Criminal Procedure Bill Government Bill
As reported from the Law and Order Committee Commentary Recommendation The Law and Order Committee has examined the Criminal Procedure Bill and recommends that it be passed with the amendments shown.
Introduction This commentary focuses on the key areas of criminal procedure that the bill proposes to significantly reform to provide for •
trial by Judge alone in exceptional circumstances
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two exceptions to the rule against double jeopardy
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majority verdicts
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the codification of criminal disclosure
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the partial abolition of preliminary hearings.
We discuss the key issues arising in our examination, majority recommendations, and dissenting views. Our commentary is organised according to the four principal pieces of legislation that are being amended, and the new Act proposed under the bill. The bill will amend the Crimes Act 1961, Summary Proceedings Act 1957, District Courts Act 1947, Juries Act 1981, and Victims’ Rights Act 2002, and enact a new Criminal Disclosure Act. The proposed reforms aim to give effect to the Government’s policy goal of maximising efficiency and fairness in the criminal justice system. It reflects similar measures in some overseas jurisdictions 158—2
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which altered certain longstanding principles of criminal law to enhance public confidence in the criminal justice system. Committee approach The changes proposed in the bill represent significant departures from certain basic principles of criminal law. We were cognisant of concerns that these rules should not be overridden merely in the interest of convenience and expediency. We had regard to the submissions received on the bill, most of which supported the policy objective of the bill, but objected to many of the key proposals. In this commentary most of us refers to Labour and United Future members. Some of us refers to National and New Zealand First members. After much thought most of us consider that the bill makes many timely and necessary changes to the law. Most of the recommended amendments are intended to ensure that adequate checks and balances are provided, and that the legislation is workable. Amendments of a technical and consequential nature are not discussed. National and New Zealand First do not support some of the provisions of this bill.
Part 1 – Crimes Act 1961 This part of the commentary mainly focuses on our consideration of the major changes proposed to the Crimes Act 1961, providing for trial by Judge alone in exceptional circumstances, and for two exceptions to the rule against double jeopardy.
Trial by Judge alone Clause 5 inserts new provisions into the principal Act to empower Judges to order a trial without a jury in certain cases: •
where the case is likely to be long and complex (new section 361D)
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when there is evidence of intimidation of jurors (new section 361E).
We acknowledge that the fundamental right to a trial by jury should be preserved, and note that the bill does limit this right in some circumstances. The right to a jury trial has its foundation in the Magna Carta and is codified in section 66 of the Summary Proceedings Act 1957 and section 24(e) of the New Zealand Bill of Rights
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Act 1990, 1 but is subject to section 5 of that Act. Section 5 allows justified limits to be placed on the rights and freedoms contained in that Act. The Attorney-General considers that the limits proposed on jury trials do not breach the Bill of Rights. We note that the majority of criminal trials are summary trials, which are Judge-alone trials. 2 There is no evidence that a Judge sitting alone is incapable of preventing prosecutorial abuses which would be matters for a Judge to deal with even in jury trials, by excluding evidence, staying proceedings or other judicial mechanisms.
Long and complex trials The right to trial by jury is not absolute. It must be balanced against the right of the 12 jurors not to be diverted from the normal pursuit of their lives for an unreasonably long period. 3 New section 361D allows for Judge-alone trials in cases likely to be long and complex. For this to apply the penalty faced by an accused must be less than 14 years’ imprisonment, and the trial must be likely to last longer than 20 days. We note that the provision for trial by Judge alone responds to a New Zealand Law Commission report on juries, which stated, among other things, that jurors had considerable difficulty assimilating large amounts of complex evidence. Moreover, long trials were found to put pressure on jurors’ personal lives. Jurors’ understanding of complex legal issues We recommend amending new section 361D to clarify that potential jurors’ ability to understand complex legal issues should not be the determining factor in a Judge’s exercise of the discretion to hold a Judge-alone trial. Rather, the nature of the particular issues of the cases should be considered. A trial by jury is guaranteed for a person charged with an offence with a maximum penalty of more than 3 months’ imprisonment. 2 Sections 361B and 361C of the Crimes Act permits an accused to apply for a trial by Judge alone; and in the summary jurisdiction all trials are by Judge alone. 3 This issue was discussed comprehensively in the New Zealand Law Commission report Juries in Criminal Trials, No 69, 2001, p. 2. 1
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Right of accused to notice and reply We recommend amending new section 361D(2) to clarify the onus on the prosecution to notify the defendant when lodging an application for Judge-alone trial. We also recommend new section 361D(3) be amended to specify that the prosecution and the accused must both be given an opportunity to be heard in relation to such an application before an order is made. 14-year threshold Submitters argued that the provision for Judge-alone trials will remove an incentive for the prosecution to present cases simply. New section 361D will apply only to persons charged with offences punishable by less than 14 years’ imprisonment. This is an appropriate threshold because persons liable for the severest of penalties are entitled to be tried by a jury, with the one exception of juror intimidation. We expect a limited number of Judge-alone trials under the provision, given that there have been only 11 jury trials in the last 5 years that would qualify. United Future addresses this issue in their minority view at the end of this commentary.
Juror intimidation New section 361E provides that if there is evidence of the intimidation of jurors and its effect can be avoided only by a Judge-alone trial the prosecution may apply for one. The provision is intended to protect the integrity of the trial process. The rule does not have the 14-year penalty threshold that applies to long and complex trials. It would be anomalous if intimidation in more serious cases did not qualify for trial by Judge alone. The intimidation of jurors is, we acknowledge, difficult to measure. Anecdotal evidence suggests it may be common in gang-related prosecutions, and the presence of mobile telephones with cameras in court rooms has heightened concerns. We would expect this provision to be seldom used if juror intimidation is indeed rare in New Zealand, and consequently its impact to be minimal. We note the bill will amend the Juries Act 1981 to further protect the confidentiality of jurors’ identities.
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Jury panels We recommend amending new section 361E(2)(a) to clarify that the mischief targeted is people being intimidated prior to selection as jurors, for example by threats to potential jurors. Right to apply for Judge-alone trial It was submitted that new section 361E should be widened to give the accused the right to apply for a Judge-alone trial. We note the provision specifies that the Judge must have reasonable grounds to believe intimidation is occurring, has occurred or may occur. We consider this requirement is appropriate to deal with situations where intimidation is either for the purpose of convicting or acquitting an accused.
Cross-examination of expert witnesses We recommend amending clause 6, new section 367(1C) to provide that the accused by leave of the Court may call an expert witness immediately after prosecution expert witnesses. The bill currently provides for this in jury trials only. Our amendment recognises that there may be days or weeks between the testimonies of Crown and defence expert witnesses. It is intended to allow the defence to call expert rebuttal evidence immediately after prosecution experts have been heard to allow the jury or Judge to better follow the differences in their evidence.
Exceptions to double jeopardy rule Clause 7 provides for two exceptions to the rule against double jeopardy by allowing re-trial after acquittal in two exceptional circumstances: •
where the accused has committed an administration of justice offence resulting in a ‘‘tainted acquittal’’ (new section 378A)
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where there is ‘‘new and compelling evidence’’ not available at the time of the first trial, which indicates with a high degree of probability that the accused is guilty of the offence acquitted (new section 378D).
The rule against double jeopardy is a fundamental principle of law, which declares that a person should not be tried for the same crime more than once. The basic premise is that the State, with all its resources and powers, should not be allowed to make repeated
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attempts to convict a person for an alleged offence. Without the rule the possibility of convicting an innocent defendant is higher. The principle stems from the Magna Carta and is codified under section 26(2) of the Bill of Rights Act and the special pleas of previous acquittal and previous conviction in the Crimes Act. Rationale for change The tainted acquittal exception is intended to apply to persons who escape probable conviction for a serious crime by committing an administration of justice offence leading to their acquittal. For example, in R v Moore, 4 the accused was acquitted of murder, only to be convicted later of conspiracy to defeat the course of justice because he procured a witness in the first trial to provide the Court with a false alibi. A report by the New Zealand Law Commission following this case recommended a tainted acquittal exception to the double jeopardy rule in order to maintain public confidence in the justice system. 5 Discovering new and compelling evidence after a trial has become more likely with the development of technology. Most of us consider it appropriate in the prescribed circumstances for the trial to be reopened to contest it in the interest of public confidence in the justice system. This also recognises victims’ and their families’ right to expect the punishment of offenders. Most of us consider that the law should evolve in response to changes in society and technology. While we took on board the substantial arguments opposing the proposed changes, we believe it timely to allow two very narrow exceptions to the double jeopardy rule. In recognition of the rule’s significance in our justice system, the bill includes stringent safeguards to ensure fair process. The recommended amendments are largely intended to clarify the provisions and strengthen the safeguards proposed. National and New Zealand First consider that the proposed exceptions to the rule against double jeopardy have not been justified and should not proceed. Such a hard-won right, which has withstood the test of time and forms a cornerstone of our legal system, should not be undermined on the basis of scant evidence and research. 4 5
[1999] 3 NZLR 385. New Zealand Law Commission, Acquittal Following Perversion of the Course of Justice, Report 70, 2001.
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National’s views are contained in a minority view at the end of this commentary. New Zealand First believes there should be a minimum 10-year sentence without any remission for cases such as those illustrated by R v Moore. Attorney General’s Bill of Rights report The Attorney-General has reported to Parliament on the two proposed exceptions to the double jeopardy rule. 6 Under Standing Order 264 and section 7 of the New Zealand Bill of Rights Act 1990 the Attorney-General is required to report on any bill containing any provision that appears to be inconsistent with any of the rights and freedoms contained in the Act. We discuss the matters raised in the Attorney-General’s report below under each provision.
Tainted acquittal exception New section 378A enables the High Court, on application by the prosecution, to order the re-trial of a person acquitted of an imprisonable offence if the person has subsequently been convicted of an administration of justice offence 7 that significantly contributed to the person’s acquittal. There must be no appeal or application in respect of the administration of justice offence pending, and a retrial must be in the interests of justice. The conviction of an acquitted person for an administration of justice offence will not automatically result in a re-laying of the charge for which he or she was acquitted. The Solicitor-General’s consent is required before an application is made to the High Court to reopen the previous charge for which the acquittal was entered. The United Kingdom has already legislated a tainted acquittal exception (we have been advised that as at late 2004 no prosecutions have been laid under this provision), and Australia is contemplating a similar law change. Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Procedure Bill, presented to the House of Representatives pursuant to Section 7 of the New Zealand Bill of Rights Act 1990 and Standing Order 264 of the Standing Orders of the House of Representatives. 7 The administration of justice offences under the Crimes Act are: bribery of a judicial officer (section 101), corruption and bribery of a law enforcement officer (section 104), perjury (section 109), fabrication of evidence (section 113), conspiring to defeat justice (section 116), and corrupting juries and witnesses (section 117). 6
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Submissions Our consideration of key points raised in submissions that have not directly led to changes to the bill are summarised below. •
The exception is an over-reaction to R v Moore given that tainted acquittals occur rarely in New Zealand.
We recognise that tainted acquittals may be rare in New Zealand. But if the justice system can be subverted in this way, even in rare cases, then public confidence in it will be impaired. The exception aims to protect the integrity of this system and thus strengthen public confidence in it. •
The exception contravenes the New Zealand Bill of Rights Act and International Covenant on Civil and Political Rights.
The Attorney-General found that the tainted acquittal exception was a breach of section 26(2) of the Bill of Rights Act but was justified under section 5 and is consistent with New Zealand’s international and domestic legal obligations. This is because a tainted acquittal is not legally a legitimate verdict but a nullity, therefore a rule relating to a re-trial of such an acquittal is not an exception to the double jeopardy rule. (Nevertheless this bill treats a tainted acquittal and the rules relating to its re-trial as an exception to the double jeopardy rule.) The Attorney-General took into account the safeguards proposed under the bill, which were considered proportionate to its legislative objective, and the fact that the exception will not have a retrospective effect. On the face of it Article 14(7) of the International Covenant on Civil and Political Rights appears to prohibit re-trial in any case (mirrored in section 26(2) of the Bill of Rights Act). However, the United Nations Human Rights Committee has made a statement to the effect that re-opening criminal acquittals (as distinct from re-trial) in exceptional circumstances, where there had been a fundamental flaw in the proceedings, did not infringe the double jeopardy rule. 8 •
The exception will encourage prosecutorial abuses.
Submitters feared that new section 378A would encourage abuse of the trial process by allowing the prosecution to lay thinly substantiated perjury changes in the hope of securing a conviction, and thus 8
International Human Rights Instruments, Distr. General HRI/GEN/1/Rev 7, 12 May 2004 (p 139); General Comment No. 13, (1984), Article 14 (Administration of Justice) para 19.
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another chance at securing a guilty verdict for the more serious crime. It is noted that the Solicitor-General’s prosecution guidelines specify that prosecutions must be based on a prima facie case and in the public interest. Tainted acquittal proceedings are also subject to judicial scrutiny as a pre-condition under new section 378A(2), and are intended to apply only in very exceptional circumstances. Increasing administration of justice penalties inappropriate Some submitters considered that increasing the penalties for administration of justice offences to match those the acquitted person would have faced if convicted for the primary offence, was a more appropriate response. 9 Most of us disagree. The proposed exception is the most principled way to achieve the policy underlying the proposed exception – to convict the guilty and acquit the innocent. We consider increasing administration of justice penalties a flawed approach to dealing with a limited range of cases as it assumes that the acquitted person committed the specified offence without further proof.
New and compelling evidence exception New sections 378B to 378E propose the second, and fundamentally farther-reaching, exception to the rule against double jeopardy. The provisions insert into the principal Act a ‘‘new and compelling evidence’’ exception to the rule. The primary purpose of the proposed exception is to secure factual accuracy in the prosecution process and so enhance public confidence in the justice system. While an acquittal is not the same as a declaration of innocence (it means ‘‘not proved’’), it is a hallmark of a robust criminal justice system that in general the factually correct outcome will be achieved. In our adversarial system the double jeopardy rule is one way of ensuring equality between the two parties in a trial – the State and the defendant. But there is increasing recognition that a third party, the victim, has a right to be involved and an interest in seeing the offender brought to justice. As noted previously this exception responds specifically to new technology which may assist the discovery of new and compelling evidence. Other evidence that meets 9
Maximum penalties for administration of justice offences range from 7 to 14 years’ imprisonment.
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the requirements, such as a confession, will also be covered by this provision. Exception threshold For this exception to apply the evidence must be ‘‘new’’ and ‘‘compelling’’. This very high threshold recognises that the exception is a major inroad into the double jeopardy principle, a cornerstone of criminal justice. It acknowledges that without strict rules on prosecutorial discretion this exception may, unintentionally, undermine public confidence in the justice system. Therefore the power to contest acquittals is limited by jurisdictional, procedural, and constitutional constraints. Offences that qualify for re-trial after acquittal must be punishable by 14 years of imprisonment or more. There must be ‘‘new’’ and ‘‘compelling’’ evidence that could not have been adduced in the first proceedings, which must implicate the acquitted person with a high degree of probability. The following requirements must also be met: •
The Solicitor-General must approve a police investigation into the new evidence.
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The Court of Appeal must be satisfied that the evidence is in fact new and compelling, and that a re-trial is in the interests of justice.
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Only one re-trial is permitted, even if after the second trial further new and compelling evidence emerges.
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The provision will not be retrospective.
Bill of Rights The Attorney-General’s section 7 report says that the new and compelling evidence exception is a prima facie breach of section 26 of the Bill of Rights Act; and that it can not be justified under section 5 because of the disproportionately wide range of offences caught by the 14-year penalty threshold. The Attorney-General considered that a specific and limited schedule of offences must be regarded as a minimum requirement of any scheme that makes an exception to the double jeopardy rule for fresh compelling evidence cases.
The Attorney-General noted that the new and compelling evidence exception enacted under the United Kingdom’s Criminal Justice Act 2003 captured significantly fewer offences of fewer types than is proposed under this bill. The Attorney-General was concerned that
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the circumstances of many charges will be unlikely to warrant 14 years’ imprisonment if the accused is found guilty. Not all of the current offences that would qualify for the exception are of the type that justify departure from the double jeopardy rule. The bill’s method of determining qualifying offences will result in the automatic capture of any future offences enacted with this maximum penalty. Moreover, lifting current maximum penalties above the threshold will offer an expedient way to extend the reach of the exception without having to give proper consideration to the consequences of undermining the double jeopardy rule. Most of us took these objections into consideration and consider that the new and compelling evidence proposal represents, in our view, a principled balancing of the two competing interests of finality and justice in the criminal system. Where new evidence emerges after an acquittal undermining its legitimacy from a factual perspective, most of us consider it in the interests of justice to re-try the acquitted person, but only with respect to the most serious of offences.
Submissions There was substantial opposition in submissions to the compelling new evidence exception, which we summarise below. •
There is no principled justification for such a provision.
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It is opposed by the Attorney-General and the Law Commission.
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The definition of ‘‘specified offences’’ is too broad.
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Determining whether evidence meets the threshold will be difficult.
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It will encourage inadequate police investigations and give the prosecution an unfair tactical advantage.
We discuss some of these issues below. ‘‘Specified serious offence’’ Submitters were concerned about the wide-reaching definition of ‘‘specified serious offence’’. As mentioned earlier, the AttorneyGeneral considered that a schedule of specific offences rather than the general 14-year threshold in the bill would be a minimum requirement to overcome the adverse section 7 report. Most of us consider that whether the threshold is by way of a sentence limit or schedule of offences is largely a matter of policy choice, rather than
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a legal issue. Most of us consider that the 14-year threshold appropriately balances the need for finality and the need to ensure conviction of the guilty in the most serious of cases, to serve the public interest. Encouraging inadequate investigations We note concerns that the exception may encourage sloppy police work. Most of us consider that the strict guidelines surrounding the provision will insure against any such effect. The requirements that the evidence must be new, and that it could not have been given in the first proceedings have particular relevance. Increased stress and unfair advantage Some submitters argued a re-trial would increase stress for participants and give the prosecution unfair advantage. We note that under the current law there is nothing to prevent these matters arising in retrials following an appeal or a hung jury.
Solicitor-General’s consent to investigate Most of us recommend amending section 378C in clause 7 to enable the Solicitor-General to give consent to the pursuit of an investigation which has already started on a preliminary basis. This change reflects requirements in sections 85(2) and (3) of the Criminal Justice Act 2003 (United Kingdom). It means that police are not restricted from conducting preliminary assessments. If consent is not obtained by the time the police wish to question, arrest or search the acquitted person, or seize evidence, they are barred from doing so, even if the acquitted person consents.
Right of appeal from a section 347 discharge and a stay of proceedings on a question of law Most of us recommend amending new section 381A(1) and (3) in clause 9 to extend to the prosecution the right to appeal against an order of the Court staying a prosecution on a question of law. The change will make this provision consistent with new section 381A in clause 9, which allows the prosecution to appeal a section 347 discharge on a question of law. Most of us also recommend that new section 381A(2) be amended to permit the prosecution to appeal within 10 days of the Court giving reasons for a section 347 discharge. Currently the bill specifies that
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the 10-day time limit runs from the giving of the direction, rather than the reasons. The change will allow the prosecution to know the grounds on which to advance an appeal.
Remission of matter to lower courts We recommend new section 385(3) in clause 13 be replaced to clarify that the Court of Appeal or Supreme Court may remit a matter to a sentencing Court for further action or inquiry as directed. We consider the current provision to be unduly inflexible, particularly where the sentencing Court needs to make further inquiries on matters such as the offender’s mental health.
Unanimous judgment requirement We recommend repealing section 398(1) of the principal Act by inserting new clause 14A. Section 398(1) requires the Court of Appeal to deliver a single judgment except in certain limited circumstances. But with the advent of the Supreme Court it is now possible to appeal from the Court of Appeal. Section 398(1) therefore is outmoded, having been enacted when there was no effective further appeal right. If the Judges of the Court of Appeal are divided on a particular criminal appeal, the differences of opinions should be out in the open, as they would be important considerations on any application to the Supreme Court. The Supreme Court has no such limitation on expressing dissent in any criminal appeal and it accordingly makes no sense for the Court of Appeal to conceal any dissent.
Part 2 – Criminal Disclosure Act Part 2 of the bill proposes a new Criminal Disclosure Act. It will establish a four-fold disclosure regime requiring initial then full disclosure by the prosecution, disclosure of certain information by the defence, and disclosure in certain circumstances by third parties. The proposed Act consolidates a complex body of common law and legislation, which has led to inconsistent disclosure practices. We emphasise that disclosure is a continuing obligation on the prosecution under the new Act, applicable before and during a trial until all appeals are exhausted. Our view is that the recommended changes aim to clarify or augment the obligations on the prosecution, to reflect current practice and reaffirm an accused person’s right to fair process, and to make
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the legislation more workable. We also comment on some key issues raised by submitters which have not resulted in changes. Overview diagram We recommend inserting new clause 18(2) to provide an overview diagram of preliminary disclosure provisions. This is not intended to limit or replace the words of the provisions. It is included to help users unfamiliar with statute law to understand the provisions. If any inconsistency arises between the diagram and the provisions the latter must prevail. The use of diagrams in legislation is uncommon, but we note there is precedent for it in the Criminal Records (Clean Slate) Act 2004. Our comments here also apply to the recommended amendments under Part 5, which insert a diagram into clause 92, new section 145(1) and (2), to provide an overview of committal proceedings. Service of notice We recommend amending clause 25(1) to provide that, unless a defendant nominates a service address at their first Court appearance, disclosure or notice will be served to his or her last known address. This change is intended to clarify where service is to take place. We also recommend that clause 25(3) be deleted. The provision requires service in Youth Court proceedings on the parent, guardian or carer of a child or young person. This requirement may be inappropriate, particularly if the persons specified are party to the offending.
Initial disclosure Clause 27 specifies that at the beginning of a case, or not later than 21 days from the beginning of criminal proceedings, the prosecution must provide an accused with a fair summary of the facts of their case, the maximum penalty for the offence, and a list of the defendant’s previous criminal convictions. Extending time for disclosure We recommend replacing the 21-day limit in clause 27(1) with the date applicable, which is defined in new clause 27(4). Under the proposed amendment, as a general rule, disclosure must be made 21 days after criminal proceedings commence (new clause 4(a)). For
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Youth Court proceedings disclosure must be made on the day the youth first appears in Court (new clause 4(b)). However, new clause 4(c) gives the Court discretion to extend this period. These changes are intended to better reflect the content of clause 27(1) and to give the Court flexibility. Defendant’s right to disclosure We recommend inserting new clause 27(1)(ab) providing for a defendant to receive a summary of his or her right to apply for further information before a plea is entered. We consider the defendant must be alerted to the availability of this information as soon as practicable. In particular, defendants who are not represented by counsel should not be disadvantaged by being unaware of this right. Disclosure on request We recommend amending clause 27(2) to extend significantly the list of additional information the defendant can request by inserting new clauses 27(2)(ca) to (cf). The current clause has the potential to unfairly prejudice an accused by excluding information.
Full disclosure Clause 28 provides for full disclosure after a ‘‘not guilty’’ plea in summary matters or first appearance in indictable matters including a list of all exhibits held by the prosecutor (whether or not they will be used at trial), prosecution witnesses’ convictions, and expert witness reports. ‘‘Standard information’’ To remove confusion, we recommend amending clause 28(2) and (3) to categorise the information in subclause (3) as ‘‘standard information’’. This means that extra information must be disclosed if relevant under subclause (2). The provision as currently drafted could be interpreted as significantly lessening current disclosure requirements. This amendment is intended to remedy this by clarifying the full disclosure onus on the prosecution. Codifying current practice is not intended to unfairly prejudice the accused. In effect ‘‘standard information’’ in subclause (3) is a subset of ‘‘relevant information’’ under subclause (2). There was concern in submissions that the current practice of full disclosure on request prior to plea or election for summary and
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indictable charges will under the bill be available only if the charge is indictable or after a not guilty plea; therefore counsel will be ethically bound to enter a not guilty plea to obtain further disclosure. We do not consider that the bill will increase the number of cases defended solely for the purpose of securing information. Defended summary cases only make up 27 percent of summary matters each year, compared with more than 100,000 undefended summary cases (excluding infringement offences).
Additional disclosure We do not recommend any changes to clause 29, which specifies additional disclosure requirements. Additional disclosure applies after full disclosure, and allows the defendant to request particular information from the prosecution. It was submitted that such a request should be sufficient without the requirement to justify it in terms of relevancy. There was also concern that the defendant has no way of knowing what information the prosecution may withhold because it is not considered ‘‘relevant’’. Furthermore, it was submitted that requests for specified information will alert the prosecution regarding the use it might be put to by the defence. We note that the ‘‘relevance’’ test adopts the recommendations of the Law Commission and the Criminal Law Reform Committee. Clause 29 is intended to bring reasonable efficiency to the disclosure process. Alternatively, the prosecution has an open-ended obligation to disclose everything whether or not it bears on the case. It would be undesirable if disclosure applications diverted the trial process and absorbed significant Court resources. We note that the definition of ‘‘relevance’’ in the bill is entirely consistent with judicial views on this matter. But efficiency should not be achieved at the expense of due process, and we consider the bill, as amended, achieves the right balance. Reasons for withholding information There was also opposition to clause 31(o)(i) which specifies that information may not be disclosed on the ground that it reflects on the credibility of a witness who is not called by the prosecutor to give evidence, but who may be called by the defence. It was alleged that it will enable the prosecution to ambush a defence witness in crossexamination.
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The reasons for refusing disclosure in clause 31 are essentially those found under the Official Information Act 1982. The Court of Appeal has also ruled that the Crown has no duty to disclose information tending to reflect on the credibility of alibi witnesses for the defence. 10 Inspection of exhibits by defendant We do not recommend amending clause 34 which deals with the inspection of exhibits by the defendant (apart from making a minor technical amendment). Submissions expressed concern that the prosecution may not permit or might impose conditions on this right of the defence. The clause codifies, for the most part, current practice. In any event, submitters’ concerns are addressed under clause 46(1)(b), which permits the Court to impose conditions for inspection of exhibits. Notice and plea in Youth Court proceedings We recommend amending clause 35(a) to provide that in Youth Court proceedings notice of disclosure requirements that apply to the defence must be provided by the Court or Registrar at the first appearance of the accused. Young persons in Youth Court proceedings are not required to plead, but disclosure is triggered only when a not guilty plea is entered. This amendment is intended to accommodate Youth Court proceedings where no plea is entered. We also recommend inserting new subclause 39(1)(d) to take account of this in an application for non-party disclosure hearing in the Youth Court. Time to serve alibi notice We recommend amending clause 37 to permit the defendant to provide notice of alibi no later than 14 days after committal for trial, where the information is laid indictably. Currently the clause requires notice in these circumstances within 14 days of the defendant’s first appearance. However, we consider this an unrealistic requirement because many people facing indictable charges would not have been able to receive legal advice within this period. However, we do not support submitters’ view that full disclosure should be provided before an alibi notice is served. Objections to changing the alibi notice period relate to the tactical disadvantage to 10
R v Shaqlane CA 341/00, 5 March 2001.
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defendants if their defence is disclosed, rather than to coherent arguments that their fundamental rights would be breached. There is little risk of a miscarriage of justice if the prosecution has more opportunity to investigate the evidence a defendant relies upon before trial. It also ensures that undue delays in proceedings, which may allow alibis to be ‘‘tailored’’, will be avoided. Non-party disclosure hearing We recommend amending clause 42(1) to confer discretion on the Court to grant leave to any other person having an interest in whether a third-party order might be made to appear at the hearing to determine whether disclosure by the third party should be ordered. This is intended to give the Court discretion to consider submissions from interested persons and groups other than those directly affected by an order for disclosure against a third party. Determination of non-party disclosure hearing We recommend that clause 44 be amended to provide that upon ceasing to act for the defendant, counsel must return third-party information released under this Act to the Registrar, together with a declaration that it has not been copied, or if it has, that any copies are also returned. Any breach will constitute contempt. This is intended to strengthen the protections contemplated in the clause, by giving the Court power to provide for the continued security of disclosed documents.
Part 3 – District Courts Act 1947 Part 3 amends the District Courts Act 1947 to give the District Court jurisdiction to try all indictable offences except those listed in the Schedule. The Court’s jurisdiction will not be greatly altered, but the proposed new Schedule will correct some anomalies with a view to ensuring that similar offences are treated alike.
Changes to Schedules to be made by regulations After careful consideration most of us recommend new clause 62A be inserted to provide that changes to Part I and II, of Schedule 1A of the principal Act may be made by Order in Council. As a consequence of this change we also recommend inserting new clause 92A to provide that changes to Part I and II, of the First Schedule of the Summary Proceedings Act, may also be made by Order in Council.
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These changes will also allow for transitional provisions to be prescribed by regulation. New Schedule 1A of the principal Act lists indictable offences triable either in the District Court or High Court and indictable offences triable only in the High Court. All committal hearings for these offences are held in the District Court. If the charge relates to an offence listed in Part 1 of new Schedule 1A (the ‘‘middle band’’ offences) the matter is committed for trial in the High Court. However, the High Court can refer the matter back to the District Court if it considers that the allegations are not serious enough to warrant a High Court trial. If the charge relates to an offence listed in Part 2 of new Schedule 1A it is triable only in the High Court. The First Schedule of the Summary Proceedings Act lists indictable offences that can be tried summarily. New clauses 62A and 92A will allow changes to be made to the lists of offences in Schedule 1A of the principal Act and First Schedule of the Summary Proceedings Act more expeditiously than by legislative amendment, and thus facilitate the best use of District and High Court time. Officials advise us that it is currently very difficult to avoid errors of description in the lists of offences because of frequent changes to the Crimes Act. This is partly because of the need to address transitional issues relating to the prosecution of offences committed under repealed provisions. There are also difficulties in determining whether offences under the Crimes Act should be described by reference to the ‘‘definition’’ section or the ‘‘punishment’’ section in other legislation. Regulations Review Committee Because new clauses 62A and 92A contain regulation-making powers we sought advice from the Regulations Review Committee on whether it was appropriate to amend the bill in this way. The committee’s advice was that new clause 62A raised a fundamental issue of principle in respect of the delegation of lawmaking powers by Parliament. While most of us carefully considered this advice we note that the decision as to where a case is committed for trial will have no bearing on the rights of the person charged or the sentence that may be imposed. We also note that the Chief Justice supports the proposed amendments. We also took account of the fact any regulations made under the proposed amendments will be scrutinised by the Regulations Review Committee. Most of us are therefore satisfied
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that new clauses 62A and 92A are appropriate for inclusion in the bill.
Part 4 – Juries Act 1981 Part 4 of the bill will amend the Juries Act 1981, particularly the provisions that govern criminal jury trials. The key change proposed is for 11:1 majority verdicts to be permitted after a jury has deliberated for at least 4 hours, where unanimity is currently required. Other changes aim to make juries more representative by reducing the number of people who avoid jury service.
