 – masturbating [the appellant], Information 950 – the masturbation of G.

[156] The assault charge, Information 201, has been admitted. I find Information 1308 – which was masturbating of [the appellant], being forced to do that, and masturbating G‟s penis, Information 1306, to be established beyond a reasonable doubt. In terms of the other charges with respect to that complainant, I am doubtful and therefore dismiss the charge under 960 of sexual violation by fellating G, of the fellating of [the appellant] by G – Information 951.

[157] ZW, the common assault I am satisfied certainly happened. The indecent assault or act upon Z by touching Z‟s penis I am satisfied happened and is proved, and then there is the indecent act – Information 204, touching [the appellant‟s] penis by Z I am satisfied about.

[158] I am unhappy about the evidence relating to CE‟s charges for reasons that I have indicated. I find neither of those charges to be proved to my satisfaction.

[159] That is the decision of the Court.

Requirement for reasons

[33] This is an appeal under s 115 Summary Proceedings Act 1957. Section 119 sets out the procedure to be followed while s 121 sets out the duties and powers of the High Court in hearing and determining appeals.

_{[34] As to the giving of reasons, the Court of Appeal stated in R v Jefferies:}[13]

[16] While there are numerous decisions here and overseas emphasising the importance of giving reasons for judgment (see for example Bell-Booth v Bell-Booth [1998] 2 NZLR 2 and Singh v Chief Executive Officer, Department of Labour [1999] NZAR 258), and recognising that under some statutory provisions it is a matter of obligation (eg Stefan v General Medical Council [1999] 1 WLR 1293), R v Awatere continues to govern appeals from criminal proceedings in the District Court. The provision of sufficient reasons for decision in summary proceedings is always highly desirable. What is appropriate must depend on the nature of the case and the issues involved. In some cases a sentence or two will be sufficient. But the giving of reasons is not an inflexible rule of universal application. The failure to do so does not automatically vitiate the decision. The High Court on appeal is required to exercise its jurisdiction under ss119 and 121 in accordance with the scheme and purpose of the legislation.

[35] In a judgment delivered five days later, R v Allen,[14] the Court of Appeal referred to R v Jefferies and stated:

[18] The present case involved a defended hearing where conflicting accounts of events were presented. It is accepted that it was necessary for the Judge to give reasons. The question that arises is whether the findings and the content of the reasons given were sufficient.

[19] Numerous cases both in New Zealand and overseas have discussed the required content of reasons where a duty to give reasons arises. It is widely accepted that there is no obligation on a trial judge to address expressly every point that arises in a case. What is required will depend upon the particular circumstances.

[20] Turning first to the decisions of this Court: in R v Awatere Woodhouse P commented that the proper question to be asked is whether reasons are given that can “sensibly be regarded as adequate to the occasion” (at 649); in R v Atkinson [1984] 2 NZLR 381 Hardie Boys J said that “how fully expressed [reasons] should be will depend on the nature of the individual case”; and in R v Connell [1985] 2 NZLR 233, Cooke J said at

237:

To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge‟s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need, but not long exposition.

[21] The position in Canada is similar: see R v Burns (1994) 89 CCC (3d) 193 and R v R(D) (1996) 107 CCC (3d) 289. See, too, the recent

decision in the Privy Council, Stefan v General Medical Council [1999] 1

WLR 1293.

[22] Quite plainly a trial judge is expected to turn his or her mind to the elements of the offence and to any tenable defences that the accused may raise. Whether the Judge has made adequate findings and given adequate reasons is a matter of assessment in the particular context having regard to the issues arising.

[36] R v Connell[15] was, of course, a trial of an indictable charge by a Judge alone. A more recent example is Wenzel v R.[16] The Court of Appeal in Wenzel quoted another passage from R v Connell:[17]

... in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge‟s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

[37] In the present case, the Judge recognised the need for reasons when he adjourned the case for a number of days before delivering his judgment.

