Subpart 1—Conduct of proceeding
Defendants who plead guilty or are found guilty
114 Procedure after defendant pleads or is found guilty
(1)
If a defendant pleads guilty or is found guilty, the court may convict or deal with the defendant in any other manner authorised by law and—
(a)
adjourn the proceeding; or
(b)
sentence or otherwise deal with the defendant immediately.
(2)
Despite subsection (1), if the defendant is before a District Court the court must transfer the proceeding to the High Court (at the place determined in accordance with section 74(4) and (5) as if the High Court were the trial court) for the sentencing of the defendant if—
(c)
the offence is a category 4 offence.
Compare: 1957 No 87 s 67(2)
115 Plea of guilty may be withdrawn by leave of court
(1)
A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
(2)
The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—
(a)
the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or
(b)
the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.
Compare: 1957 No 87 s 42
116 Effect of sentence indication
(1)
This section applies to a sentence indication given under section 61 if the defendant pleads guilty to the offence in respect of which it was given within the period that it has effect.
(2)
The sentence indication is binding on the judicial officer that gave it unless—
(a)
information becomes available to the court after the sentence indication was given but before sentencing; and
(b)
the judicial officer is satisfied that the information materially affects the basis on which it was given.
(3)
The sentence indication is not binding on a judicial officer other than the judicial officer who gave the indication.
Presence of defendant at hearings
117 Defendant generally may be present at all hearings
(1)
The defendant may be present in court during any hearing in relation to the charge against him or her.
(2)
Subsection (1) does not apply if the defendant interrupts the hearing to such an extent that it is impracticable to continue in his or her presence.
(3)
The court may permit the defendant to be out of court during the whole or any part of a hearing on any terms the court thinks fit.
Compare: 1957 No 87 s 170; 1961 No 43 s 376
118 Hearings at which defendant must be present
(1)
A defendant must be present at any hearing if he or she—
(a)
is on police bail, or has been summoned, to attend that hearing; or
(b)
has been remanded in custody, or on bail or at large, to attend that hearing.
(2)
Subsection (1) does not apply if—
(a)
the court excuses the defendant from attending the hearing or any part of the hearing; or
(b)
the court orders that the defendant be removed from the court for interrupting the hearing to such an extent that it is impracticable to continue in the defendant’s presence; or
(c)
the defendant is represented by a lawyer and the hearing is only in respect of—
(i)
the place or date of the trial:
(ii)
case review, where the Registrar is exercising the power of the court under section 57(4) and the defendant is in custody:
(iii)
an alternative way of giving evidence under subpart 5 of Part 3 of the Evidence Act 2006:
(iv)
whether 2 or more charges are to be tried together, or whether the charges against 1 defendant are to be tried with charges against 1 or more other defendants:
(v)
an application to take oral evidence under section 90:
(d)
the defendant has pleaded guilty by filing a notice in court under section 38 and the hearing is not one that the defendant has indicated under section 38(2)(a) that he or she wishes to attend.
Powers of court when defendant does not appear
119 Non-attendance of defendant charged with offence in category 1
(1)
This section applies to any hearing, including a sentencing hearing, if—
(a)
the offence charged is a category 1 offence; and
(b)
the defendant is required, under section 118, to be present at the hearing; and
(c)
the prosecutor attends the hearing, but the defendant does not.
(2)
The court may proceed with the hearing in the absence of the defendant.
(3)
If the court proceeds with a trial in the absence of the defendant, it must proceed as if the defendant had entered a plea of not guilty.
Compare: 1957 No 87 s 61(b)(ii)
120 Non-attendance of defendant charged with offence in category 2, 3, or 4: before plea is entered
(1)
This section applies to any hearing if—
(a)
the offence charged is a category 2, 3, or 4 offence; and
(b)
the defendant has not entered a plea; and
(c)
the defendant is required, under section 118, to be present at the hearing; and
(d)
the prosecutor attends the hearing, but the defendant does not.
(2)
A judicial officer or the Registrar may issue a warrant to arrest the defendant and bring him or her before the court.
Compare: 1957 No 87 s 61
121 Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing
(1)
This section applies to any hearing, other than a trial or a sentencing hearing, if—
(a)
the offence charged is a category 2, 3, or 4 offence; and
(b)
a not guilty plea has been entered to the offence charged; and
(c)
the defendant is required, under section 118, to be present at the hearing; and
(d)
the prosecutor attends the hearing, but the defendant does not.
(2)
When this section applies, the court may do either or both of the following:
(a)
proceed in the absence of the defendant:
(b)
issue a warrant to arrest the defendant and bring him or her before the court.
(3)
Despite subsection (2), the court must not proceed with a hearing in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.
(4)
Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:
(a)
any information available to the court about the reasons for the defendant’s absence:
(b)
any issues that the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues:
(c)
the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:
(d)
the nature and seriousness of the offence:
(e)
the interests of any co-defendant.
(5)
If the hearing is in front of a Registrar under section 57(4), the Registrar may—
(a)
proceed with the hearing in the absence of the defendant; or
(b)
issue a warrant to arrest the defendant and bring him or her before the court.
122 Non-attendance of defendant at trial for offence in category 2, 3, or 4
(1)
This section applies to any trial if—
(a)
the offence charged is a category 2, 3, or 4 offence; and
(b)
the defendant is required, under section 118, to be present at the trial; and
(c)
the prosecutor attends the trial, but the defendant does not.
(2)
If the court is satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court must not proceed with the trial unless it is satisfied that the defendant’s absence will not prejudice his or her defence.
(3)
If the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court may do either or both of the following:
(a)
proceed with the trial in the absence of the defendant:
(b)
issue a warrant to arrest the defendant and bring him or her before the court.
(4)
Despite subsection (3), the court must not proceed with the trial in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.
(5)
Without limiting the matters the court may consider in making its decision under subsection (4), the court must consider the matters set out in section 121(4).
123 Sentencing for offence in category 2, 3, or 4 not to proceed in absence of defendant
(1)
A court must not sentence a defendant for an offence in category 2, 3, or 4 in the absence of the defendant.
(2)
If a defendant does not attend a sentencing hearing for an offence in category 2, 3, or 4, the court may issue a warrant to arrest the defendant and bring him or her before the court.
124 Procedure when hearing proceeds in absence of defendant
(1)
A hearing at which the defendant is required by section 118 to be present may proceed in the absence of the defendant even if the defendant is not, or ceases to be, represented by a lawyer.
(2)
If a hearing at which the defendant is required by section 118 to be present proceeds in the absence of the defendant,—
(a)
the lawyer for the defendant may continue to represent the defendant; and
(b)
all provisions that relate to the conduct of the proceedings continue to apply, with any necessary modifications; and
(c)
if the offence charged is a category 1 offence, evidence of a fact or opinion that would be admissible if given by oral evidence, is also admissible if given by way of an affidavit or a formal statement; and
(d)
the charge against the defendant may be proceeded with up to and including,—
(i)
in the case of a category 1 offence, sentencing; or
(ii)
in any other case, delivery of the decision or verdict of the Judge or jury.
(3)
If a person is found guilty in his or her absence at a hearing at which the defendant is required by section 118 to be present, the court may—
(a)
direct that a notice be served on the defendant advising the defendant—
(i)
that he or she has been found guilty in his or her absence; and
(ii)
of the date on which he or she must appear for sentencing; and
(iii)
that, if he or she wishes to apply for a retrial under section 125, the application must be filed no later than 15 working days after the date of service of the notice; or
(b)
if the person is liable on conviction to a sentence of imprisonment, issue a warrant to arrest the defendant and bring him or her before the court for sentencing.
(4)
If a person is sentenced in his or her absence for a category 1 offence at a hearing at which the defendant was required by section 118 to be present, the court may direct that a notice be served on the defendant advising the defendant that—
(a)
he or she has been sentenced in his or her absence; and
(b)
if he or she wishes to apply for a rehearing under section 126, the application must be filed no later than 15 working days after the date of service of the notice.