Commencement delayed We recommend amending clause 66 to provide that the following clauses come into force at a time to be set by Order in Council for the reasons specified, rather than 6 months after Royal Assent as currently provided for. Clause 68: jury districts Clause 68 will expand jury districts from the current 30 kilometres to 45 kilometres from the courthouse. Jury lists are compiled from the electoral roll and the re-drafting of jury districts will require input from Statistics New Zealand and the Electoral Enrolment Centre. It would be impractical for this clause to come into effect 6 months after Royal Assent because these agencies need more time to establish the required mechanisms. A consequential amendment is also recommended to the transitional provision in clause 69. Clauses 75 and 76: deferral and excuse from jury service The Ministry of Justice has advised us that more than 6 months is required to make the changes to the Jury Management System required for clauses 75 and 76. The amendment will ensure these clauses will not come into force until the prerequisite changes are made. New clause 82A: majority verdicts To enable different commencement dates to be set in respect of new sections 29C (majority verdicts in criminal cases) and 29D (majority verdicts in civil cases), we recommend moving them from clause 82 to new clause 82A. The Ministry of Justice advises that more time and flexibility is required for new clause 82A to come into force
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because, again necessary changes to the Jury Management System cannot be effected until the bill is enacted.
Jury lists We recommend amending clause 73(1)(b) to extend the time for examining jury lists from 5 to 7 days. This is intended to give counsel sufficient time to examine the lists. We further recommend amending clauses 73(1) and 74 to expand the classes of persons who must not be given copies of the jury lists and to provide that they should not be left in the possession of witnesses and victims. Furthermore, defendants who represent themselves will be monitored as to how they use the list. To breach this prohibition may be treated as contempt.
Grounds for discharging jurors We recommend amending clause 77 to provide that where potential jurors lack English language competency a Judge may discharge them from jury service. Currently, the practice is for a pamphlet to be included in summonses specifying that a juror must have a good understanding of English. This amendment expressly provides the Judge with the ability to discharge jurors who qualify under it.
Jury foreperson selection We recommend inserting new clause 78(2) to provide that the timing of jury foreperson selection can be at the Judge’s discretion. This is intended to give flexibility so that a jury is not required to choose a foreperson immediately after being sworn in which would allow them to make a more informed decision as to which of them should act as the foreperson. We have looked at the practice in similar overseas jurisdictions and consider our proposed change is a balanced and workable compromise. Selection is made in the United Kingdom after evidence is introduced and before deliberation starts. This is similar to the practice in Queensland, where it takes place once the jury has heard the final addresses from counsel and the Judge’s directions. In Victoria it is done after the trial begins, and in New South Wales at the earliest time after the jury is sworn in.
Discharge of jurors We recommend amending new section 22 in clause 79 to provide that a discharged juror is discharged also from the jury panel in some
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situations. This amendment is intended to apply to situations where a juror or potential juror is incapable of performing a juror’s duty or is disqualified, for example because of illness or the death of a family member. We further recommend new section 22B be amended to specify that, in considering evidence pertaining to the discharge of a juror, evidence touching on jury deliberations is excluded.
Challenges without cause We do not recommend changing new section 24, which proposes to reduce the permitted number of peremptory challenges from six to four. Submitters considered this proposal unjustified, especially as the bill will enlarge jury districts. We consider that while it is appropriate to have some peremptory challenges, reducing the number will ensure that they are in fact used as intended. We do not consider it will increase the number of ‘‘borderline challenges’’ for cause, given the exceptional circumstances that they require. In considering this clause we looked at the practice in overseas jurisdictions. We note that England, Wales, Scotland and the Republic of Ireland have eliminated peremptory challenges, while Tasmania retains them only for the defence.
Jury sequestration We do not recommend amending new section 29A, which proposes to make jury sequestration a matter of judicial discretion. Under the current law sequestration is mandatory during deliberation. This amendment recognises the sometimes demanding nature of jury service and the impact it may have on jurors’ personal lives. Submitters argued there is no rational basis for changing the law; and that a jury needed to focus on its task free of influence when deliberating. We consider that granting the Court a discretion to sequester a jury is a principled balancing of the arguments for and against it. If any particular case were to receive intense media scrutiny to the extent that it might prejudice deliberations, it is likely the Court will sequester the jury in the interests of justice. Sequestration has been abolished in England, Wales and in many United States jurisdictions, and is rare in Canada. The Law Commission has noted that jurors put pressure on the jury to come to a verdict in order to avoid sequestration. Ministry of Justice statistics show that jury sequestration occurs in only a small number of cases.
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In the 9 months to September 2004 only 35 juries were sequestered out of a total of approximately 1450 jury trials (other than in respect of their deliberations).
Majority verdicts We recommend new clause 82A be inserted to enable new sections 29C and 29D to commence by Order in Council, not 6 months after Royal Assent. Apart from transferring them from clause 82 to new clause 82A, no other change is recommended. New section 29C will change the current requirement for unanimous jury verdicts in criminal cases to admit 11:1 majority verdicts where deliberations have lasted for at least 4 hours. This responds to the New Zealand Law Commission’s recommendations in Juries in Criminal Trial. This report noted there was clear support within the legal profession for majority verdicts where the jury has deliberated for more than 4 hours. Some submitters contended there is no evidence of a ‘‘rogue juror’’ problem in New Zealand and therefore no need for the proposed change. This view is contrary to evidence found by the Law Commission, which found that in a study of 48 jury trials, five were hung, two of which involved rogue jurors refusing to participate in deliberations, and three with rational dissenting jurors. A number of overseas jurisdictions already use majority verdicts. 11 New Zealand is also a party to the Rome Statute of the International Criminal Court which uses a majority verdict system for its Judges. Submitters argued that majority verdicts will undermine the criminal standard of proof of beyond reasonable doubt. But we consider that majority verdicts will allow dissent to be registered, and produce a more honest result. A single juror may otherwise be pressured by the 11 others to return a verdict against his or her conscience. It was also argued that requiring unanimity may pressure juries to compromise verdicts where multiple charges are involved. We do not consider that majority verdicts will encourage compromise any more than the current unanimity requirement does. 11
Overseas jurisdictions with 10:2 majority verdicts are: England and Wales (1967), South Australia – except for murder, treason (1927), Western Australia (1957), Northern Territory (1963), Tasmania (1936), Northern Ireland (1971), and Republic of Ireland (1984). Victoria has had 11:1 majority verdicts since 1994.
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We note public confidence has not been adversely affected in overseas jurisdictions by the use of majority verdicts. Rather, majority verdicts uphold public confidence by making bribery or intimidation of jurors more difficult. Limit on number of jurors for majority verdicts New section 22A does not permit juries of fewer than 10 except with the consent of both parties. We considered specifying that a majority verdict should be permitted only if there are 12 jurors, but decided against it. If defence counsel has concerns in any particular case about a verdict from a majority of fewer than 9 out of 10, they can choose not to consent to the trial’s proceeding. New Zealand First reserves its position with regard to majority verdicts.
Increased fees and allowances payable to jurors We recommend inserting new clause 82B to provide an explicit legislative basis for the recently passed Jury Rule 28(3), which provides for increased daily fees and allowances for jury service. The rule also allows fees to be increased in exceptional circumstances at the Secretary for Justice’s discretion. While we welcome the possibility of higher fees we consider that jury fees should be revised with a view to upward adjustment given that the rates remain below the minimum wage. We understand some people’s reluctance to take part in jury service when it means taking time off work without pay or with insufficient pay. Adequate remuneration would go some way to induce persons, who may otherwise be unable to take leave, to attend jury service when called upon.
Part 5 – Committal proceedings for indictable offences Part 5 of the bill amends the Summary Proceedings Act 1957 to abolish oral preliminary hearings and move indictable criminal cases to trial on the basis of formal written statements, unless the District Court orders an oral hearing. The elimination of mandatory preliminary hearings will mean that witnesses will only testify once in Court, unless a Judge orders otherwise, thus freeing valuable Court time. Most provisions are contained in the very extensive clause 92. There are a number of reasons for this reform. A 1990 Law Commission report said that preliminary hearings did not act as an ‘‘effective
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filter’’ because lay Justices of the Peace may feel unqualified to put an end to a case. The Law Commission also said that section 347 discharges made preliminary hearings largely redundant. A study in the United Kingdom concluded that the effectiveness of committals as a ‘‘filter’’ was questionable given the high numbers of subsequent directed and Judge-ordered acquittals. The Chief Justice of Canada in 1992 called for the abolition of preliminary inquiries (the Canadian equivalent) and its replacement with a robust disclosure regime. Submissions Many submissions opposed the proposal to abolish oral preliminary hearings. We discuss the key points raised below which have not, however, resulted in any changes to the bill. •
Purpose of preliminary hearings
It was contended that preliminary hearings provided the defence with discovery and allowed it to mount admissibility challenges to evidence and prepare witnesses for trial. However, we consider that the primary purpose of preliminary hearings is to determine whether the Crown has sufficient evidence to make a prima facie case before an accused can be committed to trial. It is not intended to be a forum of disclosure. •
Facilitation of guilty pleas
Submitters argued that preliminary hearings facilitated early guilty pleas. But we note there has been a declining trend in the number of guilty pleas entered following committal hearings. •
Section 347 discharges
Submitters were concerned that the proposal to abolish preliminary hearings will impact on their ability to apply for a discharge under section 347 of the Crimes Act. Most of us consider that section 347 discharges will remain untouched by the reforms in the bill. •
Wrongful convictions and appeals
Submitters contended that the removal of preliminary hearings will result in more wrongful convictions and increase the number of appeals. We note that most offences in New Zealand proceed to trial without preliminary hearings. They are not available for infringement offences and for most summary offences.
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Overview diagram Most of us recommend amending new section 145(1), and also inserting new subsection (2), to provide a diagram giving an overview of committal proceedings for indictable offences. Our comments in Part 2 on new clause 18(2), which inserts an overview diagram on disclosure provisions, equally apply here.
Pre-trial negotiation Most of us recommend that new section 149 be amended to provide that pre-charge negotiation between parties is excluded from the ambit of this section, which specifies the form of notice to be served on the defendant. This change clarifies that the provision is intended to alleviate any pressure on a defendant to say (or not say) anything in his or her defence, and is not designed to undermine pre-trial negotiations.
Power of Justices of the Peace to adjourn We recommend amending new section 155(2) to specify that a single Justice of the Peace may adjourn committal proceedings for no longer than 8 days, unless both parties consent. This change is intended to avoid arbitrary and long remand periods at the order of the Registrar.
Guilty plea before committal We recommend amending new section 161(1)(a) to provide that the procedure for a guilty plea prior to committal is the same as that for a guilty plea after committal, outlined in new section 184J. Our amendment means that a defendant who wishes to plead guilty before committal must be read the charge before entering plea whereas the bill currently proposes for this to be done on request. This is intended to reflect the seriousness of pleading guilty to an indictable offence.
Filing out-of-time statements We recommend amending new section 168(2) to provide that the prosecution may file an out-of-time statement only if the Court grants leave. Currently the provision proposes two grounds on which out-of-time statements can be filed: by leave, or if the person
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giving the statement makes it after the date required. Our amendment is intended to give the Courts discretion to alleviate potential problems arising from the late filing of statements.
Application for oral evidence order We recommend amending clause 92 by inserting new section 177(1AA) to specify that a standard committal should not be ordered until either the defendant notifies the Court that an oral evidence hearing will not be required, or after 14 days has elapsed from the date for the prosecution to file its statements. The latter requirement reflects the 14-day time limit by which an application for oral evidence order must be made (new section 178(2)).
Indictment against corporations following committal We recommend amending new section 184M(3) to state that it is subject to section 66(6) of the principal Act and section 345 of the Crimes Act. New section 184M currently limits the filing of an indictment to the specified offence originally laid against a corporation following committal. The amendment reflects section 345 of the Crimes Act, which limits the filing of an indictment not to what was originally laid, but based on what evidence is disclosed at committal.
Availability of statements and oral evidence to media New section 184T proposes that written statements and records of oral evidence must be made available to accredited news media. We recommend deleting this provision to retain the present position. That is, the Court may if appropriate suppress details of certain proceedings, exclude the public in certain circumstances from the courtroom, and provide access by the media to written statements only where allowed by Court rules. We do not consider that the media should have automatic access to written statements and records of oral evidence. For example, where a sexual violation complainant makes a formal statement in support of a committal, automatic access does not serve the intents of justice as such statements are untested.
New offences added to First Schedule We recommend inserting new clause 93(1AA) to update the offences in Part 1 of the First Schedule of the principal Act that relate to Part V of the Crimes Act. These are mostly offences with
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penalties ranging from $20,000 to 7 years of imprisonment. This change makes the Schedule more consistent with current thinking about mandatory trial by jury. Consequential amendments to middle-band offences We further recommend amending Schedule 1A by adding new offences enacted under the Crimes Amendment Act 2005 (sexual offences), and to categorise correctly aggravated robbery, which was wrongly listed.
National Party minority view Against the background of increasing delays within the Court system, change is needed to provide speedier justice. Why should people be worried? Because these delays cause unnecessary anguish for everyone involved. They put victims in danger of further violence and prevent defendants from beginning their sentences or clearing their names, and if cases take too long to be heard, they can be dismissed under the Bill of Rights. Guilty people may go free. We believe that further changes would be appropriate to assist in providing more efficient justice. We note the recent work of the Law Commission and others in this regard. The National Party wants to record particular caution about the proposals for exceptions to the rule of double jeopardy, and the partial abolition of preliminary hearings. Discussion around the exceptions to the rule of double jeopardy is rehearsed in the main committee’s report. National believes that the proposal of the Law Society and others that the penalties for perverting the course of justice be expanded is a more appropriate measure. This way the vital principle of double jeopardy would be preserved, but the magnitude and consequence of the primary offence would be recognised. On the matter of new and compelling evidence, we believe additional specificity is needed as to the nature of such evidence. Again, the debate is rehearsed in the principal report. The arguments made by the legal profession in support of maintaining preliminary hearings were convincing. National is concerned that abolition of oral preliminary hearings will deny defendants the
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opportunity to hear directly the evidence against them so assisting their defence or acceptance of guilt. National supports trial by Judge alone in exceptional circumstances, particularly for cases such as complex fraud. We note the 14-year sentence threshold for offences that may use Judge alone. This means murders, rapes and serious drug crimes cannot be heard before a Judge alone. National supports majority verdicts (11:1). However, we note there is a remote possibility that this may lead to even more hung juries, depending on the dynamic within the jury room. This needs to be monitored.
United Future minority view The Criminal Procedure Bill proposes far-reaching reforms that are in response to changes in society and technology (such as DNA); issues regarding disclosure provisions; economic considerations (sequestering of jurors); and the still evolving issue of victims’ interests (factual outcomes overriding the traditionally sacrosanct double jeopardy convention). The last of these provisions – the two proposed exceptions to the rule of double jeopardy – caused submitters the most concern. While United Future acknowledges that the principle is a longstanding one stemming from the Magna Carta, the rationale for change can be made on the grounds that truth in judgment is a more fundamental principle than an acquittal based on either compelling evidence unable to be brought to trial (because the technology was unavailable for example) or where the verdict of not guilty was obtained through illegal means. By establishing the two narrow exceptions to the double jeopardy principle the bill proposes to balance the interests of the accused, which is to avoid repeated actions from the State, with the rights of victims, which is to expect rightful punishment for those found guilty. United Future considers that there is a need for greater clarity over the types of offences for which the two exceptions are proposed. The disproportionately wide range of offences caught by the 14-year penalty threshold – with the possibility of other offences being included in a future hardening of sentencing provisions (including the lifting of current offences above this threshold) – undermines the
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overall intent of preserving the exceptions for the most serious offences. In terms of the criminal disclosure provisions, we have four areas of concern: •
The purpose of clause 18(1) aims to ‘‘promote fair, effective and efficient disclosure’’. Our view is that the definition should be expanded to include the requirement that the ‘‘defendant has available to him/her all relevant knowledge available to the prosecution and police’’.
•
Clause 23 defines the meaning of ‘‘relevant’’, but United Future is of the view that the explanation should be broadened so that the qualifier ‘‘has’’ should read ‘‘has, or may have’’. The present explanation may otherwise be interpreted to include only material that is reliant on police interpretation of what may be relevant.
•
United Future opposes the deletion of clause 25(3). If the clause is deleted the right of parents, guardians, or caregivers to be informed that their children are subject to court proceedings will be removed. If parents, guardians, or caregivers are party to the offending, United Future considers that in such cases it should be up to the Courts to determine the exceptions.
•
And finally, United Future is concerned that clause 31, which states the prosecution has no duty to disclose information that reflects on the credibility of defence witnesses is tantamount to giving the prosecution the ability to mount an ambush. We suggest that where relevant information is known, the prosecution should have a duty to disclose it.
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Appendix Committee process The Criminal Procedure Bill was referred to the committee on 29 June 2004. We received advice from the Ministry of Justice and the New Zealand Police. The Regulations Review Committee reported to the committee on the powers contained in new clauses 62A and 92A. Committee membership Martin Gallagher, Chairperson (Labour) Marc Alexander, Deputy Chairperson (United Future) Georgina Beyer (Labour) Brian Connell (National) Ann Hartley (Labour) Ron Mark (New Zealand First) Mahara Okeroa (Labour) Hon Tony Ryall (National) Dail Jones replaced Ron Mark for part of the committee’s consideration of this item of business.
Criminal Procedure
Key to symbols used in reprinted bill As reported from a select committee Struck out (majority)
Subject to this Act,
Text struck out by a majority
Struck out (unanimous)
Subject to this Act,
Text struck out unanimously
New (majority)
Subject to this Act,
Text inserted by a majority
New (unanimous)
Subject to this Act,
Text inserted unanimously
〈Subject to this Act,〉
Words struck out by a majority
(Subject to this Act,)
Words struck out unanimously
〈Subject to this Act,〉
Words inserted by a majority
Subject to this Act,
Words inserted unanimously
Hon Phil Goff
Criminal Procedure Bill Government Bill Contents 1 2
3 4 5
6 7
Title Commencement Part 1 Crimes Act 1961 Crimes Act 1961 called principal Act in this Part Commencement New sections 361D and 361E inserted 361D Judge may order trial without jury in certain cases that are likely to be long and complex 361E Judge may order trial without jury in cases involving intimidation of juror or jurors Evidence and addresses New heading and sections 378A to 378F inserted Retrials of previously acquitted persons 378A Order for retrial may be granted if acquittal tainted 378B Meaning of terms used in sections 378C and 378D 378C Consent of Solicitor-General required in certain circumstances for exercise of powers in relation to acquitted person 378D Order for retrial may be granted by Court of Appeal if new and compelling evidence discovered 378E Orders to safeguard fairness of retrial 378F Effect of order for retrial
8 9
10 11
New section 384A inserted 384A Jurisdiction in certain cases where appeals lie to different Courts
13
14A 15 16
Determination of appeals in ordinary cases Right of appellant to be represented and restriction on attendance Judgment of Court of Appeal Prerogative of mercy Transitional provision
17
Part 2 Criminal Disclosure Commencement
18 19 20
Preliminary provisions Purpose and overview Application of Part Part binds the Crown
14
21 22 23 24
Interpretation provisions Interpretation Meaning of Court and Judge Meaning of relevant Time of commencement of criminal proceedings
General provisions about disclosure of information 25 Service 26 Exercise of defendant’s rights and duties by defendant’s counsel
33 34
Disclosure by prosecutor Initial disclosure Full disclosure Request for additional disclosure Prosecutor not required to record information or to obtain information for sole purpose of disclosure Reasons for withholding information Restriction on disclosing address of witness or informant Trade secrets may be withheld Inspection of exhibit by defendant
158—2
1
Right of appeal in certain cases New section 381A inserted 381A Question of law arising out of discharge under section 347 or stay of prosecution may be referred to Court of Appeal Powers of Court of Appeal where appeal is on question of law Right of appeal against conviction or sentence
12
27 28 29 30
31 32
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35 36
37 38
39 40 41 42 43
44
Disclosure by defendant Notice to defendant of disclosure requirements in sections 37 and 38 Notice to defendant of disclosure requirement in section 176 of Summary Proceedings Act 1957 Notice of alibi Disclosure by defendant of evidence to be given by expert witness Disclosure by non-parties Application for non-party disclosure hearing Determination of application for non-party disclosure hearing Service of application and summons if application for hearing granted Non-party disclosure hearing Procedure if Judge subsequently satisfied that another person holds information sought Determination of Court following non-party disclosure hearing
General powers of Courts in relation to disclosure 45 Court order for disclosure of information 46 Court order setting conditions for inspection of exhibit 47 48 49 50 51 52
53 54 55 56 57
2
General provisions Court may make orders setting out timetable for disclosure Appeals Undisclosed information Miscellaneous provisions Certain applications must be on notice Regulations
58 59 60 61 62 62A 63 64
65 66 67 68 69 70 71 72 73 74
Part 4 Juries Act 1981 Juries Act 1981 called principal Act in this Part Commencement Interpretation Jury districts Transitional provision Certain persons not to serve Access to, and confidentiality of, jury lists Registrar may amend jury list Inspection of jury panel New section 14A inserted 14A Restrictions on use of jury panel
75
New sections 14B and 14C inserted 14B Deferral of jury service 14C Further provisions relating to deferral of jury service
76
Registrar may excuse from jury service Judge may discharge summons of person with physical disability Foreman New sections 22 to 22C substituted 22 Discharge of juror or jury 22A Consequences of discharge under section 22 22B Further provisions about discharge under section 22 22C Procedure if Judge sitting with jury on trial of criminal case becomes incapable of acting
77 78 79
Amendments to other enactments Amendment to Local Government Official Information and Meetings Act 1987 Amendment to Official Information Act 1982 Amendments to Privacy Act 1993 Other amendments and repeals Transitional and savings provisions Transitional provision This Part not to limit or affect other enactments relating to availability of information
Part 3 District Courts Act 1947 District Courts Act 1947 called principal Act in this Part Commencement Extent of jurisdiction under Part II of this Act Maximum sentences Appeal against sentence Regulations New Schedule 1A substituted Transitional provision
80
Amendments and repeals consequential on new sections 22 to 22C substituted 374 Discharge of juror or jury
Criminal Procedure 54B Discharge of juror or jury 81
New section 24 substituted 24 Challenges without cause
82
New heading and sections 29A and 29B inserted Sequestration, separation, retirement, and non-communication 29A Routine sequestration on deliberation abolished 29B Retirement and noncommunication
82A
New heading and sections 29C and 29D inserted Majority verdicts 29C Criminal cases 29D Civil cases
82B 83
84 85 86 87 88
89 90 91
92
Payment of jurors New sections 32 to 32B substituted 32 Failure to attend 32A Employees absent on jury service not to be prejudiced 32B Identity and address of serving or former juror or prospective juror not generally to be disclosed Part 5 Summary Proceedings Act 1957 Summary Proceedings Act 1957 called principal Act in this Part Commencement Power to adjourn Dealing with defendant on adjournment Defendant’s right to elect trial by jury where offence punishable by more than 3 months’ imprisonment Defendant’s general right of appeal to High Court Informant’s right of appeal against sentence New section 115DB inserted 115DB Rights of appeal subject to Crimes Act 1961 New Parts 5 and 5A substituted Part 5 Committal proceedings for indictable offences 145 Purpose and overview 146 Interpretation
Information, summons, and warrant 148 Application of provisions of Part II 149 Notice to defendant 150 Issue of summons or warrant 151 Issue of warrant if defendant does not attend 152 Defect in form or variance between charge and evidence Service of documents 153 Service of summons on defendant 154 Application of provisions of Part II Adjournments and bail 155 Power to adjourn 156 Power of Registrar to adjourn 157 Application of section 46 Withdrawal of information and stay of proceedings 158 Withdrawal of information by prosecutor 159 Stay of proceedings Plea of guilty before committal 160 Defendant may plead guilty before committal 161 Procedure if defendant makes request under section 160 Formal written statements for purposes of committal 162 Formal written statements 163 False statement in formal written statement deemed to be perjury Special provisions for taking evidence 164 Power to take statement of person dangerously ill 165 Evidence of statement made by person dangerously ill 166 Provision for person in custody to be present at taking of statement Preliminary provisions applicable to committal 167 Place of committal 168 Obligations of prosecutor to file formal written statements within certain period
Commencement of proceedings under this Part 147 Proceedings under this Part
3
Criminal Procedure 169 Standard committal is not hearing and does not involve prosecutor’s or defendant’s presence 170 Defendant’s entitlement to be present during hearings 171 Charge to be read to defendant in certain circumstances 172 Amendment of information 173 Persons who may give evidence under assumed name 174 No comment may be made on defendant refraining from answering charge 175 When formal written statement or record of oral evidence in other proceedings may be admitted as evidence at committal hearing or for purposes of standard committal 176 Defendant must disclose evidence to be provided at committal hearing
184C Court may direct that formal written statements be read aloud 184D Oral evidence must be recorded in writing 184E Committal hearing may be completed despite witness’s failure to appear or give evidence
Timing and procedure at standard committal 177 Timing and procedure at standard committal
Committal for trial or sentence 184I Advice must be given to defendant on committal following committal hearing
Oral evidence orders 178 Application for oral evidence order 179 Application for leave to question undercover police officer’s identity must be removed into High Court 180 Determination of application for oral evidence order 181 Judge may make oral evidence order of own motion 182 Oral evidence of witness who resides at distance, is ill, or is departing New Zealand may be taken at any Court
Procedure if defendant pleads guilty 184J Procedure if defendant pleads guilty 184K If defendant pleads guilty, no objection may be taken and plea must not be withdrawn without leave 184L Defendant committed for sentence must be brought before High Court
When committal hearing must be held 183 Committal hearing required if oral evidence order applies Procedure of committal hearing 184 Application of provisions of Part II 184A Procedure at committal hearing 184B No oral evidence without order
4
Determination at committal hearing 184F If evidence insufficient, defendant must be discharged 184G If evidence sufficient, defendant must be committed for trial Powers of Court if defendant seeks to provide undisclosed evidence at committal hearing 184H Powers of Court if defendant seeks to provide evidence at committal hearing that was not disclosed as required by section 176
Procedure if defendant does not plead guilty 184M Procedure if standard committal occurs or defendant does not plead guilty 184N Court to which defendant must be committed 184O Court to which defendant must be committed if related charge must be heard in High Court 184P Committal to wrong Court 184Q High Court Judge must determine trial Court in certain cases
Criminal Procedure 184R Notice of transfer of case to District Court 184S Defendant must be advised of right to apply for trial before Judge without jury Procedure after committal for trial or sentence 184U Dealing with defendant committed for trial or for sentence 184V Evidence of witness taken after defendant committed for trial 184W Notice to witnesses to attend at trial Court 184X On committal, documents, etc, must be sent to trial Court or sentencing Court 184Y Every party entitled to records of oral evidence or summary of facts 184Z When formal written statement or record of oral evidence may be read in evidence at trial 185 Witness about to leave New Zealand may be arrested Part 5A Special provisions relating to standard committal process and committal hearings in cases of sexual nature 185A Application 185B Certain hearings to be conducted by Judge 185C Evidence of complainant 185D Child complainant’s evidence may be given by videotape 185E Power of Court to prohibit publication of certain details
cl 2
185F Other powers of Court preserved 92A 93 94
Rules and regulations Amendments to First Schedule of principal Act Other amendments to principal Act
Repeals, consequential amendments, and transitional provision 95 District Courts Act 1947 amended 96 Repeals 97 Consequential amendments 98 Transitional provision
99 100
Part 6 Victims’ Rights Act 2002 Victims’ Rights Act 2002 called principal Act in this Part New section 16A inserted 16A Criminal proceedings to which section 16 does not apply
Schedule 1 Enactments amended Schedule 2 Enactments repealed Schedule 3 New Schedule 1A substituted in District Courts Act 1947 Schedule 4 Other amendments to principal Act Schedule 5 Enactments repealed Schedule 6 Consequential amendments to other enactments
The Parliament of New Zealand enacts as follows: 1
Title This Act is the Criminal Procedure Act 2004.
2 (1) (2)
Commencement Part 1 comes into force as provided in section 4. Part 2 and Schedules 1 and 2 come into force as provided in section 17. Part 3 and Schedule 3 come into force as provided in section 59.
(3)
5
cl 2
(4) (5) (6)
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Part 4
comes into force as provided in section 66. Part 5 and Schedules 4, 5, and 6 come into force as provided in section 85. The rest of this Act comes into force on the day after the date on which it receives the Royal assent.
Part 1 Crimes Act 1961 3
Crimes Act 1961 called principal Act in this Part In this Part, the Crimes Act 19611 is called ‘‘the principal Act’’. 1
4 (1)
(2)
5 (1)
1961 No 43
Commencement (Sections 5 and 6 come) Section 5 comes into force on the day that is 6 months after the date on which it receives the Royal assent. The rest of this Part comes into force on the day after the date on which this Act receives the Royal assent. New sections 361D and 361E inserted The principal Act is amended by inserting, after section 361C, the following sections:
‘‘361D Judge may order trial without (a) jury in certain cases that are likely to be long and complex ‘‘(1) This section applies only to a person (the accused person) who is committed for trial for an offence that is not— ‘‘(a) an offence for which the maximum penalty is imprisonment for life or imprisonment for 14 years or more; or ‘‘(b) an offence of attempting or conspiring to commit, or of being a party to the commission of, or of being an accessory after the fact to, an offence referred to in paragraph (a). ‘‘(2) The Judge may, on a written application for the purpose made by the prosecutor to the Judge and served on the accused person before the accused person is given in charge to the jury, order that the accused person be tried for the offence before the Judge without a jury. ‘‘(3) However, the Judge may make an order under subsection (2) only (if satisfied) if the prosecution and the accused person 6
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Part 1 cl 5
have been given an opportunity to be heard in relation to the application, and following such hearing, the Judge is satisfied— ‘‘(a) that all reasonable procedural orders (if any), and all other reasonable arrangements (if any), to facilitate the shortening of the trial, have been made, but the duration of the trial still seems likely to exceed 20 days; and ‘‘(b) that, in the circumstances of the case, the accused person’s right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively. ‘‘(4) In considering, for the purposes of subsection (3)(b), the circumstances of the case, the Judge must take into account the following matters: ‘‘(a) the number and nature of the offences with which the accused person is charged: Struck out (unanimous)
‘‘(b) the complexity of the legal or factual issues likely to be involved: New (unanimous)
‘‘(b) the nature of the issues likely to be involved: ‘‘(c) the volume of evidence likely to be presented: ‘‘(d) the imposition on potential jurors of sitting for the likely duration of the trial: ‘‘(e) any other matters the Judge considers relevant. ‘‘(5) If the accused person is one of 2 or more persons to be tried together, all of them must be tried before a Judge with a jury unless an order under subsection (2) for all of them to be tried by a Judge without a jury is applied for and made. ‘‘(6) This section does not limit section 361B or section 361C or section 361E. ‘‘361E Judge may order trial without (a) jury in cases involving intimidation of juror or jurors ‘‘(1) The Judge may, on a written application for the purpose made by the prosecutor before an accused person is given in charge 7
Part 1 cl 5
‘‘(2)
‘‘(3)
‘‘(4) (2)
(3) ‘‘(2) (4)
Criminal Procedure
to the jury, order that the accused person be tried for the offence before the Judge without a jury. However, the Judge may make an order under subsection (1) only if satisfied that there are reasonable grounds to believe— ‘‘(a) that intimidation of any person or persons who may be selected as a juror or jurors has occurred, is occurring, or may occur; and ‘‘(b) that the effects of that intimidation can be avoided effectively only by making an order under subsection (1). If the accused person is one of 2 or more persons to be tried together, all of them must be tried before a Judge with a jury unless an order under subsection (1) for all of them to be tried by a Judge without a jury is applied for and made. This section does not limit sections 361B to 361D.’’ Section 361A of the principal Act is consequentially amended by omitting the words ‘‘Subject to sections 361B and 361C of this Act, every’’, and substituting the word ‘‘Every’’. Section 361A of the principal Act is consequentially amended by adding, as subsection (2), the following subsection: Subsection (1) is subject to sections 361B to 361E.’’ Section 379A(1) of the principal Act is consequentially amended by inserting, after paragraph (d), the following paragraphs: ‘‘(da) against the making of an order under section 361D(2) (Judge may order trial without a jury in certain cases that are likely to be long and complex), or against a refusal to make such an order: ‘‘(db) against the making of an order under section 361E(1) (Judge may order trial without a jury in cases involving intimidation of jurors), or against a refusal to make such an order:’’. New (unanimous)
(4A) Section 28D of the District Courts Act 1947 is amended— (a) by omitting from subsection (1) the expression ‘‘and 361C’’, and substituting the expression ‘‘to 361E’’: (b) by omitting from subsection (2) the expression ‘‘1908’’, and substituting the expression ‘‘1981’’.
