Crimes Act 1908
Crimes Act 1908
Crimes Act 1908
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Crimes Act 1908
Public Act |
1908 No 32 |
|
Date of assent |
4 August 1908 |
|
Contents
An Act to consolidate certain Enactments of the General Assembly relating to Crimes and Criminal Procedure.
BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:—
1 Short Title.
(1.)
The Short Title of this Act is “The Crimes Act, 1908.”
Enactments consolidated.
(2.)
This Act is a consolidation of the enactments mentioned in the. First Schedule hereto, and with respect to those enactments the following provisions shall apply:—
Savings.
(a.)
All Proclamations, Orders in Council, offices, appointments, regulations, rules, orders, warrants, registers, records, instruments, and generally all acts of authority which originated under any of the said enactments or any enactment thereby repealed, and are subsisting or in force on the coming into operation of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated.
(b.)
All matters and proceedings commenced under any such enactment, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.
(3.)
This Act is divided into Parts, as follows:—
Part I.—Preliminary. (Sections 2 to 7.)
Part II. Punishments. (Sections 8 to 39.)
Part III.—Matters of Justification or Excuse. (Sections 40 to 89.)
Part IV. Parties to the Commission of Offences. (Sections 90 to 93.)
Part V.—Crimes against Public Order, Internal and External. (Sections 94 to 125.)
Part VI.—Crimes affecting the Administration of Law and Justice. (Sections 126 to 149.)
Part VII.—Crimes against Religion, Morals, and Public Convenience. (Sections 150 to 105.)
Part VIII.—Crimes against the Person and Reputation. (Sections 166 to 236.)
Part IX.—Crimes against Rights of Property. (Sections 237 to 353.)
Part X.—Procedure. (Sections 354 to 452.)
Part I Preliminary
2 Interpretation.
1893, No. 56, sec. 2
In this Art, if not, inconsistent with the context,—
Constable” includes any member of the Police Force:
“Convicted of a crime involving dishonesty” means—(a) Convicted on or after the third day of March, one thousand eight hundred and ninety-four (being the day on which “The Criminal Code Act, 1893,”
came into force), once on indictment or twice summarily of any of the crimes hereinafter described as crimes involving dishonesty; or (b) convicted before that day once on indictment or twice summarily of any offence which, if committed in New Zealand on or after that day would be a crime involving dishonesty:
“Crime” means an offence for which the offender may be proceeded against by indictment. When it is provided herein that any person is liable to any punishment for any act or omission, such person shall be deemed to be guilty of a crime:
“Criminally responsible” means liable to punishment:
“Is liable” means is liable on conviction on indictment:
“Justified” means not guilty of an offence or liable to an action:
“Night” or “night-time” means the interval between nine o’clock at night and six o’clock in the morning:
“Offence” includes any act or omission for which any one can be punished, either on indictment or summary process:
“Person,” “owner,” and other words and expressions of the kind, include His Majesty, and all public or other bodies corporate and unincorporate, boards, societies, companies, and inhabitants of counties or other districts, in relation to such acts and things as they are capable of doing and owning respectively:
“Protected from criminal responsibility” means not liable to information, indictment, or proceeding other than a civil action or proceeding:
“Registrar” means Registrar of the Supreme Court, and includes the Clerk of the District Court, and each of them shall be deemed to be the proper officer of his Court:
“Valuable security” includes every document forming the title or evidence of the title to any property of any kind whatever.
3 Application of Act.
1893, No. 56, sec. 4
This Act applies to all offences for which the offender is liable to be proceeded against and tried in New Zealand.
4 Place of commission of offences.
Ibid, sec. 5
Every offence shall, for all the purposes of trial and punishment, be deemed to be committed at any place where any act is done or omitted the doing or omission of which forms a part of the offence, or where any event happens necessary to the completion of the offence, whether the person accused was at such place or not at the time of such act, omission, or event.
5 Offences not to be punishable at common law.
Ibid, sec. 6
Every one who is a party to any offence shall be proceeded against under some provision of this Act, or under some provision of some statute not inconsistent herewith and not repealed, and shall not be proceeded against at common law.
6 But may be punished under any statute applicable.
Ibid, sec. 6
Where an offender is punishable both under this Act and under any other statute he may be tried and punished either under this Act or under such other statute; and where an offender is punishable under two or more sections of this Act or of such other statute he may be tried and punished under any one of such sections:
Provided that an offender shall not be punished twice in respect of the same offence.
7 Penal servitude abolished; imprisonment with hard labour substituted.
Ibid, sec. 7
(1.)
No one shall be sentenced to penal servitude.
(2.)
Any person who, if this Act or “The Criminal Code Act, 1893,”
had not been passed, might have been so sentenced under any unrepealed enactment shall, after the coming into operation of this Act, be liable to be sentenced to imprisonment with hard labour for a term of the same duration as the term of penal servitude to which he would have been liable under such unrepealed enactment; and any person who under such enactment might, at the discretion of the Court, have been sentenced either to penal servitude for any term or to any term of imprisonment shall be liable, at the discretion of the Court, to be sentenced either to imprisonment with hard labour for the same term or to imprisonment with or without hard labour for the same term.
Punishment for felony or misdemeanour under other Acts when not stated therein. Ibid, sec. 8
(3.)
Subject to the provisions of this Act, where any offender is tried under any unrepealed enactment not inconsistent with this Act for any offence which by such enactment is constituted a felony or misdemeanour, but no punishment is therein specially provided for such offences respectively, then and in any such case the punishment shall be, for a felony, imprisonment with hard labour for any term not exceeding five years; and for a misdemeanour, imprisonment with or without hard labour for any term not exceeding two years, or a fine not exceeding fifty pounds.
Conviction for certain crimes under this Act to entail same consequences as before passing of "Criminal Code Act, 1893.” Ibid, sec. 9
(4.)
Subject to the provisions of this Act an accusation of or a conviction for any crime for which the punishment is death or imprisonment with hard labour for any term of three years or upwards shall hereafter have the same effect and entail the same consequences as an accusation of felony or a conviction for felony would have had or entailed immediately before “The Criminal Code Act, 1893,”
came into force.
Saving of summary jurisdiction. 1893, No. 56, sec. 10
(5.)
Nothing in this Act shall be construed to annul or limit any provisions made by any other Act for the trial and punishment of indictable offences in a summary way.
Part II Punishments
8 Punishments.
Ibid, sec. 11
The following punishments may be inflicted under this Act: Death, imprisonment with hard labour, imprisonment without hard labour, flogging, whipping, and fine.
Death
9 Form of sentence in capital cases.
1883, No. 7, sec. 2
Where any person is condemned to death the sentence shall be that such person shall be taken to the place of execution and there hanged by the neck until he is dead.
10 Disposition of body of person executed.
Ibid, sec. 3
Where sentence of death is pronounced by any Court or Judge, such Court or Judge shall not, either in or by such sentence or at any time, make any order for the disposition or burial of the body of the person cm whom the sentence is to be executed.
11 Body, where to be buried.
Ibid, sec. 3
The body of any person on whom sentence of death is carried into execution shall be buried either within the prison or place where the sentence is executed, or in such other place as the Governor directs, either as to the particular case, or generally as to all executions in the prison or place where such execution takes place.
12 Sentence of death not to be carried out until Governor’s pleasure known.
Ibid, sec. 4
(1.)
Where sentence of death is pronounced by any Court or Judge, it shall be the duty of the Sheriff of the district in which the execution is to take place to carry out such sentence, but he shall not carry out the same until he has received an intimation of the Governor’s pleasure with respect thereto.
Sheriff to carry out sentence of death. Ibid, sec. 5
(2.)
Such Sheriff shall, within seven days after receiving a notice that the Governor will not interfere with such sentence, carry out the same.
13 Gaoler to deliver to Sheriff on demand criminal condemned to death.
Ibid, sec. 6
Every gaoler or other person in whose custody any criminal condemned to death may be is hereby authorised and required to deliver such criminal to such Sheriff on his demand; and the liability of such gaoler or other person delivering such criminal shall cease on such delivery, and such criminal shall thenceforth be deemed to be in the legal custody of the Sheriff.
14 Execution not to be public.
Ibid, sec. 7
Except as hereinafter provided, sentence of death passed upon any person shall be carried into execution within the walls or the enclosed yard of some prison, or within some other enclosed place.
15 Appointment of prisons and places for executions.
Ibid, sec. 8
The Governor shall from time to time, by notice in the Gazette, appoint such prisons and other places as he thinks proper to be prisons or places where sentences of death may be executed; and may revoke such appointments, and, if he thinks tit, appoint other prisons or places in lieu thereof.
16 Sheriff and officers of prison to witness execution.
Ibid, sec. 9
The Sheriff, the gaoler, any of the officers of the prison whose attendance the Sheriff may require, and a medical practitioner shall be present at every such execution, together with any Justices and ministers of religion who desire to attend, and such military and police guard, and also such other male adult spectators, not exceeding ten unless by leave of the Governor, as the Sheriff thinks fit to admit, but no other persons whomsoever.
17 Medical practitioner to sign a certificate.
1883, No. 7, sec. 10
Every one of the persons aforesaid present at any such execution shall continue and remain within the walls or enclosed yard of the prison or other enclosed place until the sentence has been carried into execution and completed according to law, and until the medical practitioner has signed and delivered to the Sheriff a certificate in the form numbered (1) in the Second Schedule hereto.
18 And witnesses a declaration.
Ibid, sec. 10
The Sheriff, gaoler, and other officers of the prison, and also such other of the persons present as think fit, shall, before their departure from the prison or place of execution, subscribe a declaration in the form numbered (2) in the said Second Schedule.
19 Certificate and declaration to be recorded and gazetted.
Ibid, sec. 14
(1.)
Every such certificate and declaration shall be forthwith transmitted by the Sheriff to the Registrar of the Supreme Court for the district within which such execution took place, and shall be kept in his office as a record of the said Court, and shall be gazetted.
Ibid, sec. 13
(2.)
If any person subscribes any such certificate or declaration, knowing the same to be false or to contain any false statement, he shall be deemed guilty of a crime punishable with six years’ imprisonment with hard labour.
20 Body not to be buried within eight hours, and may be viewed.
Ibid, sec. 11
The body of any person on whom sentence of death is carried into execution as aforesaid shall not be buried or removed from the prison or place where such execution takes place within eight hours next after such execution; and every person who within that time produces to the gaoler or other person in charge of the body an order from a Justice requiring such gaoler or other person to admit the bearer of such order to view the body shall be admitted by such gaoler or other person accordingly.
21 Inquest to be held on the body.
Ibid, sec. 12
(1.)
Where any sentence of death is carried into execution it shall be the duty of the Sheriff to give notice thereof forthwith to a Coroner, or, in the absence of any Coroner, to a Justice, who shall, as soon as conveniently may be, hold an inquest upon the body of the person upon whom the sentence of death has been executed.
(2.)
The Sheriff himself shall not, as Coroner or Justice, hold such inquest.
22 Jury thereon.
Ibid, sec. 12
(1.)
The jury on such inquest shall inquire and find whether such sentence was duly carried into effect on the body of the person condemned to execution.
(2.)
The jury on such inquest shall not include any of those who witnessed the execution.
23 Governor in Council may in special cases appoint any time and place for execution.
Ibid, sec. 15
The Governor in Council may, where the circumstances in any special case appear to render it expedient, order that sentence of death passed upon any person as aforesaid shall be carried into execution at some particular time and place within New Zealand mentioned in such order, and shall in every such case make such provision as may be necessary for carrying the sentence into execution.
Imprisonment
24 Imprisonment.
1893, No. 56, sec. 13
(1.)
Imprisonment shall be with or without hard labour. If it is to be without hard labour the sentence shall so direct.
(2.)
No prisoner shall be sentenced to solitary confinement:
Provided that nothing herein shall prevent the making and enforcing of regulations authorising periods of solitary confinement for breaches of rules of discipline under the provisions of any Act.
25 Discretion of Court as to punishment.
1893, No. 56, sec. 16
(1.)
Every one liable to imprisonment with hard labour for life or for any term of years may be sentenced to any shorter term of imprisonment with hard labour.
(2.)
Every one liable to imprisonment for any term may be sentenced to imprisonment for any shorter term.
(3.)
Every one liable to imprisonment with hard labour may be sentenced to imprisonment without hard labour.
(4.)
Every one liable to imprisonment with or without hard labour may be sentenced to pay a fine, in addition to or instead of such imprisonment.
26 Putting under recognisances.
Ibid, sec. 18 1896, No. 7, sec. 7
(1.)
Every one convicted of any crime for which he is liable to imprisonment with or without hard labour for any term not exceeding three years may, instead of any punishment hereby authorised, or in addition to any imprisonment or fine, be required to enter into his own recognisances or to find sureties, or both, to such amount and for such time as the Court by which he is tried considers reasonable, that he will keep the peace and be of good behaviour.
(2.)
Every one required to find sureties as aforesaid is liable, if the Court thinks fit, to be imprisoned till he finds such sureties.
(3.)
The Court may in its discretion suspend such last-mentioned imprisonment on such conditions as it thinks fit, or may limit the term of such imprisonment.
(4.)
No one shall be imprisoned for not finding sureties for more than one year, exclusive of any other term for which he may be imprisoned by the sentence of the Court.
Flogging and Whipping
27 Flogging and whipping.
1893, No. 56, sec. 14
(1.)
Flogging is the infliction on a person of a number of strokes, not exceeding at any one time fifty, with a cat-o’-nine-tails of the description prescribed by the Minister of Justice.
(2.)
Whipping is the infliction on a person of a number of strokes, not exceeding at any one time twenty-five, with a rod of the description prescribed by the Minister of Justice.
(3.)
In each case the Court shall in its sentence specify the number of strokes to be inflicted.
(4.)
Neither flogging nor whipping shall be inflicted on any woman or girl.
(5.)
Flogging shall not be inflicted on a person whose age does not exceed sixteen years.
(6.)
Whipping shall not be inflicted on a person whose age exceeds sixteen years.
(7.)
No flogging or whipping shall take place after the expiration of six months from the passing of the sentence.
(8.)
Where flogging is inflicted, the surgeon or medical officer of the prison in which the offender is confined shall be present when the punishment is inflicted; and, if he is of opinion that the offender is not at any time able to bear the whole or any part of the punishment awarded, he may from time to time order the infliction of the whole or any part of the said punishment to be postponed.
(9.)
The said surgeon or medical officer shall, within seven days after the making of any such order, send a report in writing to the Minister of Justice, stating his reasons for making such order.
(10.)
No sentence of flogging or whipping passed under this or any other Act shall be carried out except as provided by this section.
Fine
28 Fine.
1893, No. 56, sec. 15
(1.)
Every one sentenced on conviction upon an indictment to pay a fine shall, if the Court so directs, be imprisoned for non-payment thereof until such fine is paid, but not for any term exceeding two years, in addition to any other imprisonment to which he may be sentenced.
(2.)
The Court may at any time in its discretion suspend such first-mentioned imprisonment on such conditions as it thinks fit, or may limit the term of such imprisonment.
Habitual Criminals and Offenders
29 Judge may declare convicted person an habitual criminal.
1906, No. 8, sec. 2
(1.)
Where any person is convicted on indictment of an offence of one of the classes of offences hereinafter mentioned, the following provisions shall have effect:—
(a.)
Where such conviction is in respect of an offence included in Class I hereinafter mentioned, and such person has been previously convicted on at least two occasions of any offence mentioned in such Class I (whether of the same description of offence or not), the Court may in its discretion declare as part of the sentence of such person that he is an habitual criminal.
(b.)
Where such conviction is in respect of an offence included in Class II hereinafter mentioned, and such person has been previously convicted on at least four occasions of any offence mentioned in Classes I or II (whether of the same description of offence or not), the Court may in its discretion declare as aforesaid that such person is an habitual criminal.
(2.)
This section shall apply whether such previous convictions took place within or out of New Zealand, and either before or after the coming into operation of this Act.
Ibid, Schedule.
(3.)
The offences and classes of offences to which this section refers are as follows:—
Class I
Sexual offences (sections 153, 154, 208, and 212 to 217); abortion (sections 221 and 223).
Class II
Wounding (sections 195, 197, and 198); robbery (sections 264, 266, and 267); burglary and housebreaking (sections 273 to 282); theft (section 247); false pretences (section 252); extortion (sections 268 to 270); forgery (sections 288 to 298); mischief (sections 328 to 341).
Committal for sentence deemed to be a conviction. Ibid, sec. 3
(4.)
For the purposes of this section a committal to the Supreme Court for sentence under Part IV of “The Justices of the Peace Act, 1908,”
shall be deemed to be a conviction on indictment.
30 Judge may declare person to be habitual offender.
1906, No. 8, sec. 4
(1.)