(5)
A formal statement admitted as evidence under subsection (2)(c) 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).
Retrial or rehearing if defendant found guilty or sentenced in his or her absence
125 Retrial if defendant found guilty in his or her absence
(1)
A defendant who is found guilty following a trial that proceeded in his or her absence may apply to a court for an order granting a retrial of the charge.
(2)
The application—
(a)
must be filed in the court in which the defendant’s trial was held; and
(b)
must be filed no later than 15 working days after the date on which—
(c)
must be determined by the judicial officer who presided over the trial or, if that is impracticable, any Judge.
(3)
If the application is on the ground described in subsection (7)(b), it must be supported by—
(a)
an outline of the defence on which the defendant intends to rely if a retrial is granted; and
(b)
a formal statement from each witness who the defendant intends to call.
(4)
The Registrar of the court must cause a copy of the application to be served on the prosecutor.
(5)
The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.
(6)
The court may consider the application on the papers or at an oral hearing.
(7)
The court may order a retrial of the charge if—
(a)
the court is satisfied that—
(i)
the defendant was notified of the trial and had a reasonable excuse for non-attendance at the trial, but that reasonable excuse was not known to the court at the time of the trial; and
(ii)
it is in the interests of justice; or
(b)
regardless of whether the defendant had a reasonable excuse for non-attendance, the court is satisfied that the defendant had a defence that would have had a reasonable prospect of success if he or she had attended the trial.
(8)
Despite subsection (7), the court must order a retrial if satisfied that the defendant was not notified of the trial.
(9)
A formal statement provided to the court in accordance with subsection (3)(b) 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).
126 Rehearing if defendant sentenced for category 1 offence in his or her absence
(1)
A defendant who is sentenced for a category 1 offence, following a sentencing hearing at which the defendant was required by section 118 to be present but that proceeded in his or her absence, may apply to a court for a rehearing in relation to the sentence or order imposed on the defendant.
(2)
The application—
(a)
must be filed in the court in which the sentence or order was imposed; and
(b)
must be filed no later than 15 working days after the date on which a notice is served on the defendant under section 124(4); and
(c)
must be determined by the judicial officer who imposed the sentence or order or, if that is impracticable, any Judge.
(3)
The Registrar of the court must cause a copy of the application to be served on the prosecutor.
(4)
The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.
(5)
The court may consider the application on the papers or at an oral hearing.
(6)
The court may order a rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that—
(a)
the defendant was notified of the hearing and had a reasonable excuse for non-attendance at the hearing, but that reasonable excuse was not known to the court at the time; and
(b)
it is in the interests of justice.
(7)
Despite subsection (6), the court must order a rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that the defendant was not notified of the hearing.
127 Registrar may deal with applications in relation to category 1 offences
Despite section 125(2)(c) or 126(2)(c), a Registrar may exercise the power under section 125 in relation to a category 1 offence or the power under section 126 if—
(a)
the prosecutor does not object; and
(b)
the application for the retrial or rehearing is made on the grounds that the defendant was not notified of the trial or hearing.
128 Effect of application for retrial or rehearing on rights of appeal
(1)
A defendant who applies for a retrial of a charge under section 125 must not appeal his or her conviction unless that application for a retrial is denied.
(2)
A defendant who applies for a rehearing under section 126 must not appeal his or her sentence unless that application for a rehearing is denied.
(3)
If an application for a retrial or rehearing is made under section 125 or 126, the time period for filing an appeal under Part 6 is suspended until the application is determined.
(4)
Subsections (1) and (2) do not limit any right of appeal in relation to a further conviction, sentence, or order entered, imposed, or made at the defendant’s retrial or rehearing.
129 Procedure if retrial or rehearing ordered
130 Dealing with defendant pending retrial or rehearing
If a retrial or rehearing is ordered under section 125 or 126,—
(a)
the court may—
(i)
issue a summons to bring the defendant before the court; or
(ii)
issue a warrant to arrest the defendant and bring him or her before the court; and
(b)
if the retrial or rehearing is to be proceeded with at a later date, section 168(1) applies with any necessary modifications as if the proceeding was adjourned.
Powers of court when prosecutor does not appear
131 Powers of court when prosecutor does not appear
(1)
This section applies to any hearing if the defendant appears but the prosecutor does not.
(2)
If the defendant is in custody or has been released on bail and the prosecutor has not had adequate notice of the hearing, the court must adjourn the hearing to the time and place, and on the conditions, that it thinks fit to enable the prosecutor to appear.
(3)
In any other case, the court may—
(b)
adjourn the hearing to a time and place, and on any conditions, that the court thinks fit.
Compare: 1957 No 87 s 62
Powers of court when neither party appears
132 Powers of court when neither party appears
(1)
This section applies to any hearing if neither the prosecutor nor the defendant appears.
(2)
The court may—
(b)
adjourn the hearing to a time and place, and on any conditions, that the court thinks fit.
Compare: 1957 No 87 s 63
Amendment of charge
133 Amendment of charge
(1)
A charge (including any of the particulars required to be specified in a charging document under section 16(2)) may be amended by the court at any stage in a proceeding before the delivery of the verdict or decision of the court.
(2)
The amendment may be made on the court’s own motion or on the application of the prosecutor or the defendant.
Compare: 1957 No 87 ss 43, 43A
134 Procedure if charge amended before trial
(1)
This section applies if the court amends a charge before the trial.
(2)
Subject to this section and section 135, any pre-trial decisions and determinations made in the proceedings apply, to the extent that they are still applicable.
(3)
If the defendant entered a plea to the charge before it was amended,—
(a)
the court may ask the defendant to plead to the charge as amended, and subpart 1 of Part 3 applies with all necessary modifications; and
(b)
subpart 3 of Part 3 does not apply in respect of the charge as amended unless the court directs otherwise.
(4)
The court may, under subsection (3)(b),—
(b)
give any other directions in relation to the management of the case.
(5)
If the charge is amended to substitute one offence for another and the substituted offence is a category 3 offence, the defendant may make an election under section 50.
(6)
If the charge is amended to substitute one offence for another and the substituted offence is a category 2 or 3 offence, then, subject to section 135,—
(a)
if the prosecutor identifies the substituted offence as a protocol offence, a District Court Judge may make a recommendation under section 67 and a High Court Judge must determine the level of trial court under section 68; and
(b)
in any other case, the defendant or the prosecutor may make an application to transfer the proceeding to the High Court under section 70.
Compare: 1957 No 87 s 43(2)–(4)
135 Procedure if charge amended after order made under section 68 or 70
(1)
This section applies if a charge is amended before the trial to substitute one offence for another offence that is a category 2 or 3 offence and an order determining the level of trial court had been made under section 68 or 70 in relation to the charge before it was amended.
(2)
If the order made under section 68 or 70 was that the trial be held in the District Court—
(a)
if the prosecutor identifies the offence in the charge (as amended) as a protocol offence, the court may (but is not required to) refer the charge for sections 67 and 68 to be applied; and
(b)
in any other case, the defendant or the prosecutor may make an application to transfer the proceeding to the High Court under section 70.
(3)
If the order made under section 68 or 70 was that the trial be held in a High Court, a High Court Judge—
(a)
may, on his or her own motion, or on application by the prosecutor or defendant, reconsider whether the trial is to be held in the District Court or the High Court; and
(b)
may, without seeking a new recommendation from the District Court Judge under section 67, order that the trial be held in the District Court, if doing so will not unduly delay proceedings and is otherwise in the interests of justice.
136 Procedure if charge amended during trial
(1)
Despite sections 21 and 133, during the trial a charge may be amended to substitute one offence for another offence only if—
(a)
there appears to be a variance between the proof and the charge; and
(b)
the amendment will make the charge fit with the proof.
(2)
A charge must be amended under subsection (1) if in the court’s opinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment.
(3)
Subsection (4) applies if, in the court’s opinion, the defendant has been misled or prejudiced in his or her defence by any amendment of a charge made during the trial under section 133.