8
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(5)
Part 1 cl 7
This section applies in respect of an accused person only if— (a) the accused person is committed for trial on or after the date on which this section comes into force; or (b) the accused person is committed for trial before the date on which this section comes into force and the trial has not commenced before that date.
6 (1)
Evidence and addresses Section 367(1) of the principal Act is amended by omitting the word ‘‘examine’’ in both places where it appears, and substituting in each case the word ‘‘call’’. (2) Section 367 of the principal Act is amended by inserting, after subsection (1B), the following subsections: ‘‘(1C) The Court may(, to facilitate the jury’s understanding of the issues in dispute,) give an accused person (whether defended by counsel or not) leave to call 1 or more expert witnesses immediately after counsel for the prosecution has called 1 or more expert witnesses. ‘‘(1D) Leave under subsection (1C) overrides subsection (1), but does not affect the calling of expert or other witnesses who are not the subject of the leave, or prevent cross-examination or reexamination of any expert witness.’’ (3) This section applies in respect of an accused person only if— (a) the accused person is committed for trial on or after the date on which this section comes into force; or (b) the accused person is committed for trial before the date on which this section comes into force and the trial has not commenced before that date. 7
New heading and sections 378A to 378F inserted The principal Act is amended by inserting, after section 378, the following heading and sections:
‘‘Retrials of previously acquitted persons ‘‘378A Order for retrial may be granted if acquittal tainted ‘‘(1) In this section,— ‘‘acquittal— ‘‘(a) includes— ‘‘(i) the dismissal of an information on the merits; and ‘‘(ii) a discharge under section 347 or section 369A; and 9
Part 1 cl 7
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‘‘(iii) the setting aside of a conviction on appeal, without an order for a retrial; and ‘‘(iv) the quashing of a count under section 345(4) or (5); but ‘‘(b) does not include a discharge without conviction ‘‘acquitted person means a person who has previously been acquitted of a specified offence, and who has, since that acquittal, been convicted of an administration of justice offence ‘‘administration of justice offence means an offence against any of sections 101, 104, 109, 113, 116, and 117 ‘‘prosecution means— ‘‘(a) an informant acting with the prior consent of the Solicitor-General; or ‘‘(b) the Solicitor-General ‘‘retrial includes, in relation to any summary proceedings that led to an acquittal, a rehearing of those proceedings ‘‘specified offence, in relation to an acquitted person,— ‘‘(a) means an offence that is punishable by a term of imprisonment and for which the person has previously been acquitted; and ‘‘(b) includes any offence for which the person may not be tried because of that acquittal. ‘‘(2) The High Court may, on the application of the prosecution made in accordance with rules of Court, order that an acquitted person be retried for a specified offence, if the High Court is satisfied that— ‘‘(a) it is more likely than not that the commission of the administration of justice offence was a significant contributing factor in the person’s acquittal for the specified offence; and ‘‘(b) no appeal or application in relation to the administration of justice offence is pending before any court; and ‘‘(c) the retrial is in the interests of justice. ‘‘(3) In determining whether the retrial sought by the prosecution is in the interests of justice, the High Court is to have particular regard to the following matters: ‘‘(a) the length of time since the acquitted person is alleged to have committed the specified offence:
10
Criminal Procedure
Part 1 cl 7
‘‘(b) whether the prosecution acted with reasonable speed since discovering evidence of the administration of justice offence: ‘‘(c) the interests of any victim of the specified offence alleged to have been committed: ‘‘(d) whether the retrial for which leave is sought can be conducted fairly. ‘‘(4) If the prosecution makes an application under this section— ‘‘(a) the prosecution must take all reasonable steps to serve a copy of the application on the acquitted person, and must file in the office of the Court notice that the copy has been served or that a copy has not been served but all reasonable steps to do so have been taken: ‘‘(b) the defendant is entitled to be heard at the hearing of the application, which must not be held less than 14 days after notice is filed in the office of the Court under paragraph (a): ‘‘(c) if the application is granted, and the acquitted person is again acquitted at the retrial, the prosecution may not make any further application for an order for the retrial of the acquitted person for the specified offence that was the subject of the application. ‘‘(5) This section does not apply if the acquitted person was acquitted of the specified offence before the commencement of this section. ‘‘378B Meaning of terms used in sections 378C and 378D ‘‘(1) In sections 378C and 378D,— ‘‘acquittal— ‘‘(a) includes— ‘‘(i) a discharge under section 347 or section 369A; and ‘‘(ii) the setting aside of a conviction on appeal, without an order for retrial; and ‘‘(iii) the quashing of a count under section 345(4) or (5); but ‘‘(b) does not include a discharge without conviction ‘‘acquitted person means a person who has previously been acquitted of a specified serious offence ‘‘specified serious offence, in relation to an acquitted person,— 11
Part 1 cl 7
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‘‘(a) means an offence that is punishable by a term of imprisonment of 14 years or more and for which the person has previously been acquitted; and ‘‘(b) includes any offence for which the person may not be tried because of that acquittal. ‘‘(2) For the purposes of sections 378C and 378D, evidence is new if— ‘‘(a) it was not given in the proceedings that resulted in the acquittal of the acquitted person; and ‘‘(b) it could not, with the exercise of reasonable diligence, have been given in those proceedings. ‘‘(3) For the purposes of sections 378C and 378D, evidence is compelling if— ‘‘(a) it is a reliable and substantial addition to the evidence given in the proceedings that resulted in the acquittal of the acquitted person; and ‘‘(b) it implicates the acquitted person with a high degree of probability in the commission of the specified serious offence. ‘‘378C Consent of Solicitor-General required in certain circumstances for 〈further investigation of〉 〈exercise of powers in relation to〉 acquitted person ‘‘(1) Subsection (2) applies if a member of the police has good cause to suspect that information obtained, or likely to be obtained as a result of an investigation, will tend to implicate an acquitted person in the commission of a specified serious offence. ‘‘(2) If this subsection applies, a member of the police may 〈further investigate whether an acquitted person has committed a specified serious offence〉 〈exercise any of the powers referred to in subsection (3) in the course of a further investigation of whether the acquitted person has committed a specified serious offence〉 only if 〈the〉 〈a〉 member of the police first obtains the consent of the Solicitor-General. ‘‘(3) 〈For the purposes of subsection (2), further investigate, in relation to the possible commission by an acquitted person of a specified serious offence, includes any of〉 〈The powers in respect of which subsection (2) applies are〉 the following: ‘‘(a) questioning the acquitted person or any other person: ‘‘(b) searching the acquitted person or any other person: ‘‘(c) searching any premises or vehicles: ‘‘(d) seizing any thing: 12
Criminal Procedure
Part 1 cl 7
‘‘(e) taking fingerprints or samples: ‘‘(f) conducting or commissioning forensic tests or analyses. ‘‘(4) The acquitted person does not need to be notified of any proposal to seek the Solicitor-General’s consent under subsection (2) or of the fact that the consent is being, or has been, sought. ‘‘(5) The Solicitor-General may consent under subsection (2) only if he or she has reasonable grounds to believe that there is, or that a further investigation is likely to reveal, or confirm the existence of, new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence. ‘‘(6) This section does not prevent a member of the police from taking any action if— ‘‘(a) the action is necessary as a matter of urgency to prevent substantial prejudice to an investigation or to the administration of justice; and ‘‘(b) it is not reasonably practicable to obtain the consent of the Solicitor-General; and ‘‘(c) the Solicitor-General’s consent is sought as soon as reasonably practicable after the action is taken. ‘‘378D Order for retrial may be granted by Court of Appeal if new and compelling evidence discovered ‘‘(1) The Court of Appeal may, on the application of the SolicitorGeneral made in accordance with rules of Court, order that an acquitted person be retried for a specified serious offence, if the Court of Appeal is satisfied that— ‘‘(a) there is new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence; and ‘‘(b) a further trial of the acquitted person is in the interests of justice. ‘‘(2) In determining whether a retrial of the acquitted person is in the interests of justice, the Court of Appeal is to have particular regard to the following matters: ‘‘(a) whether before or during the proceedings that led to the acquittal of the acquitted person for the specified serious offence all reasonable efforts were made to obtain and present all relevant evidence then available:
13
Part 1 cl 7
‘‘(3)
‘‘(4) ‘‘(5)
‘‘(6)
Criminal Procedure
‘‘(b) the length of time since the acquitted person is alleged to have committed the specified serious offence: ‘‘(c) whether the police and the Solicitor-General acted with reasonable speed in making the application after obtaining new evidence against the acquitted person: ‘‘(d) the interests of any victim of the specified serious offence alleged to have been committed: ‘‘(e) whether the retrial for which leave is sought can be conducted fairly. The Court of Appeal may, if it thinks it just to do so, exclude from its consideration any evidence against the acquitted person that has been obtained in contravention of section 378C. The Solicitor-General may apply under this section only if satisfied of the matters stated in subsection (1)(a) and (b). If the Solicitor-General makes an application under this section— ‘‘(a) the Solicitor-General must take all reasonable steps to serve a copy of the application on the acquitted person, and must file in the office of the Court notice that the copy has been served or that a copy has not been served but all reasonable steps to do so have been taken: ‘‘(b) the defendant is entitled to be heard at the hearing of the application, which must not be held less than 14 days after notice is filed in the office of the Court under paragraph (a): ‘‘(c) if the application is granted, and the acquitted person is again acquitted, the Solicitor-General may not make any further application for an order for the retrial of the person for the specified serious offence that was the subject of the application. This section does not apply if the acquitted person was acquitted of the specified serious offence before the commencement of this section.
‘‘378E Orders to safeguard fairness of retrial ‘‘(1) An order for a retrial under section 378A or section 378D may be granted subject to— ‘‘(a) any conditions that the court considers are required to safeguard the fairness of the retrial: ‘‘(b) any other directions as to the conduct of the retrial.
14
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Part 1 cl 8
‘‘(2) A court may, if it considers that the interests of justice so require, exclude any person from the hearing of an application under section 378A or section 378D, or forbid any report or account of any evidence given or referred to at such a hearing or prohibit the publication of the name of the acquitted person or of any other person connected with a retrial for which leave is sought or has been granted. ‘‘(3) For the purposes of subsection (2), sections 138 and 140 of the Criminal Justice Act 1985, so far as they are applicable, apply with all necessary modifications. ‘‘378F Effect of order for retrial ‘‘(1) If an order for a retrial is granted under section 378A or section 378D,— ‘‘(a) the order of the Court must be certified by the Judge or, as the case requires, the presiding Judge to the Registrar of the Court before which the person was tried, and the order must be carried into effect: ‘‘(b) the acquitted person may be arrested or summoned to appear before a court: ‘‘(c) the retrial must be conducted in the same manner as a retrial ordered following a successful appeal by a defendant against conviction: ‘‘(d) the provisions of any enactment that enable a defendant who successfully appeals against conviction but in respect of whom a retrial is ordered, to be arrested, summoned to appear, remanded in custody, or released on bail, pending his or her retrial, apply with any necessary modifications to the acquitted person. ‘‘(2) Subsection (1) overrides sections 357 to 359 and any other enactment or rule of law. ‘‘(3) In this section retrial includes, in relation to summary proceedings that led to an acquittal, a rehearing of those proceedings.’’ 8
Right of appeal in certain cases Section 379A(1) of the principal Act is amended by inserting, after paragraph (g), the following paragraph: ‘‘(ga) against the making of an order under section 378A for a person to be retried or against the refusal to make such an order:’’. 15
Part 1 cl 9
9
Criminal Procedure
New section 381A inserted The principal Act is amended by inserting, after section 381, the following section:
‘‘381A Question of law arising out of discharge under section 347 or stay of prosecution may be referred to Court of Appeal ‘‘(1) A Judge who directs that an accused be discharged under section 347 or for any reason that a prosecution be stayed may, on the application of the prosecutor, refer for the opinion of the Court of Appeal any question of law arising out of that direction. ‘‘(2) The prosecutor must apply as soon as reasonably practicable after the Judge gives his or her reasons for the direction, and in no case later than 10 days after the (direction is given, irrespective of whether reasons for the direction are given at a later date) reasons for the direction are given. ‘‘(3) When a question is referred to the Court of Appeal, the accused who has been discharged or whose prosecution has been stayed is subject to again being arrested or summoned to appear if the Court of Appeal orders a new trial. ‘‘(4) The Judge who refers a question to the Court of Appeal must approve and sign the form of the question. ‘‘(5) If the Judge refuses to refer a question to the Court of Appeal, the prosecutor may apply to the Court of Appeal for leave to appeal against that refusal. ‘‘(6) The Court of Appeal may, on considering any evidence it requires, grant or refuse leave. ‘‘(7) If leave to appeal is granted, a case must be stated for the opinion of the Court of Appeal as if the question had been referred under subsection (1).’’ 10
Powers of Court of Appeal where appeal is on question of law Section 382(2)(b) of the principal Act is amended by inserting, after the words ‘‘a mistrial’’, the words ‘‘or that the accused has been wrongly discharged’’.
11 (1)
Right of appeal against conviction or sentence Section 383 of the principal Act is amended by inserting, after subsection (1), the following subsection:
16
Criminal Procedure
Part 1 cl 12
‘‘(1A) Any person sentenced under section 28F(4) of the District Courts Act 1947 to a term of imprisonment or to a fine that exceeds the maximum term of imprisonment or the maximum fine that may be imposed by a District Court under section 7 of the Summary Proceedings Act 1957 (which is a term of imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both), may appeal to the Court of Appeal against that sentence.’’ (2) Section 383 of the principal Act is amended by inserting, after subsection (2), the following subsection: ‘‘(2A) The Solicitor-General, with the leave of the Court of Appeal, may appeal to the Court of Appeal against a sentence imposed under section 28F(4) of the District Courts Act 1947 if the sentence appealed against is a term of imprisonment or a fine that exceeds the maximum term of imprisonment or the maximum fine that may be imposed by a District Court under section 7 of the Summary Proceedings Act 1957 (which is a term of imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both).’’ (3) Section 383 of the principal Act is amended by omitting from subsections (3) and (4) the words ‘‘subsection (2) of this section’’, and substituting in each case the words ‘‘subsection (2) or subsection (2A)’’. 12
New section 384A inserted The principal Act is amended by inserting, after section 384, the following section:
‘‘384A Jurisdiction in certain cases where appeals lie to different Courts ‘‘(1) This section applies if— ‘‘(a) a person to whom section 383(1) or (1A) applies also has a right of appeal (a related right of appeal) to the High Court against conviction or sentence in respect of— ‘‘(i) an offence arising from the same incident or series of incidents as the conviction or sentence to which the right of appeal under section 383(1) or (1A) relates; or ‘‘(ii) an offence for which the person was sentenced on the same occasion as the imposition of the sentence to which the right of appeal under section 383(1) or (1A) relates: 17
Part 1 cl 12
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‘‘(b) the Solicitor-General has a right of appeal under section 383(2) or (2A) against a sentence imposed on a person against whom the informant also has a right of appeal (a related right of appeal) to the High Court in respect of the sentence imposed on that person for— ‘‘(i) an offence arising from the same incident or series of incidents as the sentence to which the right of appeal under section 383(2) or (2A) relates; or ‘‘(ii) an offence for which the person was sentenced on the same occasion as the imposition of the sentence to which the right of appeal under section 383(2) or (2A) relates. ‘‘(2) If this section applies, and any person or, as the case may be, the Solicitor-General appeals to the Court of Appeal under section 383 or section 384,— ‘‘(a) all other appeals by the person or the Solicitor-General arising from the exercise of a related right of appeal must also be heard and determined in the Court of Appeal instead of the High Court, unless one or more of those appeals is to the Supreme Court; and ‘‘(b) the provisions of this Part apply to those appeals with any necessary modifications.’’ 13
Determination of appeals in ordinary cases Section 385 of the principal Act is amended by repealing subsection (3), and substituting the following subsection: Struck out (unanimous)
‘‘(3) On any appeal to which subsection (2A) applies, the Court of Appeal or the Supreme Court must dismiss any appeal unless it thinks that a different sentence should have been passed, in which case it must take one of the following actions: ‘‘(a) quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the Court thinks ought to have been passed: ‘‘(b) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it: ‘‘(c) remit the case to the Court below with a direction that the Court below take an action of the kind described in
18
Criminal Procedure
Part 1
Struck out (unanimous)
paragraph (a) or (b)
in accordance with any directions given by the Court of Appeal or the Supreme Court, as the case may be.’’ New (unanimous)
‘‘(3) On any appeal to which subsection (2A) applies, the Court of Appeal or the Supreme Court must— ‘‘(a) dismiss the appeal; or ‘‘(b) if it thinks that a different sentence should have been passed,— ‘‘(i) quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the Court thinks ought to have been passed; or ‘‘(ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or ‘‘(c) remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (b)(ii) in accordance with any directions given by the Court of Appeal or the Supreme Court as the case may be.’’
14
Right of appellant to be represented and restriction on attendance Section 395(3) of the principal Act is amended by omitting the expression ‘‘(1) to (2)’’, and substituting the expression ‘‘(1A) and (2)’’. New (unanimous)
14A Judgment of Court of Appeal Section 398 of the principal Act is amended by repealing subsection (1).
19
Part 2 cl 21
Criminal Procedure
suppression or an application under section 344A of the Crimes Act 1961); or (ii) any proceedings under the Armed Forces Discipline Act 1971 or any other enactment for any other offence under military law defendant includes an accused person in proceedings taken by way of indictment evidence in support of an alibi means evidence tending to show that, by reason of the presence of the defendant at a particular place or in a particular area at a particular time, the defendant was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission exhibit means an article or object of any kind that is capable of being produced as evidence on behalf of either the prosecutor or the defendant expert witness includes a person who will give opinion evidence of a medical, scientific, or technical nature informant means a person who provides verbal or written information (whether or not in recorded form) to a law enforcement officer international organisation means any organisation of States or Government of States or any organisation or agency of any such organisation, and includes the Commonwealth Secretariat Judge has the meaning given to it in section 22 prosecutor means the person who is for the time being in charge of the file or files relating to a criminal proceeding; and includes— (a) any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and (b) any counsel representing the person who laid the information in the proceedings; and (c) in the case of a private prosecution, the person who laid the information and any counsel representing that person publicly available information means information that is contained in a publicly available publication
24
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(2)
(3)
22
Part 2 cl 22
publicly available publication means a magazine, book, newspaper, website, or other publication that is or will be generally available to members of the public, and includes a public register as defined in section 2(1) of the Privacy Act 1993 Registrar— (a) means the Registrar of the Court concerned; and (b) includes any (person who is entitled under any enactment to exercise the powers of the Registrar) Deputy Registrar of that Court relevant has the meaning given to it in section 23 young person means a young person as defined in section 2(1) of the Children, Young Persons, and Their Families Act 1989. In this Part, a reference to information means any recorded information— (a) in whatever form it is contained, for example, in a report, statement, list, or interview; and (b) in whatever medium it is recorded, for example, in hard copy, electronic form, or as a sound or visual recording. To avoid doubt, and without limiting section 28(7), in this Part a reference to a defendant who has pleaded not guilty to an offence includes any defendant in respect of whom a plea of not guilty has been entered by the Court on behalf of the defendant. Meaning of Court and Judge In this Part, unless the context otherwise requires,— Court means,— (a) if the defendant has been committed for trial on indictment, the Court before which the defendant is to be tried; and (b) in any other case, the District Court or (a) Youth Court; and Judge means,— (a) if the defendant has been committed for trial on indictment, a Judge of the Court before which the defendant is to be tried; and (b) in any other case, a District Court Judge or a Youth Court Judge. 25
Part 2 cl 23
Criminal Procedure
23
Meaning of relevant In this Part, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.
24
Time of commencement of criminal proceedings For the purposes of this Part, criminal proceedings are commenced at the earliest of— (a) the service of a summons (including a summons issued under, or in accordance with, section 20A(8) of the Summary Proceedings Act 1957): (b) the first appearance of the defendant in Court following his or her arrest, or in response to the laying of an information or the making of a complaint: (c) the setting out of particulars on a charge sheet under section 12(2) of the Summary Proceedings Act 1957: (d) the filing of a notice of hearing under, or in accordance with, section 21(8) of the Summary Proceedings Act 1957.
General provisions about disclosure of information 25 (1)
(2)
26
Service Information required to be disclosed to, and any notice or application required to be given to or served on, any person under this Part may be given to or served on the person— (a) by personal delivery to that person or, if the person refuses to accept the document or notice, by bringing the document or notice to that person’s attention; or (b) by post or facsimile addressed to that person, or by electronic means, at 〈an address nominated by the person or, if no such address has been nominated, at〉 the person’s last known postal address or place of residence or business. Information required to be disclosed to, and any notice or application required to be given to or served on, a defendant under this Part may, if the defendant is represented by counsel, be given by any of the methods described in subsection (1) to the defendant’s counsel.
Criminal Procedure
Part 2 cl 27
Struck out (majority)
(3)
If the person to or on whom the information or notice is required to be disclosed, or given, or served was a child or young person when the proceedings were commenced, the information or notice must also be disclosed to, or given to, or served on, the child or young person’s parent, or guardian, or the person otherwise having the care of that child or young person, unless that person is alleged to be the victim of offending by that child or young person.
(4)
If information or a notice or application is posted to any person (whether physically or by electronic means), it will be treated as having been received by that person not later than 4 days after the date on which it was posted, unless the person proves that, otherwise than through fault on the person’s part, it was not so received. Information required to be disclosed under this Part may be disclosed in whatever form (including electronically) that the person disclosing the information holds it in at the time the obligation to disclose arises and that is readily accessible to the defendant.
(5)
26 (1) (2)
Exercise of defendant’s rights and duties by defendant’s counsel A right or duty conferred on a defendant by this Part may be exercised or performed by counsel representing the defendant. A notice or report purporting to be given under this Part on behalf of the defendant by his or her counsel is, unless the contrary is proved, deemed to be given with the authority of the defendant.
Disclosure by prosecutor 27 (1)
Initial disclosure At the commencement of criminal proceedings, or as soon as practicable after that time, and in any event not later than (21 days after the commencement of proceedings or within any longer period that the Court or the Registrar may allow,) the applicable date, the prosecutor must disclose the following information to the defendant:
27
Part 2 cl 27
(a)
Criminal Procedure
a summary that is sufficient to fairly inform the defendant of the facts on which it is alleged that an offence has been committed and the facts alleged against the defendant; and New (unanimous)
(ab) a summary of the defendant’s right to apply for further information under subsection (2) before entering a plea; and (b)
(2)
the maximum penalty, and the minimum penalty (if one is provided for), for the offence; and (c) a list of the defendant’s previous convictions that are known to the prosecutor; and (d) a list of any previous offences proved to have been committed by the defendant and of a kind to which section 284(1)(g) of the Children, Young Persons, and Their Families Act 1989 applies, that are known to the prosecutor. At any time after criminal proceedings are commenced or, in the case of a child or young person who appears in a Youth Court in relation to the commission or possible commission of an offence, at any time after that person’s first appearance in the Youth Court, the prosecutor must, if requested by the defendant, as soon as is reasonably practicable disclose the following information to the defendant: (a) the names of any witnesses whom the prosecutor intends to call at the hearing or trial; and (b) a list of the exhibits that are proposed to be produced on behalf of the prosecution at the hearing or trial; and (c) (copies) a copy of all records of interviews with the defendant; and New (unanimous)
(ca) a copy of all records of interviews of prosecution witnesses by a law enforcement officer that contain relevant information; and
28
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Part 2 cl 27
New (unanimous)
(cb) a copy of job sheets and other notes of evidence completed or taken by a law enforcement officer that contain relevant information; and (cc) a copy of any records of evidence produced by a testing device that contain relevant information; and (cd) a copy of any diagrams and photographs made or taken by a law enforcement officer that contain relevant information and are intended to be introduced as evidence as part of the case for the prosecution; and (ce) a video copy of any video interview with the defendant; and (cf) a copy of relevant records concerning compliance with the New Zealand Bill of Rights Act 1990; and (d)
(3)
any statement made by, or record of an interview with, a co-defendant in any case where the defendants are to be proceeded against together for the same offence; and (e) a list of any information described in paragraphs (a) to (d) that the prosecutor refuses under section 30, section 31, section 32, or section 33 to disclose to the defendant, together with— (i) the reason for the refusal; and (ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 31, section 32, or section 33 and (in the case of the interests protected by section 33) there is no overriding public interest. This section does not apply to a defendant who is charged with a minor offence as defined in section 20A(12) of the Summary Proceedings Act 1957 or with an infringement offence as defined in section 2(1) of that Act. New (unanimous)
(4)
In this section applicable date means— (a) the date that is 21 days after the commencement of criminal proceedings:
29
Part 2 cl 27
Criminal Procedure New (unanimous)
(b)
(c)
28 (1)
(2)
(3)
30
in the case of a child or young person who is required to appear in a Youth Court in relation to the commission or possible commission of an offence, the date on which that person first appears in that Court: any later date that the Court or Registrar allows, on application by the prosecutor, for the purposes of disclosure under this section.
Full disclosure The prosecutor must disclose to the defendant the information described in subsection (2) as soon as is reasonably practicable after a defendant has— (a) pleaded not guilty to an offence proceeded against summarily; or (b) elected trial by jury under section 66 of the Summary Proceedings Act 1957; or (c) if the information has been laid indictably, made his or her first appearance in Court in relation to the offence. The information referred to in subsection (1) is— (a) any relevant information, including, without limitation, the information (standard information) described in subsection (3); and (b) a list of any relevant information that the prosecutor refuses under section 30, section 31, section 32, or section 33 to disclose to the defendant together with— (i) the reason for the refusal; and (ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 31, section 32, or section 33 and (in the case of the interests protected by section 33) there is no overriding public interest. The standard information referred to in subsection (2)(a) is— (a) any statement made by a prosecution witness; and (b) any brief of evidence that has been prepared in relation to a prosecution witness; and
Criminal Procedure
Part 2 cl 28
the name and, if disclosure is authorised under section 32, the address of any person interviewed by the prosecutor who gave relevant information and whom the prosecutor does not intend to call as a witness, and— (i) any written account of the interview, whether signed or unsigned, and any other record of the interview; and (ii) any statement made to the prosecutor by the person; and (d) any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness; and (e) a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution; and (f) a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence; and (g) a copy of any information supplied to the prosecutor in connection with the case by any person or persons whom the prosecutor proposes to call to give evidence as an expert witness or witnesses; and (h) a copy of any relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence as an expert witness or witnesses, but elected not to do so. The obligation to disclose information to the defendant under this section as soon as is reasonably practicable is subject to any order made under section 45 or section 47. If information referred to in subsection (2) comes into the possession or control of the prosecutor, or is prepared in recorded form, after the prosecutor has disclosed information in accordance with subsection (1) and before the hearing or trial is completed, the prosecutor must disclose the information to the defendant as soon as is reasonably practicable. The entitlement of a defendant to information under this section continues while the criminal proceedings are in progress (including any appeal against conviction) and during the period from the conviction until the expiry of the time for lodging an appeal against conviction. A reference in subsection (1) to pleading not guilty includes— (c)
(4)
(5)
(6)
(7)
31
Part 2 cl 28
(a)
(b)
29 (1)
(2)
(3)
(4)
30 (1)
32
Criminal Procedure
denying the charge under, or in accordance with, section 20A(5) of the Summary Proceedings Act 1957; or requesting a hearing in accordance with section 21(6) of that Act (unless the request is accompanied by an admission of liability).
Request for additional disclosure At any time after the duty to make full disclosure has arisen under section 28, the defendant may request that the prosecutor disclose any particular information, identified by the defendant with as much particularity as possible. The prosecutor must disclose information requested by the defendant under subsection (1) unless— (a) the information is not relevant; or (b) the information may be withheld under section 30, section 31, section 32, or section 33; or (c) the request appears to be frivolous or vexatious. If a request under subsection (1) is declined by the prosecutor under subsection (2), the prosecutor must, as soon as is reasonably practicable after making the decision to decline the request, inform the defendant of that decision, together with— (a) the reason for the decision; and (b) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 30, section 31, section 32, or section 33 and (in the case of the interests protected by section 33) there is no overriding public interest. Nothing in this section limits the duty to disclose information under section 28. Prosecutor not required to record information or to obtain information for sole purpose of disclosure Nothing in this Part requires a prosecutor to disclose information if, at the time a disclosure obligation would, but for this section, arise or at the time a request for disclosure is made, as the case may be,— (a) the prosecutor is not in possession or control of that information; or
Criminal Procedure
Part 2 cl 31
(b) (2) 31 (1)
the prosecutor does not hold the information in recorded form. Nothing in this section limits section 28(5). Reasons for withholding information A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Part if— (a) disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or (b) disclosure of the information is likely to endanger the safety of any person; or (c) the information is— (i) material that is prepared by or for the prosecutor to assist the conduct of the hearing or trial; or (ii) a communication dealing with matters relating to the conduct of the prosecution and is between— (A) the prosecutor and another person employed by the same person or agency that employs the prosecutor; or (B) the prosecutor and any adviser to the prosecutor; or (iii) analytical or evaluative material prepared, in connection with an investigation of whether the defendant has committed an offence, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor; or (d) the information is subject to section 13A of the Evidence Act 1908 (which relates to information about undercover police officers); or (e) the information is subject to a pre-trial witness anonymity order under section 13B of the Evidence Act 1908 or a witness anonymity order under section 13C of the Evidence Act 1908; or (f) the information is subject to section 16 of the Victims Rights Act 2002 (which relates to information about witnesses addresses); or (g) the disclosure of the information would be likely to prejudice—
33
Part 2 cl 31
Criminal Procedure
(i)
(2)
(3)
34
the security or defence of New Zealand or the international relations of the Government of New Zealand; or (ii) the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation; or (h) disclosure of the information would be likely to facilitate the commission of another offence; or (i) disclosure of the information would constitute contempt of Court or contempt of the House of Representatives; or (j) the information could be withheld under any privilege applicable under the rules of evidence; or (k) disclosure of the information would be contrary to the provisions of any other enactment; or (l) the information is publicly available and it is reasonably practicable for the defendant to obtain the information from another source; or (m) the information has previously been made available to the defendant; or (n) the information does not exist or cannot be found; or (o) the information— (i) reflects on the credibility of a witness who is not to be called by the prosecutor to give evidence but who may be called by the defendant to give evidence; and (ii) is not for any other reason relevant. If part only of the information may be withheld, the prosecutor must make the remainder of the information available if it is possible to protect the withheld information by deletion, summary, or otherwise. If the prosecutor becomes aware that there has ceased to be any justification for withholding all or part of any information that has been withheld under this Part, the prosecutor must, if the criminal proceedings have not yet been completed, disclose that information to the defendant as soon as reasonably practicable.