Where any person is convicted of any offence under sections forty-nine, fifty, fifty-one, or fifty-two of “The Police Offences Act, 1908,”
and either before or after the coming into operation of this Act has been previously convicted on at least six; occasions of any offence mentioned in such sections (whether of the same description of offence or not), the Justice or Magistrate before whom the charge is heard, in addition to sentencing such person to any lawful term of imprisonment, may order that such person be brought before the Supreme Court or a Judge thereof to be dealt with as an habitual offender.
(2.)
Where any person has been previously convicted on indictment on at least two occasions of any offence mentioned in Class I aforesaid (whether of the same description of offence or not), or has been previously so convicted on at least four occasions of any of the offences mentioned in Classes I and II aforesaid (whether of the same description of offence or not), and is convicted summarily of any offence punishable by not less than three months’ imprisonment, then, provided that such person has been previously convicted summarily on at least six occasions of any offence punishable by imprisonment for not less than three months, the Magistrate or Justice before whom the charge is heard, in addition to sentencing such person to any lawful term of imprisonment, may order that such person be brought before the Supreme Court or a Judge thereof to be dealt with as an habitual offender.
(3.)
Such Court or Judge may declare any such person to be an habitual offender, and may direct that on the expiration of his sentence he shall be detained in a reformatory prison under this Act.
31 Reformatory prison for habitual criminals and offenders.
Ibid, sec. 5
(1.)
The Governor may from time to time by Proclamation set apart any prison or other suitable place to be a reformatory prison for the detention of habitual criminals and habitual offenders.
(2.)
In every reformatory prison under this Act women shall be detained in separate buildings or separate parts of the same buildings in such manner as to prevent their seeing, conversing, or holding any intercourse with the men.
32 Detention of habitual criminals and offenders.
Ibid, sec. 6
(1.)
Every habitual criminal and habitual offender shall be detained during the pleasure of the Governor; but any such person may apply to the Supreme Court or a Judge thereof for a recommendation that such person, having sufficiently reformed, or for other good and sufficient reason, may be discharged.
(2.)
Such Court or Judge may thereupon make inquiry in such manner as may be deemed fitting, and on being satisfied that such person has sufficiently reformed, or that there is some other good and sufficient reason to warrant his discharge, may recommend the Governor to discharge him accordingly.
Discharge. Ibid, sec. 7
(3.)
The Governor may thereupon direct the discharge of such person; and may order that so long as such person remains in New Zealand he shall report his address and occupation to some Probation Officer appointed under “The First Offenders’ Probation Act, 1908,”
for such period (not exceeding two years) and at such intervals as are named in the order.
(4.)
Such report may be made either personally or by letter addressed to the Probation Officer.
(5.)
If during the period specified in such order any person so discharged is proved to any Court of summary jurisdiction to have failed to report his address and occupation to the person at the times and in the manner prescribed by the said order, he is liable to a fine not exceeding twenty pounds, or to imprisonment for a term not exceeding three months.
Person discharged may be recommitted to reformatory prison. 1906, No. 8, sec. 8
(6.)
If during the period aforesaid any person so discharged is convicted under the last preceding subsection, or is convicted of any indictable offence or of any offence punishable on summary conviction for which imprisonment for a period exceeding three months may be imposed, the Court before which the charge is heard, in addition to any fine or any term of imprisonment then imposed upon him, may direct that on the completion of such term of imprisonment he shall be recommitted to a reformatory prison, and he shall be so recommitted accordingly; and the provisions of section thirty-two hereof shall apply to every person so recommitted.
Otherwise he ceases to be an habitual criminal or offender.
(7.)
If during the period so specified none of the events mentioned in the last preceding subsection happens, the person so discharged shall cease to be an habitual criminal or an habitual offender, as the case may be.
33 Appointment of officers.
Ibid, sec. 9
The Governor may from time to time appoint for each reformatory prison a Manager, a Matron, and such other officers and attendants as he may deem necessary.
34 Prisons Act to apply.
Ibid, sec. 10
Every reformatory prison shall be deemed to be a prison within the meaning of “The Prisons Act, 1908,”
and all the provisions of that Act relating to offences in prisons, escapes from custody, removal and safe custody of prisoners, shall, mutatis mutandis, apply to persons detained in any reformatory prison.
35 Persons detained to be employed.
Ibid, sec. 11
(1.)
Persons detained in a reformatory prison shall be employed in such labour as is prescribed by regulations or directed by the Minister of Justice.
Wages for labour to be credited and applied.
(2.)
Wages according to the scale prescribed by regulations for the class of labour in which any such person is employed shall (subject to such regulations) from time to time be credited to such person in an account to be kept in each reformatory prison, and the amount from time to time standing to his credit shall be applied wholly or in part, as directed by the Minister, towards maintaining his wife and children (if any) during the period of his detention, and the balance (if any) standing to his credit on his ceasing to be so detained shall be paid over to him.
36 Regulations.
Ibid, sec. 12
The Governor may from time to time, by Order in Council gazetted, make regulations for the control and management of any reformatory prison, and for the good order, discipline, diet, and health of the persons detained therein, and for the classes of labour, hours of employment, wages, and deductions from wages of such persons.
Miscellaneous Provisions
37 Discharge without verdict.
1893, No. 56, sec. 17
(1.)
Where the Court, on perusal of the depositions returned in any case, considers that the offence charged deserves no more than a nominal punishment, and that it is unnecessary that a conviction should be obtained, it may direct that no bill shall be preferred by the person, if any, bound by recognisances to prosecute; or, if a bill has been found before the Grand Jury, it may direct that the accused shall not be arraigned thereon; and in either case it may direct the discharge of the accused, if in custody.
(2.)
Or, if the Court at any stage of the trial considers as aforesaid, it may direct the discharge of the accused without any verdict.
(3.)
Such discharge shall have all the effect of an acquittal of the accused in respect of the offence for which he was committed for trial, held to bail, or indicted.
38 Police supervision.
1893, No. 56, sec. 19
Where any one who has been convicted in New Zealand of any crime involving dishonesty, or of any of the crimes specified in sections one hundred and ninety-five to one hundred and ninety-nine hereof, or of the crime of aggravated assault as defined in section two hundred and nine hereof, or who has been convicted in any of His Majesty’s dominions of that which if committed in New Zealand would be any such crime as aforesaid, is afterwards convicted of any such crime, and such previous conviction is confessed by the offender in open Court, or proved to the satisfaction of the Court, the Court may, whether such previous conviction is charged in the indictment or not, in addition to any other punishment, direct that he shall be subject to the supervision of the police for any period not exceeding three months, commencing immediately after the completion of such other punishment.
39 Cumulative sentences.
Ibid, sec. 20
(1.)
Where an offender is convicted of more crimes than one before the same Court at the same sitting, or where an offender undergoing punishment for one crime is convicted of any other crime, the Court may, on the last conviction, direct that the sentences passed upon him for his several crimes shall take effect one after the other or concurrently.
(2.)
If such person is undergoing imprisonment with hard labour for three years or upwards, and the punishment for the crime of which he is last convicted is imprisonment only, the Court may sentence him to an additional term of imprisonment with hard labour, not exceeding the term of imprisonment prescribed.
Part III Matters of Justification or Excuse
40 General rule as to justifications.
Ibid, sec. 21
(1.)
All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply to any defence to a charge under this Act, except in so far as they are hereby altered or are inconsistent herewith.
(2.)
The matters provided for in this Part of this Act are hereby declared to be justifications or excuses in the case of all charges to which they apply.
41 Children under seven.
Ibid, sec. 22
No person shall be convicted of an offence by reason of any act or omission of such person when under the age of seven years.
42 Children between seven and fourteen.
Ibid, sec. 22
No person shall be convicted of an offence by reason of any act or omission of such person when of the age of seven but under the age of fourteen years, unless the jury by whom he is tried, or the Court or Justices before whom he is charged, having jurisdiction to deal with such charge summarily, are of opinion that he knew that such act or omission was wrong.
43 Insanity.
1893, No. 56, sec. 23
(1.)
Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(2.)
No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render such person incapable of understanding the nature and quality of the act or omission, and of knowing that such act or omission was wrong.
(3.)
A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity under the provisions hereinafter contained unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.
(4.)
Insanity before or after the time when he committed or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he committed or omitted the act, in such a condition of mind as to render him irresponsible for such act or omission.
44 Compulsion.
Ibid, sec. 24
(1.)
Except as hereinafter provided, compulsion by threats of immediate death or grievous bodily harm, from a person actually present at the commission of the offence, shall be an excuse for the commission, by a person subject to such threats, and who believes that such threats will be executed, and who is not a party to any association or conspiracy the being a party to which rendered him subject to compulsion, of any offence other than treason, murder, piracy, offences deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm, and arson.
(2.)
Where a married woman commits an offence, the fact that her husband was present at the commission thereof shall not of itself raise the presumption of compulsion.
45 Ignorance of law.
Ibid, sec. 25
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
46 Execution of sentence.
Ibid, sec. 26
(1.)
Every ministerial officer of any Court authorised to execute a lawful sentence, as also every gaoler, or every person lawfully assisting such ministerial officer or gaoler, is justified in executing such sentence.
Execution of process. Ibid, sec. 27
(2.)
Every ministerial officer of any Court duly authorised to execute any lawful process of such Court, whether of a civil or a criminal nature, as also every person lawfully assisting him, is justified in executing the same; and every gaoler required under such process to receive and detain any person is justified in receiving and detaining him.
Execution of warrants. Ibid, sec. 28
(3.)
Every one duly authorised to execute a lawful warrant issued by any Court or Justice or other person having jurisdiction to issue such warrant, as also every person lawfully assisting him, is justified in executing such warrant; and every gaoler required under such warrant to receive and detain any person is justified in receiving and detaining him.
47 Execution of erroneous sentence or process.
1893, No. 56, sec. 29
If a sentence is passed or process issued by a Court having jurisdiction under any circumstances to pass such a sentence or issue such process, or if a warrant is issued by a Court or person having jurisdiction under any circumstances to issue such a warrant, the sentence passed or process or warrant issued shall be sufficient to justify the officer or person authorised to execute such warrant, and every gaoler and person lawfully assisting in executing or carrying out such sentence, process, or warrant, although the Court passing the sentence or issuing the process had not in the particular case authority to pass the sentence or to issue the process, or although the Court, Justice, or other person in the particular case had no jurisdiction to issue or exceeded its or his jurisdiction in issuing the warrant, or was at the time when such sentence was passed or process or warrant issued out of the district in or for which such Court, Justice, or person was entitled to act.
48 Sentence or process without jurisdiction.
Ibid, sec. 30
Every officer, gaoler, or person executing any sentence, process, or warrant, and every person lawfully assisting such officer, gaoler, or person, shall be protected from criminal responsibility if he acts in good faith, under the belief that the sentence or process was that of a Court having jurisdiction, or that the warrant was that of a Court, Justice, or other person having authority to issue warrants, and if it be proved that the person passing the sentence or issuing the process acted as such a Court under colour of having some appointment or commission lawfully authorising him to act as such a Court, or that the person issuing the warrant acted as a Justice or other person having such authority, although in fact such appointment or commission did not exist or had expired, or although in fact the Court or the person passing the sentence or issuing the process was not the Court or the person authorised by the commission to act, or the person issuing the warrant was not duly authorised so to act.
49 Arresting the wrong person
Ibid, sec. 31
(1.)
Every one duly authorised to execute a warrant to arrest who thereupon arrests a person, believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from criminal responsibility to the same extent and subject to the same provisions as if the person arrested had been the person named in the warrant.
(2.)
Every one called on to assist the person making such arrest, and believing that the person in whose arrest he is called on to assist is the person for whose arrest the warrant is issued, and every gaoler who is required to receive and detain such person, shall be protected to the same extent and subject to the same provisions as if the arrested person had been the person named in the warrant.
50 Irregular warrant or process.
Ibid, sec. 32
(1.)
Every one acting under a warrant or process that is bad in law on account of some defect in substance or in form, apparent on the face of it, if he in good faith and without culpable ignorance or negligence believed that the warrant or process was good in law, shall be protected from criminal responsibility to the same extent and subject to the same provisions as if the warrant or process were good in law; and ignorance of the law shall in this case be an excuse.
(2.)
It is a question of law whether the facts of which there is evidence do or do not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.
51 Arrest by constable in case of certain offences.
1893, No. 56, sec. 3
Every constable who, on reasonable and probable grounds, believes that one of the offences as to which it is provided in this Act that the offender may be arrested without warrant has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed that offence, is justified in arresting such person without warrant, whether such person is guilty or not.
52 Persons assisting constable.
Ibid, sec. 34
Every one called upon by a constable to assist him in the arrest of a person suspected of having committed any such offence as last aforesaid is justified in assisting, if he knows that the person calling on him to assist him is a constable, and does not know that there is no reasonable ground for the suspicion.
53 Arrest of person found committing certain offences.
Ibid, sec. 35
Every one is justified in arresting without warrant any person whom he finds committing an offence as to which it is provided by this Act that an offender may be arrested without warrant, or may be arrested when found committing it.
54 Arrest after commission of certain offences.
Ibid, sec. 36
If an offence as to which it is provided in this Act that an offender may be arrested without warrant has been committed, any one who, on reasonable and probable grounds, believes that any person is guilty of that offence is justified in arresting him without warrant, whether such person is guilty or not.
55 Arrest of persons believed to be committing certain offences by night.
Ibid, sec. 37
Every one is protected from criminal responsibility for arresting without warrant any person whom he finds by night under circumstances affording reasonable and probable grounds for believing that such person is committing an offence as to which it is provided by this Act that an offender may be arrested without warrant.
56 Arrest by constable of person found committing any offence.
Ibid, sec. 38
Every constable is justified in arresting without warrant any person whom he finds committing an offence against this Act.
57 Arrest of person found committing any offence at night.
Ibid, sec. 39
(1.)
Every one is justified in arresting without warrant any person whom he finds by night committing an offence against this Act.
(2.)
Every constable is justified in arresting without warrant any person whom he finds lying or loitering in any highway, yard, or other place by night, and whom he has good cause to suspect of having committed or being about to commit an offence for which an offender may be arrested without warrant.
58 Arrest during flight.
Ibid, sec. 40
Every one is protected from criminal responsibility for arresting without warrant any person whom he believes, on reasonable and probable grounds, to have committed an offence against this Act, and to be escaping from and to be freshly pursued by any one whom he believes, on reasonable and probable grounds, to have lawful authority to arrest that person for such offence.
59 Statutory power of arrest.
Ibid, sec. 41
Nothing in this Act shall take away or diminish any authority given by any other statute in force for the time being, to arrest, detain, or put any restraint on any person.
60 Force used in executing process or in arrest.
Ibid, sec. 42
Every one justified, or protected from criminal responsibility, in executing any sentence, warrant, or process, or in making an arrest, as also every one lawfully assisting him, is justified or protected from criminal responsibility, as the case may be, in using such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, process, or warrant can be executed or the arrest effected by reasonable means in a less violent manner.
61 Duty of persons arresting.
1893, No. 56, sec. 43
(1.)
It is the duty of every one when executing any process or warrant to have it with him, and to produce it if required.
(2.)
It is the duty of every one arresting another, whether with or without warrant, to give notice, where practicable, of the process or warrant under which he acts, or of the cause of the arrest.
(3.)
A failure to fulfil either of the two duties last mentioned shall not of itself deprive the person executing the process or warrant, or his assistants, or the person arresting, of protection from criminal responsibility, but shall be relevant to the inquiry whether the process or warrant might not have been executed, or the arrest effected, by reasonable means in a less violent manner.
62 Constable preventing escape from arrest for certain offences.
Ibid, sec. 44
(1.)
Every constable proceeding lawfully to arrest, with or without warrant, any person for an offence as to which it is provided in this Act that an offender may be arrested without warrant, as also every one lawfully assisting in such arrest, is justified, if the person to be arrested takes to flight in order to avoid arrest, in using such force as may be necessary to prevent his escape by such flight, unless such escape can be prevented by reasonable means in a less violent manner.
Private person preventing escape from arrest for certain offences. Ibid, sec. 45
(2.)
Every private person proceeding lawfully to arrest without warrant any person for an offence as to which it is provided in this Act that an offender may be arrested without warrant, is justified, if the person to be arrested takes to flight in order to avoid arrest, in using such force as may be necessary to prevent his escape by such flight, unless such escape can be prevented by reasonable means in a less violent manner:
Provided that such force is neither intended nor likely to cause death or grievous bodily harm.