(4)
If, in the court’s opinion, the effect of the defendant having been misled or prejudiced might be removed by adjourning or postponing the trial, the court may make the amendment and—
(b)
postpone the trial and discharge the jury.
Compare: 1957 No 87 s 43(5); 1961 No 43 s 335(1), (2), (4), (5)
Proceedings conducted together
137 Proceedings against parties to offences, accessories, and receivers
(1)
This section applies to every person charged—
(a)
as a party to an offence (not being the person who actually committed it); or
(b)
with being an accessory after the fact to any offence; or
(c)
with receiving property knowing it to have been stolen or dishonestly obtained.
(2)
Every person to whom subsection (1) applies may be proceeded against and convicted for the offence whether or not the principal offender or any other party to the offence or the person by whom the property was obtained has been proceeded against or convicted.
(3)
Every person to whom subsection (1) applies may be proceeded against and convicted—
(a)
alone as for a substantive offence; or
(b)
jointly with the principal or other offender or person by whom the property was stolen or dishonestly obtained.
(4)
If any property has been stolen or dishonestly obtained, any number of receivers at different times of that property, or of any part or parts of it, may be charged with substantive offences, and may be tried together.
Compare: 1957 No 87 s 76; 1961 No 43 s 344
138 Trial of different charges together
(1)
The prosecutor may—
(a)
notify the court before which a proceeding is being conducted proposing that—
(i)
2 or more charges be heard together; or
(ii)
the charges against 1 defendant be heard with charges against 1 or more other defendants:
(b)
amend a notification given under paragraph (a).
(2)
Despite subsection (1), if the prosecutor seeks to give or amend a notification involving a charge in respect of which the proceeding has been adjourned after the entry of a not guilty plea, the prosecutor must seek the leave of the court.
(3)
Charges must be heard together in accordance with any notification given under subsection (1)(a) or amended under subsection (1)(b) unless the court—
(a)
does not grant leave where the prosecutor seeks leave under subsection (2); or
(b)
makes an order under subsection (4).
(4)
If the court before which the proceeding is being conducted thinks it is in the interests of justice to do so, it may, on its own motion or on the application of a defendant, order that 1 or more charges against the defendant be heard separately.
(5)
An order under subsection (4) may be made either before or during the trial, and,—
(a)
if it is made during the course of a Judge-alone trial, the court must adjourn the trial of the charges in respect of which the trial is not to proceed; and
(b)
if it is made during the course of a jury trial, the jury must be discharged from giving a verdict on the charges on which the trial is not to proceed.
Section 138: replaced, on 1 July 2013, by section 8 of the Criminal Procedure Amendment Act 2013 (2013 No 25).
139 Procedure if charges to be heard together
(1)
If, in accordance with section 138, 2 or more charges against a defendant are to be heard together—
(a)
if 1 charge is to be tried by a jury, all charges must be tried by a jury; and
(b)
if 1 charge is to be tried in the High Court, all charges must be tried in the High Court.
(2)
If in accordance with section 138 the charges against a defendant are to be heard with charges against 1 or more other defendants, unless there are exceptional circumstances that make separate trials necessary in the interests of justice, then,—
(a)
if 1 defendant elects to be tried by a jury on 1 charge, all charges against all the defendants must be tried by a jury; and
(b)
if 1 charge is to be tried in the High Court, all charges against all defendants must be tried in the High Court.
Compare: 1961 No 43 ss 329, 340
140 Procedure if charges to be heard together include new charges
(1)
This section applies if—
(a)
a charging document charging a defendant with an offence is filed (including one deemed by section 191(2) to have been filed) (the new charge); and
(b)
proceedings in respect of 1 or more other charges against the defendant (the existing charge or charges) are in progress; and
(c)
in accordance with section 138 the new charge and the existing charge or charges are to be heard together; and
(d)
the defendant pleads not guilty to the new charge.
(2)
If a case management memorandum has been filed under section 55(3) in respect of the existing charge or charges, subpart 3 of Part 3 does not apply in respect of the new charge unless the court directs otherwise.
(3)
If the defendant is unrepresented and a case review hearing has been held, subpart 3 of Part 3 does not apply in respect of the new charge unless the court directs otherwise.
(4)
The court may, under subsection (2) or (3),—
(b)
give any other directions in relation to the management of the case.
(5)
If the new charge is for a category 2 or 3 offence, then unless, in accordance with section 74 or 139 the trial court is the High Court, sections 134(6) and 135 apply with any necessary modifications.
(6)
If formal statements have been filed in respect of the existing charge or charges, the prosecutor is not required to file formal statements in respect of the new charge.
(7)
If the defendant has filed a trial callover memorandum in respect of the existing charge or charges neither party is required to file a trial callover memorandum in respect of the new charge.
(8)
Nothing in this section limits any other provision of this Act not referred to in subsections (2) to (7).
Further provisions relating to charges
141 Conviction where alternative allegations proved in Judge-alone trial
When convicting a defendant of a charge that includes alternative allegations, the court in a Judge-alone trial must limit that conviction to 1 of the alternatives charged.
Compare: 1957 No 87 s 16(4)
142 Dealing with charge that fails to disclose range of penalties and previous convictions when required
(1)
This section applies if a charge that is required by section 22 to disclose the range of penalties available on conviction, and any relevant previous convictions of the defendant, does not do so.
(2)
The charge may be amended before or during the trial in accordance with section 133.
(3)
If the charge is amended before the trial to disclose a previous conviction, and the offence becomes a category 2 or 3 offence in accordance with section 6(3),—
(a)
the proceeding must otherwise continue as if the defendant were originally charged with the charge as amended; and
(4)
If the charge is not amended, and the defendant is convicted, then the maximum penalty to which the defendant is liable for the offence is the penalty to which he or she would be liable if he or she did not have previous convictions for the same or any other specified offence.
Compare: 1957 No 87 ss 17A(4), 69(4)
143 Included offences
If the commission of the offence alleged (as described in the enactment creating the offence or in the charge) includes the commission of any other offence, the defendant may be convicted of that other offence if it is proved, even if the whole offence in the charge is not proved.
Compare: 1961 No 43 s 339
144 Conviction of parties
Every person who is a party to any offence may be convicted either on a charge that the person committed that offence, where the nature of the charge allows, or on a charge specifying how the person was a party to that offence.
Compare: 1961 No 43 s 343
145 Conviction of charge containing allegation of previous conviction
(1)
This section applies if—
(a)
a charge contains an allegation that the defendant has been previously convicted; and
(b)
the defendant, in accordance with section 44, has not pleaded to that allegation; and
(c)
the defendant pleads guilty to or is found guilty of the charge.
(2)
Before the defendant is sentenced, he or she must be asked whether or not he or she has been previously convicted as alleged.
(3)
If the defendant says that he or she has not been previously convicted as alleged, or does not say that he or she has been so convicted, the judicial officer must determine the matter.
Compare: 1961 No 43 s 341(1)(c)
Withdrawal and dismissal of charges
146 Withdrawal of charge
(1)
The prosecutor may, with the leave of the court, withdraw a charge before the trial.
(2)
The withdrawal of a charge under this section is not a bar to any other proceeding in the same matter.
Compare: 1957 No 87 s 36
147 Dismissal of charge
(1)
The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(2)
The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.
(3)
A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.
(4)
Without limiting subsection (1), the court may dismiss a charge if—
(a)
the prosecutor has not offered evidence at trial; or
(b)
in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or
(c)
in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
(5)
A decision to dismiss a charge must be given in open court.
(6)
If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.
(7)
Nothing in this section affects the power of the court to convict and discharge any person.
Compare: 1961 No 43 s 347
148 Prosecutor must notify court if defendant completes programme of diversion
(1)
The prosecutor must ensure that the court is notified if a defendant has successfully completed a programme of diversion (being a programme conducted in relation to any public prosecution) in respect of the offence charged.
(2)
If notification is given under subsection (1), the court or the Registrar must dismiss the charge under section 147.