Criminal Procedure
32 (1)
(2)
(3)
(4)
33 (1)
(2)
Part 2
Restriction on disclosing address of witness or informant This section applies to information that identifies, or that may lead to the identification of, the address of the place where a witness or informant lives (for example, his or her postal address, residential address, email address, fax number, or phone number). The information may be disclosed to the defendant only with the consent of the witness or informant or with the leave of the Court. The Court— (a) must not grant leave unless it is satisfied that the disclosure of the information is necessary in the interests of justice and outweighs any prejudice to the witness’s or informant’s interests, or any harm to the witness or informant, that is likely to be caused by the disclosure of the information; and (b) may, if it grants leave, impose conditions in relation to the disclosure of the information. This section applies to an informant regardless of whether the prosecutor intends to call the informant as a witness. Trade secrets may be withheld The prosecutor may withhold any information to which the defendant would otherwise be entitled under this Part if disclosing the information— (a) would disclose a trade secret; or (b) would be likely to unreasonably prejudice the commercial position of the person who supplied, or who is the subject of, the information. Despite subsection (1), information must not be withheld under this section if, in the circumstances of the particular case, the interests in subsection (1) protected by the withholding of that information are outweighed by other considerations that make it desirable in the public interest to disclose the information. New (unanimous)
(3)
In this section trade secret has the same meaning as in section 230(2) of the Crimes Act 1961.
35
Part 2 cl 34
34 (1)
(2)
(3)
Criminal Procedure
Inspection of exhibit by defendant The prosecutor must, on request by the defendant,— (a) allow the defendant to inspect any exhibit in the possession or control of the prosecutor that is specified by the defendant and is referred to in a list of exhibits supplied under section 28(3)(e) or (f), unless subsection (3) applies; and (b) if that exhibit is reasonably capable of reproduction, disclose a copy of it to the defendant. The inspection by the defendant under subsection (1) is subject to— (a) any conditions that the prosecutor considers necessary for the purpose of— (i) ensuring the security and integrity of the exhibit or otherwise maintaining its evidential value; and (ii) in the case of an exhibit needed for use on an ongoing basis for law enforcement purposes, ensuring that the exhibit can continue to be used on an ongoing basis for law enforcement purposes: (b) any conditions imposed by the Court under section 46. The prosecutor may refuse to allow the defendant to inspect an exhibit if— (a) that exhibit is needed for use on an ongoing basis for (commencement) enforcement purposes; and (b) the imposition of conditions under subsection (2)(a) would not enable the inspection to take place without prejudicing ongoing law enforcement.
Disclosure by defendant 35
36
Notice to defendant of disclosure requirements in sections 37 and 38 The Court or the Registrar must give written notice of the requirements of sections 37 and 38 to a defendant (if the defendant)— (a) if the defendant pleads not guilty to an offence proceeded against summarily; or (b) if the defendant elects trial by jury under section 66 of the Summary Proceedings Act 1957; or
Criminal Procedure
(c)
Part 2 cl 37
when the defendant, if the information has been laid indictably, makes his or her first appearance in Court in relation to the offence; or New (unanimous)
(d)
when the defendant, if he or she is a child or young person, makes a first appearance in a Youth Court.
36
Notice to defendant of disclosure requirement in section 176 of Summary Proceedings Act 1957 The Court or the Registrar must give written notice of the requirements of section 176 of the Summary Proceedings Act 1957 to a defendant if the defendant— (a) elects trial by jury under section 66 of the Summary Proceedings Act 1957; or (b) if the information has been laid indictably, makes his or her first appearance in Court in relation to the offence.
37 (1)
Notice of alibi If a defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor of the particulars of the alibi. The notice under subsection (1) must be given (within 14 days after the defendant has)— (a) (pleaded) within 14 days after the defendant pleads not guilty to an offence proceeded against summarily; or (b) (elected) within 14 days after the defendant elects trial by jury under section 66 of the Summary Proceedings Act 1957; or (c) if the information has been laid indictably, (made his or her first appearance in Court in relation to the offence) within 14 days after the defendant is committed for trial. Without limiting subsection (1),— (a) the notice under subsection (1) must include the name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness; or
(2)
(3)
37
Part 2 cl 37
(b)
(c)
(d)
38 (1)
(2)
Criminal Procedure
if the name or the address is not included in the notice, the defendant must have, before giving the notice, taken all reasonable steps, and after giving the notice continue to take all reasonable steps, to ensure that the name and address is ascertained; or if the name or the address is not included in the notice, but the defendant subsequently discovers the name or address or becomes aware of any other matter that might be of material assistance in finding the witness, the defendant must as soon as practicable give written notice of the name, address, or other information, as the case may require; or if the defendant is notified by the prosecutor that the witness has not been traced by the name or at the address given, the defendant must as soon as practicable give written notice of any other matter known to the defendant that might be of material assistance in finding that witness or, on subsequently becoming aware of any such matter, give written notice of it as soon as practicable.
Disclosure by defendant of evidence to be given by expert witness If a defendant proposes to call a person as an expert witness, the defendant must, at least 14 days before the date fixed for the defendant’s hearing or trial or within any further time that the Court may allow, disclose to the prosecutor— (a) any brief of evidence to be given, or any report provided by that witness; or (b) if that brief or any such report is not then available, a summary of the evidence to be given and the conclusions of any report to be provided. Where the defendant, under subsection (1)(b), provides only a summary of evidence to be given or conclusions of any report to be presented, the defendant must disclose to the prosecutor the brief of evidence to be given or the report provided by that witness as soon as possible after it becomes available.
Disclosure by non-parties 39 (1) 38
Application for non-party disclosure hearing This section applies at any time after a defendant has—
Criminal Procedure
(a) (b) (c)
Part 2 cl 39
pleaded not guilty to an offence proceeded against summarily; or elected trial by jury under section 66 of the Summary Proceedings Act 1957; or if the information has been laid indictably, been committed for trial; or New (unanimous)
(d)
(2)
(3)
(4)
(5)
in the case of a child or young person, made a first appearance in a Youth Court.
The defendant may apply to the Court for an order granting a hearing to determine whether information that is held by a person or agency other than the prosecutor should be disclosed to the defendant. The application must— (a) describe with as much particularity as possible the information that the defendant seeks to have disclosed, and state the name of the person or agency that the defendant alleges holds the information; and (b) set out the grounds on which the defendant relies to establish that the information is relevant; and (c) contain written evidence indicating that the defendant has made reasonable efforts to obtain the information from the person or agency that the defendant alleges holds the information. The defendant must give a copy of the application to the prosecutor, and the prosecutor must be allowed a reasonable time to make written submissions to the Court concerning the application. The Court may seek and consider written submissions from the person or agency that the defendant alleges holds the information or any other person or agency that the Court believes would have knowledge of the existence of the information, its whereabouts, and its likely relevance to the proceedings.
39
Part 2 cl 40
Criminal Procedure
40
Determination of application for non-party disclosure hearing If a defendant makes an application in accordance with section 39, the Court may grant the application if— (a) it is satisfied that all or part of the information that the defendant seeks— (i) is likely to be held by the person or agency that the defendant alleges holds the information; or (ii) is likely to be held by another person or agency; and (b) all or part of the information appears to the Court to be relevant.
41
Service of application and summons if application for hearing granted If an application for a non-party disclosure hearing is granted under section 40, the Court or the Registrar must, at least 7 days before the hearing under section 42,— (a) serve on the person or agency referred to in the application under section 39 (being the person or agency who the defendant alleges holds the information) and on any other person or agency who the Court or the Registrar is satisfied is likely to hold the information— (i) a copy of the application; and (ii) a summons under section 20(1) of the Summary Proceedings Act 1957; and (iii) a copy of the order made by the Court under section 40; and (b) serve the application on the prosecutor and on any other person to whom, to the knowledge of the defendant or the Registrar, the information relates. The Judge who granted the application under section 40 or the Judge who will preside over the non-party disclosure hearing under section 42 may at any time before or during the non-party disclosure hearing order that the application be served on any person or agency whom the Judge considers is likely to hold the information or any other person to whom the Judge considers the information may relate. The summons referred to in subsection (1)(a)(ii) must— (a) require the attendance of the person, or a representative of the agency, that allegedly holds or may hold the
(1)
(2)
(3)
40
Criminal Procedure
(b)
42 (1)
(2)
(3)
(4)
(5)
Part 2 cl 42
information at a particular Court at a particular time; and describe the relevant material with as much particularity as possible, and require the person to bring the material to the Court.
Non-party disclosure hearing The following persons may call evidence or make submissions in any non-party disclosure hearing: (a) the prosecutor: (b) the defendant: (c) the person or agency who the defendant alleges holds the information sought by the defendant: (d) any person or agency who has been served with a copy of the application under section 41(1) or (2): (e) with the leave of the Court, any other person who may be affected by, or have an interest in, any order that the Court may make under section 44. The Judge may, if he or she considers it appropriate to do so, examine the information in the possession of— (a) the person or agency from whom the information is sought; or (b) any other person or agency who holds the information sought, or part of it. The Judge may, if he or she considers that there are special circumstances that warrant it, and on such conditions as he or she directs, permit the prosecutor and, if appropriate, the defendant to view the information— (a) for the purpose of arguing the application; and (b) in order to assist the Court in determining whether the information should be disclosed. The following persons are not compellable as witnesses at the hearing, and no order for costs may be made against any of them: (a) the person, or any representative of the agency, from whom information is sought: (b) any other person who may be affected by any order that the Court may make under section 44. The hearing conducted under this section must not be open to the public.
41
Part 2 cl 43
43 (1)
(2)
44 (1)
(2)
(3)
42
Criminal Procedure
Procedure if Judge subsequently satisfied that another person holds information sought If a non-party disclosure hearing is granted under section 40(a)(i) but at any time before or during the non-party disclosure hearing the Judge is satisfied that all or part of the information sought by the defendant is likely to be held by a person or agency other than the person or agency alleged by the defendant, the Judge may— (a) order that a copy of the application be served on that person or agency; and (b) adjourn the proceedings for that purpose. If the Judge makes an order under subsection (1), sections 41(3), 42, and 44 apply with any necessary modifications. Determination of Court following non-party disclosure hearing After the hearing under section 42, the Judge may order the person or agency who holds the information to disclose it, or part of it, to the defendant, subject to any conditions imposed under subsection (4), if the Judge is satisfied that— (a) the information or part of it is relevant; and (b) the disclosure of the information or part of it is necessary in the public interest. The Judge may refuse to order disclosure of the information, or part of it, if the Judge is satisfied that— (a) any of the reasons described in section 31 or section 33 for which information could be withheld apply to the information; or (b) the application of section 32 requires that the information not be disclosed. In addition to subsections (1) and (2), in determining whether to order the disclosure of the information or part of the information to the defendant, the Judge must take into account— (a) the extent to which the information will assist the defendant to properly defend the charge; and (b) the probative value of the information; and (c) the nature and extent of any reasonable expectation of privacy with respect to the information, including any expectation of the person to whom the information relates; and
Criminal Procedure
Part 2 cl 45
(d) (4)
the effect of the determination on the fairness of the trial or hearing process. If the Judge orders the disclosure of the information or part of the information to the defendant, the Judge may impose conditions on the disclosure to protect the public interest and, to the greatest extent possible, any privacy interests of any person to whom the information relates, including, for example, any of the following conditions: (a) that the information be edited as directed by the Judge: (b) that a copy of the information, rather than the original, be disclosed: (c) that the defendant not disclose the information to any other person, except with the approval of the Court: (d) that the information be disclosed only to counsel for the defendant and not to the defendant himself or herself: (e) that no copies of the information be made, or that restrictions be imposed on the number of copies of the information that may be made: (f) that details relating to any named person in the information, such as the person’s address, telephone number, or place of employment, not be disclosed. New (unanimous)
(5)
(6)
If any information is disclosed under this section to the defendant’s counsel and, before the proceedings are determined, that counsel ceases to act for the defendant, the counsel must return the information and any copies of it in the possession of the defendant or the defendant’s counsel to the Court or Registrar, together with a declaration that those copies have been returned. If any person fails to comply with subsection (5) without reasonable excuse the Court may, on its own motion or on the application of the prosecutor, deal with the failure as a contempt of Court.
General powers of Courts in relation to disclosure 45 (1)
Court order for disclosure of information The defendant may apply to the Court for an order that a particular item of information or type of information in the 43
Part 2 cl 45
(2)
(3)
46 (1)
44
Criminal Procedure
possession or control of the prosecutor be disclosed on the grounds that— (a) the defendant is entitled to the information under section 27, section 28, or section 29, as the case may be, and— (i) the prosecutor failed to disclose the information; or (ii) the prosecutor refused under section 29, section 31, section 32, or section 33 to disclose the information, and— (A) none of the reasons described in section 31, section 32, or section 33 for which information could be withheld applies to the information; or (B) in the case of a refusal under section 32, the information ought to have been disclosed under section 32(3); or (C) in the case of a refusal under section 33, the information ought to have been disclosed under section 33(2); or (b) even though the information may be withheld under this Act, the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information. If the Court is satisfied, on an application made under this section, that the defendant is entitled to the disclosure of any particular item of information or type of information, or that any particular item of information or type of information should be disclosed to the defendant under subsection (1)(b), the Court may order that the item or type of information be disclosed to the defendant. An order made under this section may be made subject to any conditions that the Court considers appropriate. Court order setting conditions for inspection of exhibit The prosecutor or the defendant may apply to the Court or the Registrar for an order as to— (a) whether a particular exhibit or exhibits may be inspected by a defendant under this Part or in accordance with an order under this Part:
Criminal Procedure
Part 2 cl 47
(b)
(2)
the conditions that will apply to the inspection of a particular exhibit or exhibits by the defendant under this Part or in accordance with an order made under this Part. In determining whether to permit inspection or in determining the conditions of inspection, the Court or the Registrar must have regard to— (a) the public interest; and (b) ensuring the security and integrity of the exhibit and otherwise maintaining its evidential value; and (c) in the case of an exhibit needed for use on an ongoing basis for law enforcement purposes, ensuring that the exhibit can continue to be used on an ongoing basis for law enforcement purposes.
General provisions 47 (1)
(2)
(3)
(4)
Court may make orders setting out timetable for disclosure At any time after the duty to provide full disclosure of information has arisen under section 28, the Court or the Registrar may, on the Court’s or the Registrar’s own motion or on the application of the prosecutor or the defendant, give directions regarding the timing of disclosure under that section. If a non-party disclosure order has been made under section 44, the Court may, on the Court’s or the Registrar’s own motion or on the application of the prosecutor or the defendant or the non-party, give directions regarding the timing of disclosure. If the defendant or the prosecutor or a non-party fails to comply with directions given under this section, the Court or the Registrar may, on the Court’s or the Registrar’s own motion or on the application by the prosecutor or the defendant,— (a) give further directions; or (b) if the Court is satisfied that there is no reasonable excuse for the failure to comply, deal with the failure as a contempt of Court. Subsection (3) does not limit the powers of a Court under any other enactment or rule of law to deal with any failure by a prosecutor or defendant or a non-party to comply with the directions of the Court under this section.
45
Part 2 cl 48
48 (1) (2) (3)
(4)
(5)
49 (1)
(2)
(3)
46
Criminal Procedure
Appeals The prosecutor or the defendant may appeal against a decision of a Court under section 45 or section 46. The defendant or the prosecutor or a non-party may appeal against a decision of a Court under section 44. An appeal under this section may,— (a) if the order was made by a Court (as defined in section 22(a)), be made to the Court of Appeal with the leave of that Court, or to the Supreme Court with the leave of that Court; or (b) in any other case, be made to the High Court with the leave of that Court, or to the Supreme Court with the leave of that Court. If the appeal is made to the Supreme Court or Court of Appeal, subsections (3) to (5) of section 379A of the Crimes Act 1961 apply with any necessary modifications. If the appeal is made to the High Court, sections 116 to 144 of the Summary Proceedings Act 1957 apply, so far as applicable and with any necessary modifications. Undisclosed information This section applies if, at the hearing or trial of a defendant, the Court is satisfied that— (a) evidence sought to be adduced by a party is, or is based on, information that should have been disclosed to the other party under this Part; and (b) that information was not disclosed. The Court may— (a) exclude the evidence; or (b) with or without requiring the evidence to be disclosed, adjourn the hearing or trial; or (c) admit the evidence if it is in the interests of justice to do so. The Court— (a) must not order the exclusion of evidence sought to be adduced by the defendant (whether of an alibi, as expert evidence, or otherwise) if it appears to the Court that the defendant was not given notice in accordance with this Part of the requirements of this Part; but
Criminal Procedure
Part 2 cl 52
if paragraph (a) applies, must adjourn the hearing if the prosecution requests an adjournment. Subject to subsection (3), subsection (2) does not limit the powers of a Court under any other enactment or rule of law to deal with any failure by a party to comply with the directions of the Court under this section. (b)
(4)
Miscellaneous provisions 50 (1)
(2)
51
Certain applications must be on notice A copy of an application made by the prosecutor under section 46 or section 47 must be served on the defendant by the Court or Registrar before the application is considered and determined. A copy of an application made by the defendant under section 46 or section 47 must be served on the prosecutor before the application is considered and determined. Regulations The Governor-General may, by Order in Council, make regulations for all or any of the following purposes: (a) prescribing the procedure for the service of notices and other documents for the purposes of this Part: (b) prescribing forms for the purposes of this Part: (c) providing for any other matters contemplated by this Part, necessary for its administration, or necessary for giving it full effect.
Amendments to other enactments 52
Amendment to Local Government Official Information and Meetings Act 1987 Section 17 of the Local Government Official Information and Meetings Act 1987 is amended by inserting, after paragraph (d), the following paragraph: ‘‘(da) that the request is made by a defendant or person acting on behalf of a defendant and is— ‘‘(i) for information that could be sought by the defendant under the Criminal Disclosure Act 2004; or ‘‘(ii) for information that could be sought by the defendant under that Act and that has been disclosed
47
Part 2 cl 52
Criminal Procedure
to, or withheld from, the defendant under that Act:’’. 53
Amendment to Official Information Act 1982 Section 18 of the Official Information Act 1982 is amended by inserting, after paragraph (d), the following paragraph: ‘‘(da) that the request is made by a defendant or a person acting on behalf of a defendant and is— ‘‘(i) for information that could be sought by the defendant under the Criminal Disclosure Act 2004; or ‘‘(ii) for information that could be sought by the defendant under that Act and that has been disclosed to, or withheld from, the defendant under that Act:’’.
54 (1)
Amendments to Privacy Act 1993 Section 29(1) of the Privacy Act 1993 is amended by inserting, after paragraph (i), the following paragraph: ‘‘(ia) the request is made by a defendant or a defendant’s agent and is— ‘‘(i) for information that could be sought by the defendant under the Criminal Disclosure Act 2004; or ‘‘(ii) for information that could be sought by the defendant under that Act and that has been disclosed to, or withheld from, the defendant under that Act; or’’. Section 31 of the Privacy Act 1993 is repealed.
(2) 55 (1) (2)
Other amendments and repeals The enactments specified in Schedule 1 are amended in the manner indicated in that schedule. The enactments specified in Schedule 2 are repealed.
Transitional and savings provisions 56 (1)
(2) 48
Transitional provision Criminal proceedings commenced before the date on which this Part comes into force continue as if this Part and Schedules 1, 2, 4, 5, and 6 had not been enacted. Despite subsection (1), if the prosecutor and the defendant agree, by notice in writing lodged with the Court, criminal
Criminal Procedure
(3)
57
Part 3 cl 60
proceedings commenced before the date on which this Part comes into force continue subject to the requirements of this Part and the enactments specified in Schedules 1, 2, 4, 5, and 6 (or amended by those schedules). If there is an agreement under subsection (2), any obligation under this Part that would (had the proceedings been conducted subject to the requirements of this Part from its commencement) already have fallen due before the date of the agreement, falls due at the date of the agreement (if that obligation has not already been complied with). This Part not to limit or affect other enactments relating to availability of information Except as expressly provided in this or any other enactment, nothing in this Part limits or affects any provision in any other enactment that— (a) authorises or requires any information to be made available; or (b) imposes a prohibition or restriction in relation to the availability of any information; or (c) regulates the manner in which any information may be obtained or made available.
Part 3 District Courts Act 1947 58
District Courts Act 1947 called principal Act in this Part In this Part, the District Courts Act 19472 is called ‘‘the principal Act’’. 2
59
1947 No 16
Commencement This Part and Schedule 3 come into force on the day after the date on which this Act receives the Royal assent.
60 (1)
Extent of jurisdiction under Part II of this Act Section 28A of the principal Act is amended by repealing subsection (1), and substituting the following subsection: ‘‘(1) A Court that is sitting at a place appointed under section 4(2A) and is presided over by a trial Judge has jurisdiction under this Part in respect of the following offences: 49
Part 3 cl 60
(2)
(3)
(4)
50
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‘‘(a) any offence for which the accused elects under section 66 of the Summary Proceedings Act 1957 to be tried by a jury: ‘‘(b) all indictable offences under any enactment (other than the offences referred to in Parts 1 and 2 of Schedule 1A): ‘‘(c) the indictable offences referred to in Part 1 of Schedule 1A, in any case where— ‘‘(i) the proceedings are transferred to the Court under section 168AA of the Summary Proceedings Act 1957; or ‘‘(ii) a person pleads guilty under section 153A or section 168 of the Summary Proceedings Act 1957, before he or she is committed for trial or sentence to any such offence: ‘‘(d) conspiring to commit an indictable offence to which paragraph (b) or paragraph (c) applies: ‘‘(e) attempting to commit an indictable offence to which paragraph (b) or paragraph (c) applies, or inciting or counselling or attempting to procure any person to commit any such offence, which is not committed: ‘‘(f) being an accessory after the fact to any indictable offence to which paragraph (b) or paragraph (c) applies.’’ Section 28A(2) of the principal Act is amended by omitting the expression ‘‘paragraphs (d), (f), (g), and (h)’’, and substituting the words ‘‘paragraphs (c) to (f)’’. Section 153A(6)(a) of the Summary Proceedings Act 1957 is consequentially amended by repealing subparagraphs (i) to (v), and substituting the following subparagraphs: ‘‘(i) the defendant elected under section 66 to be tried by a jury; or ‘‘(ii) the offence is an indictable offence under any enactment (other than an offence referred to in Part 2 of Schedule 1A of the District Courts Act 1947); or ‘‘(iii) the offence is an offence to which section 28A(1)(d), (e), or (f) of the District Courts Act 1947 applies,—’’. Section 168A(1)(a) of the Summary Proceedings Act 1957 is consequentially amended by omitting the words ‘‘paragraphs (a) to (d) of section 28A(1) of the District Courts Act 1947’’,
Criminal Procedure
(5)
61
Part 3 cl 62
and substituting the words ‘‘paragraphs (a), (b), and (d) to (f) of section 28A(1) of the District Courts Act 1947’’. Section 168AA(1) of the Summary Proceedings Act 1957 is consequentially amended by omitting the words ‘‘Part II’’, and substituting the words ‘‘Part I’’. Maximum sentences Section 28F(3) of the principal Act is amended by repealing paragraph (a), and substituting the following paragraph: ‘‘(a) a person pleads guilty under section 153A or section 168 of the Summary Proceedings Act 1957, before or during the preliminary hearing, to— ‘‘(i) any offence for which the accused elects trial by jury under section 66 of the Summary Proceedings Act 1957; or ‘‘(ii) any indictable offence under any enactment (other than the offences referred to in Part 2 of Schedule 1A); or ‘‘(iii) any offence to which section 28A(1)(d), (e), or (f) applies; and’’.
62
Appeal against sentence Section 28H of the principal Act is amended by repealing subsection (2), and substituting the following subsections: ‘‘(2) If this section applies, then,— ‘‘(a) in any case where the sentence imposed exceeds the maximum term of imprisonment or the maximum fine that may be imposed by a District Court Judge under section 7 of the Summary Proceedings Act 1957 (which is a term of imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both),— ‘‘(i) the person sentenced may appeal to the Court of Appeal under section 383(1A) of the Crimes Act 1961; and ‘‘(ii) the Solicitor-General may appeal, with the leave of the Court of Appeal, to the Court of Appeal under section 383(2A) of the Crimes Act 1961; and ‘‘(b) in any other case,— ‘‘(i) the person sentenced may appeal to the High Court under section 115(2A) of the Summary Proceedings Act 1957; and 51
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‘‘(ii) the informant with the consent of the SolicitorGeneral given under section 115A(2) of the Summary Proceedings Act 1957, may appeal against the sentence to the High Court under section 115A(1A) of the Summary Proceedings Act 1957. ‘‘(2A) This section is subject to section 384A of the Crimes Act 1961.’’ New (unanimous)
62A Regulations Section 123(1) of the principal Act is amended by inserting, after paragraph (be), the following paragraphs: ‘‘(bf) amending Schedule 1A by adding offences to, or removing offences from, Part 1 or Part 2 of that schedule: ‘‘(bg) prescribing transitional arrangements for the trial and sentencing of persons charged with offences that are added to or removed from Part 1 or Part 2 of Schedule 1A’’.
63
New Schedule 1A substituted The principal Act is amended by repealing Schedule (IA) 1A, and substituting the Schedule 1A set out in Schedule 3.
64 (1)
Transitional provision Subsection (2) applies to any offence that— (a) before the commencement of the District Courts Amendment Act 2004, could be tried by a Court presided over by a trial Judge; but (b) after the commencement of the District Courts Amendment Act 2004, cannot be tried by a Court presided over by a trial Judge or can only be so tried after transfer to the Court by the High Court under the Summary Proceedings Act 1957. If a defendant is committed for trial before the commencement of the District Courts Amendment Act 2004 in respect of an offence to which this subsection applies, and the committal was to the District Court, that Court may try the offence, despite that Act.
(2)
52
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Part 4 cl 67
Part 4 Juries Act 1981 65
Juries Act 1981 called principal Act in this Part In this Part, the Juries Act 19813 is called ‘‘the principal Act’’. 3
66 (1)
1981 No 23
Commencement This Part (except sections 68, 75, 76, and 82A) comes into force on the day that is 6 months after the date on which this Act receives the Royal assent. New (unanimous)
(2)
Sections 68, 75, 76, and 82A
67 (1)
Interpretation The definition of chief executive in section 2 of the principal Act is amended by omitting the words ‘‘for Courts’’. Section 2 of the principal Act is amended by inserting, in their appropriate alphabetical order, the following definitions: ‘‘Department means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act ‘‘Minister means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act’’. Section 5(4) and (5) of the principal Act is consequentially amended by omitting the words ‘‘of the Crown who is responsible for the Department for Courts’’ in both places where they occur. Section 12(3)(b) of the principal Act is consequentially amended by omitting the words ‘‘for Courts’’. Section 35(2) of the principal Act is consequentially amended by omitting the words ‘‘of the Crown who is responsible for the Department for Courts’’.
(2)
(3)
(4) (5)
come into force on a date to be appointed by the Governor-General by Order in Council; and 1 or more Orders in Council may be made appointing different dates for different provisions.
53
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68 (1)
Jury districts Section 5 of the principal Act is amended by repealing subsections (3) and (3A), and substituting the following subsection: ‘‘(3) Every jury district comprises every place that is within— ‘‘(a) 45 km by the most practicable route from the courthouse in the Court town in which jury trials may be held; and ‘‘(b) if the jury district is a District Court jury district, any boundary of the district that is declared by the Governor-General by a notice under subsection (4).’’ (2) Section 5(4) of the principal Act is consequentially amended by omitting the words ‘‘, or subsection (3) and subsection (3A)’’. (3) Section 5(4) of the principal Act is consequentially amended by repealing paragraph (b), and substituting the following paragraph: ‘‘(b) no place included in a District Court jury district for a Court town is more than 45 km by the most practicable route from the courthouse in that town.’’ (4) Section 16A of the principal Act is consequentially amended by repealing subsection (3), and substituting the following subsection: ‘‘(3) No person is required to attend for jury service at the new venue if that venue is outside the jury district and is more than 45 km by the most practicable route from that person’s place of residence.’’ (5) The Juries Amendment Act 2001 (2001 No 69) is consequentially repealed. 69 (1)
54
Transitional provision (Section 68 comes into force at the time specified in section 66 (the commencement), but) For the following purposes the amendments made by section 68 must be treated as if they are in force on and after the date that is 6 months before (that time) the date (the commencement) on which section 68 came into force: (a) the constitution of jury districts for use on and after (that time) the commencement: (b) the preparation of new jury lists for use on and after (that time) the commencement.
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Part 4 cl 72
(2)
Nothing in section 68 affects the validity of any of the following: (a) a jury list or jury panel that was prepared and in use immediately before the commencement: (b) the composition of any jury that was constituted before the commencement and continued to serve after that (time) date: (c) the composition of any jury that was constituted after the commencement from a jury list that was prepared and in use immediately before that (time) date: (d) a summons that was issued under the principal Act before the commencement, and is intended to continue to have effect after that (time) date.
70 (1)
Certain persons not to serve Section 8 of the principal Act is amended by inserting, before paragraph (a), the following paragraph: ‘‘(aa) the Governor-General:’’. Section 8(f) of the principal Act is amended by omitting the expression ‘‘Law Practitioners Act 1955’’, and substituting the expression ‘‘Law Practitioners Act 1982’’. Section 8 of the principal Act is amended by inserting, before paragraph (ha), the following paragraph: ‘‘(haa) employees of the Legal Services Agency continued by section 91 of the Legal Services Act 2000 (but nothing in this paragraph applies to members of— ‘‘(i) the Board of that Agency; or ‘‘(ii) the Review Panel established under section 62 of that Act; or ‘‘(iii) the Public Advisory Committee established under Part 7 of that Act):’’.