63 Preventing escape from arrest in other cases.
Ibid, sec. 46
Every one proceeding lawfully to arrest any person for any cause other than such offence as is mentioned in the last preceding section, is justified, if the person to be arrested takes to flight in order to avoid arrest, in using such force as may be necessary to prevent his escape by such flight, unless such escape can be prevented by reasonable means in a less violent manner:
Provided that such force is neither intended nor likely to cause death or grievous bodily harm.
64 Preventing escape or rescue after arrest for certain offences.
Ibid, sec. 47
Every one who has lawfully arrested any person for an offence as to which it is provided in this Act that an offender may be arrested without warrant, is protected from criminal responsibility in using such force in order to prevent the rescue or escape of the person arrested as he believes, on reasonable grounds, to be necessary for that purpose.
65 Preventing escape or rescue after arrest in other cases.
Ibid, sec. 48
Every one who has lawfully arrested any person for any cause other than such offence as is mentioned in the last preceding section is protected from criminal responsibility in using such force in order to prevent the escape or rescue of the person arrested as he believes, on reasonable grounds, to be necessary for that purpose:
Provided that such force is neither intended nor likely to cause death or grievous bodily harm.
66 Preventing breach of the peace.
1893, No. 56, sec. 49
(1.)
Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal of such breach of the peace, and may detain any person committing or about to join in or renew such breach of the peace, in order to give him into the custody of a constable:
Provided that the person interfering uses no more force than is reasonably necessary for preventing the continuance or renewal of such breach of the peace, or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of such breach of the peace.
(2.)
Every constable who witnesses a breach of the peace, and every person lawfully assisting him, is justified in arresting any one whom he finds committing such breach of the peace, or whom he believes, on reasonable and probable grounds, to be about to join in or renew such breach of the peace.
(3.)
Every constable is justified in receiving into custody any person given into his charge as having been a party to a breach of the peace by one who has, or whom such constable believes upon reasonable and probable grounds to have, witnessed such breach of the peace.
67 Suppression of riot.
Ibid, sec. 50
Every one is justified in using such force as is necessary to suppress a riot, provided the force used is not disproportioned to the danger to be apprehended from the continuance of the riot.
68 Suppression of riot by Sheriff or Justice.
Ibid, sec. 51
Every Sheriff and Justice is justified in using and ordering to be used, and every constable is justified in using, such force as he believes, in good faith and on reasonable and probable grounds, to be necessary to suppress a riot, not being disproportioned to the danger which he believes, on reasonable and probable grounds, is to be apprehended from the continuance of the riot.
69 Suppression of riot by persons acting under lawful orders.
Ibid, sec. 52
(1.)
Every one, whether subject to military law or not, acting in good faith in obedience to orders given by any Sheriff or Justice for the suppression of a riot, is justified in obeying the orders so given, unless such orders are manifestly unlawful; and is protected from criminal responsibility in using such force as he believes, on reasonable and probable grounds, to be necessary for carrying into effect such orders.
(2.)
It is a question of law whether any particular order is manifestly unlawful or not.
70 Suppression of riot by persons without orders.
Ibid, sec. 53
Every one, whether subject to military law or not, who believes, in good faith and on reasonable and probable grounds, that serious mischief will arise from a riot before there is time to procure the intervention of any of the authorities aforesaid, is justified in using such force as he believes, in good faith and on reasonable and probable grounds, to be necessary for the suppression of such riot, not being disproportioned to the danger which he believes, on reasonable grounds, is to be apprehended from the continuance of the riot.
71 Protection of persons subject to military law.
Ibid, sec. 54
(1.)
Every one bound by military law to obey the lawful command of his superior officer is justified in obeying any command given him by such officer for the suppression of a riot, unless such order is manifestly unlawful.
(2.)
It is a question of law whether any particular order is manifestly unlawful or not.
72 Prevention of certain offences.
1893, No. 56, sec. 55
Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of an offence for which an offender might be arrested without warrant, and the commission of which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to any such offence.
73 Self-defence against unprovoked assault.
Ibid, sec. 56
Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made, or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
74 Self-defence against provoked assault.
Ibid, sec. 57
Every one who has without justification assaulted another, or has provoked an assault from that other, may nevertheless justify force subsequent to such assault, if he uses such force under reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked, and in the belief, on reasonable grounds, that it is necessary for his own preservation from death or grievous bodily harm:
Provided that he did not commence the assault with intent to kill or do grievous bodily harm, and did not endeavour, at any time before the necessity for preserving himself arose, to kill or do grievous bodily harm:
Provided also that before such necessity arose he declined further conflict, and quitted or retreated from it as far as was practicable.
75 Provocation defined.
Ibid, sec. 58
Provocation within the meaning of the two last preceding sections may be given by blows, words, or gestures.
76 Prevention of assault with insult.
Ibid, sec. 59
Every one is justified in using force in defence of his own person, or of the person of any one under his protection, against an assault accompanied with insult:
Provided that he uses no more force than is necessary to prevent such assault, or the repetition of it:
Provided also that this section shall not justify the wilful infliction of any hurt or mischief disproportionate to the insult which it was intended to prevent.
77 Defence of movable property against trespasser.
Ibid, sec. 60
Every one in peaceable possession of any movable thing, as also every one lawfully assisting him, is justified in resisting the taking of any such thing by any trespasser, or in retaking it from such trespasser, if in either case he does not strike or do bodily harm to such trespasser; and if, after any one having peaceable possession as aforesaid has laid hands upon any such thing, such trespasser persists in attempting to keep it, or to take it from the possessor, or from any one lawfully assisting him, the trespasser shall be deemed to commit an assault without justification or provocation.
78 Defence of movable property with claim of right.
1893, No. 56, sec. 61
Every one in peaceable possession of any movable thing under a claim of right, as also every one acting under his authority, is protected from criminal responsibility for defending such possession, even against a person entitled by law to the possession of such thing, if he does not strike or do bodily harm to such person; and if the person entitled by law to the possession thereupon attempts to take it from or otherwise assaults the possessor, or any one acting under his authority, such assault shall be deemed to be without justification or provocation.
79 Defence of movable property without claim of right.
Ibid, sec. 62
Every one in peaceable possession of any movable thing, but neither claiming right thereto nor acting under the authority of a person claiming right thereto, is neither justified nor protected from criminal responsibility for defending his possession against a person entitled by law to the possession of such thing; and if the person so entitled attempts to retake any such thing, and the possessor resists, and the person entitled thereto thereupon assaults the possessor, such assault shall be deemed to have been provoked, although the possessor may not have assaulted the person entitled by law to the possession.
80 Defence of dwelling-house.
Ibid, sec 63
Every one in peaceable possession of a dwellinghouse, as also every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of that dwellinghouse either by night or day by any person with the intent to commit an indictable offence therein.
81 Defence of dwelling-house at night.
Ibid, sec. 64
Every one in peaceable possession of a dwellinghouse, as also every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of that dwellinghouse by night by any person, if he believes, on reasonable and probable grounds, that such breaking and entering is attempted with the intent to commit an indictable offence therein.
82 Defence of real property.
Ibid, sec. 65
Every one in peaceable possession of any house or land or other real property, as also every one lawfully assisting him or acting by his authority, is justified in using force to prevent any person from trespassing on such property or to remove him therefrom, if he does not strike or do bodily harm to such person; and if such person resists such attempt to prevent his entry or to remove him, he shall be deemed to commit an assault without justification or provocation.
83 Assertion of right to house or land.
Ibid, sec. 66
(1.)
Every one is justified in peaceably entering in the daytime any house or land to the possession of which he, or some person under whose authority he acts, is lawfully entitled for the purpose of taking possession thereof.
(2.)
If any person, not having, or acting under the authority of one having, peaceable possession of any such house or land with a claim of right, assaults any one peaceably entering as aforesaid for the purpose of making him desist from such entry, such assault shall be deemed to be without justification or provocation.
(3.)
If any person having peaceable possession of such house or land with a claim of right, or any person acting by his authority, assaults any one entering as aforesaid for the purpose of making him desist from such entry, such assault shall be deemed to be provoked by the person entering.
84 Exercise of right of way, &c.
1893, No. 56, sec. 67
Every one lawfully entitled to enter upon any land for the exercise of any right of way or other easement or profit is justified in peaceably entering on such land for the purpose of exercising such right of way, easement, or profit:
Provided that if any one so entering has notice that his right to use such way or easement, or to take such profit, is disputed by the person in possession of such land, an assault committed by such person, or by any person acting under his authority, for the purpose of making the person entering desist from such entry, shall be deemed to be provoked by the person entering.
85 Domestic discipline.
Ibid, sec. 68
(1.)
It is lawful for every parent or person in the place of a parent, or schoolmaster, to use force by way of correction towards any child or pupil under his care:
Provided that such force is reasonable under the circumstances.
(2.)
It is lawful for the master or officer in command of a ship on a voyage to use force for the purpose of maintaining good order and discipline on board of his ship:
Provided that he believes on reasonable grounds that such force is necessary:
Provided also that the force used is reasonable in degree.
(3.)
The reasonableness of the force used, or of the grounds on which such force was believed to be necessary, is a question of fact and not of law.
86 Surgical operations.
Ibid, sec. 69
(1.)
Every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit:
Provided that the performance of the operation was reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.
Excess. Ibid, sec. 70
(2.)
Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess.
87 Consent to death.
Ibid, sec. 71
No one has a right to consent to the infliction of death upon himself; and, if such consent is given, it shall have no effect upon the criminal responsibility of any person by whom such death may be caused.
88 Obedience to de facto law.
Ibid, sec. 72
Every one is protected from criminal responsibility for any act done in obedience to the laws for the time being made and enforced by those in possession de facto of the sovereign power in and over the place where the act is done.
89 Conspiracy in trade disputes.
1894, No. 13, sec. 2
(1.)
An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be deemed to be unlawful so as to render such persons liable to criminal prosecution for conspiracy if such act committed by one person would not be unlawful.
(2.)
Nothing in this section shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition, or any crime against the State or the Sovereign.
(3.)
“A crime”
for the purposes of this section means an offence punishable on indictment, or an offence which is punishable on summary conviction, and for the commission of which the offender is liable to be imprisoned, either absolutely, or, at the discretion of the Court, as an alternative for some other punishment.
Part IV Parties to the Commission of Offences
90 Parties to offences.
1893, No. 56, sec. 73
(1.)
Every one is a party to and guilty of an offence who—
(a.)
Actually commits the offence; or
(b.)
Does or omits an act for the purpose of aiding any person to commit the offence; or
(c.)
Abets any person in the commission of the offence; or
(d.)
Counsels or procures any person to commit the offence.
(2.)
If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was or ought to have been known to be a probable consequence of the prosecution of such common purpose.
91 Offence committed other than offence intended.
Ibid, sec. 74
(1.)
Every one who counsels or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was counselled or suggested.
(2.)
Every one who counsels or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such counselling or procuring, and which the person counselling or procuring knew or ought to have known to be likely to be committed in consequence of such counselling or procuring.
92 Accessory after the fact.
Ibid, sec. 75
(1.)
An accessory after the fact to an offence is one who receives, comforts, or assists any one who has been a party to such offence, in order to enable him to escape, knowing him to have been a party thereto.
(2.)
No married woman whose husband has been a party to an offence shall become an accessory after the fact thereto by receiving, comforting, or assisting her husband, or by receiving, comforting, or assisting in his presence and by his authority any other person who has been a party to such offence, in order to enable her husband or such other person to escape.
93 Attempts
Ibid, sec. 76
(1.)
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether under the circumstances it was possible to commit such offence or not.
(2.)
The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
Part V Crimes against Public Order, Internal and External.
Treason and other Crimes against the King’s Authority and Person
94 Treason defined.
1893, No. 56, sec. 77
Treason is—
(a.)
The act of killing His Majesty, or doing him any bodily harm tending to death or destruction, maim, or wounding, and the act of imprisoning or restraining him; or
(b.)
The forming and manifesting, by an overt act, of an intention to kill His Majesty, or to do him any bodily harm tending to death or destruction, maim, or wounding, or to imprison or to restrain him; or
(c.)
The act of killing the eldest son and heir-apparent of His Majesty, or the Queen Consort of His Majesty; or
(d.)
The forming and manifesting, by an overt act, of an intention to kill the eldest son and heir-apparent of His Majesty, or the Queen Consort of His Majesty; or
(e.)
Conspiring with any person to kill His Majesty, or to do him any bodily harm tending to death or destruction, maim, or wounding, or to imprison or restrain him; or
(f.)
Levying war against His Majesty, either—
(i.)
With intent to depose His Majesty from the style, honour, and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland, or of any other of His Majesty’s dominions or countries under the obeisance of His Majesty; or
(ii.)
In order by force or constraint to compel His Majesty to change his measures or counsels, or in order to intimidate or overawe both Houses or either House of the Imperial Parliament or of the Parliament of New Zealand; or
(g.)
Conspiring to levy war against His Majesty, with any such intent or for any such purpose as aforesaid; or
(h.)
Instigating any foreigner with force to invade any part of the dominions of His Majesty; or
(i.)
Assisting any public enemy at war with His Majesty in such war by any means whatsoever; or
(j.)
Violating, whether with her consent or not, the Queen Consort of His Majesty or the wife of the eldest son and heir-apparent of His Majesty.
95 Punishment for treason.
Ibid, sec. 77
Every one who commits treason is liable to suffer death as in other cases.
96 Evidence.
Ibid, sec. 78
(1.)
No one shall be convicted of treason (unless he pleads guilty) except upon the evidence of two witnesses to one overt act of the kind of treason with which he is charged, or upon the evidence of one witness to one such act and one other witness to another such act.
(2.)
No one shall be liable to be indicted or tried for treason unless the indictment is found within three years next after the offence was committed:
Provided that nothing in this section shall apply to treason by killing His Majesty, or to cases where the overt act alleged is any attempt to injure his person in any manner whatever, but every such offence may be proved by the like evidence as any other offence.
97 Conspiracy.
1893, No. 56, sec. 79
In every case in which it is treason to conspire with any person for any purpose, the act of so conspiring, and every overt act of any such conspiracy, is an overt act of treason.
98 Accessories after the fact.
Ibid, sec. 80
Every one is liable to imprisonment with hard labour for life who—
(a.)
Becomes an accessory after the fact to treason; or
(b.)
Knowing that any person is about to commit treason, does not with all reasonable despatch give information thereof to a Justice, or use other reasonable endeavours to prevent the commission of the same.
99 Treasonable crimes.
Ibid, sec. 81
(1.)
Every one is liable to imprisonment with hard labour for life who, within New Zealand, forms any of the intentions hereinafter mentioned, and manifests such intention by conspiring with any person to carry it into effect, or by any other overt act, or by publishing any printing or writing, that is to say:—
(a.)
An intention to depose His Majesty from the style, honour, and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland, or of any other of His Majesty’s dominions or countries aforesaid:
(b.)
An intention to levy war against His Majesty within any part of the said United Kingdom or New Zealand, in order by force or constraint to compel him to change his measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Imperial Parliament or of the Parliament of New Zealand:
(c.)
An intention to move or stir any foreigner or stranger with force to invade the said United Kingdom or any other of His Majesty’s dominions or countries aforesaid.
(2.)
No one charged with any crime punishable under this section shall be entitled to be acquitted on the ground that any act proved against him amounts to treason; but no one acquitted or convicted of any such crime shall afterwards be prosecuted for treason on the same facts.
100 Inciting to mutiny.
Ibid, sec. 82
Every one is liable to imprisonment with hard labour for life who for any traitorous or mutinous purpose endeavours to seduce any person serving in His Majesty’s forces by sea or land from his duty and allegiance to His Majesty, or to incite or stir up any such person to commit any traitorous or mutinous practice whatever.
Unlawful Assemblies, Riots, Breaches of the Peace
101 Unlawful assembly defined.
Ibid, sec. 83
(1.)
An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when assembled, as to cause persons in the neighbourhood of such assembly to fear, on reasonable grounds, that the persons so assembled will disturb the peace tumultuously, or will, by such assembly, needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously.
(2.)
Persons lawfully assembled may become an unlawful assembly if they, with a common purpose, conduct themselves in such a manner that their assembling would have been unlawful if they had assembled in that manner for that purpose.
(3.)
An assembly of three or more persons for the purpose of protecting the house of any one of their number against persons threatening to break and enter such house in order to commit an indictable offence therein is not unlawful.
Punishment of unlawful assembly. 1893, No. 56, sec. 85
(4.)
Every member of an unlawful assembly is liable to one year’s imprisonment.
102 Riot defined.
Ibid, sec. 84
(1.)
A riot is an unlawful assembly that has begun to disturb the peace tumultuously.
Punishment of riot. Ibid, sec. 86
(2.)
Every rioter is liable to two years’ imprisonment with hard labour.
103 Reading the Riot Act.
Ibid, sec. 87
(1.)