Attempts
149 Attempt proved when offence is charged
Where the commission of the offence charged is not proved, but the evidence establishes an attempt to commit the offence, the defendant may be convicted of the attempt.
Compare: 1961 No 43 s 337
150 Offence proved when attempt is charged
(1)
Where an attempt to commit an offence is charged, but the evidence establishes the commission of the full offence, the court may,—
(a)
if in the court’s opinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment, amend the charge; or
(b)
convict the defendant of the attempt.
(2)
After a conviction for that attempt the defendant is not liable to be tried again for the offence that he or she was charged with attempting to commit.
Compare: 1961 No 43 s 338
Retrial of previously acquitted person
151 Order for retrial may be granted if acquittal tainted
(1)
In this section,—
acquittal—
(a)
includes—
(ii)
the setting aside of a conviction on appeal, without an order for a retrial; but
(b)
does not include a discharge without conviction under section 106 of the Sentencing Act 2002
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
prosecution means—
(a)
a prosecutor acting with the prior consent of the Solicitor-General; or
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, 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 must have particular regard to the following matters:
(a)
the length of time since the acquitted person is alleged to have committed the specified offence:
(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 High 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 acquitted person is entitled to be heard at the hearing of the application, which must be held not less than 10 working days after notice is filed in the office of the High 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 26 June 2008.
Compare: 1961 No 43 s 378A
152 Meaning of terms used in sections 153 and 154
(1)
In sections 153 and 154,—
acquittal—
(a)
includes—
(ii)
the setting aside of a conviction on appeal, without an order for retrial; but
(b)
does not include a discharge without conviction under section 106 of the Sentencing Act 2002
acquitted person means a person who has previously been acquitted of a specified serious offence
specified serious offence, in relation to an acquitted person,—
(a)
means an offence that is punishable by imprisonment for life or by imprisonment for 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 153 and 154, 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 153 and 154, 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.
Compare: 1961 No 43 s 378B
Section 152(1) specified serious offence paragraph (a): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).
153 Consent of Solicitor-General required in certain circumstances for exercise of powers in relation to acquitted person
(1)
Subsection (2) applies if a constable 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 constable may 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 a constable first obtains the consent of the Solicitor-General.
(3)
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:
(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 constable 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 is reasonably practicable after the action is taken.
Compare: 1961 No 43 s 378C
154 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 Solicitor-General, 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 must 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:
(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.
(3)
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 153.
(4)
The Solicitor-General may apply under this section only if satisfied of the matters stated in subsection (1)(a) and (b).
(5)
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 Court of Appeal 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 acquitted person is entitled to be heard at the hearing of the application, which must be held not less than 10 working days after notice is filed in the office of the Court of Appeal 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.
(6)
This section does not apply if the acquitted person was acquitted of the specified serious offence before 26 June 2008.
Compare: 1961 No 43 s 378D
155 Orders to safeguard fairness of retrial
An order for a retrial under section 151 or 154 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.
Compare: 1961 No 43 s 378E
156 Effect of order for retrial
(1)
If an order for a retrial is granted under section 151 or 154,—
(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 court that orders the retrial or the court before which the person was tried may—
(i)
issue a summons to the person to attend at the court before which the person was tried (and the provisions of this Act apply as if it were a summons to attend a hearing); or
(ii)
issue a warrant to arrest the person and bring him or her before a court (and the provisions of this Act apply as if it were a warrant to arrest a defendant):
(c)
if the person appears in court in accordance with a summons or is brought before a court under an arrest warrant, section 168(1) applies with any necessary modifications as if the proceeding was adjourned:
(d)
the retrial must be conducted in the same manner as a retrial ordered following a successful appeal by a defendant against conviction.
Compare: 1961 No 43 s 378F
Transfer of proceedings to court at different place
157 Transfer of proceedings to court at different place or different sitting
(1)
A District Court Judge may, on his or her own motion or on the application of the prosecutor or the defendant, transfer a proceeding to a District Court at a place or sitting other than that determined in accordance with section 35, 71, 72, or 73, as the case may be, if the court is satisfied that it is in the interests of justice that the proceeding be heard at that other place or sitting.
(2)
The High Court at a place may, on its own motion or on the application of the prosecutor or the defendant, transfer a proceeding to the High Court at a place or sitting other than that determined in accordance with section 72, 73, or 74, as the case may be, if the court is satisfied that it is in the interests of justice that the proceeding be heard at that other place or sitting.
(3)
With the consent of all parties, an order under this section may be made by a District Court presided over by 1 or more Justices or 1 or more Community Magistrates in respect of a proceeding for—
(a)
a category 1 or 2 offence; or
(b)
a category 3 offence punishable by a term of imprisonment not exceeding 3 years, if the defendant has not elected a jury trial.
(3A)
A Registrar may exercise the power specified in subsection (3).
(4)
Except as provided in sections 217 and 218, no person may object to any order under this section.
Compare: 1961 No 43 ss 322, 326(2)
Section 157(3): amended, on 1 July 2013, by section 9(1) of the Criminal Procedure Amendment Act 2013 (2013 No 25).
Section 157(3A): inserted, on 1 July 2013, by section 9(2) of the Criminal Procedure Amendment Act 2013 (2013 No 25).
158 Attendance of witness at substitute court
(1)
If a proceeding is transferred under section 157, the Registrar of the court that transfers the proceeding must ensure that any witness summoned to attend the proceeding is given notice of the transfer.
(2)
The notice given under subsection (1) has the same effect as if it were a summons to attend the court to which the proceeding is transferred.
Compare: 1961 No 43 s 324
Obtaining attendance of witnesses
159 Issue of summons to witness
(1)
Either the prosecutor or the defendant may at any time obtain from a judicial officer or a Registrar a summons calling on any person to appear as a witness at any hearing in relation to a charge.
(2)
A summons issued under subsection (1) may require the person summoned to bring with him or her and produce at the hearing any document or thing that is specified in the summons.
(3)
A person commits an offence if that person—
(a)
has been served with a summons issued under subsection (1) requiring the person to appear as a witness at a hearing; and
(b)
refuses or fails, without reasonable excuse, to appear or to produce any document or thing required by the summons to be produced.
(4)
A person who commits an offence under subsection (3) is liable on conviction to a fine not exceeding $1,000.
Compare: 1957 No 87 s 20(1), (2), (5); 1961 No 43 s 351(2)
160 Summons to witness to non-party disclosure hearing
(1)
If an application for a non-party disclosure hearing is granted under section 25 of the Criminal Disclosure Act 2008, the defendant may apply to a judicial officer or the Registrar for the issue of a summons calling on any person to appear at that hearing.
Compare: 1957 No 87 s 20(1A)
161 Issue of warrant to obtain attendance of witness
(1)
A judicial officer may issue a warrant to arrest a person and bring him or her before the court if—
(a)
the person summoned as a witness under section 159 fails to appear at the time and place appointed and no reasonable excuse is offered for his or her failure, and the judicial officer is satisfied that the summons was served on the person; or
(b)
the judicial officer is satisfied, whether or not a summons has been issued or served, that—
(i)
a person’s evidence is required at the hearing by either the prosecutor or the defendant; and
(ii)
the person will not attend to give evidence without being compelled to do so.
(2)
A Registrar may exercise the power under this section.
Compare: 1957 No 87 s 20(4); 1961 No 43 s 351(1)
Provisions relating to warrants to arrest defendant or witness
162 To whom warrant to be directed and power of person executing warrant to enter premises
(1)
A warrant to arrest a defendant or a warrant to arrest a person required as a witness must be directed either to any constable by name or generally to every constable.
(2)
The warrant may be executed by any constable.
(3)
For the purposes of executing the warrant, the constable executing it may at any time enter on to any premises, if he or she has reasonable cause to believe that the person against whom it is issued is on those premises.
(4)
Before entry onto the premises, the constable must—
(a)
announce his or her intention to enter the premises; and
(b)
identify himself or herself.