(2)
(3)
71
Access to, and confidentiality of, jury lists Section 12(2)(b) of the principal Act is amended by omitting the word ‘‘Registrar’s’’, and substituting the words ‘‘Court registry’’.
72
Registrar may amend jury list Section 12A(1) of the principal Act is amended by inserting, after paragraph (d), the following paragraph: 55
Part 4 cl 72
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‘‘(da) an applicant for deferral of jury service, under section 14B, whose application has been accepted but who has not yet been issued with a replacement summons under section 14C(1)(d); or’’. 73 (1)
Inspection of jury panel Section 14 of the principal Act is amended by repealing subsection (1), and substituting the following subsections: ‘‘(1) The Registrar must comply with a request to make a copy of a panel available for inspection (and copying) by or on behalf of an eligible person if the request is made— ‘‘(a) by or on behalf of that eligible person; and ‘‘(b) at a time not earlier than (5) 7 days before the commencement of the week for which the jurors on the panel are summoned to attend for jury service. ‘‘(1A) In subsection (1), eligible person means— ‘‘(a) a barrister or solicitor acting for a party to proceedings that are due to be heard during the week for which the jurors on the panel are summoned to attend for jury service; or ‘‘(b) a person who is a party to proceedings that are due to be heard during that week and who is not represented by a barrister or solicitor; or ‘‘(c) the Crown or other prosecutor in criminal proceedings that are due to be heard during that week; or ‘‘(d) a member of the police.’’ (2) Section 14(3) of the principal Act is repealed. 74
New section 14A inserted The principal Act is amended by inserting, after section 14, the following section:
‘‘14A Restrictions on use of jury panel ‘‘(1) The purpose of this section is to help to prevent names or other information disclosed in a copy of the panel from being used to facilitate actions (for example, actions prejudicing a juror’s safety or security) to interfere with the performance of a juror’s duties. ‘‘(2) A barrister or solicitor to whom a copy of the panel is made available under section 14(1) because the barrister or solicitor is
56
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Part 4 cl 74
acting for a party to criminal proceedings, and any person acting on behalf of that barrister or solicitor,— ‘‘(a) may show the copy (or any copies of it) (the document) to a defendant in proceedings that are due to be heard during the week for which the jurors on the panel are summoned to attend for jury service; but ‘‘(b) must not leave the document in the defendant’s possession; and New (unanimous)
‘‘(ba) must not leave the document in the possession of any witness for either party; and ‘‘(bc) must not leave the document in the possession of any victim (within the meaning of section 4 of the Victims’ Rights Act 2002); and ‘‘(c) must take all reasonable steps to ensure that the defendant, any witness, or any victim, as the case requires, does not copy the document. ‘‘(3) A barrister or solicitor to whom a copy of the panel is made available under section 14(1) because the barrister or solicitor is acting for a party to civil proceedings, and any person acting on behalf of that barrister or solicitor,— ‘‘(a) may show the copy or any copies of it (the document) to a party in proceedings that are due to be heard during the week for which the jurors on the panel are summoned to attend for jury service; but ‘‘(b) must not leave the document in the party’s possession; and ‘‘(c) must take all reasonable steps to ensure that the party does not copy the document. ‘‘(4) Every person who, in connection with proceedings that are due to be heard during the week for which the jurors on the panel are summoned to attend for jury service, receives, or makes a copy or copies of, a copy of the panel must return the copy or copies to the Registrar or a member of the Court registry staff as soon as practicable after the case is opened or the accused is given in charge. ‘‘(5) However, subsection (4) does not apply to— ‘‘(a) the Registrar or a member of the Court registry staff; and 57
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‘‘(b) any other person if the Court or a Judge, in the Court’s or Judge’s discretion and on a written application for the purpose, orders that the other person need not return the copy or copies. New (unanimous)
‘‘(6) A breach of subsection (2), subsection (3), or subsection (4) may be dealt with as contempt of Court.’’
75 (1)
New sections 14B and 14C inserted The principal Act is amended by inserting, before section 15, the following sections:
‘‘14B Deferral of jury service ‘‘(1) The Registrar may permit a person summoned to attend as a juror on an occasion to defer that person’s attendance to a time that— ‘‘(a) is within 12 months after the date on which the person is required to attend under the summons; and ‘‘(b) is specified by the Registrar; and ‘‘(c) the person has indicated would be more convenient. ‘‘(2) However, the Registrar may exercise that power— ‘‘(a) only in respect of a summons that is not a replacement summons under section 14C(1)(d); and ‘‘(b) only once for each summons of that kind; and ‘‘(c) only if satisfied, on a written application for the purpose made by or on behalf of that person, that, because of 1 or more matters specified in subsection (3), attendance on that occasion would cause or result in undue hardship or serious inconvenience to that person, any other person, or the general public. ‘‘(3) The matters referred to in subsection (2)(c) (and in section 15(1A)(a) and (c)) are— ‘‘(a) the nature of that person’s occupation or business, or of any special and pressing commitment arising in the course of that person’s occupation or business: ‘‘(b) that person’s physical disability: ‘‘(c) that person’s state of health, or family commitments, or other personal circumstances.
58
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Part 4 cl 75
‘‘14C Further provisions relating to deferral of jury service ‘‘(1) On or after accepting an application under section 14B, the Registrar must— ‘‘(a) record in some manner the exercise of the power of deferral in respect of the summons concerned; and ‘‘(b) delete the person’s details from the panel that was— ‘‘(i) compiled under section 13(1); and ‘‘(ii) the basis of the issue of that summons; and ‘‘(c) ensure the person’s details are included, in accordance with the jury rules, in a later panel compiled under section 13(1); and ‘‘(d) issue under section 13(1), and on the basis of the later panel compiled under that section, a replacement summons that states the time specified under section 14B(1)(b). ‘‘(2) If the Registrar declines an application under section 14B, the applicant may, in accordance with the jury rules, appeal against that decision to the Court before which the applicant is summoned to appear. ‘‘(3) The acceptance of an application under section 14B in respect of a summons does not prevent an application under section 15 or section 16 in respect of a replacement summons under subsection (1)(d) of this section. ‘‘(4) The Registrar may, if the Registrar thinks fit, treat an application under section 14B as if it were an application for excusal under section 15(1) and, if the Registrar does so, the application must be determined accordingly.’’ (2) Section 13 of the principal Act is consequentially amended by inserting, after subsection (3), the following subsection: ‘‘(3A) Subsection (3) does not apply to a person who is summoned for jury service if— ‘‘(a) the Registrar has, under section 14B, permitted the person to defer that person’s jury service (in which case the person is liable to serve until the end of the week for which the person is summoned under the replacement summons issued under section 14C(1)(d)); or ‘‘(b) the Registrar has, under section 15, excused the person from jury service; or ‘‘(c) a Judge has, under section 16, excused the person from jury service; or ‘‘(d) a Judge has, under section 16AA, discharged the summons of the person.’’ 59
Part 4 cl 75
(3)
(4)
(5)
76 (1)
Criminal Procedure
Section 13(4) of the principal Act is consequentially amended by omitting the word ‘‘Every’’, and substituting the words ‘‘Despite subsections (3) and (3A), every’’. Section 16(a) of the principal Act is consequentially amended by inserting, after the words ‘‘that section’’, the words ‘‘or to permit that person to defer jury service under section 14B’’. Section 35(1) of the principal Act is consequentially amended by repealing paragraph (d), and substituting the following paragraph: ‘‘(d) prescribing the method or methods by which any of the following applications can be made: ‘‘(i) an application under section 14B for deferral of jury service: ‘‘(ii) an application under section 15 or section 16 to be excused from jury service:’’.
Registrar may excuse from jury service Section 15 of the principal Act is amended by repealing subsection (1), and substituting the following subsections: ‘‘(1) The Registrar may excuse a person summoned to attend as a juror on an occasion from attending on that occasion. ‘‘(1A) However, the Registrar may exercise that power only if satisfied, on a written application for the purpose made by or on behalf of that person, that,— ‘‘(a) because of 1 or more matters specified in section 14B(3), attendance on that occasion would cause or result in undue hardship or serious inconvenience to that person, any other person, or the general public; and ‘‘(b) in the circumstances, a deferral of jury service under section 14B is not reasonably practicable; and ‘‘(c) because of 1 or more matters specified in section 14B(3), that person would not, if required to attend as a juror on that occasion, be able to perform a juror’s duties satisfactorily. ‘‘(1B) The Registrar may, if the Registrar thinks fit, treat an application under this section as if it were an application for deferral under section 14B and, if the Registrar does so, the application must be determined accordingly.’’ (2) Section 9(1) of the Juries Amendment Act 2000 (2000 No 2) is consequentially repealed. 60
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(3) (4)
77
Part 4 cl 79
Section 15(3) of the principal Act is amended by omitting the word ‘‘he’’, and substituting the words ‘‘the Registrar’’. Section 15(4) of the principal Act is amended by omitting the word ‘‘he’’, and substituting the words ‘‘the applicant’’. Judge may discharge summons of person with physical disability New (unanimous)
(1AA) The heading to section 16AA of the principal Act is amended by adding the words ‘‘or language difficulty’’. (1AB) Section 16AA(1) of the principal Act is amended by inserting, after the words ‘‘physical disability’’, the words ‘‘or difficulties in understanding or communicating in the English language’’. (1)
Section 16AA(3)(b) of the principal Act is amended by omitting the word ‘‘Registrar’s’’, and substituting the words ‘‘Court registry’’.
78 (1)
Foreman Section 21 of the principal Act is amended— (a) by omitting from the heading the word ‘‘Foreman’’, and substituting the word ‘‘Foreperson’’; and (b) by omitting the word ‘‘foreman’’, and substituting the word ‘‘foreperson’’. New (unanimous)
(2)
Section 21 of the principal Act is amended by adding, as subsection (2), the following subsection: ‘‘(2) Despite subsection (1) the Court may direct that the jury choose a foreperson at a time different from that specified in subsection (1).’’
79 (1)
New sections 22 to 22C substituted The principal Act is amended by repealing section 22 and substituting the following sections:
61
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‘‘22 Discharge of juror or jury ‘‘(1) When this subsection applies, the Court, having regard to the interests of justice, may either— ‘‘(a) discharge the jury without the jury giving a verdict (whether unanimous or majority); or ‘‘(b) discharge the juror or jurors concerned from the panel and jury and proceed with the remaining jurors and take their verdict (whether unanimous or majority). ‘‘(2) Subsection (1) applies if, and only if, before or after the jury is constituted but before the jury’s verdict is taken, the Court considers that— ‘‘(a) a juror is incapable of performing, or continuing to perform, the juror’s duty as a juror in the case; or ‘‘(b) a juror is disqualified; or ‘‘(c) a juror’s spouse, (juror’s de facto partner (whether of the same or different sex),) civil union partner, or de facto partner, member of the juror’s family, or member of the family of the juror’s spouse (or), civil union partner, or de facto partner ((whether of the same or different sex)), is ill or has died; or ‘‘(d) a juror is personally concerned in the facts of the case; or ‘‘(e) a juror is closely connected with (1 of the parties or with 1 of the witnesses or prospective witnesses) a party or witness or prospective witness. ‘‘(3) The Court may also discharge the jury without it giving a verdict (whether unanimous or majority) if— ‘‘(a) a casualty or emergency makes it, in the Court’s opinion, highly expedient for the ends of justice to do so; or ‘‘(b) the jury has remained in deliberation for at least 4 hours and the jurors do not agree on the verdict (whether unanimous or majority) to be given, and the Court thinks the period for which the jury has remained in deliberation is reasonable. ‘‘(4) Nothing in this section affects any rules of Court that— ‘‘(a) permit a jury for a civil case to be discharged without giving a verdict if all parties consent; or ‘‘(b) apply when a Judge sitting with a jury on the trial of any civil case becomes incapable of acting. ‘‘(5) In this section and sections 22A and 22B, Court includes, without limitation, a Judge of the Court. 62
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‘‘22A Consequences of discharge under section 22 ‘‘(1) If a juror is discharged under section 22(1)(b),— ‘‘(a) the discharge of the juror does not affect the juror’s liability to serve on any other jury: ‘‘(b) the Court may, if the discharge occurs before the case is opened or the accused is given in charge, require a further juror to be selected from the panel and sworn under sections 18 and 20: ‘‘(c) the choice of a foreperson is not affected (even if 1 or more replacement jurors are selected and sworn under paragraph (b)) if that choice has already been made and the juror who was chosen as foreperson is not the juror discharged: ‘‘(d) if the juror has, by the time he or she is discharged, been chosen as foreperson, another foreperson must be chosen under section 21 from among the other jurors (including any 1 or more replacement jurors selected and sworn under paragraph (b)). ‘‘(2) Despite section 22(1)(b), the Court may proceed with fewer than 11 jurors only if— ‘‘(a) all parties consent and the Court, having regard to the interests of justice, considers that the Court should proceed in accordance with that consent; or ‘‘(b) the Court considers that, because of exceptional circumstances relating to the trial (for example, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case the Court may proceed with 10 jurors but no fewer, even though all parties do not consent. ‘‘(3) If the Court proceeds with fewer than 12 jurors, their verdict (whether unanimous or majority) has, despite section 17, the same effect as a verdict of 12 jurors. ‘‘(4) On discharging the jury under section 22(1)(a) or (3), the Court must either— ‘‘(a) direct that a new jury be empanelled during the sitting of the Court; or ‘‘(b) postpone the trial on any terms justice requires.
63
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‘‘22B Further provisions about discharge under section 22 ‘‘(1) The Court may discharge the jury or a juror or jurors under section 22(1) or (3)— ‘‘(a) on (a written) an application for the purpose; or ‘‘(b) on its own initiative. ‘‘(2) A defendant is entitled to appear and be heard on an application under section 22. ‘‘(3) In considering whether to discharge the jury or a juror or jurors under section 22(1) or (3), the Court may conduct a hearing, and consider any evidence (other than evidence of the jury’s deliberations) it thinks fit. ‘‘22C Procedure if Judge sitting with jury on trial of criminal case becomes incapable of acting ‘‘(1) If a Judge sitting with a jury on the trial of any criminal case becomes incapable of acting before the jury has retired to consider its verdict,— ‘‘(a) another Judge or the Registrar must discharge the jury; and ‘‘(b) on or after the discharge of the jury, another Judge may order a new trial. ‘‘(2) If the Judge sitting with a jury on the trial of a criminal case becomes incapable of acting after the jury has retired to consider its verdict and before judgment has been given, another Judge— ‘‘(a) may give any further directions required by the jury; and ‘‘(b) may take the verdict and give judgment on it or may discharge the jury without verdict; and ‘‘(c) may generally do all things in the same way as the Judge formerly presiding at the trial might have done had that Judge not become incapable of acting.’’ (2) This section and section (73) 80 (amendments and repeals consequential on new sections 22 to 22C substituted) apply only to any trial for which a jury is constituted on or after the date on which this section comes into force. 80 (1) 64
Amendments and repeals consequential on new sections 22 to 22C substituted The Crimes Act 1961 is consequentially amended by repealing section 374, and substituting the following section:
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Part 4 cl 82
‘‘374 Discharge of juror or jury Nothing in this Act affects the powers of a Court or Judge or Registrar to discharge a juror or jury for a criminal case under section 22 or section 22C of the Juries Act 1981.’’ (2) The Judicature Act 1908 is consequentially amended by repealing section 54B, and substituting the following section: ‘‘54B Discharge of juror or jury Nothing in this Act affects the powers of a Court or Judge to discharge a juror or jury for a civil case under section 22 of the Juries Act 1981.’’ (3) The following enactments are consequentially repealed: (a) section 13 of the Crimes Amendment Act (No 2) 1980 (1980 No 85): (b) Crimes Amendment Act (No 3) 1997 (1997 No 99): (c) sections 47 and 56 of the Human Rights Amendment Act 2001 (2001 No 96): (d) section 5 of the Judicature Amendment Act 1980 (1980 No 88). 81
New section 24 substituted The principal Act is amended by repealing section 24, and substituting the following section:
‘‘24 Challenges without cause ‘‘(1) In every case to be tried before a jury each of the parties is entitled to challenge without cause 4 jurors only. ‘‘(2) However, if 2 or more accused persons in a criminal case are indicted together, the Crown or other prosecutor is entitled to challenge without cause 8 jurors only. ‘‘(3) If a juror is discharged and is to be replaced with another under section 22A(1)(b), each party is entitled in the selection of the new juror to exercise the number of challenges without cause that the party has not already exercised. Compare: 1908 No 90 ss 121–123, 125’’. 82
New heading and sections 29A (to 29D) and 29B inserted The principal Act is amended by inserting, after section 29, the following heading and sections:
65
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‘‘Sequestration, separation, retirement, and noncommunication ‘‘29A Routine sequestration on deliberation abolished ‘‘(1) If, at the end of a day of deliberation, a jury that has been directed to consider its verdict has reached no verdict,— ‘‘(a) the jury is not required to be sequestered; and ‘‘(b) the jurors are with the leave of the Court permitted to separate until the time when the Court requires the jury’s deliberation to resume. ‘‘(2) If the Court or a Judge considers that it is required in the interests of justice, the Court or Judge may order that the jury be sequestered until it reaches a verdict or until an earlier time or event specified in the Court’s or Judge’s order. ‘‘(3) An order under subsection (2) overrides subsection (1), and may be made on— ‘‘(a) a written or oral application for the purpose; or ‘‘(b) the Court’s or Judge’s own initiative. ‘‘(4) Every rule of common law that requires a jury to be sequestered, or under which jurors who separate without leave of the Court are guilty of misconduct, is abolished. ‘‘29B Retirement and non-communication ‘‘(1) If the jury retires to consider its verdict the jurors must be kept under the charge of 1 or more members of the Court registry staff in some private place provided with sufficient heating and lighting, and allowed to have reasonable refreshment. ‘‘(2) However, for the purpose of having refreshment the jurors may with the Court’s consent be taken under the charge of 1 or more members of the Court registry staff to a place of public refreshment instead of remaining in a private place. ‘‘(3) Subsections (1) and (2) do not apply to any period during which the jurors are permitted to separate under section 29A. ‘‘(4) After retiring to consider their verdict and until returning a verdict or being discharged, the jurors must not discuss the case except in the course of their deliberations. ‘‘(5) Failure to comply with the requirements of this section does not affect the validity of the proceedings. ‘‘(6) However, if a failure of that kind is discovered before the verdict of the jury is returned, the Court may, if it considers
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that the failure makes it highly expedient for the ends of justice to do so,— ‘‘(a) discharge the jury and direct a new jury to be sworn or empanelled during the sitting of the Court; or ‘‘(b) postpone the trial on any terms justice requires. ‘‘(7) In this section, member of the Court registry staff includes the Registrar. Compare: 1961 No 43 s 370’’. Struck out (unanimous)
‘‘Majority verdicts ‘‘29C Criminal cases ‘‘(1) In this section, majority verdict means, in relation to a jury that, at the time of its verdict, consists of a certain number of jurors, a verdict agreed to by all except 1 of them. ‘‘(2) The Court may accept a majority verdict in a criminal case if— ‘‘(a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and ‘‘(b) the jurors have not reached a unanimous verdict; and ‘‘(c) the foreperson of the jury has stated in open court— ‘‘(i) that there is no probability of the jury reaching a unanimous verdict; and ‘‘(ii) that the jury has reached a majority verdict; and ‘‘(d) the Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial. ‘‘(3) If the case involves 2 or more charges, or 2 or more persons charged, the Court may accept a majority verdict in relation to 1 or some of the charges or persons charged, in which case nothing in this section applies to the other charges or the other persons charged. ‘‘(4) Nothing in this section— ‘‘(a) prevents the Court from taking a poll of the jury; or ‘‘(b) affects section 339 of the Crimes Act 1961 (which relates to criminal cases where part of the charge is proved). ‘‘(5) If, in terms of section 339 of the Crimes Act 1961, the crime charged, as described in the enactment creating the crime or as 67
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charged in the count, includes the commission of any other crime, the Court may accept a majority verdict on the crime charged instead of a unanimous verdict on the included crime. ‘‘29D Civil cases ‘‘(1) In this section, majority verdict means, in relation to a jury that, at the time of its verdict, consists of a certain number of jurors, a verdict agreed to by at least three-fourths of them. ‘‘(2) The Court may accept a majority verdict in a civil case if— ‘‘(a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and ‘‘(b) the jurors have not reached a unanimous verdict; and ‘‘(c) the foreperson of the jury has stated in open court— ‘‘(i) that there is no probability of the jury reaching a unanimous verdict; and ‘‘(ii) that the jury has reached a majority verdict; and ‘‘(d) the Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial. ‘‘(3) Nothing in this section— ‘‘(a) prevents the Court from taking a poll of the jury; or ‘‘(b) affects any practice in civil cases by which a court may with the consent of all parties accept a verdict that is not a unanimous verdict. Compare: 1908 No 89 s 54A’’. (2) The Crimes Act 1961 is consequentially amended by repealing section 370. (3) The Judicature Act 1908 is consequentially amended by repealing section 54A. (4) This section applies only to any trial for which a jury is constituted on or after the date on which this section comes into force.
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New (unanimous)
82A New heading and sections 29C and 29D inserted (1) The principal Act is amended by inserting, before the heading above section 30, the following heading and sections:
‘‘Majority verdicts ‘‘29C Criminal cases ‘‘(1) In this section, majority verdict means, in relation to a jury that, at the time of its verdict, consists of a certain number of jurors, a verdict agreed to by all except 1 of them. ‘‘(2) The Court may accept a majority verdict in a criminal case if— ‘‘(a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and ‘‘(b) the jurors have not reached a unanimous verdict; and ‘‘(c) the foreperson of the jury has stated in open Court— ‘‘(i) that there is no probability of the jury reaching a unanimous verdict; and ‘‘(ii) that the jury has reached a majority verdict; and ‘‘(d) the Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial. ‘‘(3) If the case involves 2 or more charges, or 2 or more persons charged, the Court may accept a majority verdict in relation to 1 or some of the charges or persons charged, in which case nothing in this section applies to the other charges or the other persons charged. ‘‘(4) Nothing in this section— ‘‘(a) prevents the Court from taking a poll of the jury; or ‘‘(b) affects section 339 of the Crimes Act 1961 (which relates to criminal cases where part of the charge is proved). ‘‘(5) If, in terms of section 339 of the Crimes Act 1961, the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the Court may accept a majority verdict on the crime charged instead of a unanimous verdict on the included crime.
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‘‘29D Civil cases ‘‘(1) In this section, majority verdict means, in relation to a jury that, at the time of its verdict, consists of a certain number of jurors, a verdict agreed to by at least three-fourths of them. ‘‘(2) The Court may accept a majority verdict in a civil case if— ‘‘(a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and ‘‘(b) the jurors have not reached a unanimous verdict; and ‘‘(c) the foreperson of the jury has stated in open Court— ‘‘(i) that there is no probability of the jury reaching a unanimous verdict; and ‘‘(ii) that the jury has reached a majority verdict; and ‘‘(d) the Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial. ‘‘(3) Nothing in this section— ‘‘(a) prevents the Court from taking a poll of the jury; or ‘‘(b) affects any practice in civil cases by which a Court may with the consent of all parties accept a verdict that is not a unanimous verdict. Compare: 1908 No 89 s 54A’’. (2) The Crimes Act 1961 is consequentially amended by repealing section 370. (3) The Judicature Act 1908 is consequentially amended by repealing section 54A. (4) This section applies only to any trial for which a jury is constituted on or after the date on which this section comes into force. 82B Payment of jurors Section 30 of the principal Act is amended by adding, as subsection (2), the following subsection: ‘‘(2) The jury rules prescribing those fees and expenses may authorise the chief executive, if satisfied in a particular case that it is desirable to do so, to increase a sum otherwise payable under those rules.’’
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New sections 32 to 32B substituted The principal Act is amended by repealing section 32, and substituting the following sections:
‘‘32 Failure to attend ‘‘(1) The Court may, after complying with subsection (2), fine a person a sum, not exceeding $1,000, the Court thinks fit if that person is summoned to attend and serve as a juror before the Court but— ‘‘(a) fails without reasonable excuse to attend for service as required by the summons; or ‘‘(b) wilfully refuses or neglects to serve when called upon. ‘‘(2) Before imposing a fine on a person under subsection (1) the Court must first inform that person of the default and afford that person a reasonable chance to explain it. ‘‘(3) If a person who is summoned to appear and serve as a juror fails to answer when called, the Court may issue a warrant to secure the attendance of that person before the Court. ‘‘(4) For the purposes of Part IV of the Summary Proceedings Act 1957 and, if the fine is imposed by the High Court, for the purposes of Part XIII of the Crimes Act 1961, the imposition of a fine under subsection (1) is to be treated as a sentence; and those Parts of those Acts apply as if the person on whom the fine has been imposed had been convicted on an information and sentenced. Compare: 1908 No 90 ss 162, 163; 1925 No 19 s 3; 1960 No 115 s 4; 1963 No 141 s 6(1)
‘‘32A Employees absent on jury service not to be prejudiced ‘‘(1) An employer commits an offence and is liable on summary conviction to a fine not exceeding $10,000 if the employer does either of the following actions because an employee of the employer is required to be absent from employment on jury service: ‘‘(a) dismisses, or threatens to dismiss, the employee without the consent of the employee: ‘‘(b) otherwise prejudices the position of the employee without the consent of the employee. ‘‘(2) If an employer is alleged to have committed, or is convicted of, an offence against subsection (1) in respect of an action and an employee, then that employee,—
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‘‘(a) if that action consists of or includes dismissal, may have a personal grievance, for the purposes of section 103(1)(a) of the Employment Relations Act 2000, because of an unjustifiable dismissal, and Part 9 of that Act applies accordingly; and ‘‘(b) if that action consists of an action other than dismissal or includes an action in addition to dismissal, may have a personal grievance, for the purposes of section 103(1)(b) of the Employment Relations Act 2000, because of an action described in that paragraph, and Part 9 of that Act applies accordingly. ‘‘(3) In this section,— ‘‘employee has the meaning given in section 6 of the Employment Relations Act 2000 ‘‘otherwise prejudicing the position of the employee— ‘‘(a) means doing some act (other than dismissing, or threatening to dismiss, the employee) that affects either or both of the following to the employee’s disadvantage: ‘‘(i) the employee’s employment: ‘‘(ii) 1 or more conditions of the employee’s employment; but ‘‘(b) does not include not paying the employee remuneration of any kind for the period the employee is required to be absent from employment on jury service. Compare: 2000 No 7 s 17; Juries Act 2000 (Victoria) s 76
‘‘32B Identity and address of serving or former juror or prospective juror not generally to be disclosed ‘‘(1) A person commits an offence and is liable on summary conviction to the penalty stated in subsection (2) if the person wilfully publishes any material, broadcasts any matter, or otherwise discloses any information, that identifies, or that may lead to the identification of, a juror or former juror. ‘‘(2) The penalty is imprisonment for a term not exceeding 3 months, or a fine not exceeding $10,000, or both. ‘‘(3) In this section,— ‘‘former juror includes a person who attended for jury service ‘‘identification of a juror or former juror includes disclosure of his or her address 72
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‘‘juror includes a person attending for jury service. ‘‘(4) Subsection (1) does not apply to any of the following: ‘‘(a) the identification of a former juror with the former juror’s consent: ‘‘(b) the identification of a juror or former juror if the identification forms part of the exercise or performance of a power, function, or duty conferred, imposed, or contemplated by this Act, the jury rules, or a rule of law or practice relating to the trial of civil or criminal cases: ‘‘(c) the disclosure of information to a court or to an investigative or prosecuting authority if the disclosure is made for the purposes of an investigation or prosecution of a contempt of court or of an offence relating to a juror or jury: ‘‘(d) the disclosure of information relating to a proceeding under this section. Compare: Jury Act 1977 (New South Wales) s 68; Juries Act 2000 (Victoria) s 77’’.
Part 5 Summary Proceedings Act 1957 84
Summary Proceedings Act 1957 called principal Act in this Part In this Part, the Summary Proceedings Act 19574 is called ‘‘the principal Act’’. 4
85 (1)
(2)
1957 No 87
Commencement This Part (other than this section and sections 84, 88 to 91, and 93) and Schedules 4, 5, and 6 come into force on a date appointed by the Governor-General by Order in Council. This section and sections 84, 88 to 91, and 93 come into force on the day after the date on which this Act receives the Royal assent.
86
Power to adjourn Section 45 of the principal Act is amended by repealing subsection (3).
87
Dealing with defendant on adjournment Section 46 of the principal Act is amended by repealing subsection (3) and substituting the following 〈subsection〉: 73
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‘‘(3) If a Registrar remands a person in custody under subsection (1)(c) the defendant must be brought before a court or Justice or Community Magistrate at the earliest opportunity if, at any time during the period of remand, the defendant withdraws his or her agreement under subsection (2)(a) and the Court or Justice or Community Magistrate must declare what action (if any) should be taken under subsection (1) in respect of the defendant.’’ 88
Defendant’s right to elect trial by jury where offence punishable by more than 3 months’ imprisonment Section 66 of the principal Act is amended by inserting, after subsection (5), the following subsections: ‘‘(5A) If a defendant who is an individual is present in Court and deliberately refuses to elect to be tried either by a jury or the Court, or fails to make an election, after being addressed in the manner provided in subsection (2) and being warned, after refusing or failing to make an election, of the consequences of failing to make an election,— ‘‘(a) the Court must, unless it considers that the defendant may be under a disability, order— ‘‘(i) that the defendant be tried by the Court instead of by a jury; or ‘‘(ii) if any defendant who is a co-accused is to be tried by a jury, that the defendant be tried by a jury instead of the Court; and ‘‘(b) an order of the Court under paragraph (a) is to be treated subsequently as an election by the defendant to be tried by the Court or, as the case requires, a jury. ‘‘(5B) Subsection (5A) is subject to subsection (7).’’ 89
Defendant’s general right of appeal to High Court Section 115 of the principal Act is amended by inserting, after subsection (2), the following subsection: ‘‘(2A) A person sentenced under section 28F(4) of the District Courts Act 1947 to a term of imprisonment or to a fine that does not exceed the maximum term of imprisonment or the maximum fine that may be imposed by a District Court under section 7 may appeal to the High Court against the sentence.’’