Discussion

[38] The first and primary ground of appeal is that there was no reasonable basis for the finding that the evidence met the standard of proof required to prove the summary charges but was insufficient to prove the indictable charges when the problems identified by Judge Callander which affected the veracity and credibility of the three complainants affected all of the evidence across all charges and rendered the evidence inherently unreliable. In effect, the appellant submits that the verdicts are inconsistent or unable to be reconciled.

[39] An immediate problem for an appeal judge is that there is no concise account of the facts. As for the assault charge which was denied but which the Judge found

_{proven, Judge Callander said only:}[18]

ZW, the common assault I am satisfied certainly happened.

[40] There is no appeal, however, against conviction on the assault charges.

[41] As for the sexual charges, the only specific allegation referred to in the judgment is the broomstick incident[19] which must not have been found proven to the requisite standard as the appellant was acquitted of all the sexual violation charges. Other alleged sexual activities were referred to without any specific finding on them. For instance, Judge Callander referred to “the alleged frequency of the alleged sexual activities”[20] without concisely stating the facts he found proven. He also described the inconsistencies between the complainants‟ accounts, again, without stating the facts he found proven. With respect to the inconsistencies, he stated:

[95] E said that the sexual behaviour occurred not just, I think, the ones up in the lounge but in the shared bedroom, in the shower, and in [the appellant‟s] room. That is of some significance also because G only spoke of it occurring in the bedroom. He says it did not happen in the showers, and certainly not in the lounge.

[96] The nature of some of the individual alleged sexual activities is of importance because E, again, describes repeated and violent anal intercourse causing him to bleed with some degree of frequency. He alleges the oral connection, the masturbation, and that he was forced to give [the appellant] “blow jobs” to use the colloquial expression. He says that he saw [the appellant] sodomising G and Z but Z did not in fact confirm that.

[97] G said that [the appellant] was doing to E what Z was doing to him, but Z did not describe having done anything to G, so there is an inconsistency there between the boys as to some of the details there.

[98] Just as to who was involved at given times, E again says it happened to all four boys including the young one C and that everyone witnessed the activities on each other.

[99] G claimed in his re-examination that [the appellant] had also forced Z to do sex stuff to him contrary in fact to Z‟s evidence. Z said he did not witness any anal or oral sex on the others but that there was talk about it by E about [the appellant] having done those things to him.

[100] In C‟s case of course there is just the single incident of touching which he did not actually identify the „toucher‟.

[42] In the end, Judge Callander said he was satisfied that there was sexual activity downstairs in the house, nowhere near as often or as frequent as had been suggested by some of the boys.[21] He believed there had been exaggeration but crucially he said he was not able to determine exactly the extent of that exaggeration.

[43] The question is, however, what type of sexual activity happened and between whom did it happen? There is just no concise account of the facts.

[44] Apart from the lack of a concise account of the facts, there is no plain statement of the Judge‟s essential reasons for finding as he does. The reasons expressed by the Judge appear to be that “it must have happened because kids will get up to mayhem as soon as parents backs are turned, even for short periods of time”;[22] “the boys themselves have not lied about some of the events that have been

the subject of this case but they have embellished in a number of significant ways”;[23]

“I am satisfied there was sexual activity downstairs in the H house, nowhere near as often or as frequent as has been suggested by some of the boys”;[24] and “I am comfortable with and find some of the lesser allegations to be established”.[25]

[45] Regrettably, I have concluded that the Judge‟s expressed reasons are inadequate in respect of a hotly disputed trial that occupied 12 hearing days. The facts and reasons needed to be explained in such a way that an appeal court could readily ascertain the basis of the Judge‟s findings. In the present case, there is no logical or principled basis expressed by the Judge for the conviction of the appellant on the summary charges and the acquittals on the indictable charges. The complainants could equally have exaggerated their account of the alleged indecent acts as the Judge said he was unable to determine exactly the extent of their exaggeration.

[46] In Wenzel, the Court of Appeal stated that where there are multiple counts, the critical factual and legal elements of each count must be separately considered

and conclusions reached.[26] This did not mean that counts having common factual and legal elements may not be grouped for convenience, but separate consideration is required where factual or legal elements are different. The Court made reference to the question trails now commonly used in jury trials as an example of a template which could be used as these set out the essential issues for a jury to determine before reaching its verdict.