(5)
Before or on entry onto the premises, the constable must—
(a)
give the occupier of the premises a copy of the warrant; and
(b)
produce to the occupier of the premises evidence of his or her identity (which may include details of a unique identifier instead of a name).
(6)
For the purposes of subsection (5), the following persons must not be treated as the occupier of the premises:
(a)
any person who is under the age of 14 years:
(b)
any person who the constable has reasonable grounds to believe is not the occupier of the premises.
(7)
The constable is not required to comply with subsection (4) or (5) if he or she has reasonable grounds to believe that compliance with subsection (4) or (5) would endanger the safety of any person or prejudice the successful exercise of the entry and execution of the warrant.
(8)
The constable may use reasonable force in order to effect entry into the premises if subsection (7) applies or if, following a request, the person present refuses entry or does not allow entry within a reasonable time.
Compare: 1957 No 87 s 22
163 Withdrawal of warrant
(1)
A warrant to arrest a defendant or a warrant to arrest a person required as a witness may, at any time before it is executed, be withdrawn by leave of a judicial officer.
(2)
A Registrar, at any time before it is executed, may withdraw a warrant to arrest a defendant or a warrant to arrest a person required as a witness, whether or not the warrant was issued by the Registrar, if,—
(a)
in the case of a warrant to arrest a defendant,—
(i)
the warrant was issued under this Act or section 37 of the Bail Act 2000 because the defendant failed to appear at court; and
(ii)
the defendant reports to the court (whether or not the defendant actually makes an appearance in the court that day); and
(iii)
no breaches of bail by the defendant in relation to the charge have been recorded under section 39 of the Bail Act 2000; and
(iv)
no other warrants for the arrest of the defendant in relation to the proceeding have been issued; and
(v)
the defendant is charged with an offence for which the maximum penalty is 10 or fewer years’ imprisonment:
(b)
in the case of a warrant to arrest a witness,—
(i)
the warrant was issued under this Act because the witness failed to appear at court; and
(ii)
the witness reports to the court (whether or not the defendant actually makes an appearance in the court that day); and
(iii)
no other warrants for the arrest of the witness in relation to the proceeding have been issued; and
(iv)
the defendant in the proceeding is charged with an offence for which the maximum penalty is 10 or fewer years’ imprisonment.
Compare: 1957 No 87 s 23
Dealing with witness arrested under warrant
164 Dealing with witness arrested under warrant
(1)
A person who is arrested under a warrant issued under section 161 must be brought as soon as possible before a Judge of the court that issued the warrant, who may—
(a)
issue a warrant ordering that the person be committed to a prison to be detained until the hearing for which the witness is required; or
(2)
A person committed to prison under subsection (1)—
(a)
must be treated in the same way as a prisoner awaiting trial; and
(b)
must, if he or she so requests, be brought before a District Court Judge for the purpose of making an application for bail, and the Judge may grant or refuse to grant bail on that application.
(3)
If a person is granted bail under subsection (1) or (2), sections 28, 29(3), and 30 to 39 of the Bail Act 2000, as far as they are applicable and with any necessary modifications, apply as if—
(a)
that person were a defendant remanded in custody who had been granted bail; and
(b)
for the words “evading justice”
in section 35(1)(a) of the Bail Act 2000 there were substituted the words “avoiding giving evidence”
.
Compare: 1957 No 87 s 20(4A)–(4D)
Dealing with witnesses at the court
165 Witness refusing to give evidence may be imprisoned
(1)
At any hearing any person present in court who could have been compelled to give evidence for the party seeking to call the person as a witness may be required to give evidence, whether that person has been summoned to give evidence or not.
(2)
Subsection (3) applies if a person—
(a)
without offering any just excuse refuses to give evidence when required; or
(c)
having been sworn refuses to answer any questions concerning the charges that are put to him or her.
(3)
If this subsection applies, the court may—
(a)
order that, unless he or she consents to give evidence or to be sworn or to answer the questions put to him or her, as the case may be, he or she be detained in custody for any period not exceeding 7 days; and
(b)
issue a warrant for his or her arrest and detention in accordance with the order.
(4)
If the person is under the age of 20 years, the warrant issued under subsection (3)(b) may direct that the person be detained in the custody of the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989.
(5)
Subsection (6) applies if a person detained under subsection (3), on being brought up at the adjourned hearing, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him or her.
(6)
If this subsection applies, the court, if it thinks fit, may again direct the witness to be detained in custody for the period referred to in subsection (3), until he or she consents to give evidence or to be sworn or to answer as described in subsection (2).
(7)
The power in subsection (6) may be exercised more than once.
(8)
Nothing in this section limits or affects any power or authority of the court to punish any witness for contempt of court.
Compare: 1957 No 87 s 39; 1961 No 43 s 352
166 Witnesses at hearing
The court may if it thinks fit, on its own motion or at the request of any party at any time during a hearing, order all or any witnesses other than any witness who has given or is giving his or her evidence to leave the courtroom and to remain out of hearing but within call until required to give evidence.
Compare: 1957 No 87 s 40
Adjournments and bail
167 Power to adjourn
(1)
Any proceeding may from time to time be adjourned by a judicial officer to a time and place then appointed.
(2)
A Registrar may adjourn any proceeding before the trial to a time and place then appointed if the defendant is not in custody.
(3)
Despite subsection (2), a Registrar may adjourn a proceeding in any case if the Registrar is exercising the power of the court under section 57.
Compare: 1957 No 87 ss 45, 45A
168 Dealing with defendant on adjournment
(1)
If a proceeding is adjourned, a judicial officer or Registrar may, subject to sections 171 and 172, and in accordance with any applicable provisions of the Bail Act 2000,—
(a)
allow the defendant to go at large; or
(c)
if the defendant is liable on conviction to a sentence of imprisonment or if the defendant has been arrested, remand the defendant in custody.
(2)
A Registrar may exercise the power conferred by subsection (1)(c) to remand a defendant in custody if—
(a)
both the defendant and the prosecutor agree to the remand; and
(b)
the defendant—
(i)
is legally represented or has indicated that he or she has received legal advice; or
(ii)
has declined an opportunity to obtain legal advice.
(3)
If a Registrar remands a person in custody under subsection (1)(c) the defendant must be brought before a judicial officer 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 judicial officer must declare what action (if any) should be taken under subsection (1) in respect of the defendant.
(4)
If a defendant is remanded in custody under subsection (1)(c), the judicial officer or Registrar must issue a warrant for the detention of the defendant in a prison—
(a)
for the period of the adjournment; or
(b)
pending and during the defendant’s trial; or
(c)
pending the defendant being brought up for sentence and during his or her sentencing.
(5)
If a Registrar adjourns a proceeding and the defendant or the prosecutor are not present, the Registrar must notify the absent party in writing.
Compare: 1957 No 87 s 46
169 Order for detention of defendant in hospital or secure facility
(1)
Despite section 168(4), the court may, instead of issuing a warrant under that subsection, make an order for the defendant’s detention in a hospital or secure facility pending the defendant’s trial if the court is satisfied of the matters in subsection (2).
(2)
Before making an order under subsection (1), the court must be satisfied, on the production of a certificate or certificates by 2 health assessors, that—
(a)
the defendant is mentally impaired; and
(b)
the defendant’s mental condition requires that, in the defendant’s own interest, the defendant should be detained in a hospital or secure facility instead of in a prison.
(3)
In this section,—
(a)
health assessor has the same meaning as in section 4(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:
(b)
hospital has the same meaning as in section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992:
(c)
secure facility has the same meaning as in section 9(2) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
Compare: 1957 No 87 s 184T(2), (3)
Section 169 heading: amended, on 1 July 2013, by section 10 of the Criminal Procedure Amendment Act 2013 (2013 No 25).
170 Defendant in custody may be brought up before expiry of period of adjournment
A defendant who has been remanded in custody on any charge may be brought before a court at any time to be dealt with on that charge, even if the period for which the defendant was remanded in custody has not expired.