It is the duty of every Sheriff and Justice who has notice that there are within his jurisdiction persons to the number of twelve or more unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace, to resort to the place where such unlawful, riotous, and tumultuous assembly is, and among the rioters, or as near to them as he can safely come, with a loud voice to command or cause to be commanded silence, and after that, openly and with a loud voice, to make or cause to be made a proclamation in these words, or to a like effect:—
“Our Sovereign Lord the King charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business, upon the pain of being guilty of an offence on conviction of which they may be sentenced to imprisonment with hard labour for life.
“God save the King.”
(2.)
All persons are liable to imprisonment with hard labour for life who—
(a.)
With force and arms wilfully oppose, hinder, or hurt any person who begins or who is about to make the said proclamation, whereby such proclamation is not made; or
(b.)
Continue together to the number of twelve for one hour after such proclamation has been made, or, if they know that its making was hindered as aforesaid, for one hour after such hindrance.
(3.)
No person shall be prosecuted for any offence under this section unless such prosecution be commenced within twelve months after the offence was committed.
104 Duty of Justice if rioters do not disperse.
Ibid, sec. 88
(1.)
If the persons so unlawfully, riotously, and tumultuously assembled together as aforesaid, or twelve or more of them, continue together and do not disperse themselves for the space of one hour after proclamation made, or after such hindrance as aforesaid, it is the duty of every such Sheriff and Justice as aforesaid, and of all persons required by them to assist, to cause such persons to be apprehended and carried before a Justice.
(2.)
If any person so assembled is killed or hurt in the apprehension of such persons, or in the endeavour to apprehend or disperse them, by reason of their resistance, every person ordering them to be apprehended or dispersed and every person executing such orders shall be indemnified against all proceedings of every kind in respect thereof.
(3.)
Nothing herein shall in any way limit or affect any duties or powers imposed or given by this Act as to the suppression of riots before or after the making of the said proclamation.
105 Neglect of Sheriff, &c., to suppress riot.
1893, No. 56, sec. 112
Every one is liable to two years’ imprisonment who, being a Sheriff, Justice, or constable, having notice that there is a riot within his jurisdiction, without reasonable excuse omits to do his duty in suppressing such riot.
106 Riotous destruction of buildings.
Ibid, sec. 89
All persons are liable to imprisonment with hard labour for life who, being riotously and tumultuously assembled together to the disturbance of the public peace, unlawfully and with force demolish or pull down or begin to demolish or pull down any building whatever or any machinery whatever, whether fixed or movable, or any erection used in farming land or in carrying on any trade or manufacture, or any erection or structure used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine.
107 Riotous damage to buildings.
Ibid, sec. 90
(1.)
All persons are liable to seven years’ imprisonment with hard labour who, being riotously and tumultuously assembled together to the disturbance of the public peace, unlawfully and with force injure or damage any of the things mentioned in the last preceding section.
(2.)
It shall not be a defence to a charge of an offence against this or the last preceding section that the offender believed he had a right to act as he did, unless he actually had such a right.
108 Unlawful drilling.
Ibid, sec. 91
Whereas assemblies of persons for the purpose of training or drilling themselves or of being trained or drilled to the use of arms, or for the purpose of practising military exercises, movements, or evolutions, without lawful authority, are dangerous to the peace and security of His Majesty’s subjects and Government: Every one is liable to seven years’ imprisonment with hard labour who, without lawful authority,—
(a.)
Is present at or attends any such assembly for the purpose of training or drilling any other person to the use of arms, or the practice of military exercises or evolutions; or
(b.)
At any such assembly trains or drills any other person to the use of arms, or the practice of military exercises or evolutions.
109 Being unlawfully drilled.
Ibid, sec. 92
Every one is liable to two years’ imprisonment who, without lawful authority, attends or is present at any such assembly as is mentioned in the last preceding section for the purpose of being, or who at any such assembly is, without lawful authority, trained or drilled to the use of arms or the practice of military exercises or evolutions.
110 Limitation of prosecution.
Ibid, sec. 93
No one shall be prosecuted for any crime under the two last preceding sections unless such prosecution is commenced within twelve months after the crime is committed.
111 Forcible entry and detainer defined.
Ibid, sec. 94
(1.)
Forcible entry is where a person, whether entitled or not, enters by force, or in a manner that causes or is likely to cause a breach of the peace or reasonable apprehension thereof, on land then in the actual and peaceable possession of another, for the purpose Of taking possession thereof.
(2.)
Forcible detainer is where a person in actual possession, without colour of right, of land detains it in a manner that causes or is likely to cause a breach of the peace, or reasonable apprehension thereof, against a person entitled by law to the possession of that land.
(3.)
What amounts to actual possession, or colour of right, is a question of law.
(4.)
Every one who forcibly enters or forcibly detains any land is liable to one year’s imprisonment.
112 Affray defined.
1893, No. 56, sec. 95
(1.)
An affray is the act of fighting in a public street or highway, or fighting to the alarm of the public in any other place to which the public have access.
(2.)
Every one who takes part in an affray is liable to one year’s imprisonment with hard labour.
113 Challenge to fight a duel.
Ibid, sec. 96
Every one is liable to one year’s imprisonment with hard labour who challenges, or endeavours by any means to provoke, any person to light a duel, or endeavours to provoke any person to challenge any other person to fight a duel.
114 Prize-fight.
Ibid, sec. 97
Every one is liable to one year’s imprisonment with hard labour who fights in a prize-fight, or subscribes to or otherwise promotes a prize-fight.
Seditious Offences
115 Oaths to commit certain crimes.
Ibid, sec. 98
(1.)
Every one is liable to imprisonment with hard labour for life who, within New Zealand,—
(a.)
Administers or is present at and consenting to the administration of any oath or any engagement purporting to bind the person taking the same to commit treason, murder, or any crime for which the punishment is imprisonment with hard labour for three years or upwards; or
(b.)
Attempts to induce or compel any person to take any such oath or engagement; or
(c.)
Takes any such oath or engagement.
(2.)
No one who has been acquitted or convicted of any crime under this section is liable to be afterwards tried for treason, or for being accessory after the fact to treason, in respect of the same matter.
116 Other unlawful oaths.
Ibid, sec. 99
Every one is liable to seven years’ imprisonment with hard labour who, within New Zealand,—
(a.)
Administers or is present at and consenting to the administration of any oath or engagement purporting to bind the person taking the same—
(i.)
To engage in any mutinous or seditious purpose; or
(ii.)
To disturb the public peace, or commit or endeavour to commit any offence; or
(iii.)
Not to inform or give evidence against any associate, confederate, or other person; or
(iv.)
Not to reveal or discover any unlawful combination or confederacy, or any illegal act done or to be done, or any illegal oath or obligation or engagement administered or tendered to or taken by any person, or the import of any such oath or obligation or engagement; or
(b.)
Attempts to induce or compel any person to take any such oath or engagement; or
(c.)
Takes any such oath or engagement.
117 Compulsion in administering and taking oath.
1893, No. 56, sec. 100
(1.)
Any one who, under such compulsion as would otherwise excuse him, offends against either of the two last preceding sections shall not be excused thereby unless, by information on oath before a Justice he, within the period hereinafter mentioned, declares the same, and what he knows concerning the same, and the persons by whom and in whose presence, and when and where, such oath or obligation or engagement was administered or taken.
(2.)
Such declaration may be made by him within fourteen days after the taking of the oath, obligation, or engagement, or, if he is hindered from making it by actual force or sickness, then within four days of the cessation of such hindrance, or on his trial if it happens before the expiration of either of those periods.
118 Seditious offences defined.
Ibid, sec. 101
(1.)
A seditious intention is an intention—
(a.)
To bring into hatred or contempt, or to excite disaffection against, the person of His Majesty, or the Government or Constitution of the United Kingdom or of any part thereof, or either House of the Imperial Parliament, or the Government or Constitution of New Zealand, or the Parliament thereof, or the administration of justice; or
(b.)
To incite His Majesty’s subjects to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of the United Kingdom or of New Zealand; or
(c.)
To raise discontent or disaffection amongst His Majesty’s subjects; or
(d.)
To promote feelings of ill-will and hostility between different classes of such subjects.
(2.)
No one shall be deemed to have a seditious intention only because he intends in good faith—
(e.)
To show that His Majesty has been misled or mistaken in his measures; or
(f.)
To point out errors or defects in the Government or Constitution of the United Kingdom or of any part thereof, or of New Zealand, or in the administration of justice; or to incite His Majesty’s subjects to attempt to procure by lawful means the alteration of any matter affecting the Constitution, laws, or Government of the United Kingdom or of New Zealand; or
(g.)
To point out, in order to their removal, matters producing or having a tendency to produce feelings of hatred and ill-will between different classes of His Majesty’s subjects.
(3.)
Seditious words are words expressive of a seditious intention.
(4.)
A seditious libel is a libel expressive of a seditious intention.
(5.)
A seditious conspiracy is an agreement between two or more persons to carry into execution a seditious intention.
119 Punishment of seditious offences.
Ibid, sec. 102
Every one is liable to two years’ imprisonment who speaks any seditious words, or publishes any seditious libel, or is a party to any seditious conspiracy.
120 Libels on sovereigns of foreign States.
1893, No. 56, sec. 103
Every one is liable to one year’s imprisonment who, without lawful justification, publishes any libel tending to degrade, revile, or expose to hatred and contempt in the estimation of the people of any foreign State any prince or person exercising sovereign authority over any such State.
Piracy
121 Piracy.
Ibid, sec. 104
Every one who does any act amounting to piracy by the law of nations is liable—
(a.)
To death, if, in committing or attempting to commit such crime, the offender murders, attempts to murder, or wounds any person, or does any act likely to endanger the life of any person; and
(b.)
To imprisonment with hard labour for life in other cases.
122 Piratical acts.
Ibid, sec. 105
Every one is liable to imprisonment with hard labour for life who does any of the following piratical acts:—
(a.)
Being a British subject, on the sea or in any place where the Admiral has jurisdiction, under colour of any commission from any foreign prince or State, whether such prince or State is at war with His Majesty or not, or, under pretence of authority from any person whatever, commits an act of hostility or robbery against other British subjects, or during any war is in any way adherent to or gives aid to His Majesty’s enemies:
(b.)
Whether a British subject or not, on the sea or in any place where the Admiral has jurisdiction, enters into any British ship, and throws overboard or destroys any part of the goods belonging to or on board such ship:
(c.)
Being on board any British ship, on the sea or in any place where the Admiral has jurisdiction,—
(i.)
Turns enemy or rebel, and piratically runs away with the ship, or any boat, ordnance, ammunition, or goods; or
(ii.)
Yields them up voluntarily to any pirate; or
(iii.)
Brings any seducing message from any pirate, enemy, or rebel; or
(iv.)
Counsels or procures any person to yield up or run away with any ship, goods, or merchandise, or to turn pirate, or to go over to pirates; or
(v.)
Lays violent hands on the commander of any ship in order to prevent him from fighting in defence of his ship and goods; or
(vi.)
Confines the master or commander of any such ship; or
(vii.)
Makes or endeavours to make a revolt in the ship:
(d.)
Being a British subject in any part of the world, or (whether a British subject or not), being in any part of His Majesty’s dominions, or on board a British ship, knowingly—
(i.)
Furnishes any pirate with ammunition or stores of any kind; or
(ii.)
Fits out any ship or vessel with a design to trade with, or supply, or correspond with any pirate; or
(iii.)
Conspires or corresponds with any pirate.
123 Piracy with violence.
1893, No. 56, sec. 106
Every one is liable to suffer death who, in committing or attempting to commit any piratical act, assaults with intent to murder or wounds any person, or does any act likely to endanger the life of any person.
124 Not resisting pirates.
Ibid, sec. 1
Every one is liable to six months’ imprisonment, and shall forfeit to the owner of the ship all wages then due to such offender,—
(a.)
Who, being a master, officer, or seaman of any merchant ship carrying guns and arms, does not, when attacked by any pirate, fight and endeavour to defend himself and his ship from being taken by such pirate; or
(b.)
Who discourages others from defending the ship, if by reason thereof the ship falls into the hands of such pirate.
125 Saving of Imperial enactments and law of nations.
Nothing in this Act shall in any way affect the law as to the trial or punishment for piracy or attempted piracy committed outside the territorial jurisdiction of New Zealand, or piracy by the law of nations, or any enactment of the Imperial Parliament with reference to piracy or attempted piracy.
Part VI Crimes affecting the Administration of Law and Justice
Corruption and Disobedience
126 Judicial corruption.
Ibid, sec. 108
Every one commits the crime of judicial corruption and is liable to fourteen years’ imprisonment with hard labour who,—
(a.)
Being the holder of any judicial office, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any bribe—that is to say, any money or valuable consideration, office, place, or employment whatever—on account of anything already done or omitted, or to be afterwards done or omitted, by him in his judicial capacity; or
(b.)
Corruptly gives or offers to any person holding any judicial office, or to any other person, any such bribe as aforesaid on account of any such act or omission.
127 Official corruption.
Ibid, sec. 109
Every one commits the crime of official corruption and is liable to fourteen years’ imprisonment with hard labour who,—
(a.)
Being a Justice, constable, or public officer employed in any capacity for the prosecution or detection or punishment of offenders, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any such bribe as aforesaid, with the intent to interfere corruptly with the due administration of justice, or to procure or facilitate the commission of any crime, or to shield from detection or punishment any person having committed or intending to commit any crime; or
(b.)
Corruptly gives or offers to any such officer as aforesaid any such bribe as aforesaid with any such intent.
128 Selling offices.
1893, No. 56, sec. 110
Every one commits the crime of selling offices and is liable to seven years’ imprisonment with hard labour who—
(a.)
Corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any money or valuable consideration whatever on account of his having appointed, or in consideration that he will appoint, any person to any public office or employment, or on account of his having procured or attempted to procure, or in consideration that he will procure or attempt to procure, for any person any such office or employment; or
(b.)
Corruptly gives or offers to give to any person any money or valuable consideration whatever on any such account or consideration.
129 Disobedience to a statute.
Ibid, sec. 111
Every one is liable to one year’s imprisonment who, without lawful excuse, disobeys any enactment of the Imperial Parliament in force in New Zealand, or any Act of the Parliament of New Zealand, or of any former General or Provincial Legislature thereof, by wilfully doing any act which it forbids, or omitting to do any act which it requires to be done, unless some penalty or other mode of proceeding is expressly provided by law and is intended to be exclusive of all other punishment for such disobedience.
Misleading Justice
130 Perjury defined.
Ibid, sec. 113
(1.)
Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence upon oath or affirmation, whether such evidence is given in open Court or by affidavit or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the Court, jury, or person holding the proceeding.
(2.)
‘‘Evidence” in this section includes evidence given before a Grand Jury.
(3.)
Every person is a witness within the meaning of this section who actually gives evidence, whether he was competent to be a witness or not, and whether bis evidence was admissible or not.
(4.)
Every proceeding is judicial within the meaning of this section which is held before any of the following tribunals:—
(a.)
Before any Court of justice, or a Grand Jury; or
(b.)
Before either House of Parliament, or any Committee of either House, or any Joint Committee of both Houses empowered by law to administer an oath; or
(c.)
Before any Justice, or any arbitrator or umpire, or any person or body of persons authorised by law to make an inquiry and take evidence therein upon oath; or
(d.)
Before any legal tribunal by which any legal right or liability can be established; or
(e.)
Before any person acting as a Court, Justice, or tribunal having power to hold such judicial proceeding.
(5.)
Every proceeding is judicial within the meaning of this section whether the tribunal was duly constituted or appointed or not, and whether the proceeding was duly instituted or not so as to authorise the proceeding, and although such proceeding was held in a wrong place or was otherwise invalid.
(6.)
Subornation of perjury is counselling or procuring a person to commit any perjury that is actually committed.
131 Punishment of perjury.
1893, No. 56, sec. 114
(1.)
Every one is liable to seven years’ imprisonment with hard labour who commits perjury or subornation of perjury.
(2.)
If the crime is committed in order to procure the conviction of a person for any crime punishable by death or imprisonment with hard labour for three years or upwards, the punishment may be imprisonment with hard labour for life.
132 False oaths.
Ibid, sec. 115
Every one is liable to seven years’ imprisonment with hard labour who, being required or authorised by law to make any statement on oath or affirmation, thereupon makes a statement that would, if made in a judicial proceeding, amount to perjury.
133 False statements or declarations.
Ibid, sec. 116
Every one is liable to two years’ imprisonment with hard labour who makes a statement or declaration that would amount to perjury if made on oath or affirmation in a judicial proceeding, upon any occasion on which he is permitted by law to make any statement or declaration before any officer or person authorised by law to take or receive the same, or before any notary public to be certified by him as such notary.