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‘‘Information, summons, and warrant ‘‘148 Application of provisions of Part II ‘‘(1) The provisions of Part II listed in subsection (2), as far as they are applicable and with the necessary modifications, apply to proceedings to which this Part applies. ‘‘(2) The provisions are— ‘‘(a) section 13 (which permits any person to lay an information): ‘‘(b) section 16(1) (which requires an information to be for 1 offence only): ‘‘(c) section 17 (which requires an information to contain sufficient particulars): ‘‘(d) section 17A (which requires that certain informations disclose the range of penalties available for the offence): ‘‘(e) section 18 (which specifies the Court in which an information must be filed): ‘‘(f) section 20 (which relates to the issue of a summons or a warrant for the attendance of a witness): ‘‘(g) section 22 (which specifies the person to whom a warrant is to be directed and the power of the person executing a warrant to enter premises): ‘‘(h) section 23 (which relates to the withdrawal of a warrant). Compare: 1957 No 87 s 146
‘‘149 Notice to defendant The Registrar must serve on the defendant’s counsel or solicitor, or on the defendant if he or she is not represented, a written notice to the defendant to the following effect as soon as practicable after the defendant has— ‘‘(a) elected trial by jury under section 66; or ‘‘(b) if the information was laid indictably, made his or her first appearance in Court in relation to the offence: ‘If you wish to have a committal hearing at which you give oral evidence, or call witnesses on your behalf, or crossexamine a prosecution witness, you must apply for an oral
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evidence order under section 178 of the Summary Proceedings Act 1957. ‘You are not obliged to apply for an oral evidence order. ‘If no oral evidence order is made, you will be automatically committed for trial on the basis of the prosecution evidence against you without a committal hearing or consideration of that evidence. ‘If an application for an oral evidence order is granted, there will be a committal hearing and the oral evidence that is given will be taken down and may be given against you at your trial. If you give oral evidence yourself, you may be crossexamined. ‘If you provide written evidence at a committal hearing that evidence may be used against you at your trial. ‘You should take no notice of any promise or threat that any person may have made to persuade you to say anything 〈(other than a promise made in discussions between you or your counsel and the prosecution)〉. If you do not apply for an oral evidence order or provide any written evidence at a committal hearing that fact is not allowed to be the subject of any comment at your trial.’ Compare: 1957 No 87 s 163(2)
‘‘150 Issue of summons or warrant ‘‘(1) When an information has been laid, any District Court Judge, Justice, or Community Magistrate, or the Registrar (not being a member of the police),— ‘‘(a) may issue a summons to the defendant in the prescribed form; or ‘‘(b) may issue a warrant, in the prescribed form, to arrest the defendant and bring him or her before a Court. ‘‘(2) A warrant under subsection (1)(b) may be issued even if a summons has previously been issued and whether or not that summons has been served. Compare: 1957 No 87 s 147
‘‘151 Issue of warrant if defendant does not attend If any person who has been served with a summons issued against him or her in accordance with section 150 does not
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attend personally at the time and place mentioned in the summons, or at any time and place to which the proceedings are adjourned, the presiding District Court Judge, Justices, Community Magistrate, or Community Magistrates may issue a warrant, in the prescribed form, to arrest that person and bring him or her before a Court. Compare: 1957 No 87 s 148
‘‘152 Defect in form or variance between charge and evidence ‘‘(1) No objection may be taken or allowed to any information, summons, or warrant to which this Part applies for any alleged defect in substance or in form, for any variance between it and the evidence adduced on the part of the prosecution at the committal hearing, or for the purposes of the standard committal. ‘‘(2) Despite subsection (1), if there is to be a committal hearing and any variance referred to in subsection (1) appears to the Court to have deceived or misled the defendant or to operate unfairly to the defendant, the Court may, at the defendant’s request, adjourn the committal hearing under section 155. Compare: 1957 No 87 s 149
‘‘Service of documents ‘‘153 Service of summons on defendant Every summons to a defendant must be served on him or her by a member of the police, by— ‘‘(a) delivering the summons to the defendant personally; or ‘‘(b) bringing it to the defendant’s notice if he or she refuses to accept it. Compare: 1957 No 87 s 150
‘‘154 Application of provisions of Part II The following provisions of Part II, as far as they are applicable and with the necessary modifications, apply to proceedings to which this Part applies: ‘‘(a) section 26 (which prescribes the mode of service of documents on any person other than the defendant): ‘‘(b) section 27 (which specifies who may serve documents on any person other than the defendant):
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‘‘(c) subject to the provisions of section 153, section 28 (which prescribes the mode of service in particular cases): ‘‘(d) section 29 (which prescribes the manner in which service may be proved): ‘‘(e) section 30 (which relates to the translation of documents into the Maori language). Compare: 1957 No 87 s 151
‘‘Adjournments and bail ‘‘155 Power to adjourn ‘‘(1) The committal proceedings for any information may, from time to time, be adjourned by the Court to a time and place then appointed if it is necessary or desirable to do so for any reasonable cause. ‘‘(2) If only 1 Justice of the Peace is present at the time and place appointed for those proceedings, or when a defendant is brought before a Court on arrest, that Justice may adjourn the committal proceedings 〈for a period that must not be longer than 8 days unless the parties consent,〉 to a time and place then appointed. Compare: 1957 No 87 s 152
‘‘156 Power of Registrar to adjourn ‘‘(1) A Registrar may, on the application of either party and with the consent of each party, adjourn committal proceedings for any information to a time and place then appointed if— ‘‘(a) the defendant is not, at the time of the application, in custody (including if the defendant has been released on bail under section 21 of the Bail Act 2000); and ‘‘(b) it is necessary or desirable to do so for any reasonable cause. ‘‘(2) If an adjournment is granted under subsection (1),— ‘‘(a) the present conditions of bail (if any) continue, subject to section 34 of the Bail Act 2000, to the adjourned date of hearing; and ‘‘(b) any order made under section 140 of the Criminal Justice Act 1985 in relation to the defendant, or any other person connected with the proceedings, and having effect only for a limited period that would expire before 81
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the adjourned date of hearing, continues to have effect until the close of the adjourned date of hearing. ‘‘(3) Whenever the Registrar grants an adjournment under this section, the Registrar must notify each party in writing. Compare: 1957 No 87 s 152A
‘‘157 Application of section 46 Section 46, with the necessary modifications, applies to proceedings to which this Part applies. Compare: 1957 No 87 s 153
‘‘Withdrawal of information and stay of proceedings ‘‘158 Withdrawal of information by prosecutor ‘‘(1) Any information may, by leave of the Court, be withdrawn by the prosecutor at any time before the defendant is discharged or is committed for trial or for sentence. ‘‘(2) Despite subsection (1), the prosecutor may withdraw an information without the leave of the Court if— ‘‘(a) an oral evidence order is made under section 178 allowing the oral examination of a prosecution witness; and ‘‘(b) leave is granted to the defendant, on an application under section 13A(6)(d) of the Evidence Act 1908, to put any question to that witness relating to the identity of that witness or of another prosecution witness. ‘‘(3) The withdrawal of an information is not a bar to any other proceedings in the same matter. Compare: 1957 No 87 s 157
‘‘159 Stay of proceedings ‘‘(1) The Attorney-General may direct that proceedings against any person under this Part be stayed. ‘‘(2) A direction under subsection (1) may be made at any time after an information has been laid against the person and before the person has been committed for trial or for sentence. ‘‘(3) A direction under subsection (1) must be entered into the Criminal Records kept under section 71, and the proceedings are stayed when that entry is made. Compare: 1957 No 87 s 173
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‘‘Plea of guilty before committal ‘‘160 Defendant may plead guilty before committal ‘‘(1) This section applies to a defendant who is— ‘‘(a) represented by a barrister or solicitor; or ‘‘(b) unrepresented, but in respect of whom the requirements of section 30(2) of the Sentencing Act 2002 have been satisfied. ‘‘(2) A defendant to whom this section applies may, at any time before the defendant is committed for trial, ask to be brought before the Court (or, if the defendant is at that time before the Court, ask to be permitted) to plead guilty to the offence with which he or she is charged. ‘‘(3) As soon as practicable after a request under subsection (2) is made, the defendant must be brought before the Court to be dealt with (or, if the defendant is before the Court at the time of that request, must be dealt with) under section 161. ‘‘(4) If the defendant is not before the Court at the time of a request under subsection (2) and is not in custody, notice must be given to him or her of the time and place for attendance before the Court for the purpose of being dealt with under section 161. Compare: 1957 No 87 s 153A
‘‘161 Procedure if defendant makes request under section 160 ‘‘(1) When the defendant (or, if the defendant is a corporation, a representative of the defendant) attends before a Court for the purposes of section 160,— ‘‘(a) the charge to which the defendant is required to plead must be read to the defendant 〈if the defendant requests that it be read〉; and ‘‘(b) the defendant must then be called on to plead either guilty or not guilty. ‘‘(2) If the defendant does not plead guilty, or if he or she (or, if the defendant is a corporation, a representative of the defendant) does not personally attend the proceedings,— ‘‘(a) the defendant must be treated in all respects as if he or she had not made any request to plead guilty; and ‘‘(b) no comment may be made in any subsequent proceedings on the fact that that request was made; and ‘‘(c) the request is not admissible in evidence against the defendant in any proceedings. 83
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‘‘(3) If the defendant pleads guilty, then, subject to section 66(6), the Court must record the plea and,— ‘‘(a) if— ‘‘(i) the defendant elected under section 66 to be tried by a jury; or ‘‘(ii) the offence is an indictable offence under any enactment (other than an offence referred to in Part II of Schedule 1A of the District Courts Act 1947); or ‘‘(iii) the offence is an offence to which section 28(1)(d), (e), or (f) of the District Courts Act 1947 applies— the Court must either proceed immediately to sentence the defendant, or adjourn the proceedings for the sentencing of the defendant in accordance with section 28F of the District Courts Act 1947: ‘‘(b) in any other case, commit the defendant to the High Court for sentence. ‘‘(4) Section 47 of this Act and section 50 of the Bail Act 2000 apply to every adjournment under subsection (3)(a). ‘‘(5) If the defendant pleads guilty and is committed to the High Court for sentence under this section, sections 184J(4) and (5), 184K, 184L, and 184U of this Act, and sections 53 and 54 of the Bail Act 2000, as far as they are applicable and with the necessary modifications, apply as if the defendant had pleaded guilty and had been committed to the High Court for sentence after a committal hearing. Compare: 1957 No 87 s 153A
‘‘Formal written statements for purposes of committal ‘‘162 Formal written statements ‘‘(1) A formal written statement by any person is admissible as evidence for the purposes of a standard committal or at a committal hearing to the same extent as oral evidence to the same effect given at a committal hearing by that person. ‘‘(2) A formal written statement is either— ‘‘(a) a written statement— ‘‘(i) that purports to be signed by the person making the statement; and
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‘‘(ii) that contains a statement at the end that everything in the statement is true to the best of that person’s knowledge and belief, and that the person made the statement knowing that it might be admitted as evidence for the purposes of the standard committal or at a committal hearing and that he or she could be prosecuted for perjury if the statement is known by him or her to be false and is intended by him or her to mislead; and ‘‘(iii) that complies with subsections (3) and (4), if applicable; or ‘‘(b) a written statement that does not meet the requirements set out in paragraph (a) if all parties agree to that written statement being admitted as evidence. ‘‘(3) If a formal written statement under subsection (2)(a) is made by a person aged under 18 years, the statement must specify the age of that person. ‘‘(4) If a formal written statement under subsection (2)(a) is made by a person who cannot read it,— ‘‘(a) the statement must be read to that person before the person signs it; and ‘‘(b) the reader must attach to the statement a signed statement by that reader to the effect that the statement was read to the person and that the person to whom it was read appeared to understand its contents. ‘‘(5) Any document or object accompanying a formal written statement, and referred to in that statement as an exhibit, must be treated as if it had been identified in Court and produced as an exhibit by the maker of the statement. Compare: 1957 No 87 s 173A
‘‘163 False statement in formal written statement deemed to be perjury A formal written statement that is admitted in evidence for the purposes of a standard committal or at a committal hearing is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
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‘‘Special provisions for taking evidence ‘‘164 Power to take statement of person dangerously ill ‘‘(1) A District Court Judge, Registrar, Justice, or Community Magistrate may take a statement of a person on the oath or affirmation of the person if the District Court Judge, Registrar, Justice, or Community Magistrate is satisfied that,— ‘‘(a) in the opinion of a registered medical practitioner, the person is dangerously ill; and ‘‘(b) the person is able and willing to give material information relating to an indictable offence or relating to a person accused of an indictable offence. ‘‘(2) A statement under this section may be taken in writing or by an electronic form of recording (for example, an audio recording or a video recording) or by any other method of making a permanent recording. ‘‘(3) A District Court Judge, Registrar, Justice, or Community Magistrate who takes a statement under this section must prepare, sign, and attach to the statement a certificate stating— ‘‘(a) whether he or she is satisfied that the statement was taken in accordance with this section; and ‘‘(b) the day on which the statement was taken; and ‘‘(c) the place where the statement was taken; and ‘‘(d) whether any person (other than the dangerously ill person and the District Court Judge, Registrar, Justice, or Community Magistrate) was present at any time while the statement was taken. ‘‘(4) A District Court Judge, Registrar, Justice, or Community Magistrate who takes a statement under this section must,— ‘‘(a) if it relates to an indictable offence for which an accused person is already committed for trial, send it and the attached certificate to the Registrar of the Court in the place to which the accused person has been committed for trial; or ‘‘(b) if it does not relate to an indictable offence for which an accused person is already committed for trial, send it and the attached certificate to the Registrar of the District Court nearest to the place where the trial would be held if the defendant were committed for trial. ‘‘(5) A Registrar of a District Court to whom a statement under subsection (4)(b) is sent must— 86
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‘‘(a) file 〈a copy of〉 it as part of the Court records; and ‘‘(b) forward it to a District Court in which— ‘‘(i) a person to whom it relates is charged with an indictable offence; or ‘‘(ii) a person is charged with an offence to which it relates. Compare: 1927 No 37 s 172, 1957 No 87 s 175
‘‘165 Evidence of statement made by person dangerously ill ‘‘(1) If each condition set out in subsection (2) is satisfied, a statement taken under section 164 may, without further proof, be given in evidence either— ‘‘(a) for or against the defendant at the committal hearing of, or against the defendant for the purposes of the standard committal for,— ‘‘(i) an information for an offence to which the statement relates (whether or not the defendant had been charged with that offence at the time the statement was taken); or ‘‘(ii) an information charging any person to whom the statement relates; or ‘‘(b) for or against the accused person on the trial of— ‘‘(i) a person for an offence to which the statement relates (whether or not the accused had been charged with that offence at the time the statement was taken); or ‘‘(ii) a person to whom the statement relates. ‘‘(2) The conditions are— ‘‘(a) that it is proved by such evidence as the District Court or, as the case may be, the High Court considers sufficient (whether legally admissible or not)— ‘‘(i) that the person who made the statement is dead; or ‘‘(ii) that there is no reasonable possibility that the person who made the statement will ever be able to travel or give evidence; and ‘‘(b) that the statement purports to be signed by the District Court Judge, Registrar, Justice, or Community Magistrate before whom the statement purports to be taken; and
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‘‘(c) that it is proved to the satisfaction of the District Court or, as the case may be, the High Court— ‘‘(i) that reasonable notice of the intention to take the statement was served upon the party other than the party on whose behalf the statement is proposed to be given; and ‘‘(ii) that that other party or that other party’s counsel or solicitor had, or might have had if that other party or counsel or solicitor had chosen to be present, full opportunity of cross-examining the person who made the statement. Compare: 1927 No 37 s 173, 1957 No 87 s 176
‘‘166 Provision for person in custody to be present at taking of statement If a person who is in custody has served or has received a notice of an intention to take a statement as provided in section 164,— ‘‘(a) any District Court Judge or Justice or Community Magistrate may, by an order in writing, direct the Superintendent of the penal institution in which that person is detained to convey the person to the place mentioned in the notice for the purpose of being present at the taking of the statement (as required by section 165(2)(c)(i); and ‘‘(b) the Superintendent must convey the person accordingly. Compare: 1927 No 37 s 174, 1957 No 87 s 177
‘‘Preliminary provisions applicable to committal ‘‘167 Place of committal ‘‘(1) Unless an order is made under section 4A of the District Courts Act 1947 or there is a statutory provision to the contrary, the committal proceedings for an information must take place in the Court in the office of which the information is filed. ‘‘(2) Despite subsection (1), any District Court Judge or Justice or Community Magistrate or Registrar may order that any of the following take place in some other Court— ‘‘(a) the committal proceedings in their entirety: ‘‘(b) the standard committal: ‘‘(c) the committal hearing: 88
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‘‘(d) any other proceedings that from part of the committal proceedings. ‘‘(3) A Registrar must not make an order under subsection (2) without the consent of each party to the proceedings. ‘‘(4) When an order is made under subsection (2), the Registrar must— ‘‘(a) forward the information to the Registrar of the Court to which the committal proceedings, standard committal, committal hearing, or other part of the committal hearings is ordered to be transferred; and ‘‘(b) notify each party in writing. Compare: 1957 No 87 s 155
‘‘168 Obligations of prosecutor to file formal written statements within certain period ‘‘(1) The prosecutor must file in the office of the Court the formal written statements that form all or part of the evidence for the prosecution for the purposes of the standard committal or at the committal hearing, as the case may require, together with the exhibits referred to in those statements, not later than— ‘‘(a) 42 days after— ‘‘(i) the date on which the defendant elects trial by jury under section 66; or ‘‘(ii) if the information is laid indictably, the date on which the 〈information is laid〉 〈defendant first appears in court in relation to that information〉: ‘‘(b) such earlier or later date specified for the purposes of this section by a District Court Judge. Struck out (majority)
‘‘(2) Despite subsection (1), the prosecutor may file a written statement later than the date required by that subsection— ‘‘(a) if the person who gave the statement was first interviewed by an enforcement officer on or after that date; or ‘‘(b) in any case, with the leave of a District Court Judge.
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‘‘(2) Despite subsection (1), the prosecutor may file a written statement later than the date required by that subsection in any case, with the leave of a District Court Judge. ‘‘(3) When the prosecutor files any written statement or statements under this section, the prosecutor must ensure that notice of that filing is given to the defendant’s counsel or solicitor, or to the defendant if the defendant is not represented. ‘‘169 Standard committal is not 〈a〉 hearing and does not involve prosecutor’s or defendant’s presence ‘‘(1) A standard committal does not involve any consideration of the evidence or a hearing. ‘‘(2) Neither the prosecutor nor the defendant— ‘‘(a) may be present during a standard committal: ‘‘(b) has the right to make oral or written submissions in relation to a standard committal. ‘‘170 Defendant’s entitlement to be present during hearings ‘‘(1) The defendant is entitled to be present in Court during any hearing that is part of the committal proceedings. ‘‘(2) Subsection (1) does not apply if the defendant interrupts the proceedings to such an extent that it is impracticable to continue in the defendant’s presence. ‘‘(3) The Court may permit the defendant to be out of Court during the whole or any part of the hearing on whatever terms it thinks fit. ‘‘(4) Nothing in this section limits any other enactment or rule of law under which a defendant may appear or be represented in Court by counsel, rather than having to appear in person. Compare: 1957 No 87 s 158
‘‘171 Charge to be read to defendant in certain circumstances ‘‘(1) If the defendant is present at any hearing that is part of the committal proceedings and requests that the charge be read, or the Court conducting that hearing so directs, the charge must be read to the defendant.
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‘‘(2) At any committal hearing, the charge must be read to the defendant before any written evidence is received by the Court and before any witness is called. ‘‘(3) If the information is amended at any hearing that is part of the committal proceedings, the amended charge must be read to the defendant,— ‘‘(a) in the case of a committal hearing, immediately after all the evidence for the prosecution has been received by the Court: ‘‘(b) in the case of any other hearing, immediately, or if the defendant is not present, at the next hearing that is part of the committal proceedings at which the defendant is present. Compare: 1957 No 87 s 160
‘‘172 Amendment of information ‘‘(1) The Court may amend any information to which this 〈Part〉 〈Part〉 applies in any way, and at any time, during any hearing that is part of the committal proceedings. ‘‘(2) Despite subsection (1), no information in form 2 of the Second Schedule may be amended to an information in form 1 of that schedule. ‘‘(3) Despite subsection (1), the Court may, at the request of the defendant, adjourn the hearing if it is of the opinion that the defendant would be embarrassed in the conduct of his or her case by reason of an amendment made or proposed to be made under this section. Compare: 1957 No 87 s 162
‘‘173 Persons who may give evidence under assumed name ‘‘(1) An undercover police officer (within the meaning of section 13A(2) of the Evidence Act 1908)— ‘‘(a) may make a written statement, or give oral evidence, in the name by which the officer was known during the relevant investigation; and ‘‘(b) may sign that statement, or the record of that evidence, in that name.
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‘‘(2) A witness who is the subject of an application for an anonymity order made under section 13B or section 13C of the Evidence Act 1908, or who is the subject of an anonymity order made under either of those sections,— ‘‘(a) may make a written statement, or give oral evidence, using the term ‘witness’ followed by an initial or mark; and ‘‘(b) may sign that statement, or the record of that evidence, in that manner. ‘‘(3) This section overrides any contrary provision in this 〈Part〉 〈Part〉. Compare: 1957 No 87 s 178A
‘‘174 No comment may be made on defendant refraining from answering charge No comment adverse to the defendant may be made on the fact that the defendant— ‘‘(a) does not provide any evidence in answer to the charge at a committal hearing or any other hearing that is part of the committal proceedings; or ‘‘(b) does not apply for an oral evidence order under section 178. Compare: 1957 No 87 s 166
‘‘175 When formal written statement or record of oral evidence in other proceedings may be admitted as evidence at committal hearing or for purposes of standard committal ‘‘(1) If a person is charged with more than 1 offence arising out of the same transaction, or set of circumstances, or incident, or series of incidents, and if the conditions in subsection (2) are met, any 1 or more of the following items may, without further proof, be admitted as evidence for the purposes of that person’s standard committal or at that person’s committal hearing: ‘‘(a) any formal written statement admitted as evidence for the purposes of that person’s standard committal process or at that person’s committal hearing, in respect of another offence arising out of the same transaction, or set of circumstances, or incident, or series of incidents:
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‘‘(b) any record of oral evidence given at that person’s committal hearing in respect of another offence arising out of the same transaction, or set of circumstances, or incident, or series of incidents. ‘‘(2) A formal written statement or record of oral evidence may be admitted as evidence under subsection (1)— ‘‘(a) if it is proved, by evidence that the Judge considers sufficient (whether legally admissible or not), that the person who made the statement or who gave the oral evidence is— ‘‘(i) out of New Zealand; or ‘‘(ii) dead; or ‘‘(iii) so ill as not to be able to travel; or ‘‘(b) if all parties consent. ‘‘(3) A formal written statement or record of oral evidence must not be admitted as evidence under subsection (1) if it is proved that— ‘‘(a) the formal written statement was not taken and admitted in evidence in accordance with section 162; or ‘‘(b) the record of oral evidence was not signed by the District Court Judge or Justices or Community Magistrate or Community Magistrates purporting to sign it; or ‘‘(c) the record of oral evidence was not taken in accordance with the provisions of this Part. Compare: 1957 No 87 s 184
‘‘176 Defendant must disclose evidence to be provided at committal hearing ‘‘(1) If an oral evidence order is made under section 180 or section 181, the defendant must, no later than 14 days after the date on which that order is made, disclose to the prosecutor any evidence that the defendant intends to provide to the Court at the committal hearing. ‘‘(2) Sections 25 and 26 of the Criminal Disclosure Act 2004 apply to the disclosure of evidence under this section. Struck out (majority)
‘‘Procedure at standard committal
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‘‘Timing and procedure at standard committal ‘‘177 〈Procedure〉 〈Timing and procedure〉 at standard committal New (majority)
‘‘(1AA) A standard committal must not take place,— ‘‘(a) in a case where no application is made for an oral evidence order within the period specified in section 178(2), before the earlier of the expiry of 14 days after— ‘‘(i) the date on which the prosecutor is required to file written statements under section 168(1); or ‘‘(ii) the date on which the Court receives a notice from the defendant that he or she will not apply for an oral evidence order: ‘‘(b) in a case where an application for an oral evidence order is made within the period specified in section 178(2), before the date on which that application is declined. ‘‘(1) At a standard committal, the Court must, without considering any evidence that has been filed by the prosecution, commit the defendant for trial in accordance with sections 184M and 184N. Compare: 1957 No 87 s 160A
‘‘Oral evidence orders ‘‘178 Application for oral evidence order ‘‘(1) Either party may apply to a District Court Judge for an order allowing the oral examination, at a committal hearing, of— ‘‘(a) any witness who has provided a formal written statement; or ‘‘(b) any person who has not provided a formal written statement, whether that person is proposed to be examined as a witness for that party or for the other party; or ‘‘(c) any person who is to give evidence for that party in relation to the exercise of any power or jurisdiction conferred by sections 109, 110, or 111 of the Criminal Justice Act 1985, or any of sections 7 to 14 of the 94
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Criminal Procedure (Mentally Impaired) Persons Act 2003. ‘‘(2) An application under subsection (1) must be made no later than 14 days after the date on which the prosecutor is required to file written statements under section 168(1). ‘‘(3) Despite subsection (2), a District Court Judge may grant leave for an application under subsection (1) to be made later than the time specified in subsection (2) if the Judge is satisfied that it is necessary in the circumstances of the case. ‘‘179 Application for leave to question undercover police officer’s identity must be removed into High Court If the defendant wishes to apply, under section 13A(6)(d) of the Evidence Act 1908, for leave to put any questions relating to the identity of a witness called by the prosecutor who is an undercover police officer,— ‘‘(a) that application must be made at the same time as the application is made for an oral evidence order allowing the oral examination of the person to whom those questions are proposed to be put; and ‘‘(b) both applications must be removed into the High Court and heard and determined by a Judge of that Court. Compare: 1957 No 87 s 161A
‘‘180 Determination of application for oral evidence order ‘‘(1) Before a District Court Judge makes an oral evidence order on an application under section 178, the Judge must be satisfied,— ‘‘(a) if the proposed order is for the oral examination of a witness who has provided a formal written statement that it is necessary to hear the witness in order to determine whether there is sufficient evidence to commit the defendant for trial; or ‘‘(b) if the proposed order is for the oral examination of a person who has not provided a formal written statement,— ‘‘(i) that the anticipated evidence of that person is relevant to the charge specified in the information; and ‘‘(ii) that the person has been requested to give evidence in the form of a formal written statement but has failed or refused to do so; or 95
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‘‘(2)
‘‘(3)
‘‘(4) ‘‘(5)
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‘‘(c) if the proposed order is for the oral examination of a person who is to give evidence in relation to the exercise of any power or jurisdiction conferred by section 109, section 110, or section 111 of the Criminal Justice Act 1985 or any of sections 7 to 14 of the Criminal Procedure (Mentally Impaired) Persons Act 2003, that the anticipated evidence of that person is relevant to the exercise of such a power or jurisdiction. The Judge may refuse an application for an oral evidence order if he or she considers that the application was made— ‘‘(a) for the purpose of delay; or ‘‘(b) for any other improper purpose. The Judge must determine an application for an oral evidence order on the basis of— ‘‘(a) the witness’s formal written statement (if any); and ‘‘(b) any other written evidence; and ‘‘(c) any written submissions. No party has a right to make oral submissions under this section. Despite subsection (4), the Judge may hear oral submissions if he or she considers that it is necessary in order to properly consider the application.
‘‘181 Judge may make oral evidence order of own motion ‘‘(1) This section applies if— ‘‘(a) a District Court Judge, in considering an application for an oral evidence order, is satisfied that the conditions described in section 180(1), are satisfied in respect of a person who is not the subject of the application; or ‘‘(b) the defendant has not been committed for trial at a standard committal and a District Court Judge considers it desirable to hear the evidence of any witness in connection with the exercise of any power or jurisdiction conferred by section 109, section 110, or section 111 of the Criminal Justice Act 1985 or any of sections 7 to 14 of the Criminal (Mentally Impaired) Persons Act 2003. ‘‘(2) The Judge may, of his or her own motion, make an order requiring the oral examination of that other person at a committal hearing.
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‘‘182 Oral evidence of witness who resides at distance, is ill, or is departing New Zealand may be taken at any Court ‘‘(1) If an oral evidence order is made, that order may permit or require the evidence of a witness to be taken before any District Court or District Court Registrar (not being a member of the police) if it is desirable to do so. ‘‘(2) The provisions of this Part as to the taking of the evidence of witnesses at a committal hearing, as far as they are applicable and with the necessary modifications, apply with respect to any evidence taken under this section. ‘‘(3) The oral evidence of any witness taken under this section 〈must〉— ‘‘(a) 〈must〉 be forwarded to the Registrar of the Court in which the committal hearing is to take place; and ‘‘(b) has effect as if it were oral evidence taken at the committal hearing. ‘‘(4) Judicial notice must be taken of the signature of any examining District Court Judge or Registrar to any record of oral evidence taken under this section. ‘‘(5) The Court may proceed with a committal hearing without waiting for evidence to be taken from a witness pursuant to an order under subsection (1) if— ‘‘(a) the oral evidence order allowing the oral examination of the witness was granted on the grounds set out in section 180(1)(b); and ‘‘(b) the Court considers that— ‘‘(i) the application for evidence to be taken under subsection (1) was made for the purpose of delay or for any other improper purpose; or ‘‘(ii) there has been undue delay in the taking of that evidence. ‘‘(6) Nothing in this section or in any regulations made under this Act limits or affects the power of the Court to compel the personal attendance of any witness at a committal hearing. Compare: 1957 No 87 ss 174, 178
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‘‘When committal hearing must be held ‘‘183 Committal hearing required if oral evidence order applies ‘‘(1) If a District Court Judge or, if section 179 applies, a High Court Judge makes an oral evidence order allowing 1 or more witnesses to be orally examined, a committal hearing must take place. ‘‘(2) To avoid doubt, the District Court Judge who determined the application for an oral evidence order may conduct the committal hearing.
