28 Aug 2014

Dudley family considering options

10:26 am on 28 August 2014

The family of an Auckland teenager who died after being punched last year are considering their options after their shot at appealing the sentence for one of his attackers failed.

Fifteen-year-old Stephen Dudley, who had an undiagnosed heart condition, died in hospital after being hit following a rugby practice in June last year.

The Crown has decided it will not appeal against the discharge without conviction given to the 18-year old who pleaded guilty to attacking the teen.

The Dudley family said they were now considering their options.

"We are utterly devastated at the news regarding the law not allowing for this unjustified discharge without conviction to be appealed," they said.

"The news came as another shocking blow, like the ones that killed our son."

"[We] wish to thank all the members of the New Zealand public for your unwavering support - we will continue to strive for Justice for Stephen."

Stephen's father, Brent Dudley, said he would not fathom the decision.

"It's quite simple that our son went to school, he went to rugby training, he was attacked from behind, by a person who was two years older and a lot bigger, and yet there's no repercussions for them. That's it," Mr Dudley said.

He would not say whether the family had hired a lawyer but said civil action was an option the they would consider over the next few days.

The Crown issued a statement about its decision not to appeal, saying it had reviewed the sentence but had no jurisdiction to do it.

"The deputy Solicitor-General has carefully considered the facts and the relevant legislative provisions and has determined that in this particular case there is no jurisdiction to appeal or review the judge's decision," the statement said.

Law at time

The Crown's decision is based on the law at the time Stephen died, which allowed no right of appeal against the sentence because the discharge without conviction was deemed an acquittal.

That particular rule has been changed under the Criminal Procedure Act 2011, which now makes it possible to appeal.

But the Act was not in force until 1 July last year; Stephen died in June last year.

Professor Warren Brookbanks, of Auckland University's faculty of law, said that was a sad irony for the family.

"Had the case arisen once the Criminal Procedure Act had come into force it could have had a different outcome.

"It's a difficult one, and it's not hard to be sympathetic to the family, and I share their sense of frustration. But hopefully, there won't be too many other cases like this that would test the law in this way."

The Crown Law decision also refers to the relevant piece of law, under section 380 of the Crimes Act, which applies only when there is a trial.

"Here, the defendant pleaded guilty, so there has been no trial."

Another factor is that Crown Law does not have the ability to seek a judicial review of a High Court decision - something Mr Dudley said raised questions about the accountability of judges.

"High Court judges are a law unto their own and they don't have to be held accountable, and that's scary. That's something that all New Zealanders should say 'well wait on, surely they need to at least have a job appraisal like what we all have to do?

"But they don't. They can rule however they see fit."

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