134 Rule of evidence.
Ibid, sec. 117
No one shall be convicted of any crime specified in the three last preceding sections on the uncorroborated testimony of one witness only:
Provided that the testimony of one witness may be sufficient if material facts sufficient to corroborate that testimony are established independently of the evidence of that witness.
135 Fabricating evidence.
Ibid, sec. 118
Every one is liable to seven years’ imprisonment with hard labour who, with intent to mislead any Court of justice or person holding any such judicial proceeding as is mentioned in section one hundred and thirty hereof, fabricates evidence by any means other than perjury or subornation of perjury.
136 Conspiring to bring false accusations.
Ibid, sec. 119
Every one who conspires to prosecute any person for any alleged offence, knowing such person to be innocent thereof, is liable to the following punishment:—
(a.)
To imprisonment with hard labour for life if such person might, upon conviction for the alleged offence, be sentenced to death or imprisonment with hard labour for life:
(b.)
To imprisonment with hard labour for fourteen years if such person might, upon conviction for the alleged offence, be sentenced to imprisonment with hard labour for any term less than life:
(c.)
To imprisonment with hard labour for seven years if such person might, upon conviction for the alleged offence, be sentenced to imprisonment with or without hard labour for a term less than three years.
137 Conspiring to defeat justice.
Ibid, sec. 120
Every one is liable to seven years’ imprisonment with hard labour who conspires to obstruct, prevent, pervert, or defeat the course of justice.
138 Corrupting juries and witnesses.
Ibid, sec. 121
Every one is liable to two years’ imprisonment with hard labour who—
(a.)
Dissuades or attempts to dissuade any person, by threats, bribes, or other corrupt means, from giving evidence in any cause or matter, civil or criminal; or
(b.)
Influences or attempts to influence, by threats or bribes or other corrupt means, any juryman in his conduct as such, whether such juryman has been sworn as a juryman or not; or
(c.)
Accepts any such bribe or other corrupt consideration to abstain from giving evidence, or on account of his conduct as a juryman; or
(d.)
Wilfully attempts in any other way to obstruct, pervert, or defeat the course of justice
Escapes and Rescues
139 Being at large while under sentence of transportation or penal servitude.
1893, No. 56, sec. 122
Every one is liable to imprisonment with hard labour for life who, having been sentenced or ordered to be transported or kept in penal servitude by any Court of competent jurisdiction in any part of His Majesty’s dominions, or having agreed to transport himself on certain conditions, is afterwards at large within New Zealand without some lawful cause (the proof whereof shall lie on him) before the expiration of the term for which he was ordered to be transported or kept in penal servitude, or for which he agreed to transport himself.
140 Assisting escape of prisoners of war.
Ibid, sec. 123
Every one is liable to fourteen years’ imprisonment with hard labour who knowingly and wilfully—
(a.)
Assists any alien enemy of His Majesty, being a prisoner of war in New Zealand, to escape from any place in which he is detained; or
(b.)
Assists any such prisoner, suffered to be at large on his parole in New Zealand, to escape from the place where he is at large on his parole.
141 Breaking prison.
Ibid, sec. 124
Every one is liable to imprisonment with hard labour for life who by force or violence breaks any prison, with intent to set at liberty himself or any other person confined therein on any charge of a punishable offence.
142 Escape from prison.
Ibid, sec. 125
Every one is liable to seven years’ imprisonment with hard labour who,—
(a.)
Having been convicted of an offence, escapes from any lawful custody in which he may be under such conviction; or
(b.)
Whether convicted or not, escapes from any prison in which he is lawfully confined on any charge of a punishable offence.
143 Escape from lawful custody.
Ibid, sec. 126
Every one is liable to two years’ imprisonment with hard labour who, being in lawful custody other than aforesaid on any charge of a punishable offence, escapes from such custody.
144 Assisting escape in certain cases.
Ibid, sec. 127
Every one is liable to imprisonment with hard labour for life who—
(a.)
Rescues any person, or assists any person in escaping or attempting to escape from lawful custody, whether in prison or not, under sentence of death, or penal servitude for life, or imprisonment with hard labour for life, or after conviction of and before sentence for or whilst in such custody upon a charge of any crime punishable with death or imprisonment with hard labour for life; or
(b.)
Being a constable having any such person in his lawful custody, or being an officer of any prison in which any such person is lawfully confined, voluntarily and intentionally permits him to escape therefrom.
145 Assisting escape in other cases.
1893, No. 56, sec. 128
Every one is liable to seven years’ imprisonment with hard labour who—
(a.)
Rescues any person, or assists any person in escaping or attempting to escape from lawful custody, whether in prison or not, under a sentence of penal servitude for any term less than life, or of imprisonment with hard labour for any term less than life but not less than three years, or after conviction of and before sentence for or whilst in such custody upon a charge of any crime punishable with imprisonment with hard labour for any term less than life but not less than three years; or
(b.)
Being a constable having any such person in his lawful custody, or being an officer of any prison in which such person is lawfully confined, voluntarily and intentionally permits him to escape therefrom.
146 Aiding escape from prison.
Ibid, sec. 129
Every one is liable to two years’ imprisonment with hard labour who—
(a.)
Rescues any prisoner lawfully imprisoned, or aids such prisoner in escaping or in attempting to escape from prison: or
(b.)
With intent to facilitate the escape of any prisoner lawfully imprisoned, conveys or causes to be conveyed anything whatever into any prison.
147 Officer aiding escape.
Ibid, sec. 130
(1.)
Every one is liable to five years’ imprisonment with hard labour who—
(a.)
Being a constable having any person in his lawful custody otherwise than upon a charge, conviction, or sentence of or for a crime punishable with death, or penal servitude, or imprisonment with hard labour for any term not less than three years, voluntarily and intentionally permits such person to escape from such custody; or
(b.)
Being an officer of a, prison in which any person as aforesaid is lawfully confined for any cause, civil or criminal, otherwise than upon such charge as aforesaid, voluntarily and intentionally permits him to escape from such prison.
(2.)
For the purposes of this and the five last preceding sections custody under an irregular warrant or other irregular process shall be deemed to be lawful.
148 Assisting escape of criminal lunatic.
Ibid, sec. 131
Every one is liable to five years’ imprisonment with hard labour who—
(a.)
Rescues any person lawfully ordered to be conveyed as a criminal lunatic to any asylum, hospital, or house, either during the time of his conveyance thereto or of his confinement herein; or
(b.)
Being an officer or servant in any asylum or hospital, or keeper of or servant in any house, voluntarily and intentionally permits any such person as aforesaid to escape from such asylum, hospital, or house.
149 Permitting escape.
1893, No. 56, sec. 132
Every one is liable to one year’s imprisonment who, by failing to perform any legal duty, permits a person in his lawful custody on a charge of a punishable offence to escape therefrom.
Part VII Crimes Against Religion, Morals, and Public Convenience
Crimes against Religion
150 Blasphemous libel.
Ibid, sec. 133
(1.)
Every one is liable to one year’s imprisonment who publishes any blasphemous libel.
(2.)
Whether any particular published matter is or is not a blasphemous libel is a question of fact.
(3.)
It is not an offence under this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religions subject.
(4.)
No one shall be indicted under this section except with the leave in writing of the Attorney-General first had and obtained.
151 Assaulting ministers of religion.
Ibid, sec. 134
Every one is liable to two years’ imprisonment with hard labour who—
(a.)
By threats or force obstructs or prevents or endeavours to obstruct or prevent any clergyman or other minister of religion in or from lawfully officiating in any church, chapel, meeting-house, place of religious worship, or in or from the performance of his duty in the lawful burial of the dead in any lawful burial-place:
(b.)
Strikes or offers any violence to, or arrests upon or under the pretence of executing any civil process, any clergyman or other minister of religion engaged in, or to the knowledge of the offender about to engage in, any of the rites or duties mentioned in the last preceding paragraph, or on his way to or from the performance thereof.
152 Disturbing public worship.
Ibid, sec. 135
Every one is liable to a fine of two pounds who wilfully and without lawful justification or excuse disquiets or disturbs any meeting lawfully assembled for religious purposes, or in any way disturbs, molests, or misuses any preacher, teacher, or person lawfully officiating at such meeting, or any persons there assembled.
Crimes against Morality
153 Unnatural offence.
Ibid, sec. 136
(1.)
Every one is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice, who commits buggery either with a human being or with any other living creature.
(2.)
This offence is complete upon penetration.
154 Attempt to commit unnatural offence.
Ibid, sec. 137
(1.)
Every one is liable to ten years’ imprisonment with hard labour, and, according to his age, to be Hogged or whipped once, twice, or thrice, who—
(a.)
Attempts to commit buggery; or
(b.)
Assaults any person with intent to commit buggery; or
(c.)
Who, being a male, indecently assaults any other male.
(2.)
It is no defence to an indictment for an indecent assault on a male of any age that he consented to the act of indecency.
155 Incest.
1900, No. 26, sec. 2
(1.)
Incest means carnal connection between—
(a.)
Father and daughter; or
(b.)
Brother and sister, whether of the whole or the half blood; or
(c.)
Son and mother; or
(d.)
Grandfather and granddaughter.
Ibid, sec. 3
(2.)
Every one of or over the age of sixteen years who commits incest is liable to ten years’ imprisonment with hard labour.
156 Indecent acts.
1893, No. 56, sec. 138
Every one is liable to two years’ imprisonment with hard labour who wilfully—
(a.)
Does any indecent act in any place to which the public have or are permitted to have access; or
(b.)
Does any indecent act in any place, intending thereby to insult or offend any person.
157 Publishing obscene matter.
Ibid, sec. 139
(1.)
Every one is liable to two years’ imprisonment with hard labour who knowingly, without lawful justification or excuse,—
(a)
Publicly sells or exposes for public sale or to public view, or distributes for public sale or to public view, any obscene book or other printed or written matter, or any picture, photograph, model, or other object tending to corrupt morals; or
(b.)
Publicly exhibits any disgusting object or any indecent show.
(2.)
No one is liable under this section if he proves that the public good was served by the acts alleged to have been done.
(3.)
It is a question of law whether the occasion of the sale, publishing, or exhibition was such as might be for the public good, and whether there is evidence of excess beyond what the public good required in the manner, extent, or circumstances in, to, or under which the sale, publishing, or exhibition was made, so as to afford a justification or excuse therefor; but it is a question for the jury whether or not there was such excess.
1905, No. 14, sec. 2
(4.)
The motives of the seller, publisher, or exhibitor shall in all cases be irrelevant; and it shall not be a defence that he did not know that the matter or object or show, as the case may be, forming the subject of the charge was obscene or tended to corrupt morals, or was disgusting or indecent, unless he satisfies the Court not only that he did not in fact know it, but also that he had no reasonable opportunity of knowing it, and, further, that in the circumstances of the case his ignorance was excusable.
Crimes against Public Convenience
158 Common nuisance defined.
1893, No. 56, sec. 140
A common nuisance is an unlawful act or an omission to discharge a legal duty, such act or omission being one which endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all His Majesty’s subjects.
159 Common nuisances that are criminal.
Ibid, sec. 141
Every one is liable to one year’s imprisonment who commits any common nuisance which endangers the lives, safety, or health of the public, or which occasions injury to the person of any individual.
160 Common nuisances that are not criminal.
1893, No. 56, sec. 142
Any one convicted upon indictment or information for any common nuisance other than those mentioned in the last preceding section shall not be deemed to have committed a criminal offence, but all such proceedings or judgments may be taken and had as heretofore to abate or remedy the mischief done by such nuisance to the public right.
161 Disorderly houses.
Ibid, sec. 143
(1.)
Every one is liable to two years’ imprisonment with hard labour who keeps any disorderly house—that is to say, any common bawdy-house, common gaming-house, or common betting-house, as hereinafter defined.
(2.)
Any one who appears to be or acts or behaves as master or mistress, or as the person having the care, government, or management of any such disorderly house shall be deemed to be the keeper thereof, and is liable to be prosecuted and punished as such, although in fact be or she is not the real owner or keeper thereof.
(3.)
The owner of any house, or any tenant, lessee, or occupier thereof, or of any part thereof, who knowingly permits such house or any part thereof to be kept or used as a disorderly house is liable to be prosecuted and punished as if he were the real keeper of such house.
162 Common bawdy-houses.
Ibid, sec. 144
A common bawdy-house is a house, room, set of rooms, or place of any kind whatever kept for purposes of prostitution.
163 Common gaming-houses.
Ibid, sec. 145
A common gaming-house is—
(a.)
A house, room, or place kept by any person for gain, to which persons resort for the purpose of playing at any game of chance; or
(b.)
A house, room, or place kept or used for playing therein at any game of chance, or any mixed game of chance and skill, in which—
(i.)
A bank is kept by one or more of the players, exclusively of the others; or
(ii.)
Any game is played the chances of which are not favourable to all the players alike, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play, or bet.
164 Common betting houses.
Ibid, sec. 146
A common betting-house is a house, office, room, or other place—
(a.)
Opened, kept, or used for the purpose of betting between persons resorting thereto and—
(i.)
The owner, occupier, or keeper thereof; or
(ii.)
Any person using the same; or
(iii.)
Any person procured or employed by or acting for or on behalf of any such person; or
(iv.)
Any person having the care or management of or in any manner conducting the business thereof; or
(b.)
Opened, kept, or used for the purpose of any money or valuable thing being received by or on behalf of any such person as aforesaid, as or for the consideration—
(i.)
For any assurance or undertaking, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse-race or other race, light, game, or sport; or
(ii.)
For securing the paying or giving by some other person of any money or valuable thing on any such event or contingency.
165 Misconduct in respect of human remains.
1893, No. 56, sec. 147
Every one is liable to two years’ imprisonment with hard labour who—
(a.)
Neglects to perform any duty either imposed upon him by law or undertaken by him with reference to the burial of any dead human body or human remains; or
(b.)
Improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not.
Part VIII Crimes Against the Person and Reputation
Duties tending to the Preservation of Life
166 Duty to provide the necessaries of life.
Ibid, sec. 148
(1.)
Every one who has charge of any other person unable, by reason either of detention, age, sickness, insanity, or any other cause, to withdraw himself from such charge, and unable to provide himself with the necessaries of life, is (whether such charge is undertaken by him under any contract, or is imposed upon him by law, or by reason of his unlawful act) under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of such person is caused, or if his life is endangered, or his health is permanently injured by such omission.
Neglecting duty to provide the necessaries of life. Ibid, sec. 211
(2.)
Every one is liable to seven years’ imprisonment with hard labour who, without lawful excuse, neglects the duty specified in this section so that the life of the person under his charge is endangered or his health permanently injured by such neglect.
167 Duty of head of family to provide necessaries.
Ibid, sec. 149
(1.)
Every one who as head of a family is under a legal duty to provide necessaries for any child under the age of sixteen years is criminally responsible for omitting without lawful excuse to do so while such child remains a member of his household, whether such child is helpless or not, if the death of such child is caused, or if his life is endangered or bis health permanently injured, by such omission.
Neglect of head of family to provide necessaries. Ibid, sec. 212
(2.)
Every one is liable to two years’ imprisonment with hard labour who, without lawful excuse, neglects the duty specified in this section so that the life of the child is endangered or his health permanently injured by such neglect.
168 Duty of masters to provide necessaries.
Ibid, sec. 150
(1.)
Every one who as master or mistress has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of sixteen years is under a legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of such servant or apprentice is caused, or if his life is endangered or his health permanently injured by such omission.
Neglect of master to provide necessaries. Ibid, sec. 213
(2.)
Every one is liable to three years’ imprisonment with hard labour who, without lawful excuse, neglects the duty specified in this section so that the life of the servant or apprentice is endangered or his health permanently injured by such neglect.
169 Abandoning children under two.
1893, No. 56, sec. 214
Every one is liable to three years’ imprisonment with hard labour who unlawfully abandons or exposes any child under the age of two years.
170 Duty of persons doing dangerous acts.
Ibid, sec. 151
Every one who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for omitting without lawful excuse to discharge that duty if death is caused by such omission.
171 Duty of persons in charge of dangerous things.
Ibid, sec. 152
Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, or maintains anything whatever which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to perform such duty.
172 Duty to avoid omissions dangerous to life.
Ibid, sec. 153
Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to perform that duty.
Homicide
173 Homicide defined.
Ibid, sec. 154
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
174 When a child becomes a human being.
Ibid, sec. 155
(1.)
A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
When killing of child homicide.
(2.)
The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
175 Culpable homicide.
Ibid, sec. 156
(1.)
Homicide may be either culpable or not culpable.
(2.)
Homicide is culpable when it consists in the killing of any person either—
(a.)
By an unlawful act; or
(b.)
By an omission without lawful excuse to perform or observe any legal duty; or
(c.)