‘‘Procedure of committal hearing ‘‘184 Application of provisions of Part II ‘‘(1) The provisions of Part II listed in subsection (2), as far as they are applicable and with the necessary modifications, apply to a committal hearing as if— ‘‘(a) references in those provisions to the hearing were references to that committal hearing; and ‘‘(b) references in those provisions to the charge were references to the information. ‘‘(2) The sections are— ‘‘(a) section 37(1), (2), and (3) (which relates to the person who may conduct the proceedings): ‘‘(b) section 38 (which relates to the issue of a warrant for the appearance of a witness): ‘‘(c) section 39 (which relates to the imprisonment of a witness refusing to give evidence): ‘‘(d) section 40(1) (which relates to the power to order witnesses to remain outside the Court): ‘‘(e) section 60 (which requires evidence to be given on oath). Compare: 1957 No 87 s 154
‘‘184A Procedure at committal hearing ‘‘(1) At any committal hearing the prosecutor must— ‘‘(a) if the Court gives leave, provide to the Court any formal written statements or exhibits that have not already been filed under section 168; and ‘‘(b) call each prosecution witness who is to give oral evidence under an oral evidence order. 98
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‘‘(2) After all the evidence for the prosecution has been given and any amended charge has been read to the defendant, the defendant must, if the defendant intends to provide evidence,— ‘‘(a) provide to the Court any formal written statements or exhibits that have not already been provided to the Court; and ‘‘(b) call any defence witness (including the defendant) who is to give oral evidence for the defence under an oral evidence order. ‘‘(3) Each witness who is called must be examined by the party for whom he or she is giving evidence, and may be crossexamined by the other party and re-examined by the first party. ‘‘(4) Despite subsection (3), a witness may, instead of being examined by the party for whom he or she is giving evidence, read his or her formal written statement (if any) to the Court if— ‘‘(a) all other parties consent; or ‘‘(b) the Court so directs. ‘‘(5) If the defendant gives evidence in accordance with an oral evidence order, the defendant may be cross-examined by the prosecutor and, if the defendant is represented, he or she may be re-examined. ‘‘(6) This section is subject to section 184H. Compare: 1957 No 87 s 161(1)
‘‘184B No oral evidence without order The Court must not hear the oral evidence of the defendant or of any witness at a committal hearing unless an oral evidence order has been made in relation to that person. ‘‘184C Court may direct that formal written statements be read aloud At a committal hearing, the Court may direct that a formal written statement provided as evidence be read aloud, or that an oral account be given of so much of the statement as is not read aloud. Compare: 1957 No 87 s 173A(4)
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‘‘184D Oral evidence must be recorded in writing The evidence of every person who gives oral evidence at a committal hearing, including the defendant if he or she gives oral evidence, must be— ‘‘(a) put into writing; and ‘‘(b) read over to that person; and ‘‘(c) signed by that person and by the presiding District Court Judge or Justices or Community Magistrate or Community Magistrates. Compare: 1957 No 87 ss 161(2), 163(3), 165(2)
‘‘184E Committal hearing may be completed despite witness’s failure to appear or give evidence If a person fails to appear or to give evidence at a committal hearing, the Court may nevertheless commit the defendant for trial or sentence, or otherwise dispose of the case, if any other evidence received by it is sufficient for that purpose.
‘‘Determination at committal hearing ‘‘184F If evidence insufficient, defendant must be discharged When all the evidence has been given at a committal hearing, if the Court is of the opinion that the evidence adduced by the prosecutor is not sufficient to put the defendant on trial for any indictable offence, it must discharge the defendant. Compare: 1957 No 87 s 167
‘‘184G If evidence sufficient, defendant must be committed for trial When all the evidence has been given at a committal hearing, if the Court is of the opinion that the evidence adduced by the prosecutor is sufficient to put the defendant on trial for an indictable offence, the Court must proceed in accordance with sections 184I to 184N.
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‘‘Powers of Court if defendant seeks to provide undisclosed evidence at committal hearing ‘‘184H Powers of Court if defendant seeks to provide evidence at committal hearing that was not disclosed as required by section 176 ‘‘(1) This section applies if, at a committal hearing, the Court is satisfied that evidence sought to be provided by the defendant should have been disclosed to the prosecutor under section 176. ‘‘(2) The Court may— ‘‘(a) exclude the evidence; or ‘‘(b) require the evidence to be disclosed to the prosecutor and adjourn the hearing; or ‘‘(c) admit the evidence if it would not be contrary to the interests of justice to do so. ‘‘(3) The Court— ‘‘(a) must not order the exclusion of evidence under this section if it is satisfied that the defendant was not given notice in accordance with section 36 of the Criminal Disclosure Act 2004 of the requirements of section 176; but ‘‘(b) if paragraph (a) applies, must adjourn the hearing if the prosecutor requests an adjournment.
‘‘Committal for trial or sentence ‘‘184I Advice must be given to defendant on committal following committal hearing If section 184G applies— ‘‘(a) the defendant must be addressed by, or on behalf of, the Court as follows: ‘This Court proposes to commit you for trial, but you may, if you wish,plead guilty to the offence charged’; and ‘‘(b) unless the Court is presided over by a trial Judge who would himself or herself impose sentence, the Court must also tell the defendant which Court he or she will be committed to for sentence if he or she pleads guilty. Compare: 1957 No 87 s 168(1)(a), (aa)
‘‘Procedure if defendant pleads guilty ‘‘184J Procedure if defendant pleads guilty ‘‘(1) If, after receiving the advice in section 184I, the defendant pleads guilty, then the Court must record the plea and,— 101
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‘‘(2) ‘‘(3) ‘‘(4)
‘‘(5)
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‘‘(a) if the Court has jurisdiction to sentence the defendant under section 28A of the District Courts Act 1947, either proceed immediately to sentence the defendant, or adjourn the proceedings for the sentencing of the defendant, in accordance with section 28F of that Act; and ‘‘(b) if the Court does not have jurisdiction to sentence the defendant, commit the defendant to the High Court for sentence. Subsection (1) is subject to section 66(6) and (6A). Section 47 of this Act and section 51 of the Bail Act 2000 apply on an adjournment under subsection (1)(a). If the defendant pleads guilty and is committed to the High Court for sentence, the following statement must be endorsed on the information: ‘I plead guilty to the offence charged in the within information. Dated [date]’. The defendant must sign the statement referred to in subsection (4) (or, if the defendant is unable to sign the statement, the defendant must put his or her mark on it), and the presiding District Court Judge, Justices, Community Magistrate, or Community Magistrates must witness that signature or mark. Compare: 1957 No 87 s 68(1)(b), (2), (3)
‘‘184K If defendant pleads guilty, no objection may be taken and plea must not be withdrawn without leave No objection on any ground whatever may be taken to any information to which the defendant has pleaded guilty, and the defendant may not withdraw the plea except with the leave of a Judge of the Court in which the defendant is to be sentenced. Compare: 1957 No 87 s 169
‘‘184L Defendant committed for sentence must be brought before High Court ‘‘(1) A defendant who is committed to the High Court for sentence must, as soon as practicable, be brought before the High Court for sentence. ‘‘(2) Any Judge of the High Court has the same powers of sentencing or of otherwise dealing with the defendant, and of finally 102
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disposing of the charge and of all incidental matters, as he or she would have had if the defendant had pleaded guilty to the offence charged, in the High Court. Compare: 1957 No 87 s 170
‘‘Procedure if defendant does not plead guilty ‘‘184M Procedure if standard committal occurs or defendant does not plead guilty ‘‘(1) If section 177 (the standard committal) applies, or if, after receiving the advice in section 184I, the defendant does not plead guilty, then the Court must,— ‘‘(a) if the defendant is a natural person, commit the defendant for trial; or ‘‘(b) if the defendant is a corporation, make an order empowering the filing of an indictment in respect of the offence named in the order. ‘‘(2) If the defendant is a corporation, for the purposes of any enactments referring to committal for trial, an order under subsection (1)(b) is deemed to be a committal for trial. ‘‘(3) This section is subject to section 66(6) 〈of this Act and to section 345 of the Crimes Act 1961〉. Compare: 1957 No 87 s 170
‘‘184N Court to which defendant must be committed ‘‘(1) The Court to which a defendant must be committed for trial under section 184M is as follows: ‘‘(a) in respect of any offence that a District Court has jurisdiction to try under section 28A(1)(a), (b), (d), (e), or (f) of the District Courts Act 1947, either— ‘‘(i) the District Court exercising that jurisdiction that is nearest to the committing Court; or ‘‘(ii) any other District Court exercising that jurisdiction that is specified in regulations made under this Act as being a Court to which the defendant may be committed for trial (even if not nearest to the committing Court): ‘‘(b) in respect of any other offence, either— ‘‘(i) the High Court at the place where sittings of the Court are held that is nearest to the committing Court; or 103
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‘‘(ii) the High Court at any other place that may be specified in regulations made under this Act as being the place at which sittings of the High Court are conducted and to which the defendant may be committed for trial (even if not nearest to the committing Court). ‘‘(2) Nothing in this section affects section 28J of the District Courts Act 1947. Compare: 1957 No 87 s 168A(1)
‘‘184O Court to which defendant must be committed if related charge must be heard in High Court ‘‘(1) This section applies if the defendant has been charged (either alone or together with some other person or persons) with offences arising from an incident or series of incidents, or a transaction or set of circumstances, in respect of which he or she must be committed to the High Court on at least 1 charge. ‘‘(2) In each case to which this section applies, despite section 184N(1), the Court to which the defendant must be committed for trial under section 184M must be either— ‘‘(a) the High Court at the place where sittings of the Court are held that is nearest to the committing Court; or ‘‘(b) the High Court at any other place that is specified in regulations made under this Act as being a place at which sittings of the High Court are conducted and to which the defendant may be committed for trial (even if not nearest to the committing Court). ‘‘(3) A High Court Judge may, under section 184Q(2), direct that an indictable offence that may be tried in a District Court under section 28A of the District Courts Act 1947 be tried in that Court even if the defendant has been committed to the High Court for trial under subsection (1). ‘‘(4) Nothing in this section affects section 28J of the District Courts Act 1947. Compare: 1957 No 87 s 168A(2)–(4)
‘‘184P Committal to wrong Court ‘‘(1) If a defendant is committed to a Court for trial and the Court to which he or she is committed is not the correct Court, the
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Court to which the defendant has been committed may transfer the proceeding to the appropriate Court specified in section 184N or section 184O. ‘‘(2) If this section applies, and the Court so directs, the Registrar must ensure that notice is given to the defendant’s counsel or solicitor, or to the defendant if the defendant is not represented of the date and time at which the defendant must report to the Court to which the proceedings have been transferred, and— ‘‘(a) if the defendant has been released on bail, making the necessary variations in the conditions of bail; and ‘‘(b) if the defendant has been remanded in custody, making the necessary alterations to the warrant of commitment. ‘‘184Q High Court Judge must determine trial Court in certain cases ‘‘(1) This section applies if a defendant is committed to the High Court for trial for any offence referred to in Part 1 of Schedule 1A to the District Courts Act 1947. ‘‘(2) If this section applies, a Judge of the High Court must determine on the papers whether it is more appropriate for the trial to be held in a District Court, and, if the Judge so determines, the Judge may transfer the case to the District Court exercising jurisdiction under Part IIA of the District Courts Act 1947 that is nearest to the committing Court. ‘‘(3) No party is entitled to be heard by, or to make submissions to, the Judge under subsection (2). ‘‘(4) In determining the appropriate Court under subsection (2), the Judge must have regard to the following matters: ‘‘(a) the gravity of the offence charged; and ‘‘(b) the complexity of the issues likely to arise in the proceedings; and ‘‘(c) the desirability of the prompt disposal of trials; and ‘‘(d) the interests of justice generally. ‘‘(5) Nothing in this section applies to proceedings transferred to the High Court by order made under section 28J of the District Courts Act 1947.
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‘‘(6) Nothing in this section applies to a proceeding involving a witness who is the subject of an anonymity order made under section 13C of the Evidence Act 1908. Compare: 1957 No 87 s 168AA
‘‘184R Notice of transfer of case to District Court ‘‘(1) If an order transferring a case to a District Court is made under section 184Q, a Registrar of the High Court must give, or cause to be given,— ‘‘(a) to the defendant’s counsel or solicitor, or to the defendant if the defendant is not represented,— ‘‘(i) a copy of the order; and ‘‘(ii) a written notice informing the defendant of the date and time at which the defendant must report to the District Court to which the case has been transferred and, if the defendant has been released on bail, making the necessary variations in the conditions of bail; and ‘‘(b) to each surety of that defendant under any surety bond,— ‘‘(i) a copy of the order; and ‘‘(ii) a copy of the written notice given to the defendant under paragraph (a)(ii). ‘‘(2) If subsection (1) is complied with in relation to a defendant and in relation to each surety of that defendant under a surety bond, the terms of that surety bond are deemed to be varied accordingly. Compare: 1957 No 87 s 168AB
‘‘184S Defendant must be advised of right to apply for trial before Judge without jury ‘‘(1) Subsection (2) applies if the Court commits a defendant for trial for any offence other than one referred to in section 361B(5) of the Crimes Act 1961. ‘‘(2) If this subsection applies, the Registrar must, either on committal or as soon as practicable after committal, give, or cause to be given, to the defendant’s counsel or solicitor, or to the defendant if he or she is not represented, a written notice of the defendant’s right, under section 361B, to apply to a Judge of the High Court or a trial Judge of the District Court, as the
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case may require, for an order that the defendant be tried before a Judge without a jury. ‘‘(3) A notice under subsection (2) must be in the prescribed form. ‘‘(4) The fact that the written notice was given to the defendant’s counsel or solicitor, or to the defendant, must be recorded on the form of committal of the defendant for trial. Compare: 1957 No 87 s 168C
Struck out (majority)
‘‘184T Formal written statements and records of oral evidence must be made available to media ‘‘(1) After a defendant is committed for trial, the Court must allow an accredited news media reporter to inspect— ‘‘(a) a copy of any formal written statement that is admitted at the standard committal or the committal hearing; or ‘‘(b) a copy of the record of any oral evidence taken under section 182. ‘‘(2) The Court is not obliged to inspect any formal written statement, or a copy of the record of any oral evidence, before giving access under subsection (1). ‘‘(3) Subsection (1) is subject to any order made under subsection (4) or sections 138 to 140 of the Criminal Justice Act 1985. ‘‘(4) The Court may, if it considers that the interests of justice so require, order that access not be given under subsection (1) to part or all of any formal written statement or record of oral evidence, and any person who acts in breach of that order or who evades, or attempts to evade, that order commits an offence and is liable on summary conviction to a fine not exceeding $1,000. ‘‘(5) Any order made under subsection (4) has effect either— ‘‘(a) until the conclusion of the trial; or ‘‘(b) for a period specified by the Court in the order (which may be of limited or indefinite duration).
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‘‘Procedure after committal for trial or sentence ‘‘184U Dealing with defendant committed for trial or for sentence ‘‘(1) If a defendant is committed for trial at a standard committal, the Court must remand the defendant to appear in the Court to which the defendant is committed for trial, and— ‘‘(a) if the defendant is in custody at the time of committal, the defendant must be remanded in custody; and ‘‘(b) if the defendant is on bail at the time of committal, the Court, despite the absence of the defendant, must impose the condition required by section 52(2) of the Bail Act 2000 and that condition and the conditions of bail to which the defendant is subject continue in force until— ‘‘(i) the date on which the defendant is due to appear in the Court to which the defendant is committed for trial; or ‘‘(ii) any earlier date on which the defendant appears before a Court; and ‘‘(c) the Registrar must ensure that notice of the defendant’s committal 〈is〉 〈and the conditions required by section 52(2) of the Bail Act 2000, are〉 given to the defendant, the defendant’s counsel (if any), and also to the sureties under any surety bond. ‘‘(2) If a defendant committed for trial (whether at a standard committal process or at a committal hearing) or for sentence is remanded in custody, whether or not the defendant is present at the time of committal, the District Court must issue a warrant in the prescribed form for the defendant’s detention in a prison— ‘‘(a) pending and during the defendant’s trial; or ‘‘(b) pending the defendant being brought up for sentence and during his or her sentencing. ‘‘(3) Despite subsection (2), the District Court may, instead of issuing a warrant under that subsection, make an order for the defendant’s detention in a psychiatric hospital pending the defendant’s trial if the District Court is satisfied of the matters in subsection (4). ‘‘(4) Before making an order under subsection (2), the District Court must be satisfied, on the production of a certificate or certificates by 2 medical practitioners, that— 108
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‘‘(a) the defendant is mentally disordered within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992; and ‘‘(b) the defendant’s mental condition requires that, in the defendant’s own interest, the defendant be detained in a hospital, within the meaning of that Act, instead of in a prison. ‘‘184V Evidence of witness taken after defendant committed for trial ‘‘(1) A District Court Judge may, after a defendant has been committed for trial, make an order that the evidence of a person who did not give evidence (whether by formal written statement or orally) be taken. ‘‘(2) Before making an order under subsection (1), the Judge must be satisfied that— ‘‘(a) the person is able to give evidence; and ‘‘(b) 〈that〉 it is in the interests of justice that the evidence of that person be taken. ‘‘(3) An order under subsection (1) may be made on an application by the prosecutor or by the defendant. ‘‘(4) An order under subsection (1) must specify whether the evidence of the witness is to be provided by way of formal written statement or taken orally. ‘‘(5) If the Judge orders that the person’s evidence be taken orally,— ‘‘(a) the order must specify the time and place at which the evidence of the witness must be taken; and ‘‘(b) the party on whose application an order under subsection (1) is made must give notice to the other party, in the prescribed form, of the time and place at which the evidence must be taken. ‘‘(6) The provisions of this Part as to the taking of the evidence of witnesses at a committal hearing, as far as they are applicable and with the necessary modifications, apply with respect to any evidence taken under this section as if that evidence were taken at a committal hearing. ‘‘(7) The formal written statement provided, or oral evidence taken, under this section—
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‘‘(a) must be forwarded to the Registrar of the Court in the place to which the defendant was committed for trial; and ‘‘(b) has effect as if it were a formal written statement or oral evidence taken at a committal hearing. Compare: 1957 No 87 s 178
‘‘184W Notice to witnesses to attend at trial Court ‘‘(1) The presiding District Court Judge, Justices, Community Magistrate, Community Magistrates, or Registrar may issue to any person specified in subsection (2) a notice requiring that person, if the defendant is committed for trial, to attend at the High Court or the District Court, as the case may be, in accordance with the terms of the notice, to give evidence. ‘‘(2) The persons to whom a notice under subsection (1) may be issued are— ‘‘(a) any person who made a formal written statement that was provided in evidence for the purposes of the standard committal or at the committal hearing; and ‘‘(b) any person whose evidence was taken under section 184V; and ‘‘(c) any person who gave oral evidence at the committal hearing (if there was one). ‘‘(3) A notice under subsection (1)— ‘‘(a) must be in the prescribed form; and ‘‘(b) has effect as if it were a summons to a witness issued out of the High Court or District Court, as the case may be; and ‘‘(c) must be served personally, by an officer of the District Court or by any member of the police, on the person to whom it is addressed. ‘‘(4) The service of a notice under subsection (1) may be proved in the High Court or District Court, as the case may be,— ‘‘(a) by an affidavit made by the person who served the notice that shows the fact and the time of service; or ‘‘(b) by the person who served the notice on oath at the trial; or ‘‘(c) by an endorsement on a copy of the notice that shows the fact and time of service, and that is signed by the person effecting service.
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‘‘(5) Every person who wilfully endorses any false statement of the fact or time of service on a copy of the notice commits an offence, and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding $2,000 or to both. ‘‘(6) If, at the conclusion of a committal hearing, the defendant is discharged, every notice given to a witness under subsection (1) is deemed to be cancelled, and the Registrar must cause notice of that cancellation, in the prescribed form, to be given to the witness. ‘‘(7) A notice of cancellation under subsection (6) must be given by delivering it to the witness personally, or by sending it to him or her by registered post addressed to the witness’s last known place of residence. Compare: 1957 No 87 s 181
‘‘184X On committal, documents, etc, must be sent to trial Court or sentencing Court ‘‘(1) If any person is committed for trial or sentence (other than under section 161), the Registrar of the District Court must immediately send to the Registrar of the Court in the place where the trial is to be held or the person is to be sentenced— ‘‘(a) the information; and ‘‘(b) all formal written statements; and ‘‘(c) the record of any oral evidence; and ‘‘(d) any videotape of the complainant’s evidence provided— ‘‘(i) for the purposes of the standard committal in accordance with section 185D; or ‘‘(ii) at the committal hearing in accordance with section 185D; and ‘‘(e) the form of committal and any other documents relating to the committal; and ‘‘(f) any exhibits in his or her custody; and ‘‘(g) the notice of bail (if any) and any surety bond; and ‘‘(h) any certificate filed by the Commissioner of Police under section 13A(3) of the Evidence Act 1908 in respect of any witness; and ‘‘(i) a copy of the notice to attend the Court issued to any witness.
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‘‘(2) If any person is committed for sentence under section 161, or under section 28G of the District Courts Act 1947 following a plea of guilty under section 161, the Registrar of the District Court must immediately send to the Registrar of the High Court in the place where the person is to be sentenced— ‘‘(a) the information; and ‘‘(b) a summary of the facts (which must be provided by the prosecutor to the Registrar); and ‘‘(c) any evidence upon which that person has pleaded; and ‘‘(d) the notice of bail (if any) and any surety bond; and ‘‘(e) any other documents or exhibits relating to the committal. Compare: 1957 No 87 s 182
‘‘184Y Every party entitled to records of oral evidence or summary of facts ‘‘(1) Every party to the proceedings is entitled to a copy of any record of oral evidence to which section 184X(1)(c) applies, without fee. ‘‘(2) Every party to the proceedings is entitled to a copy of any summary of facts and evidence sent to the Registrar of the High Court in accordance with section 184X(2)(b) and (c), without fee. ‘‘(3) If the evidence of the complainant is to be given by way of videotape in accordance with section 185D, the defendant is not entitled to a copy of the videotape, but is entitled to view the videotape within the Court precincts in the presence of an officer of the Court. Compare: 1957 No 87 s 183
‘‘184Z When formal written statement or record of oral evidence may be read in evidence at trial ‘‘(1) If the defendant is committed for trial, any oral evidence that he or she gave at a committal hearing may, without further proof, be given in evidence against him or her at his or her trial. ‘‘(2) If the conditions in subsection (3)(a) or (b) are met, either or both of the following items may, without further proof, be read or given as evidence for any party at the trial of a person who has been committed for trial: 112
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‘‘(a) any formal written statement admitted as evidence at that person’s standard committal or committal hearing: ‘‘(b) any record of oral evidence given by a witness at that person’s committal hearing. ‘‘(3) A formal written statement or record of oral evidence may be read or given as evidence under subsection (2)— ‘‘(a) if it is proved, by evidence that the Judge considers sufficient (whether legally admissible or not), that the person who made the statement or who gave the oral evidence is— ‘‘(i) out of New Zealand; or ‘‘(ii) dead; or ‘‘(iii) so ill as not to be able to travel; or ‘‘(b) if all parties consent. ‘‘(4) A formal written statement or record of oral evidence may be read or given as evidence under subsection (2)— ‘‘(a) for the offence in respect of which that statement was taken or that oral evidence was given; or ‘‘(b) for any other offence arising out of the same transaction, or set of circumstances, or incident, or series of incidents, as that offence. ‘‘(5) A formal written statement or record of oral evidence must not be read as evidence if it is proved that— ‘‘(a) the formal written statement was not taken and admitted in evidence in accordance with section 162; or ‘‘(b) the record of oral evidence was not signed by the District Court Judge or Justices or Community Magistrate or Community Magistrates purporting to sign it; or ‘‘(c) the record of oral evidence was not taken in accordance with the provisions of this Part. Compare: 1957 No 87 ss 163(4), 184
‘‘185 Witness about to leave New Zealand may be arrested ‘‘(1) If any person is committed for trial, any District Court Judge, Justice, or Community Magistrate who is satisfied, on oath, that any person referred to in subsection (2) is about to leave New Zealand may issue a warrant in the prescribed form for the arrest of that person. ‘‘(2) The persons are— ‘‘(a) any person who has been summoned to give evidence at the trial; or 113
Part 5 cl 92
Criminal Procedure
‘‘(b) any person on whom a notice has been served under this Part to attend at the High Court or District Court. ‘‘(3) If any person is arrested under subsection (1), the provisions of section 20(4A) to (4D), so far as they are applicable and with any necessary modifications, apply. Compare: 1957 No 87 s 185
‘‘Part 5A ‘‘Special provisions relating to standard committal process and committal hearings in cases of sexual nature ‘‘185A Application ‘‘(1) This Part applies to committal hearings for and, so far as applicable, the standard committal for, any of the following offences: ‘‘(a) any offence against sections 128 to 142A of the Crimes Act 1961: ‘‘(b) any offence against section 144A of the Crimes Act 1961: ‘‘(c) any other offence against the person of a sexual nature: ‘‘(d) being a party to the commission of any offence referred to in paragraph (a), paragraph (b), or paragraph (c): ‘‘(e) conspiring with any person to commit any of those offences. ‘‘(2) Subsection (1) is subject to section 185B. ‘‘185B Certain hearings to be conducted by Judge Every Court that hears the oral evidence of a complainant at a committal hearing must be presided over by a District Court Judge if the defendant is charged with any of the following offences: ‘‘(a) sexual violation: ‘‘(b) attempted sexual violation: ‘‘(c) assault with intent to commit sexual violation: ‘‘(d) an offence against section 129A of the Crimes Act 1961 (inducing sexual connection by coercion): ‘‘(e) an offence against section 142A of that Act (compelling indecent act with animal): ‘‘(f) being a party to the commission of any offence referred to in paragraphs (a) to (e): 114
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‘‘(g) conspiring with any person to commit any of those offences. ‘‘185C Evidence of complainant ‘‘(1) Despite anything in Part 5, at any committal hearing to which this Part applies, the complainant’s evidence must be given in the form of a written statement, and the complainant must not be examined or cross-examined on that statement unless— ‘‘(a) the Court is satisfied that the complainant has been advised of the right to give evidence in the form of a written statement but nevertheless wishes to give evidence orally; or ‘‘(b) the Court orders, either of its own motion or on the application of the defendant, that the complainant’s evidence be given orally on the ground that it is necessary to hear the witness in order to determine whether there is sufficient evidence to commit the defendant for trial. ‘‘(2) At any committal hearing, no person may be present in the Courtroom except the following: ‘‘(a) the Judge: ‘‘(b) the prosecutor: ‘‘(c) the defendant and any person who is for the time being acting as custodian of the defendant: ‘‘(d) any barrister or solicitor engaged in the proceedings: ‘‘(e) any officer of the Court: ‘‘(f) any person who is for the time being responsible for recording the proceedings: ‘‘(g) the member of the police in charge of the case: ‘‘(h) any accredited news media reporter: ‘‘(i) any person whose presence is requested by the complainant: ‘‘(j) any person expressly permitted by the Judge to be present. ‘‘(3) Before the complainant commences to give evidence at the committal hearing, the Judge must— ‘‘(a) ensure that no person other than those referred to in subsection (2) is present in the Courtroom; and ‘‘(b) advise the complainant of the complainant’s right to request the presence of any person under subsection (2)(i).
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‘‘185D Child complainant’s evidence may be given by videotape ‘‘(1) Despite anything in Part 5 or section 185C, at any standard committal or committal hearing to which this Part applies, the evidence of the complainant may be provided or given, as the case requires, in the form of a videotape if,— ‘‘(a) in the case of a standard committal— ‘‘(i) the complainant is under the age of 17 years or in the opinion of the prosecutor the complainant is mentally handicapped; and ‘‘(ii) the Court is satisfied that the videotape has been made, and is identified, in the prescribed manner and form: ‘‘(b) in the case of a committal hearing an order has been made under section 178 for the complainant to give oral evidence at a committal hearing; and ‘‘(i) either— ‘‘(A) the complainant is under the age of 17 years; or ‘‘(B) it is apparent to the Court from viewing the videotape, or from some other admissible evidence, that the complainant is mentally handicapped; and ‘‘(ii) the Court is satisfied that the videotape has been made, and is identified, in the prescribed manner and form. ‘‘(2) If the videotape is shown at a committal hearing, only those persons specified in section 185C(1), and any witness involved in, and testifying about, the making of the videotape, may be present in the Courtroom. ‘‘(3) No report or account of any matters shown in the videotape may be published, and every person who publishes a report or account of those matters commits an offence and is liable on summary conviction to a fine not exceeding $1,000. ‘‘185E Power of Court to prohibit publication of certain details ‘‘(1) If, at the time of the standard committal or in any committal hearing to which this Part applies, the Court is of the opinion that the interests of the complainant so require, it may make an order forbidding the publication of any report or account 116
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giving details of the criminal acts alleged to have been performed on the complainant, or of any acts that the complainant is alleged to have been compelled or induced to perform, to consent to, or to acquiesce in. ‘‘(2) Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who commits a breach of any order made under subsection (1), or, who evades, or attempts to evade, that order. ‘‘185F Other powers of Court preserved Nothing in section 185C(1) or section 185D or section 185E limits or affects the powers of the Court to exclude any person or forbid any report or account of any evidence under section 206, or under section 138 of the Criminal Justice Act 1985, or under any other enactment.’’ New (majority)
92A Rules and regulations Section 212 of the principal Act is amended by inserting, after subsection (2)(eb), the following paragraphs: ‘‘(ec) amending the First Schedule by adding offences to, or removing offences from, Part 1 or Part 2 of that schedule: ‘‘(ed) prescribing transitional arrangements for the trial and sentencing of persons charged with offences that are added to or removed from Part 1 or Part 2 of the First Schedule’’.
93
Amendments to First Schedule of principal Act New (majority)
(1AA) The provisions of Part 1 of the First Schedule of the principal Act that relate to Part V of the Crimes Act 1961 are amended by inserting, after the item relating to section 91 of the Crimes Act 1961, the following item: 98A
Participation in organised criminal group
117
Part 5 cl 93
Criminal Procedure New (majority)
(1AB) The provisions of Part 1 of the First Schedule of the principal Act that relate to Part VII of the Crimes Act 1961 are amended— (a) by inserting after the item relating to sections 125 and 126 the following item: 129A(2)
(b) (c)
(1)
The provisions of Part 1 of the First Schedule of the principal Act that relate to Part IXA (and Part 10) of the Crimes Act 1961 are amended by inserting, after the item relating to section 216D of the Crimes Act 1961, the following item: 216F
(2)
Unlawful disclosure
The provisions of Part 1 of the First Schedule of the principal Act that relate to Part 10 of the Crimes Act 1961 are amended— (a) by 〈inserting, after〉 〈omitting〉 the item relating to section 219 of the Crimes Act 1961, 〈and substituting〉 the following items: 〈219, 223(a) to (c)〉 220〈, 223(a) to (c)〉 221〈, 223(a) to (c)〉
(b)
(c) (d)
〈Theft or stealing〉 Theft by person in special relationship Theft of animals
by inserting, after the item relating to section 231 of the Crimes Act 1961, the following item: 232(2)
118
Inducing indecent act by threat
by omitting the items relating to section 132(2) and 132(3): by omitting the expression ‘‘135(1)’’, and substituting the expression ‘‘135’’.