Compare: 1957 No 87 s 59
Special provisions applying to defendants under the age of 20 pending hearing or sentence
171 Defendants under 16 must not be imprisoned pending hearing or sentence
(1)
Despite any other enactment, no person under the age of 16 years may be remanded to a prison pending any hearing in relation to any charge, or pending sentence.
(2)
In this section a reference to a prison does not include a police jail.
(3)
If a person under the age of 16 years is charged with or convicted of an offence in a District Court or the High Court, and the court remands the person for hearing or sentence, section 15 of the Bail Act 2000 applies.
(4)
Nothing in subsection (1) applies in respect of any person who is subject to a sentence or term of imprisonment.
Compare: 1985 No 120 s 142(1), (2A), (6)
172 Defendants aged 16 must not be imprisoned pending hearing or sentence except in certain circumstances
(1)
Despite any other enactment, a person who has attained the age of 16 years but has not attained the age of 17 years must not be remanded to a prison pending any hearing in relation to any charge, or pending sentence, unless subsection (4) applies.
(2)
In this section a reference to a prison does not include a police jail.
(3)
If a person who has attained the age of 16 years but has not attained the age of 17 years is charged with or convicted of an offence in a District Court or the High Court, and the court remands the person for hearing or sentence, section 15 of the Bail Act 2000 applies.
(4)
Despite section 15(1) of the Bail Act 2000, the court may direct that a person who has attained the age of 16 years but has not attained the age of 17 years be detained in a prison if—
(a)
that person is charged with or convicted of—
(ii)
a category 3 offence punishable by imprisonment for life or for at least 14 years; and
(b)
in the court’s opinion no other course is desirable, having regard to all the circumstances.
(5)
Nothing in subsection (1) applies in respect of any person who is subject to a sentence or term of imprisonment.
Compare: 1985 No 120 s 142(2), (2A), (3), (4), (4A), (6)
173 Remand of defendant under 17 in residence or care
(1)
This section applies to any person under the age of 17 years who is charged with or convicted of an offence in a District Court or High Court.
(2)
Despite section 15 of the Bail Act 2000, the court may remand the person in the custody of the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989 if—
(a)
in the court’s opinion it is desirable to do so by reason of special circumstances; and
(b)
the court is satisfied that the chief executive of that department is able and willing to keep the person in custody in accordance with this section.
(3)
If a person is remanded in the custody of the chief executive, that person may, until he or she is brought up for hearing or sentence, be placed in any residence under the Children, Young Persons, and Their Families Act 1989, or under the care of any suitable person pursuant to this Act.
Compare: 1985 No 120 s 142(3), (4B), (5)
174 Remand of defendant under 17 years for assessment report
(1)
Any court may remand a defendant who is under 17 years in the custody of the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989 for the purposes of an assessment report under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 if—
(a)
the court is satisfied that the chief executive is able and willing to keep the defendant in custody for the purpose of the assessment report for any period, not exceeding 14 days, that the court thinks fit; and
(b)
the court would (in the absence of section 171 or 172) have remanded the defendant to a prison in accordance with section 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 for the purposes of the assessment report.
(2)
If, in any case to which section 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 applies, the defendant is under the age of 17 years, the provisions of section 38(2)(c) to (4) and sections 40 to 44 of that Act must be read as if—
(a)
any reference to remand to a prison were a reference to remand to the custody of the chief executive; and
(b)
any reference to the manager of a prison were a reference to the chief executive; and
(c)
any reference to penal custody were a reference to the custody of the chief executive.
(3)
If a person is remanded in the custody of the chief executive under subsection (1), that person may, until he or she is brought up for hearing or sentence, be placed in any residence under the Children, Young Persons, and Their Families Act 1989, or under the care of any suitable person pursuant to that Act.
Compare: 1985 No 120 s 142(5)–(5C)
175 Remand of defendants aged 17 to 20 years
(1)
This section applies to a person who is remanded pending hearing or sentence and who appears to the court to be of or over the age of 17 years but under the age of 20 years.
(2)
Despite section 15 of the Bail Act 2000, the court may—
(a)
remand the defendant in the custody of the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989 if—
(i)
in the court’s opinion it is desirable to do so by reason of special circumstances; and
(ii)
the court is satisfied that the chief executive of that department is able and willing to keep the person in custody in accordance with this section; or
(b)
direct that the defendant be detained in a prison if, in the court’s opinion, no other course is desirable having regard to all of the circumstances.
(3)
If a person is remanded in the custody of the chief executive, that person may, until he or she is brought up for hearing or sentence, be placed in any residence under the Children, Young Persons, and Their Families Act 1989, or under the care of any suitable person pursuant to that Act.
Compare: 1985 No 120 s 142(4)–(5)
Stay of proceedings
176 Stay of proceedings
(1)
The Attorney-General may, at any time after a person has been charged with an offence and before judgment is given, direct that the proceedings be stayed.
(2)
If a direction is given under subsection (1), the relevant proceedings are stayed.
(3)
If a charge is filed against the Crown Law Office in respect of an offence referred to in section 6 of the Crown Organisations (Criminal Liability) Act 2002, any decision to issue a direction under subsection (1) in respect of the proceedings to which the charge relates must be made by the Attorney-General personally.
(4)
The Attorney-General must give notice to the court if he or she gives a direction under subsection (1), but failure to give notice does not affect that direction.
Compare: 1957 No 87 s 77A; 1961 No 43 s 378
Retrial or rehearing
177 Court may order retrial or rehearing as to sentence in certain cases
(1)
This section applies if—
(a)
a defendant is convicted of—
(i)
a category 1 or 2 offence; or
(ii)
a category 3 offence punishable by a term of imprisonment not exceeding 3 years, if the defendant did not elect a jury trial; or
(b)
an order is made under section 106(3) of the Sentencing Act 2002 in relation to a defendant who pleads guilty or is found guilty of—
(i)
a category 1 or 2 offence; or
(ii)
a category 3 offence punishable by a term of imprisonment not exceeding 3 years, if the defendant did not elect a jury trial; or
(2)
A court may order—
(a)
a retrial of the charge; or
(b)
a rehearing in relation to the sentence or order imposed on the defendant.
(3)
An application for a retrial or rehearing must be determined by the judicial officer who presided over the first trial or hearing.
(4)
If it is impracticable for the judicial officer who presided over the first trial or hearing to determine the application, any Judge may determine it.
(5)
A retrial or rehearing may be ordered under subsection (2), on any terms the court thinks fit, and as to the whole matter, or only as to the sentence or order.
(6)
Despite subsection (1), a defendant who is eligible to apply for a retrial under section 125 or a rehearing under section 126 must not apply for a retrial or rehearing under this section.
Compare: 1957 No 87 s 75(1)
178 Procedure if retrial or rehearing ordered
(1)
If a retrial or rehearing is ordered,—
(a)
the conviction or, as the case may be, the sentence or order only, immediately ceases to have effect; and
(b)
the retrial or rehearing may be proceeded with immediately or at a later date.
(2)
At the retrial,—
(a)
all pre-trial decisions and determinations made in the proceeding apply to the extent that they are still applicable; and
(b)
the court has the same powers and must apply the procedure in this subpart as if the retrial were the first trial.
(3)
The retrial or rehearing need not take place before the judicial officer who presided at the first trial or hearing.
(4)
If the defendant does not appear at the retrial or rehearing, the court may, without rehearing the matter, direct that the original conviction, sentence, or order be restored.
Compare: 1957 No 87 s 75(2), (3), (5), (6)
179 Dealing with defendant pending retrial or rehearing
If a retrial or rehearing is ordered—
(a)
the court may—
(i)
issue a summons to bring the defendant before the court; or
(ii)
issue a warrant to arrest the defendant and bring him or her before the court; and
(b)
if the retrial or rehearing is to be proceeded with at a later date, section 168(1) applies with any necessary modifications as if the proceeding were adjourned.