By both combined; or
(d.)
By causing a person by threats or fear of violence, or by deception, to do an act which causes that person’s death; or
(e.)
By wilfully frightening a child or sick person.
(3.)
Culpable homicide is either murder or manslaughter.
(4.)
Homicide that is not culpable is not an offence.
176 Procuring death by false evidence.
Ibid, sec. 157
Procuring by false evidence the conviction and death of any person by the sentence of the law shall not be deemed to be homicide.
177 Death must be within a year and a day.
Ibid, sec. 158
(1.)
No one is criminally responsible for the killing of another unless the death takes place within a year and a day of the cause of death.
(2.)
The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.
(3.)
Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased.
(4.)
Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last.
178 Killing by influence on the mind.
1893, No. 56, sec. 159
No one is criminally responsible for the killing of another by any influence on the mind alone, save by wilfully frightening a child or sick person, nor for the killing of another by any disorder or disease arising from such influence, save by wilfully frightening a child or sick person.
179 Acceleration of death.
Ibid, sec. 160
Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause.
180 Causing death that might have been prevented.
Ibid, sec. 161
Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.
181 Causing injury the treatment of which causes death.
Ibid, sec. 162
Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.
Murder, Manslaughter, &c
182 Murder defined.
Ibid, sec. 163
Culpable homicide is murder in each of the following cases:—
(a.)
If the offender means to cause the death of the person killed:
(b.)
If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(c.)
If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(d.)
If the offender for any unlawful object does an act that he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
183 Further definition of murder.
Ibid, sec. 164
(1.)
Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:—
(a.)
If be means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in this section, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury:
(b.)
If he administers any stupefying or overpowering thing for either of the purposes aforesaid, and death ensues from the effects thereof:
(c.)
If he by any means wilfully stops the breath of any person for either of the purposes aforesaid, and death ensues from such stopping of the breath.
(2.)
The following are the offences referred to in the last preceding subsection: Treason, and the other offences mentioned in sections ninety-four to one hundred hereof, piracy and offences deemed to be piracy, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, forcible abduction, robbery, burglary, arson.
184 Provocation.
1893, No. 56, sec. 165
(1.)
Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation.
(2.)
Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control may be provocation if the offender acts upon it on the sudden and before there has been time for bis passion to cool.
(3.)
Whether any particular wrongful act or insult amounts to provocation, and whether the person provoked was actually deprived of the power of self-control by the provocation he received, are questions of fact.
(4.)
No one shall be held to give provocation to another by doing that which he had a legal right to do, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.
185 Illegal arrest may be evidence of provocation.
Ibid, sec. 165
An arrest shall not necessarily reduce the offence from murder to manslaughter because the arrest was illegal; but if the illegality was known to the offender it may be evidence of provocation.
186 Manslaughter.
Ibid, sec. 166
Culpable homicide not amounting to murder is manslaughter.
187 Punishment of murder.
Ibid, sec. 167
Every one who commits murder shall upon conviction thereof be sentenced to death.
188 Attempt to murder.
Ibid, sec. 168
Every one who attempts to commit murder is liable to imprisonment with hard labour for life.
189 Conspiracy to murder.
Ibid, sec. 169
Every one is liable to ten years’ imprisonment with hard labour who—
(a.)
Conspires or agrees with any person to murder, or to cause to be murdered, any other person, whether the person intended to be murdered is a subject of His Majesty or not, or is within His Majesty’s dominions or not; or
(b.)
Counsels or attempts to procure any person to murder such other person anywhere, although such other person is not murdered in consequence of such counselling or attempted procurement.
190 Accessory after the fact to murder.
Ibid, sec. 170
Every one is liable to imprisonment with hard labour for life who is an accessory after the fact to murder.
191 Punishment of manslaughter.
Ibid, sec. 171
Every one who commits manslaughter is liable to imprisonment with hard labour for life.
192 Aiding and abetting suicide
1893, No. 56, sec. 172
Every one is liable to imprisonment with hard labour for life who counsels or procures any person to commit suicide, if such person actually commits suicide in consequence of such counselling or procurement, or who aids or abets any person in the commission of suicide.
193 Attempt to commit suicide.
Ibid, sec. 173
Every one who attempts to commit suicide is liable to two years’ imprisonment with hard labour.
194 Concealing dead body of child.
Ibid, sec. 174
Every one is liable to two years’ imprisonment with hard labour who disposes of the dead body of any child in any manner with intent to conceal the fact that its mother was delivered of it, whether the child died before, or during, or after birth.
Bodily Injuries and Acts causing Danger to the Person
195 Disabling in order to commit a crime.
Ibid, sec. 175
Every one is liable to imprisonment with hard labour for life, and according to his age to be flogged or whipped once, twice, or thrice, who with intent to commit or to facilitate the commission of any crime, or the flight of the offender upon the commission or attempted commission thereof, by any violent means whatever renders or attempts to render any person incapable of resistance.
196 Stupefying in order to commit a crime.
Ibid, sec. 176
Every one is liable to imprisonment with hard labour for life who, with intent to commit or to facilitate the commission of any crime, or the flight of the offender upon the commission or attempted commission thereof, causes or attempts to cause any person to be affected by chloroform, laudanum, or any other stupefying or overpowering thing.
197 Wounding with intent to do bodily harm.
Ibid, sec. 177
Every one is liable to imprisonment with hard labour for life, and if under sixteen years to be once whipped, who, with intent to maim, disfigure, disable, or do any grievous bodily harm to any one, or to resist or prevent the lawful apprehension or detainer of any one,—
(a.)
Wounds or does actual bodily harm to any person; or
(b.)
Discharges or attempts to discharge at any person any arms loaded with destructive materials, whether otherwise properly prepared for being discharged or not; or
(c.)
Causes any explosive substance to explode, or sends or delivers to or causes to be received by any person any explosive substance, or any other dangerous or noxious thing; or
(d.)
Puts or lays at any place, or casts or throws at or applies to any person, any corrosive or destructive substance.
198 Attempting to injure by explosive substances.
Ibid, sec. 178
Every one is liable to fourteen years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who, with intent to do any bodily harm to any person, puts any explosive substance whatever in any place whatever.
199 Intentionally endangering persons on railways, tramways. &c.
Ibid, sec. 179
Every one is liable to imprisonment with hard labour for life, and if under sixteen years to be once whipped, who, with intent to injure or endanger the safety of any person on any railway or tramway,—
(a.)
Places anything upon or across any railway or tramway; or
(b.)
Does any act likely to interfere with, injure, endanger, or obstruct any engine, carriage, or other vehicle on any railway or tramway; or
(c.)
Shoots or throws anything at, into, or upon, or causes anything to come in contact with, any such engine, carriage, or other vehicle, or any person; or
(d.)
Does anything whatever to any part of any railway or tramway, or to any points, machinery, or signal belonging to or near to such railway or tramway, or to any engine, carriage, or other vehicle thereon; or
(e.)
Deals in any way with any signal or light on or near to any railway or tramway, or makes or shows any false signal or light, or makes any sign whatever on or near to any railway or tramway; or
(f.)
Wilfully omits to do any act which it is his duty to do.
200 Wantonly endangering persons on railways, tramways, &c.
1893, No. 56. sec. 180
Every one is liable to two years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who unlawfully and wilfully, in a manner likely to injure or endanger the safety of any person on any railway or tramway,—
(a.)
By any act, omission, or neglect endangers or obstructs any engine, carriage, or other vehicle on any railway or tramway; or
(b.)
Does any act likely to interfere with or to cause injury to any engine, carriage, or other vehicle on any railway or tramway; or
(c.)
Shoots or throws anything at, into, or upon, or causes anything to come in contact with, any engine, carriage, or other vehicle, or any person; or
(d.)
Does anything whatever to any part of any railway or tramway, or to any points, machinery, or signal belonging to or near to any railway or tramway, or to any engine.
(e.)
Deals in any way with any signal or light on or near to any railway or tramway, or makes or shows any false signal or light, or makes any sign whatever on or near to any railway or tramway; or
(f.)
By any culpable neglect of duty endangers the safety of any person conveyed or being upon any railway or tramway.
201 Preventing escape from wreck.
Ibid, sec. 181
Every one is liable to imprisonment with hard labour for life who intentionally and without lawful excuse—
(a.)
Impedes any person on board of any vessel in distress, or wrecked, or escaping therefrom, in endeavouring to save his life; or
(b.)
Impedes any person endeavouring to save the life of any person so situated as aforesaid.
202 Striking persons protecting wreck.
Ibid, sec. 182
Every one is liable to seven years’ imprisonment with hard labour who assaults any Magistrate, officer, or other person lawfully acting in the execution of his duty in or about the preservation of any vessel in distress, or any vessel or goods wrecked lying under water, or cast away, or cast on shore.
203 Administering poison.
Ibid, sec. 183
Every one who, with intent to injure or annoy any person, administers to or causes to be taken by such person any poison or other noxious thing is liable,—
(a.)
If the life of any person is endangered, or grievous bodily harm is caused to any person thereby, to ten years’ imprisonment with hard labour:
(b.)
In other cases, although no injury is caused thereby, to three years’ imprisonment with hard labour.
204 Causing actual bodily harm.
1893, No. 56, sec. 184
Every one is liable to three years’ imprisonment with hard labour who assaults any person so as to cause him actual bodily harm.
205 Setting man traps.
Ibid, sec. 185
Every one is liable to three years’ imprisonment with hard labour who—
(a.)
Sets or places any man-trap, spring gun, or other engine likely to inflict grievous bodily harm, with intent that the same may inflict grievous bodily harm upon any person coming in contact therewith; or
(b.)
When any such engine has been with or without such intent set or placed by any other person, knowingly permits it to continue so set or placed with such intent:
Provided that this section shall not extend to any engine set at night in a dwellinghouse for the protection thereof.
206 Negligent acts.
Ibid, sec. 186
Every one is liable to two years’ imprisonment with hard labour who causes actual bodily harm to any person under such circumstances that if death had been caused he would have been guilty of manslaughter:
Provided that this section shall not apply to any of the offences specified in sections one hundred and sixty-six to one hundred and sixty-nine hereof.
Assaults
207 Assault defined.
Ibid, sec. 187
An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe upon reasonable grounds that he has, present ability to effect his purpose.
208 Indecent assault.
Ibid, sec. 188 1896, No. 7. secs. 3, 5
(1.)
Every one commits an indecent assault and is liable to seven years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who—
(a.)
Indecently assaults any female person; or
(b.)
Does anything to any female person with her consent which but for such consent would be an indecent assault, such consent being obtained by false and fraudulent representations as to the nature and quality of the act.
(2.)
It is no defence to an indictment for an indecent assault on a girl under the age of sixteen that she consented to the act of indecency, unless she is older than or of the same age as the person charged:
Provided that it shall be a sufficient defence to any charge under this section if it is made to appear to the jury before whom the charge is brought that the accused had reasonable cause to believe that the girl was of or over the age of sixteen years.
209 Aggravated assault.
1893, No. 56, sec. 189
Every one commits an aggravated assault and is liable to two years’ imprisonment with hard labour who—
(a.)
Assaults any person with intent to commit a crime, or to resist or prevent the lawful apprehension or detainer of himself or of any other person; or
(b.)
Assaults, resists, or obstructs any constable in the execution of his duty, or any person acting in aid of such constable; or
(c.)
Assaults, resists, or wilfully obstructs any person in the lawful execution of any process against any lands or goods, or in the making of any lawful distress, or with intent to rescue any goods taken under such process or distress.
210 Common assault.
1893, No. 56, sec. 190
Every one who commits an assault other than as aforesaid commits a common assault, and is liable to one year’s imprisonment with hard labour.
Rape, and Procuring Abortion
211 Rape defined.
Ibid, sec. 191
(1.)
Rape is the act of a male person, of or over the age of fourteen years, having carnal knowledge of a woman or girl who is not his wife—
(a.)
Without her consent; or
(b.)
With consent extorted by threats or fear of bodily harm; or
(c.)
With consent obtained by personating the woman’s husband; or
(d.)
With consent obtained by false and fraudulent representations as to the nature and quality of the act.
(2.)
This offence is complete upon penetration.
212 Punishment of rape.
Ibid, sec. 192
Every one who commits rape is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice.
213 Attempt to commit rape.
Ibid, sec. 193
Every one is liable to ten years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who attempts to commit rape, or assaults any person with intent to commit rape.
214 Defiling children under twelve.
Ibid, sec. 194 1896, No. 7, sec. 4
(1.)
Every one is liable—
(a.)
To imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice, who carnally knows any girl under the age of ten years; and
(b.)
To ten years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who carnally knows any girl of or over the age of ten years and under the age of twelve years, whether he believes her to be of or over that age or not.
(2.)
It is no defence to an indictment for an offence under this section that the girl consented to such offence.
215 Attempting to defile children under twelve.
1893, No. 56, sec. 195
(1.)
Every one is liable to seven years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who attempts carnally to know any girl under the age of twelve years, whether he believes her to be of or over that age or not.
(2.)
It is no defence to an indictment for an offence under this section that the girl consented to such offence.
216 Defiling girls between twelve and sixteen.
1893, No. 56, sec. 196 1896, No. 7, secs. 3, 5 1905, No. 6, sec. 2
(1.)
Every one is liable to five years’ imprisonment with hard labour who unlawfully carnally knows or attempts to unlawfully carnally know any girl being of or over the age of twelve years and under the age of sixteen years.
(2.)
It is no defence to an indictment for an offence under this section committed upon a girl under the age of sixteen that she consented to such offence, unless such girl is older than or of the same age as the person charged:
Provided that it shall be a sufficient defence to any charge under this section if it is made to appear to the jury before whom the charge is brought that the accused had reasonable cause to believe that the girl was of or over the age of sixteen years.
(3.)
No prosecution for an offence under this section shall be commenced more than six months after the commission of the offence.
217 Defiling idiot or imbecile woman or girl.
1893, No. 56, sec. 197
Every one is liable to two years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who carnally knows or attempts to have unlawful carnal knowledge of any woman or girl being an idiot or imbecile, under circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence that such person was an idiot or imbecile.
218 Procuring defilement of girls.
Ibid, sec. 198
Every one is liable to two years’ imprisonment with hard labour who, from motives of lucre, by false pretences, or false representations, or other fraudulent means, procures any woman or girl under the age of twenty-one years to have illicit carnal connection with any man.
219 Conspiracy to defile.
Ibid, sec. 199
Every one is liable to two years’ imprisonment with hard labour who conspires with any other person by false pretences, or false representations, or other fraudulent means, to induce any woman or girl to commit adultery or fornication.
220 Killing unborn child.
Ibid, sec. 200
(1.)
Every one is liable to imprisonment with hard labour for life who causes the death of any child which has not become a human being in such a manner that he would have been guilty of murder if such child had been born.
(2.)
No one is guilty of any crime who, by means employed in good faith for the preservation of the life of the mother of the child, causes the death of such child before or during its birth.
221 Procuring abortion
Ibid, sec. 201
(1.)
Every one is liable to imprisonment with hard labour for life who, with intent to procure the miscarriage of any woman or girl, whether with child or not, unlawfully administers to or causes to be taken by her any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent.
(2.)
The woman or girl herself is not indictable under this section.
222 Procuring her own miscarriage.
Ibid, sec. 202
Every woman or girl is liable to seven years’ imprisonment with hard labour who, whether with child or not, unlawfully administers to herself, or permits to be administered to her, any poison or other noxious thing, or unlawfully uses on herself, or permits to be used on her, any instrument or other means whatsoever with intent to procure miscarriage.
223 Supplying the means of procuring abortion.
1893, No. 56, sec. 203
(1.)
Every one is liable to three years’ imprisonment with hard labour who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman or girl, whether with child or not.
(2.)
Every one who commits this offence after a previous conviction for a like offence is liable to imprisonment with hard labour for life.
Crimes affecting Conjugal and Parental Rights: Bigamy, Abduction
224 Bigamy defined.
Ibid, sec. 204
(1.)
Bigamy is—
(a.)
The act of a person who, being married, goes through a form of marriage with any other person in any part of the world; or
(b.)
The act of a person who goes through a form of marriage in any part of the world with any person whom he or she knows to be married.
(2.)
A form of marriage is any form either recognised as a valid form by the law of the place where it is gone through, or, though not so recognised, such that a marriage celebrated there in that form is recognised as binding by the law of the place where the offender is tried.
(3.)
Every form of marriage shall, for the purposes of this section, be valid, notwithstanding any act or default of the person charged with bigamy, if it is otherwise a valid form.
(4.)
The fact that the parties would, if unmarried, have been incompetent to contract marriage is not a defence upon a prosecution for bigamy.
(5.)