Aggravated burglary
by omitting from the first column the expression ‘‘236’’, and substituting the expression ‘‘236(2)’’: by omitting from the first column the expression ‘‘239’’, and substituting the expression ‘‘239(2)’’:
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Part 5 cl 93
New (majority)
(da) by omitting from the first column the expression ‘‘240’’, and substituting the expression ‘‘240, 241(a) and (b)’’: (db) by omitting from the first column the expression ‘‘246’’, and substituting the expression ‘‘246, 247(a) and (b)’’: (e)
by inserting, after the item relating to section 250 of the Crimes Act 1961, the following items: 251
Making, selling, or distributing, or possessing software for committing crime Accessing computer system without authorisation
252
New (majority)
(ea) by omitting from the first column the expression ‘‘269’’, and substituting the expression ‘‘269(2) and (3)’’: (f)
by omitting the item relating to section 270 of the Crimes Act 1961. New (majority)
(3)
The provisions of Part 2 of the First Schedule of the principal Act are amended— (a) by inserting after the items relating to the Auctioneers Act 1928, the following item: The Aviation Crimes Act 1972
(b)
11
Taking firearms, explosives, etc, on to aircraft
by inserting before the items relating to the Commerce Act 1975, the following items: The Citizens Initiated Referenda Act 1993
43(4)(a)
Making false returns
43(4)(b)
Illegal practice regarding returns
(c)
by inserting after the item relating to the Cornish Companies Management Act 1974, the following item:
(d)
by omitting the item relating to the Corporations (Investigation and Management) Act 1989, and substituting the following items in relation to that Act:
The Coroners Act 1988
9
43(4)
False statement
Information offences
119
Part 5 cl 93
Criminal Procedure New (majority)
17 20(1) 20(2) 23 35(1) 35(2) 36 43 68
(e)
Hindering inspection Hindering investigation Information offences Information offences Contravening Registrar Obstruction Unauthorised disclosure Unauthorised removal of assets Destroying, altering, or concealing records
by inserting after the items relating to the Immigration Act 1987, the following item: The Industrial and Provident Societies Act 1908
(f)
Offence by undischarged bankrupt
by adding to the items relating to the Land Transfer Act 1952, the following item: 228A
(h)
Fraudulent removal of records
by inserting before the item relating to the Local Electoral Act 2001, the following item: The Life Insurance Act 1908
(i)
29
45(3)
29
176
Making or issuing of other bank notes or coins Offence against Act
by inserting before the items relating to the Serious Fraud Office Act 1990, the following items: The Secret Commissions Act 1910
3 4 5
120
False statement
by inserting after the items relating to the Referenda (Postal Voting) Act 2000, the following items: The Reserve Bank of New Zealand Act 1989
(k)
Falsifying statements, etc
by inserting after the items relating to the Prostitution Reform Act 2003, the following item: The Protection of Personal and Property Rights Act 1988
(j)
False declaration
by adding to the items relating to the Insolvency Act 1967, the following item: 128A
(g)
15(c)(iii)
Gifts to agent without consent of principal an offence Acceptance of such gifts by agent an offence Duty of agent to disclose pecuniary interest in contract
Criminal Procedure
Part 5 cl 98
New (majority)
6
7 8
9 10
(l)
by inserting after the item relating to the Trade Marks Act 2002, the following item: The Trade Unions Act 1908
94
Giving false receipt, invoice, etc, to agent an offence Delivery of false receipt, etc, to principal an offence Receiving secret reward for procuring contracts an offence Aiding and abetting offences Offences by person acting on behalf of agents
29
Circulating false copies of rules, etc
Other amendments to principal Act The principal Act is amended in the manner indicated in Schedule 4.
Repeals, consequential amendments, and transitional provision 95
District Courts Act 1947 amended Section 28C of the District Courts Act 1947 is repealed.
96
Repeals The enactments specified in Schedule 5 are repealed.
97
Consequential amendments The Acts and regulations in Schedule 6 are consequentially amended in the manner indicated in that schedule.
98 (1)
Transitional provision If, before the commencement of section 92 of the Summary Proceedings Amendment Act 2004, an information has been laid indictably or a defendant has elected trial by jury under section 66, the preliminary hearing must proceed as if this Act had not been passed.
121
Part 5 cl 98
(2)
(3)
Criminal Procedure
Despite subsection (1), proceedings against a defendant who has elected trial by jury under section 66 or in respect of whom an information has been laid indictably, must be conducted in accordance with the principal Act as amended by section 92 of the Summary Proceedings Amendment Act 2004 if,— (a) before the preliminary hearing has begun, the defendant named in the information absconds and he or she is not located until more than 1 month after the commencement of the Summary Proceedings Amendment Act 2004; or (b) after the commencement of section 92 of the Summary Proceedings Amendment Act 2004,— (i) the information or one of the informations is withdrawn and another information is substituted; or (ii) an additional information, arising from the same transaction, or set of circumstances, or incident, or series of incidents, is laid; or (iii) an information is laid against another person, charging him or her with an offence arising from the same transaction, or set of circumstances, or incident, or series of incidents, specified in the first information, and the prosecutor wishes the charges against both defendants to be heard together. No hearing or other proceeding is invalid only because— (a) it was conducted in accordance with subsection (1) when it ought to have been conducted in accordance with subsection (2); or (b) it was conducted in accordance with subsection (2) when it ought to have been conducted in accordance with subsection (1).
Part 6 Victims’ Rights Act 2002 99
Victims’ Rights Act 2002 called principal Act in this Part In this Part, the Victims’ Rights Act 20025 is called ‘‘the principal Act’’. 5
122
2002 No 39
Criminal Procedure
Part 6 cl 100
100 New section 16A inserted The principal Act is amended by inserting, after section 16, the following section: ‘‘16A Criminal proceedings to which section 16 does not apply Nothing in section 16 applies to a criminal proceeding if it is necessary to disclose the information in the charge in order to ensure that the defendant is fully and fairly informed of the nature of the charge.’’
123
Schedule 1
s 55(1)
Criminal Procedure
Schedule 1 Enactments amended
Children, Young Persons, and Their Families Act 1989 (1989 No 24) Omit from the heading of section 321 the words ‘‘and Summary Proceedings Act 1957’’, and substitute the words ‘‘Summary Proceedings Act 1957, Bail Act 2000, and Criminal Disclosure Act 2004’’. Add to the First Schedule the following clause: 4 The Criminal Disclosure Act 2004’’. Crimes Act 1961 (1961 No 43) Repeal subsections (1) to (3) and (5) to (7) of section 367A. Summary Proceedings Act 1957 (1957 No 87) Insert in section 20, after subsection (1), the following subsection: ‘‘(1A) If an application for a non-party disclosure hearing is granted under section 40 of the Criminal Disclosure Act 2004, the defendant may apply to a District Court Judge or Justice or Community Magistrate or the Registrar for the issue of a summons in the prescribed form calling on any person to appear at that hearing.’’ Insert in section 116(1A), after the words ‘‘of this Act’’, the words ‘‘or section 48 of the Criminal Disclosure Act 2004’’.
124
Criminal Procedure
Schedule 2 Enactments repealed
Schedule 2
s 55(2)
Crimes Amendment Act 1973 (1973 No 118) Sections 11 and 12(1).
125
Schedule 3
s 63
Criminal Procedure
Schedule 3 New Schedule 1A substituted in District Courts Act 1947 Schedule 1A Offences triable in either District Court or High Court and offences triable only in High Court
ss 28A(1), 28F(3)
Part 1 Offences triable in either District Court or High Court (middle band offences) Part A—Offences against Crimes Act 1961 Section Section 104 Section 105 Section 105A Section 105B Section 105C Section 105D Section 128‡ Section 128* Sections 128, 128B Section 129‡ Section 129(1) Section 129(2) Section 129A‡ Section 129A(1) Section 132(1)‡ Section 132(1) Section 132(2) Section 132(3) Section 142‡ Section 142** Section 142A Section 144A Section 144C Section 188 Section 191 Section 198 Section 198A(1) Section 199 Section 200(1) Section 201 Section 203(1)† Section 204 Section 208‡
126
Offence Corruption and bribery of law enforcement officer Corruption and bribery of official Corrupt use of official information Use or disclosure of personal information disclosed in breach of section 105A Bribery of foreign public official Bribery outside New Zealand of foreign public official Sexual violation Rape Sexual violation Attempt to commit sexual violation Attempted sexual violation Attempted assault with intent to commit sexual violation Inducing sexual connection by coercion Inducing sexual connection by threat Sexual intercourse with girl under 12 Sexual connection with child under 12 Attempted sexual connection with child under 12 Indecent act on child under 12 Anal intercourse Sodomy Compelling indecent act with animal Sexual conduct with children outside New Zealand Organising or promoting child sex tours Wounding with intent Aggravated wounding or injury Discharging firearm or doing dangerous act with intent Using firearm against law enforcement officer, etc Acid throwing Poisoning with intent Infecting with disease Endangering transport Impeding rescue Abduction of woman or girl
Criminal Procedure
Schedule 3
Schedule 1A—continued Part 1—continued Section Offence Section 208 Abduction for purposes of marriage or sexual connection Section 209 Kidnapping Section 232(1) Aggravated burglary Section 235(1)(a) Aggravated robbery (causing grievous bodily harm) and (c)† Section 235((b)) Aggravated robbery Section 235(1)(b)† Aggravated robbery (with other person or persons) Section 236(1)((c)) Assault with intent to rob Section 239(1) Demanding with intent to steal, etc Section 240A† Aggravated burglary Section 267(1) Arson Section 269(1) Intentional damage Section 270 Endangering transport Section 294† Arson Section 298(1)† Wilful damage *as it read before 1 February 1986 **as it read before 8 August 1986 †as it read before 1 October 2003 ‡as it read before 20 May 2005
Part B—Offences against Misuse of Drugs Act 1975 Section Section 6 Section 12C
Offence Dealing with controlled drugs (but only where the charge relates to a class B controlled drug) Commission of offences outside New Zealand (other than offences against subsection (1)(a))
New (unanimous)
Part BA—Offences against Prostitution Reform Act 2003 Section Section 16
Offence Inducing or compelling persons to provide commercial sexual services or earnings from prostitution
Part C—Offences against Securities Act 1978 Section Section 58
Offence Misstatement in advertisement or registered prospectus
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Schedule 1A—continued Part 2 Offences triable only in High Court Part A—Offences against Crimes Act 1961 Section Offence Section 68(1) Party to murder outside New Zealand Section 68(2) Inciting murder outside New Zealand (not committed) Section 69(1) Party to any other crime outside New Zealand Section 69(2) Inciting treason outside New Zealand (not committed) Section 69(3) Aiding and abetting crime outside New Zealand Section 73 Treason (or conspiracy to commit treason) Section 74(3) Attempted treason Section 76 Accessory to, or failure to prevent, treason Section 77 Inciting to mutiny Section 78 Espionage Section 79(1) Sabotage Section 92(1) Piracy Sections 93, 94 Piratical acts Section 95 Attempts to commit piracy Section 96 Conspiring to commit piracy Section 97 Accessory after the fact to piracy Section 98(1) Dealing in slaves Section 98C Smuggling migrants Section 98D Trafficking in people by means of coercion or deception Section 100((1)) Judicial corruption (Section 100(2)) (Judicial officer accepting bribe) Section 101((1)) (Bribing) Bribery of judicial officer, etc Section 102((1)) Corruption and bribery of Minister of the Crown (Section 102(2)) (Bribing Minister) Section 103 (Bribing) Corruption and bribery of member of Parliament Section 172 Murder Section 173 Attempted murder Section 174 Attempting to procure murder (not committed) Section 175 Conspiracy to murder Section 176 Accessory after the fact to murder Section 177 Manslaughter Section 178 Infanticide Section 179 Aiding and abetting suicide Section 180(2) Surviving party of suicide pact Section 182 Killing unborn child Section 183(1) Procuring abortion (Section 235(a) (Aggravated robbery) and (c)) (Section 236(1)(a) (Assault with intent to rob) and (1)(b)) Section 237 Blackmail Section 238(1)† Extortion by certain threats Section 301† Wrecking †as it read before 1 October 2003
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Schedule 3
Schedule 1A—continued Part 2—continued Part B—Offences against Anti-Personnel Mines Prohibition Act 1998 Section Section 7
Offence Using, etc, an anti-personnel mine
Part C—Offences against Aviation Crimes Act 1972 Section Section 3 Section 5 Section 5A
Offence Hijacking Other crimes relating to aircraft Crimes relating to international airports
Part D—Offences against Chemical Weapons (Prohibition) Act 1996 Section Section 6 Section 8
Offence Chemical weapons Riot control agents
Part E—Offences against Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980 Section Section 3 Section 4 Section 5 Section 6 Section 8(1)
Offence Crimes against persons Crimes against premises or vehicles Threats against persons Threats against premises or vehicle Hostage-taking
Part F—Crimes against Crimes of Torture Act 1989 Section Section 3
Offence Acts of torture
Part G—Crimes against Geneva Conventions Act 1958 Section Section 3(4)
Offence Grave breaches of Conventions or First Protocol
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Schedule 1A—continued Part 2—continued Part H—Crimes against Judicature Act 1908 Section Section 56C(2) Section 56O
Offence Contempt of Court Contempt of Federal Court of Australia
Part I—Offences against Maritime Crimes Act 1999 Section Section 4(1)(a)–(h) Section 4(2)(a), (b) Section 4(3)(a), (b) Section 5(1)(a)–(e) Section 5(2)(a), (b) Section 5(3)(a), (b)
Offence Crimes relating Crimes relating Crimes relating Crimes relating Crimes relating Crimes relating
to to to to to to
ships ships ships fixed platforms fixed platforms fixed platforms
Part J—Crimes against Misuse of Drugs Act 1975 Section Section 6(2)(a) Section 6(2A)(a) Section 10(1)
Offence Dealing with controlled drugs (Class A) Conspiring to deal with controlled drugs (Class A) Aiding offences against law of another country
Part K—Crimes against New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987 Section Sections 5–8, 14
Offence Offences against Act
Part L—Crimes against Nuclear-Test-Ban Act 1999 Section Section 5
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Offence Nuclear explosions prohibited
Criminal Procedure
Schedule 4 Other amendments to principal Act
Schedule 4
s 94
Section 2(1) Omit from the definition of committal for trial the expression ‘‘section 168A’’ and substitute the expression ‘‘section 184N’’. Section 5 Omit this section and substitute: ‘‘5 Jurisdiction in relation to committal for indictable offences ‘‘(1) A Court presided over by a District Court Judge or by 2 or more Justices or by 1 or more Community Magistrates has jurisdiction to conduct the committal proceedings (including a standard committal, a committal hearing (if required), and proceedings under section 158, section 180, or section 181) for an indictable offence. ‘‘(2) Unless the proceedings are in the Youth Court, a Court presided over by a District Court Registrar has jurisdiction to conduct a standard committal for an indictable offence. ‘‘(3) Subsections (1) and (2) are subject to section 185B.’’ Section 33 Omit the words ‘‘section 175 of this Act’’ and substitute the expression ‘‘section 164’’. Omit the words ‘‘section 176 of this Act’’ and substitute the expression ‘‘section 165’’. Omit from paragraph (b) the words ‘‘the preliminary’’ and substitute the words ‘‘a committal’’. Section 66 Omit from subsection (6) the words ‘‘section 153A or section 168 of this Act’’ and substitute the words ‘‘sections 160, 161, 184I, 184J, or 184M’’. Insert in the proviso to subsection (6), after the words ‘‘Community Magistrates’’, the words ‘‘or a Registrar’’. Omit from subsection (6A) the words ‘‘pursuant to the provisions of section 168 of this Act’’ and substitute the words ‘‘under sections 184I and 184J’’. Section 203(2)(h) Omit the words ‘‘the provisions of section 175 of this Act:’’ and substitute the expression ‘‘section 164:’’.
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Schedule 5
s 96
Criminal Procedure
Schedule 5 Enactments repealed
Bail Act 2000 (2000 No 38) So much of Schedule 2 as relates to sections 152A(4)(a), 153, 153A(6), 153A(7), 168(1)(b)(i), and 171 of the Summary Proceedings Act 1957. Crimes Act 1961 (1961 No 43) So much of Schedule 3 as relates to sections 170 and 172 of the Summary Proceedings Act 1957. Crimes Amendment Act 1973 (1973 No 118) Section 12. Crimes Amendment Act 1995 (1995 No 49) Section 10(1) and (2). Crimes Amendment Act (No 2) 1995 (1995 No 68) So much of Schedule 2 as relates to the Summary Proceedings Act 1957. Criminal Justice Act 1985 (1985 No 120) So much of Schedule 1 as relates to section 168(1A) of the Summary Proceedings Act 1957. Evidence (Witness Anonymity) Amendment Act 1997 (1997 No 103) So much of the Schedule as relates to sections 168AA(5) and 178A of the Summary Proceedings Act 1957. Summary Proceedings Amendment Act 1961 (1961 No 44) Sections 4(1)(g) and 8. Summary Proceedings Amendment Act 1964 (1964 No 22) Sections 3 and 5(3). Summary Proceedings Amendment Act 1973 (1973 No 117) Sections 21, 22, 23, and 24. Summary Proceedings Amendment Act 1976 (1976 No 169) Sections 15, 16, 17 and so much of the Schedule as relates to sections 152(2), 153, 158, 160(1), 161(1), 165(1), 178(1), 180, 181(1), and 182 to 184 of the Summary Proceedings Act 1957. Summary Proceedings Amendment Act 1979 (1979 No 126) Section 2.
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Schedule 5
Summary Proceedings Amendment Act 1980 (1980 No 84) Sections 10, 11, 13, 14, 16, 17, 18, 19, and 20. Summary Proceedings Amendment Act (No 2) 1982 (1982 No 131) Section 2. Summary Proceedings Amendment Act (No 3) 1982 (1982 No 158) Section 3. Summary Proceedings Amendment Act (No 4) 1985 (1985 No 162) Sections 3 and 4. Summary Proceedings Amendment Act (No 2) 1986 (1986 No 76) Summary Proceedings Amendment Act (No 2) 1987 (1987 No 172) So much of the Schedule as relates to sections 182 and 185 of the principal Act. Summary Proceedings Amendment Act (No 2) 1989 (1989 No 105) Summary Proceedings Amendment Act 1991 (1991 No 62) Sections 5, 7, and 8(1). Summary Proceedings Amendment Act 1993 (1993 No 47) Sections 25 and 27. Summary Proceedings Amendment Act 1994 (1994 No 161) Section 7. Summary Proceedings Amendment Act (No 2) 1996 (1996 No 146) Sections 3, 4(1) to (3), and 5. Summary Proceedings Amendment Act 1998 (1998 No 61) Section 4. Summary Proceedings Amendment Act (No 2) 1998 (1998 No 77) Sections 27, 28, 29, 32, 33, 34, 35, 36, 40, 41, 42, and 43. Summary Proceedings Amendment Act 2000 (2000 No 82) Section 3.
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Schedule 6
s 97
Criminal Procedure
Schedule 6 Consequential amendments to other enactments Part 1 Acts amended
Bail Act 2000 (2000 No 38) Omit from the definition of committal for trial in section 2 the expression ‘‘section 168A’’ and substitute the expression ‘‘section 184N or section 184O’’. Omit from the heading above section 49 the words ‘‘preliminary hearing of’’ and substitute the words ‘‘committal proceedings for’’. Omit from section 49(1) the words ‘‘preliminary hearings of indictable offences) applies, as if references in those provisions to the hearing were references to the preliminary hearing or the proceedings under section 153A of the Summary Proceedings Act 1957, as the case may be,’’ and substitute the words ‘‘committal proceedings for indictable offences) applies as if references in those provisions to the hearing were references to the committal proceedings’’. Omit from the heading to section 50 the expression ‘‘section 153A’’ and substitute the expression ‘‘section 160’’. Omit from section 50(1) the words ‘‘or during the preliminary hearing and proceedings are adjourned under section 153A(6)(a)’’ and substitute the words ‘‘the defendant is committed for trial and proceedings are adjourned under section 161(3)(a)’’. Add to section 50 the following subsection: ‘‘(3) This section is subject to section 184U of the Summary Proceedings Act 1957.’’ Omit from the heading to section 51 the words ‘‘at preliminary hearing’’ and substitute the words ‘‘at standard committal or committal hearing’’. Omit from section 51 the expression ‘‘section 168(1)(b)(i)’’ and substitute the expression ‘‘section 184J(1)(a)’’. Add to section 52 the following subsections: ‘‘(4) This section is subject to section 184U of the Summary Proceedings Act 1957. ‘‘(5) In this section— ‘‘(a) every reference to a defendant granted bail includes a defendant whose bail is continued in his or her absence
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Schedule 6
Part 1—continued Bail Act 2000 (2000 No 38)—continued (whether under section 184U) of the Summary Proceedings Act 1957 or otherwise): ‘‘(b) every reference to a defendant who is released on bail includes a defendant whose bail is continued in his or her absence (whether under section 184U of the Summary Proceedings Act 1957 or otherwise).’’ Repeal section 54(1). Omit from section 54(2) the expression ‘‘section 171(1)’’ and substitute the expression ‘‘section 184U(2)’’. Children, Young Persons, and their Families Act 1989 (1989 No 24) Omit from section 272(2) and (4) the words ‘‘the preliminary hearing of the charge’’ and substitute in each case the words ‘‘the committal process for the charge’’. Omit from section 274(2)(a) the words ‘‘preliminary hearing shall take place in accordance with Part 5 of the Summary Proceedings Act 1957, except that the hearing’’ and substitute the words ‘‘committal proceedings must take place in accordance with Part 5 of the Summary Proceedings Act 1957, except that the committal proceedings, (including the standard committal, or committal hearing (if required))’’. Add to section 274(2)(a) the words ‘‘or, in the case of a standard committal, by a Registrar’’. Repeal section 275(1) and substitute the following subsections: ‘‘(1) Where section 274 applies and the offence is not murder or manslaughter, if the Youth Court proposes to, or is to, commit the young person for trial for the offence, the Youth Court may give the young person an opportunity of foregoing the right to trial by jury and of electing to have the information heard and determined in a Youth Court by a Youth Court Judge. ‘‘(1A) For the purposes of determining whether to exercise the power conferred by subsection (1), despite section 177 of the Summary Proceedings Act 1957, the Youth Court— ‘‘(a) must consider the evidence produced by the prosecution for the purposes of the standard committal or committal hearing of the young person:
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Part 1—continued Children, Young Persons, and their Families Act 1989 (1989 No 24)—continued ‘‘(b) must allow the prosecutor and the young person to make oral or written submissions as to whether the young person should be given the opportunity referred to in subsection (1): ‘‘(c) without limiting any other power of the Court to adjourn proceedings, may adjourn the committal proceedings for a hearing at which the prosecutor and the young person may make those submissions.’’ Costs and Criminal Cases Act 1967 (1967 No 129) Omit from section 5(1) the expression ‘‘section 167’’ and substitute the expression ‘‘section 184F’’. Crimes Act 1961 (1961 No 43) Repeal the definition of depositions in section 2 and substitute the following definition: ‘‘depositions includes written statements admitted in evidence at the standard committal or the committal hearing under section 162 of the Summary Proceedings Act 1957, and statements made under section 164 of that Act and admitted in evidence at the standard committal or read in evidence at the committal hearing’’. Omit from the definition of trial judge the words ‘‘pursuant to section 168AA’’ in both places where they appear, and substitute in each case the words ‘‘under section 184Q’’. Omit from section 3(c) the words ‘‘section 153A or section 168’’ and substitute the words ‘‘section 160 or section 184O’’. Omit from section 120(1)(ba) the words ‘‘the proviso to section 171(3)’’ and substitute the words ‘‘section 184U(3)’’. Omit from section 324 the expression ‘‘section 181’’ and substitute the expression ‘‘section 184W’’. Omit from section 345B(5)(a) the words ‘‘preliminary hearing’’ and substitute the words ‘‘committal proceedings for’’. Omit from section 345D(4)(a) the words ‘‘preliminary hearing of’’ and substitute the words ‘‘committal proceedings for’’. Omit from section 351(1) the expression ‘‘section 181’’ and substitute the expression ‘‘section 184W’’. Omit from section 361B(8) the words ‘‘during or at the end of the preliminary hearing before the District Court’’ and substitute the 136
Criminal Procedure
Schedule 6
Part 1—continued Crimes Act 1961 (1961 No 43)—continued words ‘‘before or immediately after the person is committed for trial’’. Omit from section 361C(2)(a) the expression ‘‘section 168C’’ and substitute the expression ‘‘section 184S’’. Criminal Justice Act 1985 (1985 No 120) Omit from section 109(b) the words ‘‘the preliminary hearing’’ and substitute the words ‘‘a committal hearing’’. Omit from section 110(1) the words ‘‘the preliminary hearing’’ and substitute the words ‘‘a committal hearing’’. Omit from section 110(2) the word ‘‘preliminary’’ and substitute the word ‘‘committal’’. Omit from section 110(5) the word ‘‘preliminary’’ in both places where it appears and substitute in each case the word ‘‘committal’’. Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115) Omit section 10(3) and substitute: ‘‘(3) The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to the conduct of a committal hearing, so far as they are applicable and with any modifications, apply to every hearing held under subsection (2).’’ Omit section 11 and substitute: ‘‘11 Inquiry into defendant’s involvement if committal proceedings required ‘‘(1) This section applies if committal hearings under Part 5 of the Summary Proceedings Act 1957 are required. ‘‘(2) If the question whether the defendant is unfit to stand trial is to be determined before or without a committal hearing, the Court must hold a special hearing to ascertain whether the Court is satisfied of the matter specified in section 9. ‘‘(3) The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to committal hearings, so far as they are applicable and with any necessary modifications, apply to every hearing held under subsection (2). ‘‘(4) A hearing held under subsection (2) takes the place of a committal hearing under Part 5 of the Summary Proceedings Act 1957.
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Part 1—continued Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115)—continued ‘‘(5) If the question whether the defendant is unfit to stand trial is to be determined in the course of a committal hearing, the Court must ascertain whether it is satisfied of the matter specified in section 9. ‘‘(6) For the purpose of subsection (5), the Court may (whether on the application of the party or on the Court’s own initiative) do either or both of the following: ‘‘(a) consider any evidence presented at the committal hearing: ‘‘(b) hear any new evidence. ‘‘(7) A District Court Judge must preside over a Court that conducts a special hearing under subsection (2) or determines whether the defendant is unfit to stand trial in the course of a committal hearing.’’ Omit from section 12(2)(a) the words ‘‘at the preliminary hearing’’ and substitute ‘‘for the purposes of the standard committal or at the committal hearing’’. Omit from section 12(2)(b) the words ‘‘of the preliminary hearing’’ and substitute the words ‘‘for the purposes of the standard committal or of the committal hearing’’. District Courts Act 1947 (1947 No 16) Omit from section 28A(1)(c)(i) (as inserted by the District Courts Amendment Act 2004) the expression ‘‘section 168AA’’ and substitute the expression ‘‘section 184Q’’. Omit from section 28A(1)(c)(ii) (as inserted by the District Courts Amendment Act 2004), the words ‘‘section 153A or section 168 of the Summary Proceedings Act 1957, before or during the preliminary hearing,’’ and substitute the words ‘‘section 160 or section 184J of the Summary Proceedings Act 1957’’. Omit from section 28A(1)(e)(ii) the words ‘‘or during the preliminary hearing’’ and substitute the word ‘‘committal’’. Omit from section 28B(2) the words ‘‘Except as provided in section 28C of this Act, nothing’’ and substitute the word ‘‘Nothing’’. Omit from section 28F(1)(b) the expression ‘‘section 168AA(2)’’ and substitute the expression ‘‘section 184Q’’. Omit from section 28F(3)(a) the words ‘‘section 153A or section 168’’ and substitute the words ‘‘section 160 or section 184J’’.
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Schedule 6
Part 1—continued District Courts Act 1947 (1947 No 16)—continued Omit from section 28F(3)(a) the words ‘‘, before or during the preliminary hearing’’. Omit from section 28G the words ‘‘sections 169 to 171’’ and substitute the words ‘‘sections 184K, 184L, and 184U’’. Omit from section 28J(1) the expression ‘‘section 168A’’ and substitute the expression ‘‘section 184N’’. Omit from section 28J(1) the expression ‘‘section 168AA’’ and substitute the expression ‘‘section 184Q’’. Evidence Act 1908 (1908 No 56) Omit from section 13B(2)(a) the words ‘‘preliminary hearing’’ and substitute the words ‘‘standard committal or a committal hearing (if required)’’. Omit from section 13G(1) the words ‘‘the preliminary hearing’’ and substitute the words ‘‘a committal hearing’’. Omit from section 13G(2) the words ‘‘the preliminary hearing’’ and substitute the words ‘‘a committal hearing’’. Evidence Amendment Act 1980 (No 2) (1980 No 27) Omit from section 20(3)(e) the words ‘‘in a preliminary hearing’’ and substitute the words ‘‘at a standard committal or for the purposes of a committal hearing’’. Extradition Act 1999 (1999 No 55) Omit from section 22(1)(a) the word ‘‘preliminary’’ and substitute the word ‘‘committal’’. Omit from section 22(3) the expression ‘‘section 153’’ and substitute the expression ‘‘section 157’’. Omit from section 26(1)(a) the expression ‘‘section 171(2)’’ and substitute the expression ‘‘section 184U(3)’’. Omit from section 28(2)(a) the expression ‘‘section 171(2)’’ and substitute the expression ‘‘section 184U(3)’’. Omit from section 43(5) the expression ‘‘Section 171’’ and substitute the expression ‘‘Section 184U’’. Omit from section 46(1)(a) the expression ‘‘section 171(2)’’ and substitute the expression ‘‘section 184U(3)’’. Omit from section 53(2)(b)(i) the expression ‘‘section 171(2)’’ and substitute the expression ‘‘section 184U(3)’’. Omit from section 54(2)(a) the expression ‘‘section 171(2)’’ and substitute the expression ‘‘section 184U(3)’’. Omit from section 79(1) the words ‘‘preliminary hearing of’’ and substitute the words ‘‘committal hearing for’’.
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Part 1—continued International Crimes and International Criminal Court Act 2000 (2000 No 26) Omit from section 41(5) the expression ‘‘Section 171’’ and substitute the expression ‘‘Section 184U’’. Omit from section 46(2)(a) the expression ‘‘section 171(3)’’ and substitute the expression ‘‘section 184U(3)’’. Land Transport Act 1998 (1998 No 110) Omit from section 74(7)(a)(ii) the expression ‘‘section 147’’ and substitute the expression ‘‘section 150’’. Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46) Omit from the definition of special patient in section 2 the expression ‘‘The proviso to section 171(3)’’ and substitute the expression ‘‘section 184U(3)’’.
Part 2 Regulations amended Costs in Criminal Cases Regulations 1987 (SR 1987/2000) Omit from paragraph (c) under heading A in Part I of the Schedule, the word ‘‘preliminary’’ and substitute the word ‘‘committal’’. Criminal Justice Regulations 1987 (SR 1985/232) Omit from Form 14 in the First Schedule the word ‘‘(preliminary)’’ and substitute the word ‘‘(committal)’’. Omit from Form 17 in the First Schedule the word ‘‘(preliminary)’’ and substitute the word ‘‘(committal)’’. Crown Solicitors Regulations 1994 (SR 1994/142) Omit from regulation 21(2) the word ‘‘preliminary’’ and substitute the word ‘‘committal’’. Evidence (Videotaping of Child Complainants) Regulations 1990 (SR 1990/164) Omit from the heading to regulation 13 and regulation 13 the word ‘‘preliminary’’ in both places where it appears, and substitute in each case the word ‘‘committal’’.
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Legislative history 22 June 2004 29 June 2004
Introduction (Bill 158–1) First reading and referral to Law and Order Committee
Wellington, New Zealand: Published under the authority of the House of Representatives—2005
158bar2.pag 29-JUL-05
Price code: K
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