Compare: 1957 No 87 s 75(4)
Correction of erroneous sentence
180 Court may correct erroneous sentence
(1)
If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—
(a)
on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or
(2)
The decision of the court may be made,—
(a)
if sentence was imposed in the High Court, by the High Court Judge who imposed the sentence or, if that Judge is not available, by any High Court Judge; or
(b)
if sentence was imposed in a District Court,—
(i)
by the District Court Judge who imposed the sentence; or
(ii)
by any District Court Judge if the Judge who imposed the sentence is not available or the sentence was imposed by 1 or more Community Magistrates or Justices.
(3)
The court may, by order, remove the matter into the first appeal court described in section 297, and that court may deal with it as if it were an appeal on a question of law under section 296.
(4)
In this section, the term sentence includes—
(a)
an order, and references to the imposition of a sentence include references to the making of an order:
(b)
a record of first warning (within the meaning of section 86A of the Sentencing Act 2002) and a record of final warning (within the meaning of that section), and references to the imposition of a sentence include references to the giving and recording of a warning of either kind.
Compare: 1957 No 87 s 77; 1961 No 43 s 372
181 Application of chief executive of Department of Corrections to correct erroneous sentence
(1)
The chief executive of the Department of Corrections may make an application under section 180(1) if the sentence that was imposed or that the chief executive alleges ought to have been imposed is—
(a)
a sentence of imprisonment within the meaning of section 4 of the Sentencing Act 2002:
(b)
a sentence of home detention:
(c)
a community-based sentence.
(2)
The chief executive of the Department of Corrections must give notice of the application to the prosecutor and the offender.
182 Procedure if court corrects erroneous sentence
(1)
In order for a new sentence to be imposed in accordance with section 180, the court may—
(a)
issue a summons to bring the defendant before the court to be sentenced; or
(b)
whether or not a summons has been issued or served, issue a warrant to arrest the defendant and bring him or her before the court to be sentenced.
(2)
If the court imposes a new sentence, the time for appeal against conviction or sentence, or both, runs from the date of the new sentence.
Transfer to wrong court
183 Transfer to wrong court
(1)
If a proceeding is transferred to a court, but the court to which it is transferred is not the correct court, the court to which the proceeding is transferred may transfer the proceeding to the appropriate court.
(2)
If the court that is transferring the proceeding so directs, the Registrar of that court must give or cause to be given a notice to the prosecutor, and to the defendant, of the date and time at which the defendant must report to the court to which the proceedings have been transferred.
(3)
If the defendant has been released on bail, the conditions of bail are deemed to be varied in accordance with the notice, and no new notice of bail is required.
(4)
If the defendant has been remanded in custody, the Registrar must, if necessary, issue a new warrant for the detention of the defendant that accords with the date and time on which, and place to which, the defendant must report.
Compare: 1957 No 87 s 184P
Permanent court record
184 Permanent court record
(1)
Courts conducting criminal proceedings must continue to maintain a permanent court record of the formal steps in those proceedings.
(2)
Courts must maintain the permanent court record in accordance with rules of court.
(3)
The permanent court record is, subject to the power of the court to amend it, conclusive evidence of the matters recorded in it.
Compare: 1957 No 87 s 71; 1961 No 43 s 353
Subpart 3—Public access and restrictions on reporting
Terms used in this subpart
194 Interpretation
In this subpart, unless the context otherwise requires,—
name, in relation to a person, means the person’s name and any particulars likely to lead to the person’s identification
195 Context in which publication prohibited
For the purposes of this subpart, publication means publication in the context of any report or account relating to the proceeding in respect of which the section applies or the order was made (as the case may be), and publish has a corresponding meaning.
Court proceedings generally open to public
196 Court proceedings generally open to public
(1)
Every hearing is open to the public.
(2)
Subsection (1) does not apply to any hearing on the papers.
Compare: 1985 No 120 s 138(1)
Power to clear court
197 Power to clear court
(1)
A court may make an order excluding from the whole or any part of any proceeding in respect of an offence all or any persons other than the following:
(a)
the presiding judicial officer and jury:
(c)
the defendant and any person who is for the time being acting as custodian of the defendant:
(d)
any lawyer engaged in the proceedings:
(e)
any officer of the court:
(f)
the Police employee in charge of the case.
(2)
The court may make an order under subsection (1) only if the court is satisfied that—
(a)
the order is necessary to avoid—
(i)
undue disruption to the conduct of the proceedings; or
(ii)
prejudicing the security or defence of New Zealand; or
(iii)
a real risk of prejudice to a fair trial; or
(iv)
endangering the safety of any person; or
(v)
prejudicing the maintenance of the law, including the prevention, investigation and detection of offences; and
(b)
a suppression order is not sufficient to avoid that risk.
(3)
Even if an order is made under subsection (1), the announcement of the verdict or decision of the court, and the passing of sentence, must take place in public; but, if the court is satisfied that exceptional circumstances exist, it may decline to state in public all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision or verdict, or in determining the sentence.
(4)
The power conferred by this section is in substitution for any power to clear the court that a court may have had under any inherent jurisdiction or any rule of law.
Compare: 1985 No 120 s 138(2)(c), (5), (6)
198 Exception for members of media
(1)
An order under section 197 may not exclude members of the media except on the ground set out in section 197(2)(a)(ii) (which relates to the security or defence of New Zealand).
(2)
For the purposes of this section, member of the media means—
(a)
a person who is in the court for the purpose of reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—
(ii)
the complaints procedure of the Broadcasting Standards Authority or the Press Council; or
(b)
any other person reporting on the proceedings with the permission of the court.
Compare: 1985 No 120 s 138(3)
199 Court must be cleared when complainant gives evidence in cases of sexual nature
(1)
In any case of a sexual nature, no person may be present in the courtroom while the complainant gives oral evidence (whether in chief or under cross-examination or on re-examination), except for the following:
(c)
the defendant and any person who is for the time being acting as custodian of the defendant:
(d)
any lawyer engaged in the proceedings:
(e)
any officer of the court:
(f)
the Police employee in charge of the case:
(h)
any person whose presence is requested by the complainant:
(i)
any person expressly permitted by the Judge to be present.
(2)
Before the complainant starts to give evidence, the Judge must—
(a)
ensure that no person other than those referred to in subsection (1) is present in the courtroom; and
(b)
advise the complainant of the complainant’s right to request the presence of any person under subsection (1)(h).
(3)
For the purposes of this section, case of a sexual nature means proceedings in which a person is charged with, or is to be sentenced for, any of the following offences:
(c)
any other offence against the person of a sexual nature:
(d)
being a party to the commission of any offence referred to in paragraphs (a) to (c):
(e)
conspiring with any person to commit any such offence.
Compare: 1961 No 43, s 375A
Suppression of names
200 Court may suppress identity of defendant
(1)
A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2)
The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)
cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b)
cast suspicion on another person that may cause undue hardship to that person; or
(c)
cause undue hardship to any victim of the offence; or
(d)
create a real risk of prejudice to a fair trial; or
(e)
endanger the safety of any person; or
(f)
lead to the identification of another person whose name is suppressed by order or by law; or
(g)
prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)
prejudice the security or defence of New Zealand.
(3)
The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4)
Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5)
An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6)
When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
Compare: 1985 No 120 s 140(1), (4A)
201 Automatic suppression of identity of defendant in specified sexual cases
(1)
This section applies if a person is accused or convicted of an offence against section 130 or 131 of the Crimes Act 1961.
(2)
The purpose of this section is to protect the complainant.
(3)
No person may publish the name, address, or occupation of a person accused or convicted of an offence mentioned in subsection (1) unless the court, by order, permits that publication.
(4)
The court must make an order referred to in subsection (3) if—
(a)
the complainant (or, if there were 2 or more complainants, each complainant)—
(i)
is aged 18 years or older (whether or not he or she was aged 18 years or older when the offence was, or is alleged to have been, committed); and
(ii)
applies to the court for such an order; and
(b)
the court is satisfied that the complainant (or, as the case requires, each complainant) understands the nature and effect of his or her decision to apply to the court for the order; and
(c)
no order or further order has been made under section 200 prohibiting publication of the identity of the person convicted of the offence.