No one commits bigamy by going through a form of marriage if he or she has been continually absent from bis or her wife or husband for seven years then last past, and is not proved to have known that his wife or her husband was alive at any time during those seven years.
(6.)
A person not being a British subject is not liable to be convicted of bigamy in New Zealand by reason of having gone through a form of marriage in any place not in New Zealand.
225 Punishment of bigamy.
Ibid, sec. 205
(1.)
Every one who commits bigamy is liable to seven years’ imprisonment with hard labour.
(2.)
Every one who commits this offence after a previous conviction for a like offence is liable to fourteen years’ imprisonment with hard labour.
226 Abduction.
Ibid, sec. 206
Every one is liable to fourteen years’ imprisonment with hard labour who, with intent to marry or carnally know any woman or girl, whether married or not, or with intent to cause her to be married to or carnally known by any other person, takes away or detains her against her will.
227 Abduction of an heiress.
Ibid, sec. 207
Every one is liable to fourteen years’ imprisonment with hard labour who, from motives of lucre, takes away or detains any woman or girl under the age of twenty-one years who has any such interest in property as is hereinafter mentioned, against the will of her father or mother, or of any other person having the lawful charge of her, with intent to marry or carnally know her, or with intent to cause her to be married to or to be carnally known by any other person.
228 Provision as to property of a woman or girl abducted.
1893, No. 56, sec. 208
(1.)
A woman or girl who has any interest, legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or is a presumptive heiress or co-heiress, or presumptive next-of-kin or one of the presumptive next-of-kin to any one having such interest, has such an interest in property as is referred to in the last preceding section.
(2.)
Every one convicted of an offence under either of the two last preceding sections in respect of any woman or girl having any such interest as aforesaid is incapable of taking any estate or interest, legal or equitable, in any of her property or in any property in which she has any interest, or which comes to her as such heiress, co-heiress, or next-of-kin; and if any such marriage takes place, such property shall on such conviction be settled in the manner appointed by the Supreme Court upon any information at the instance of the Attorney-General.
(3.)
Where any one is prosecuted for an offence under either of the two last preceding sections, a woman or girl who after being taken away is married to the offender shall, notwithstanding such marriage, be competent to be a witness against him.
229 Abduction of a girl under sixteen.
Ibid, sec. 209
(1.)
Every one is liable to two years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who takes or causes to be taken an unmarried girl under the age of sixteen years who was and whom he had reason to believe to be under the lawful charge of her father or mother, or any other person, without the consent of any such person, to any place where such person cannot exercise control over her, with intent to carnally know her or to cause her to be carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally.
(2.)
it is immaterial whether or not the girl is taken with her own consent or at her own suggestion, or whether or not the offender believed the girl to be of or over the age of sixteen.
230 Stealing children under fourteen.
Ibid, sec. 210
(1.)
Every one is liable to seven years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who, with intent to deprive any parent or guardian or other person having the lawful charge of any child under the age of fourteen years of the possession of such child, unlawfully—
(a.)
Takes or entices away or detains any such child; or
(b.)
Receives any such child, knowing it to have been so dealt with.
Exception.
(2.)
Nothing in this section shall extend to any one who gets possession of any child, claiming in good faith a right to the possession of the child.
Libel
231 Defamatory libel defined.
1901, No. 56, sec. 2
(1.)
A defamatory libel is matter published, without legal justification or excuse, either designed to insult any person or likely to injure his reputation by exposing him to hatred, contempt, or ridicule, or likely to injure him in his profession or trade, whether such matter be expressed by words, written or printed, or legibly marked on any substance, or by any object signifying such matter otherwise than by words, and whether expressed directly or by insinuation or irony.
Publishing defined. 1901, No. 56, sec. 3
(2.)
Publishing a defamatory libel is—
(a.)
Exhibiting it in public; or
(b.)
Causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by any person other than the person defamed.
232 Publishing upon invitation.
Ibid, sec. 4
A person does not commit a crime by publishing defamatory matter on the invitation or challenge of the person defamed thereby, or if it is necessary to publish it in order to refute some other defamatory statement published by the last-mentioned person concerning the alleged offender, if such defamatory matter is believed to be true, and is relevant to the invitation, challenge, or the required refutation, and the publishing does not in manner or extent exceed what is reasonably sufficient for the occasion.
233 Prosecution to be taken only on Judge’s order.
Ibid, sec. 5
(1.)
An information for an alleged defamatory libel shall be taken before a Magistrate only.
(2.)
No criminal prosecution for defamatory libel shall be commenced, if in the Supreme Court, without the order of a Judge of that Court, or, if under “The Justices of the Peace Act, 1908,”
without the order of a Magistrate.
(3.)
Notice of the intention to apply for such order shall be given to the person accused, who shall have an opportunity of being heard against such application.
234 Plea of justification.
Ibid, sec. 6
(1.)
Every person accused of publishing a defamatory libel may plead that the defamatory matter published by him was true, and that it was for the public benefit that the matters charged should be published in the manner in which and at the time when they were published.
(2.)
Such plea may justify the defamatory matter in the sense specified (if any) in the indictment, or in the sense which the defamatory matter bears without any such specification; or separate pleas justifying the defamatory matter in each sense may be pleaded separately to each, as if two libels had been charged in separate counts.
(3.)
Such plea shall be in writing, and shall set forth the particular fact or facts by reason of which it was for the public good that such matter should be so published.
(4.)
The prosecutor may reply generally, denying the truth thereof.
(5.)
The truth of the matters charged in an alleged libel shall in no case be inquired into without such plea of justification, unless the accused is put upon his trial upon an indictment or information charging him with publishing the libel knowing the same to be false, in which case evidence of the truth may be given in order to negative the allegation that the accused knew the libel to be false.
(6.)
The accused may, in addition to such plea, plead not guilty; and such pleas shall be inquired of together.
(7.)
No such plea of justification as is herein provided for shall be pleaded to any indictment or count so far as it charges a libel to be a seditious or blasphemous or obscene libel.
(8.)
if, after pleading such plea of justification, the accused is convicted, the Court may, in pronouncing sentence, consider whether his guilt is aggravated or mitigated by the plea.
(9.)
If, on such plea of justification, the issue is found against the accused, the prosecutor shall be entitled to recover from the accused the costs sustained by the prosecutor by reason of such plea.
(10.)
If the accused is acquitted he shall be entitled to recover from the prosecutor, if a private person, the costs sustained by him by reason of such prosecution, inclusive of the costs (if any) incurred in connection with the order of the Court or Magistrate under section two hundred and thirty-three hereof.
(11.)
The costs so to be recovered by the accused or prosecutor respectively shall be taxed by the proper officer of the Court before which the trial is had.
235 Punishment of defamatory libel.
1901, No. 56, sec. 7
Every one is liable to imprisonment with hard labour—
(a.)
For one year, who publishes any defamatory libel; or
(b.)
For two years, who publishes any defamatory libel knowing the same to be false; or
(c.)
For five years, who publishes, or threatens to publish, or offers to abstain from publishing, a defamatory libel, with intent to extort money, or to induce any person to confer upon or procure for any person any appointment or office of profit or trust or business, or in consequence of being refused any such money, appointment, office, or business.
Criminal Defamation
236 Offence of criminal defamation.
1905, No. 33, sec. 2
(1.)
Every person who, without legal justification or excuse, speaks any words which are likely to injure the reputation of any other person by exposing such last-mentioned person to hatred or contempt, or to injure him in his profession or trade, is guilty of “criminal defamation,”
which is hereby declared to be an offence:
Provided that the speaking of such words shall not constitute or be deemed to constitute an offence unless spoken within the hearing of not less than twenty persons at a meeting to which the public are invited to attend or have access:
Provided also that no proceedings in respect of the offence of criminal defamation shall be commenced after the expiration of two months after the commission of the offence.
(2.)
The provisions of sections two hundred and thirty-two to two hundred and thirty-five hereof shall, mutatis mutandis, extend and apply to all cases of criminal defamation:
Provided that, before making any order under section two hundred and thirty-three hereof in respect of any offence of criminal defamation, the Judge or Magistrate making such order shall be satisfied that there is reasonable ground for a prosecution.
Part IX Crimes Against Rights of Property
237 Crimes involving dishonesty defined.
1893, No. 56, sec. 215
The crimes mentioned in this Part of this Act are crimes involving dishonesty, except the crimes respectively mentioned in sections two hundred and sixty-two, three hundred and eight, three hundred and nine, and three hundred and twenty-eight to three hundred and fifty-three hereof.
Theft
238 Things capable of being stolen.
Ibid, sec. 216
(1.)
Every inanimate thing whatever which is the property of any person, and either is or may be made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it:
Provided that nothing growing out of the earth of a value not exceeding one shilling shall (except in the cases hereinafter provided) be deemed capable of being stolen.
(2.)
Nothing herein shall affect the provisions of any Act relating to summary convictions for stealing things growing out of the earth.
239 Animals capable of being stolen.
Ibid, sec. 217
(1.)
All tame living creatures, whether tame by nature or wild by nature and tamed, are capable of being stolen; but tame pigeons are capable of being stolen so long only as they are in a dovecote or on their owner’s land.
(2.)
All living creatures wild by nature, such as are not commonly found in a condition of natural liberty in New Zealand, are, if kept in a state of confinement, capable of being stolen, not only while so confined, but after they have escaped from confinement.
(3.)
All other living creatures wild by nature are, if kept in a state of confinement, capable of being stolen so long as they remain in confinement, or are being actually pursued after escaping therefrom, but no longer.
(4.)
A wild living creature shall be deemed to be in a state of confinement so long as it is in a den, cage, or small enclosure, sty, or tank, or is otherwise so situated that it cannot escape, and that its owner can take possession of it at pleasure.
(5.)
Oysters and oyster-brood are capable of being stolen when in oyster-beds, layings, and fisheries the property of any person, and sufficiently marked out or known as such property.
(6.)
Wild creatures in the enjoyment of their natural liberty are not capable of being stolen, nor shall the taking of their dead bodies by or by the orders of the person who killed them, before they are reduced into actual possession by the owner of the land on which they died, be deemed to be theft.
(7.)
Everything produced by or forming part of any living creature capable of being stolen is capable of being stolen.
240 Theft defined.
Ibid, sec. 218
(1.)
Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent—
(a.)
To deprive the owner, or any person having any special property or interest therein, permanently of such thing or of such property or interest; or
(b.)
To pledge the same or deposit it as security; or
(c.)
To part with it under a condition as to its return which the person parting with it may be unable to perform; or
(d.)
To deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking or conversion.
(2.)
The taking or conversion may be fraudulent although effected without secrecy or attempt at concealment.
(3.)
It is immaterial whether the thing converted was taken for the purpose of conversion or whether it was at the time of the conversion in the lawful possession of the person converting.
(4.)
Theft is committed when the offender moves the thing, or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it.
(5.)
A factor or agent is not guilty of theft by pledging or giving a lien on any goods or document of title to goods intrusted to him for the purpose of sale or otherwise for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving a lien on the same, together with the amount of any bill of exchange or promissory note accepted or made by him for or on account of his principal.
(6.)
A servant who, contrary to the orders of his master, takes from his possession any food for the purpose of giving the same or having the same given to any horse or other animal belonging to or in the possession of his master, is not by reason thereof guilty of theft.
241 Theft of animals.
1893, No. 56, sec. 219
Every one commits theft and steals the creature killed who kills any living creature capable of being stolen with intent to steal the carcase, skin, plumage, or any part of such creature.
242 Theft by person receiving anything on account of another.
Ibid, sec. 220
Every one commits theft who, having received any money or valuable security or other thing whatsoever on terms requiring him to account for or pay the same, or the proceeds thereof, or any part of such proceeds, to any other person, though not requiring him to deliver over in specie the identical money, valuable security, or other thing received, fraudulently converts to his own use or fraudulently omits to account for or pay the same, or any part thereof, or to account for or pay such proceeds, or any part thereof, which he was required to account for or pay as aforesaid:
Provided that if it be part of the said terms that the money or other thing received, or the proceeds thereof, shall form an item in a debtor and creditor account between the person receiving the same and the person to whom he is to account for or pay the same, and that such last-mentioned person shall rely only on the personal liability of the other as his debtor in respect thereof, the proper entry of such money or proceeds or any part thereof in such account shall be a sufficient accounting for the money or proceeds or part thereof so entered, and in such case no fraudulent conversion of the amount accounted for shall be deemed to have taken place.
243 Theft by person holding a power of attorney.
Ibid, sec. 221
Every one commits theft who, being intrusted, either solely or jointly with any other person, with any power of attorney for the sale, mortgage, pledge, or other disposition of any property, real or personal, whether capable of being stolen or not, fraudulently sells, mortgages, pledges, or otherwise disposes of the same or any part thereof, or fraudulently converts the proceeds of any sale, mortgage, pledge, or other disposition of such property, or any part of such property, to some purpose other than that for which he was intrusted with such power of attorney.
244 Theft by misappropriating proceeds held under direction.
1893, No. 56, sec. 222
Every one commits theft who, having received, either solely or jointly with any other person, any money or valuable security, or any power of attorney for the sale of any property, real or personal, with a direction that such money or any part thereof, or the proceeds or any part of the proceeds of such security or such property, shall be applied to any purpose or paid to any person specified in such direction, in violation of good faith and contrary to such direction, fraudulently applies to any other purpose or pays to any other person such money or proceeds, or any part thereof:
Provided that where the person receiving such money, security, or power of attorney, and the person from whom he receives it, deal with each other on such terms that all money paid to the former would, in the absence of any such direction, be properly treated as an item in a debtor and creditor account between them, this section shall not apply unless such direction is in writing.
245 Theft by co-owner.
Ibid, sec. 223
Theft may be committed by the owner of anything capable of being stolen against a person having a special property or interest therein, or by a person having a special property or interest therein against the owner thereof, or by a lessee against his reversioner, or by one of several joint-owners, tenants in common, or partners of or in any such thing against the other persons interested therein, or by the directors, public officers, or members of a public company or body corporate against such public company or body corporate.
246 Husband and wife.
Ibid, sec. 224
(1.)
A husband shall not be convicted of stealing during cohabitation the property of his wife, and a wife shall not be convicted of stealing during cohabitation the property of her husband: but, while they are living apart from each other, either of them is guilty of theft if he or she fraudulently takes or converts anything that is by law the property of the other in a manner which in any other person would amount to theft.
(2.)
Every one commits theft who, while a husband and wife are living together, knowingly—
(a.)
Assists either of them in dealing with anything the property of the other in a manner which would amount to theft if they were not married; or
(b.)
Receives from either of them anything the property of the other obtained from that other by such dealing as aforesaid.
Punishment of Theft
247 Punishment of theft.
Ibid, sec. 225
Every one is liable to the following punishment for theft:—
(a.)
To imprisonment with hard labour for life if the object stolen is—
A testamentary instrument, whether stolen during the testator’s life or alter his death:
(b.)
To fourteen years’ imprisonment with hard labour if the object stolen is—
(i.)
Anything stolen by a clerk or servant which belongs to or is in the possession of his employer;
(ii.)
Anything in the possession of the offender as a clerk or servant, or as an officer of the Government, or of any local authority or public body, or as a constable;
(iii.)
Anything stolen from the person of another;
(iv.)
Anything stolen from a dwellinghouse;
(v.)
A horse, mare, or gelding, ass, mule, bull, cow, ox, or heifer, ram, ewe, or other sheep, boar, sow, or other pig, or goat, or the young of any such animal;
(vi.)
Woven goods, or materials for making such goods, exposed during any process of manufacture;
(vii.)
Any part of a ship in distress or wrecked, or of the cargo thereof, or anything belonging thereto;
(viii.)
Anything from any vessel lying in any port or harbour, or in any inland water;
(ix.)
Anything in any dock, or upon any wharf or quay adjacent to any such port, harbour, or inland water aforesaid;
(x.)
Anything in any railway-station, or upon any carriage upon a railway;
(xi.)
Anything in a separate receptacle, locked or otherwise secured, stolen by means of a picklock, false key, or other instrument:
(c.)
To seven years’ imprisonment with hard labour if the object stolen is—
Anything stolen in contravention of sections two hundred and forty-two to two hundred and forty-four hereof:
(d.)
To two years’ imprisonment with hard labour if the object stolen is—
(i.)
Any deer kept or being in any enclosed land;
(ii.)
Any deer kept or being in any unenclosed land and being the private property of any person, or the property of or under the control of any society of persons, if the offender has been previously convicted summarily of a like offence;
(iii.)
Any vegetable product growing in a garden or greenhouse, though the value thereof does not exceed one shilling, if the offender has been previously convicted once on indictment, or twice summarily, of stealing anything growing out of the earth, under any Act at any time in force;
(iv.)
