Refugee claims he was sent to jail in NZ when he was only 15

Tuesday, 14 November 2023

A refugee who was convicted of numerous offences, including assault and drink driving, has argued he was sent to prison when only 15 years old.

The man, who has name suppression, says mistakes and confusion over his birth date meant he was sentenced to an adult prison for 11 months in 2001. Anyone under 16 should have been dealt with in the Youth Court, and not sent to jail, apart from very serious offences.

However, police say the man, known as Mr G, did not raise the issue of his age at the time, nor for many years afterwards, and had used numerous birth dates since arriving in New Zealand.

The appeal is the first case to be referred to the courts from the Criminal Cases Review Commission (CCRC), a body established in 2020 to investigate possible wrongful convictions and sentences. If it believes it is in the interests of justice, the independent body can send cases back to the courts for a new appeal.

When the case was referred back to the courts last December, the CCRC’s Chief Commissioner, Colin Carruthers, KC, described it as “disquieting”.

Mr G says he was born on a date in 1986, but lost all documentation when he fled his home country as a boy.

In the Wellington High Court on Monday, two family members agreed with this, saying this was the date they always celebrated his birthday.

Representing Mr G, Kerry Cook said a miscarriage of justice had occurred and given Mr G had long ago served his sentence, the only option was to set aside his convictions.

He said it was“abhorrent to any right-thinking member of society” that a 15-year-old could be sent to jail.

And he said the Court risked losing its moral authority and integrity if the convictions were allowed to stand.

He cited an immigration Certificate of Identity and 1999 Certificate of Citizenship, which confirmed Mr G’s birth date of 1986, as direct evidence Mr G was 15 when jailed.

However, police say when Mr G was charged and sentenced in 2001, he gave a date of birth in 1984, meaning he was 17 at the time.

At other times, when dealing with police and officials, Mr G gave other dates of birth.

It was only since 2016 he had stuck solely to the 1986 date.

Representing police, Crown lawyer Stuart Baker asked one of Mr G’s relatives if she was mistaken and his birth date was actually 1984.

The aunt, who also has name suppression, replied, “No”, and said she was present when Mr G was born and it was only a month different from her own daughter’s birthday.

When Mr G was sent to prison, she took documents showing he was only 15 to the prison and police, but nobody listened to them, or accepted this was his age.

Baker pointed to the fact Mr G obtained a driver’s licence in 1999, meaning he would have been only 13 at the time, if he was born in 1986.

Another of Mr G’s relatives said they were virtually the same age and had celebrated birthdays together.

The cousin said it wasn’t possible Mr G was born in 1984, because she was born in 1986 and she had known her whole life they were the same age.

However, Baker pointed to the fact Mr G had started high school nearly a year before she did, when he would have been only 11, but the cousin said she wasn’t sure whether that was the case, as they were at different schools by then.

And Baker questioned why Mr G wasn’t giving evidence about what his birth date was; what had happened to him; and why he knowingly continued to use other dates of birth.

The case was heard by Chief High Court Judge Susan Thomas, who said Mr G was “clearly a troubled young man”.

The hearing was adjourned because it was revealed police had contacted Mr G’s father overseas, but didn’t disclose this to Mr G’s lawyer until Monday’s hearing.

Cook said he wished to investigate the possibility of calling Mr G’s father as a witness.

The case is considered important because it is something of a test of the CCRC’s investigations and referral process.