[47] I accept that the Judge made some important general findings of fact. For example, he found that “there were occasions where it must have happened because kids will get up to mayhem as soon as parents backs are turned, even for short periods of time”[27] and he was satisfied “there was sexual activity downstairs in the H house, nowhere near as often or as frequent as has been suggested by some of the boys”.[28] But in my respectful opinion these findings do not go nearly far enough. It was essential for the Judge to make separate findings on the facts and legal elements relating to each charge. Regrettably, the Judge did not do so. It was insufficient in the circumstances of this case for the Judge to say that he found a particular charge to be established beyond reasonable doubt.

[48] In reaching his decision, Judge Callander also seemed to accept that the evidence of each of the other complainants could be used as propensity evidence in considering the evidence of any one of the complainants. While that may well have been justifiable, it would, in my opinion, have been preferable if the Judge had specifically referred to the matters contained in s 43 Evidence Act 2006 and made a specific finding that propensity evidence could be used.

[49] Crown counsel submitted that there was a logical or principled basis for the conviction of the appellant on the summary charges and the acquittals on the indictable charges and that was the lack of corroboration for the more serious charges in the form of injuries or bleeding into underwear that would be indicative of

_{sustained abuse in the form of sexual violations.}

[50] However, it is no part of the function of an appellate court in the context of criminal proceedings to make such a finding itself. An appellate court is also unable to review all the evidence in a 12 day hearing where the major issue was the veracity and credibility of the complainants to establish for itself the basis for the convictions.

[51] In consequence, I am obliged to find that there has been a miscarriage of justice and to set aside the convictions of the appellant on the 10 representative summary charges of forcing the three complainants to do an indecent act on him or doing an indecent act on the three complainants. I am not then required to consider the other two grounds of appeal.

[52] The question then arises whether I should remit the matter back to the Youth Court for rehearing. I have however decided against that course because of the delays to date. The third ground of appeal is in fact against Judge Callander‟s finding that the time that had elapsed between the date of the commission of the alleged offences and the hearing had not been unnecessarily or unduly protracted. The offences are alleged to have occurred in 2005. The appellant was first charged in March 2009. It is my opinion that any rehearing, which would be unlikely to be heard until 2012, would offend against s 322 Children, Young Persons and Their Families Act 1989, in that the time which would then have elapsed would be unduly protracted.

[53] The sentence imposed on the appellant following conviction on the three assault charges is however varied from one of 12 months intensive supervision and

250 hours community work to concurrent sentences of 50 hours community work on

_{each charge.}

Woolford J

[1] R v T H YC Waitakere CRI-2009-290-139, 29 June 2010.

[2] At [42].
[3] _{At [80].}
[4] _{At [87].}
[5] _{At [94].}
[6] At [101].
[7] _{At [105].}
[8] At [110].
[9] _{At [120].}
[10] Ibid

[11] _{At [123].}

[12] E was first spoken to by a social worker who had told him that some concerns had been reported about the H home, that those concerns were of indecent assault, anal and oral violation and that a complaint had already been made by G before asking him specifically if any of this had

happened to him. Notes of Evidence at p 205 line 30 – p 206 line 31.

[13] R v Jefferies [1999] 3 NZLR 211(CA) at [16].

[14] R v Allen CA159/99, 27 July 1999.
[15] _{R v Connell [1985] 2 NZLR 233 (CA).}
[16] _{Wenzel v R [2010] NZCA 501.}
[17] Ibid, at [39], quoting R v Connell at 238.

[18] _{At [157].}
[19] _{At [80] and [127].}
[20] At [87].
[21] _{At [147].}
[22] _{At [102].}
[23] _{At [146].}
[24] _{At [147].}

[25] At [150].
[26] _{Wenzel v R [2010] NZCA 501 at [41].}
[27] _{At [102].}
[28] At [147].