(5)
An order made under subsection (4) ceases to have effect if—
(a)
the person convicted of the offence applies to a court for an order or further order under section 200 prohibiting publication of his or her identity; and
(b)
the court makes the order or further order under section 200.
Compare: 1985 No 120 s 139(1AA), (2), (2A), (2B)
202 Court may suppress identity of witnesses, victims, and connected persons
(1)
A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
(a)
is called as a witness; or
(b)
is a victim of the offence; or
(c)
is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.
(2)
The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)
cause undue hardship to the witness, victim, or connected person; or
(b)
create a real risk of prejudice to a fair trial; or
(c)
endanger the safety of any person; or
(d)
lead to the identification of another person whose name is suppressed by order or by law; or
(e)
prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f)
prejudice the security or defence of New Zealand.
(3)
Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.
(4)
An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
Compare: 1985 No 120 ss 138(2)(b), 140(1)
203 Automatic suppression of identity of complainant in specified sexual cases
(1)
This section applies if a person is accused or convicted of an offence against any of sections 128 to 142A or 144A of the Crimes Act 1961.
(2)
The purpose of this section is to protect the complainant.
(3)
No person may publish the name, address, or occupation of the complainant, unless—
(a)
the complainant is aged 18 years or older; and
(b)
the court, by order, permits such publication.
(4)
The court must make an order referred to in subsection (3)(b) if—
(a)
the complainant—
(i)
is aged 18 years or older (whether or not he or she was aged 18 years or older when the offence was, or is alleged to have been, committed); and
(ii)
applies to the court for such an order; and
(b)
the court is satisfied that the complainant understands the nature and effect of his or her decision to apply to the court for the order; and
(c)
in any case where publication of the identity of the complainant may lead to the identification of the person who is charged with or convicted of the offence, no order or further order has been made under section 200 prohibiting publication of the identity of that person.
(5)
An order made under subsection (3)(b) ceases to have effect if—
(a)
publication of the identity of the complainant may lead to the identification of the person who is charged with or convicted of the offence; and
(b)
that person applies to a court for an order or further order under section 200 prohibiting publication of his or her identity; and
(c)
the court makes the order or further order under section 200.
Compare: 1985 No 120 s 139(1AA), (1), (1A)
204 Automatic suppression of identity of child complainants and witnesses
(1)
Unless the court, by order, permits publication, no person may publish the name, address, or occupation of a person who is under the age of 18 years who—
(b)
is called as a witness in any proceeding in respect of an offence.
(2)
Despite subsection (1), the name, address, or occupation of a child who dies as a result of the offence may be published.
(3)
Nothing in subsection (1) prevents publication of the name of the defendant or the nature of the charge.
(4)
The court must make an order permitting any person to publish the name, address, or occupation of a complainant or witness, if—
(a)
the complainant or witness, having reached the age of 18 years, applies to the court for such an order; and
(b)
the court is satisfied that the complainant or witness understands the nature and effect of his or her decision to apply to the court for the order; and
(c)
in any case where publication of the identity of the complainant or witness may lead to the identification of the person who is charged with or convicted of the offence, no order or further order has been made under section 200 prohibiting publication of the identity of that person.
(5)
An order made under subsection (4) ceases to have effect if—
(a)
publication of the identity of the complainant or witness may lead to the identification of the person who is charged with or convicted of the offence; and
(b)
that person applies to a court for an order or further order under section 200 prohibiting publication of his or her identity; and
(c)
the court makes the order or further order under section 200.
Compare: 1985 No 120 s 139A
Suppression of evidence and submissions
205 Court may suppress evidence and submissions
(1)
A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.
(2)
The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)
cause undue hardship to any victim of the offence; or
(b)
create a real risk of prejudice to a fair trial; or
(c)
endanger the safety of any person; or
(d)
lead to the identification of a person whose name is suppressed by order or by law; or
(e)
prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f)
prejudice the security or defence of New Zealand.
Compare: 1985 No 120 s 138(2)(a)
Powers of Registrar
206 Power of Registrar to make and renew interim suppression orders
(1)
On a defendant’s first appearance in court, a Registrar may make an interim order under section 200(4) if—
(a)
the Registrar adjourns the hearing of any charge; and
(b)
both parties agree to the making of the order.
(2)
If a Registrar makes an interim order, that order may have effect for a limited period of up to 28 days from the date on which the order is made.
(3)
No Registrar may exercise the power under subsection (1) more than once in relation to any particular charge.
(4)
A Registrar may exercise the power conferred by section 208(1)(b) to renew an order made by the court until the date on which the defendant next appears before the court.
Compare: 1957 No 87, s 46A
General provisions relating to suppression orders
207 Court must give reasons
(1)
The court must give reasons for making, varying, or revoking a suppression order.
(2)
If the court is satisfied that exceptional circumstances exist, it may decline to state in public all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision.
208 Duration of suppression order and right of review
(1)
A suppression order—
(a)
may be made permanently, or for a limited period ending on a date specified in the order; and
(b)
if it is made for a limited period, may be renewed for a further period or periods by the court; and
(c)
if it is made permanently, may be revoked by the court at any time.
(2)
If the term of a suppression order is not specified, it has permanent effect.
(3)
A suppression order may be reviewed and varied by the court at any time.
Compare: 1985 No 120 ss 138(4), 140(2)
209 Publication by or at request of Police, etc
(1)
Nothing in sections 200 to 205 prevents publication by or at the request of any Police employee of the name, address, or occupation of any person who has escaped from lawful custody or has failed to attend any court when lawfully required to do so if that publication is made for the purpose of facilitating that person’s recapture or arrest.
(2)
Nothing in sections 200 to 205 prevents publication of the name, address, or occupation of any person, or any details of the offences charged to—
(a)
any person assisting with the administration of the sentence imposed on the person or with the rehabilitation of the person; or
(b)
any Police employee, or any officer or employee of the Department of Corrections or of the Ministry of Justice, who requires the information for the purposes of his or her official duties; or
(c)
any person who is conducting or proposing to conduct a public prosecution against the person for an offence, and who requires the information for the purposes of—
(i)
deciding whether or not to commence proceedings; or
(ii)
conducting that public prosecution.
Compare: 1985 No 120 s 141
Section 209(2)(ba): inserted, on 14 October 2016, by section 60 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (2016 No 42).
210 Standing of members of media
(1)
This section applies to—
(a)
a person who is reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—
(ii)
the complaints procedures of the Broadcasting Standards Authority or the Press Council; and
(b)
any other person reporting on the proceedings with the permission of the court.
(2)
A person to whom this section applies has standing to initiate, and be heard in relation to, any application for a suppression order, and any application to renew, vary, or revoke a suppression order.
Offences relating to breach of suppression provisions and orders
211 Offences and penalties
(1)
Every person commits an offence who knowingly or recklessly publishes any name, address, occupation, or other information in breach of a suppression order or in breach of any of sections 201, 203, and 204.
(2)
Every person commits an offence who publishes any name, address, occupation, or other information in breach of a suppression order or in breach of any of sections 201, 203, and 204.
(3)
Subsection (2) does not apply to a person who hosts material on websites or other electronic retrieval systems that can be accessed by a user unless the specific information has been placed or entered on the site or system by that person.
(4)
A person who commits an offence against subsection (1) is liable on conviction,—
(a)
in the case of an individual, to a term of imprisonment not exceeding 6 months:
(b)
in the case of a body corporate, to a fine not exceeding $100,000.
(5)
A person who commits an offence against subsection (2) is liable on conviction,—
(a)
in the case of an individual, to a fine not exceeding $25,000:
(b)
in the case of a body corporate, to a fine not exceeding $50,000.
(6)
In a prosecution for an offence against subsection (2), it is not necessary for the prosecution to prove that the defendant intended to commit an offence.