Anything for stealing which no punishment is previously provided.
248 Fraudulently destroying document.
1893, No. 56. sec. 225
Every one who destroys, cancels, conceals, or obliterates any document for any fraudulent purpose is liable to the same punishment as if he had stolen the document.
249 Concealing goods.
Ibid, sec. 226
Every one is liable to two years’ imprisonment with hard labour who moves, takes, or conceals anything capable of being stolen with the fraudulent intention of thereby depriving some person other than the owner of any pecuniary benefit arising from the possession thereof.
250 Bringing into New Zealand things stolen.
1893, No. 56, sec. 227
Every one is liable to five years’ imprisonment with hard labour who, having obtained elsewhere than in New Zealand any property by any act which if done in New Zealand would have amounted to theft, brings such property into or has the same in New Zealand.
251 Definition of false pretence.
Ibid, sec. 228
(1.)
A false pretence is a representation either by words or otherwise of a matter of fact either present or past, which representation is known to the person making it to be false, and is made with a fraudulent intent to induce the person to whom it is made to act upon it.
(2.)
Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to such an extent as to amount to a fraudulent misrepresentation of fact.
(3.)
It is a question of fact whether such commendation or depreciation does or does not amount to a fraudulent misrepresentation of fact.
252 Obtaining by false pretence.
Ibid, sec. 229
Every one is liable to three years’ imprisonment with hard labour who,—
(a.)
With intent to defraud by any false pretence, either directly or through the medium of any contract obtained by such false pretence, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any person other than himself; or
Obtaining execution of valuable securities by false pretence. Ibid, sec. 230
(b.)
With intent to defraud or injure any person by any false pretence, causes or induces any person to execute, make, accept, indorse, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal on any paper or parchment in order that it may afterwards be made or converted into or used or dealt with as a valuable security.
253 Obtaining credit fraudulently.
Ibid, sec. 231
Every one is liable to one year’s imprisonment with hard labour who, in incurring any debt or liability, obtains credit by means of any fraud.
254 Criminal breach of trust.
Ibid, sec. 232
(1.)
Every one commits the crime of criminal breach of trust and is liable to seven years’ imprisonment with bard labour who, being a trustee, with intent to defraud and in violation of his trust, converts anything of which he is trustee to any use not authorised by the trust.
(2.)
The following persons and no others are trustees within the meaning of this section, that is to say,—
(a.)
Trustees upon express trusts created by any deed, will, or instrument in writing, whether for any public or private or charitable object;
(b.)
Every person upon whom the duty of any such trust devolves or comes;
(c.)
Executors and administrators;
(d.)
Official managers, assignees, liquidators, trustees in bankruptcy or liquidation; and
(e.)
Other like officers acting under any Act at any time in force relating to incorporated companies or associations, or to bankruptcy.
255 Punishment after previous conviction.
Ibid, sec. 233
Every one is liable to fourteen years’ imprisonment with hard labour who, after a previous conviction for any offence under paragraph (d) (iv) of section two hundred and forty-seven, or under section two hundred and fifty-two, or under section two hundred and fifty-four, is convicted of theft, or of obtaining by false pretences any thing or the execution of any valuable security, or of criminal breach of trust as defined in this Part of this Act.
Fraud
256 False accounting by official.
1893, No. 56, sec. 234
Every one is liable to seven years’ imprisonment with hard labour who, being a director, manager, public officer, or member of any body corporate or public company, with intent to defraud,—
(a.)
Destroys, alters, mutilates, or falsifies any book, paper writing, or valuable security belonging to such body corporate or public company; or
(b.)
Makes or concurs in making any false entry, or omits or concurs in omitting to enter any material particular, in any book of account or other document.
257 False statement by official.
Ibid, sec. 235
Every one is liable to seven years’ imprisonment with hard labour who,—
(a.)
Being a promoter, director, public officer, or manager of any body corporate or public company either existing or intended to be formed, makes, circulates, or publishes, or concurs in making, circulating, or publishing, any prospectus, statement, or account which he knows to be false in any material particular,—
(i.)
With intent to induce persons (whether ascertained or not) to become shareholders or partners; or
(ii.)
With intent to deceive or defraud the members, shareholders, or creditors, or any of them (whether ascertained or not), of such body corporate or public company; or
(iii.)
With intent to induce any person to intrust or advance any property to such body corporate or public company, or to enter into any security for the benefit thereof:
Falsifying accounts by clerk. Ibid, sec. 236
(b.)
Being or acting in the capacity of an officer, clerk, or servant, with intent to defraud,—
(i.)
Destroys, alters, mutilates, or falsities any book, valuable security, or document belonging to or in the possession of his employer, or received by him for or on behalf of his employer, or concurs in so doing; or
(ii.)
Makes or concurs in making any false entry in, or omits or alters, or concurs in omitting or altering, any material particular from or in any such book, valuable security, or document.
258 False statement by public officer.
Ibid, sec. 237
Every one is liable to two years’ imprisonment with hard labour who, being an officer, collector, or receiver intrusted with the receipt, custody, or management of any part of the public revenues, or the revenues of any local authority or other public body, knowingly furnishes any false statement or return of any sum of money collected by him, or intrusted to his care, or of any balance of money in his hands or under his control.
259 Conspiracy to defraud.
Ibid, sec. 238
(1.)
Every one is liable to five years’ imprisonment with hard labour who conspires with any other person by deceit or false-hood or other fraudulent means to defraud the public, or any person ascertained or unascertained, or to affect the public market price of stocks, funds, shares, merchandise, or anything else publicly sold, whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretence as hereinbefore defined.
(2.)
Every one who, after a previous conviction for any offence involving dishonesty, commits an offence under this section is liable to fourteen years’ imprisonment with hard labour.
260 Cheating at play.
1893, No. 56. sec. 239
Every one is liable to five years’ imprisonment with hard labour who, with intent to defraud any person, cheats in playing at any game, or in holding the stakes, or in betting on any game or sport.
261 Pretending to practise witchcraft.
Ibid, sec. 240
Every one is liable to one year’s imprisonment with hard labour who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found.
262 Concealing deeds and incumbrances.
Ibid, sec. 241
Every one is liable to two years’ imprisonment with hard labour who, being a seller or mortgagor of land, chattels real or personal, or choses-in-action, or being the solicitor or agent of any such seller or mortgagor, in order to induce the purchaser or mortgagee to accept the title offered or produced to him, and with intent to defraud, conceals from the purchaser or mortgagee any instrument material to the title, or any incumbrance, or falsifies any pedigree on which the title does or may depend.
Robbery and Extortion
263 Robbery defined.
Ibid, sec. 242
Robbery is theft accompanied by violence or threats of violence to any person or property used to extort the property stolen, or to prevent or overcome resistance to its being stolen.
264 Punishment of aggravated robbery.
Ibid, sec. 243
Every one is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped once, twice, or thrice, who—
(a.)
Robs any person, and at the time of, or immediately before, or immediately after such robbery wounds, beats, strikes, or uses any personal violence to any person; or
(b.)
Being together with any other person or persons, robs, or assaults with intent to rob, any person; or
(c.)
Being armed with any offensive weapon or instrument, robs, or assaults with intent to rob, any person.
265 Compelling execution of documents by force.
Ibid, sec. 244
Every one is liable to imprisonment with hard labour for life who, with intent to defraud, by unlawful violence to or restraint of the person of another, or by the threat that either the offender or any other person will employ such violence or restraint, unlawfully compels any person to execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal upon or to any paper or parchment in order that it may be afterwards made or converted into or used or dealt with as a valuable security.
266 Punishment of robbery.
Ibid, sec. 245
Every one who commits robbery is liable to fourteen years’ imprisonment with hard labour.
267 Assault with intent to rob.
1893, No. 56, sec. 246
Every one who assaults any person with intent to rob him is liable to three years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice; or, if convicted after a previous conviction for any offence involving dishonesty, to fourteen years’ imprisonment with hard labour.
268 Demanding with intent to steal.
Ibid, sec. 247
(1.)
Every one is liable to three years’ imprisonment with hard labour who with menaces demands from any person, either for himself or for any other person, anything capable of being stolen, with intent to steal it.
(2.)
Every one who commits this offence after a previous conviction for any offence involving dishonesty is liable to fourteen years’ imprisonment with hard labour.
269 Extortion by certain threats.
Ibid, sec. 248
Every one is liable to imprisonment with hard labour for life, and if under sixteen years to be once whipped, who, with intent to extort or gain anything from any person,—
(a.)
Accuses or threatens to accuse either that person or any other person, whether the person accused or threatened with accusation is guilty or not, of any crime punishable by law with death, or imprisonment with hard labour for five years or upwards, or the crime of indecent assault in section two hundred and eight hereof; or
(b.)
Threatens that any person shall be so accused by any other person; or
(c.)
Causes any person to receive a document containing such accusation or threat, knowing the contents thereof; or
(d.)
By any of the means aforesaid compels or attempts to compel any person to execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal upon or to any paper or parchment in order that it may be afterwards made or converted into or used or dealt with its a valuable security.
270 Extortion by other threats.
Ibid, sec. 249
Every one is liable to imprisonment with hard labour for seven years who,—
(a.)
With intent to extort or gain anything from any person, accuses or threatens to accuse either that person or any other person of any offence other than those specified in the last preceding section, whether or not the person accused or threatened with accusation is guilty of that offence; or
(b.)
With such intent as aforesaid, threatens that any person shall be so accused by any person; or
(c.)
Causes any person to receive a document containing such accusation or threat, knowing the contents thereof; or
(d.)
By any of the means aforesaid, compels or attempts to compel any person to execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal upon or to any paper or parchment, in order that it may be afterwards made or converted into or used or dealt with as a valuable security.
Burglary and Housebreaking
271 Definition of dwellinghouse, &c.
1893, No. 56. sec. 250
In this section and also in sections two hundred and seventy-two to two hundred and eighty-two hereof—
“Dwellinghouse” means—
(a.)
A permanent building the whole or any part of which is kept by the owner or occupier for the residence therein of himself, his family or servants, or any of them, although it may at intervals be unoccupied;
(b.)
Any temporary building, erection, or structure whatever, or tent, fixed to the soil or attached thereto, and kept by the owner or occupier for the residence therein of himself or his family or any of them; and
(c.)
A building occupied with and within the same curtilage with any dwellinghouse shall be deemed to be part of the said dwellinghouse, if there is between such building and such dwellinghouse a communication, either immediate or by means of a covered and enclosed passage, leading from the one to the other, but not otherwise:
“To break” means to break any part, internal or external, of a building, or to open by any means whatever (including lifting, in the case of things kept in their places by their own weight) any door, window, shutter, cellar-flap, or other thing intended to cover openings to the building, or to give passage from one part of it to another.
An entrance into a building is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by him, is within the building.
272 Obtaining entrance into building.
Ibid, sec. 250
Every one who obtains entrance into any building by any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, shall be deemed to have broken and entered that building.
273 Breaking place of worship and committing crime.
Ibid, sec. 251
Every one is liable to fourteen years’ imprisonment with hard labour who breaks and enters any place of public worship and commits any crime therein, or who breaks out of such place after having committed any crime therein.
274 Breaking place of worship with intent to commit crime.
Ibid, sec. 252
Every one is liable to seven years’ imprisonment with hard labour who breaks and enters any place of public worship with intent to commit any crime therein.
275 Burglary.
Ibid, sec. 253
Every one is guilty of burglary, and is liable to imprisonment with hard labour for life, who—
(a.)
Breaks and enters a dwellinghouse by night, with intent to commit any crime therein; or
(b.)
Breaks out of any dwellinghouse by night either after committing a crime therein, or after having entered such dwellinghouse either by day or by night with intent to commit a crime therein.
276 Housebreaking.
Ibid, sec. 254
Every one is guilty of housebreaking, and is liable to fourteen years’ imprisonment with hard labour, who—
(a.)
Breaks and enters any dwellinghouse by day and commits any crime therein; or
(b.)
Breaks out of any dwellinghouse by day after having committed any crime therein.
277 Housebreaking with intent to commit a crime.
1893, No. 56. sec. 255
Every one is liable to seven years’ imprisonment with hard labour who, by day, breaks and enters any dwellinghouse with intent to commit any crime therein.
278 Breaking shop and committing crime.
Ibid, sec. 256
Every one is liable to fourteen years’ imprisonment with hard labour who, either by day or night, breaks and enters and commits any crime in any schoolhouse, shop, warehouse, or counting-house, or any building within the curtilage of a dwellinghouse, but not so connected therewith as to form part of it under the provisions hereinbefore contained.
279 Breaking shop with intent to commit a crime.
Ibid, sec. 257
Every one is liable to seven years’ imprisonment with hard labour who, either by day or night, breaks and enters any of the buildings mentioned in the last preceding section with intent to commit any crime therein.
280 Being found in dwellinghouse by night.
Ibid, sec. 258
Every one is liable to five years’ imprisonment with hard labour who unlawfully enters or is in any dwellinghouse by night with intent to commit any crime therein.
281 Being armed with intent to break or enter.
Ibid, sec. 259
Every one is liable to three years’ imprisonment with hard labour who is found—
(a.)
Armed with any dangerous or offensive weapon or instrument whatever by day, with intent to break or enter into any dwellinghouse, and to commit any crime therein; or
(b.)
Armed as aforesaid by night, with intent to break into any building whatsoever, and to commit any crime therein.
282 Being disguised or in possession of housebreaking instruments.
Ibid, sec. 260
Every one is liable to three years’ imprisonment with hard labour who is found—
(a.)
Having in his possession by night, without lawful excuse (the proof whereof shall lie on him), any instrument of housebreaking; or
(b.)
Having in his possession by day any such instrument with intent to commit any crime; or
(c.)
Having his face masked or blackened or being otherwise disguised by night, without lawful excuse (the proof whereof shall lie on him); or
(d.)
Having his face masked or blackened or being otherwise disguised by day, with intent to commit any crime.
283 Punishment after previous conviction.
Ibid, sec. 261
Every one is liable to fourteen years’ imprisonment with hard labour who, after a previous conviction of any crime involving dishonesty, is convicted of any crime specified in sections two hundred and seventy-one to two hundred and eighty-two hereof for which the punishment on a first conviction is less than fourteen and not less than three years’ imprisonment with hard labour.
Receiving Stolen Goods
284 Receiving property dishonestly obtained.
Ibid, sec. 262
(1.)
Every one is liable to seven years’ imprisonment with hard labour who receives anything obtained by any crime, or by any acts wherever committed which if committed in New Zealand after the coining into operation of this Act would constitute a crime, knowing such thing to have been dishonestly obtained.
Rule of evidence.
(2.)
Where any one is being proceeded against for a crime under this section the following matters may be given in evidence to prove guilty knowledge, that is to say,—
(a.)
The fact that other property obtained by means of any such crime or acts as aforesaid was found in the possession of the accused within twelve months of the time when he was first charged with the crime for which he is being tried:
(b.)
The fact that, within five years of the time when the accused was first charged with the crime for which he is being tried, he was convicted of any offence of a fraudulent or dishonest nature:
Provided that the last-mentioned fact may not be proved unless there has been given to the accused, either before or after indictment found, seven days’ notice in writing of the intention to prove such previous conviction, nor until evidence has been given that the property in respect of which the accused is being tried was found in his possession.
(3.)
Every one is liable to imprisonment with hard labour for life who commits any crime under this section after a previous conviction of any offence involving dishonesty.
285 When receiving is complete.
1893, No. 56, sec. 263
The act of receiving anything unlawfully obtained is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of or control over such thing, or aids in concealing or disposing of it.
286 Receiving after restoration to owner.
Ibid, sec. 264
When the thing unlawfully obtained has been restored to the owner, or when a legal title to the thing so obtained has been acquired by any person, a subsequent receiving thereof is not an offence, although the receiver may know that the thing had previously been dishonestly obtained.
287 Taking reward for recovery of stolen goods.
Ibid, sec. 265
Every one is liable to seven years’ imprisonment with hard labour who corruptly takes or bargains for any reward, directly or indirectly, in consideration that he will help any person to recover anything obtained by any crime, unless he has used all due diligence to cause the offender to be brought to trial for the same.
Forgery
288 Document defined.
Ibid, sec. 266 Bank-note and debenture defined. Ibid, sec. 267
In this section and also in sections two hundred and eighty-nine to three hundred and nine hereof—
“Document” means any paper, parchment, or other material used for writing or printing, marked with matter capable of being read, but does not include trade-marks on articles of commerce, or inscriptions on stone or metal or other like material:
“Bank-note” includes all negotiable instruments issued by or on behalf of any person, body corporate, or company carrying on the business of banking in any part of the world, or issued by the authority of any foreign prince, or State, or Government, or any Governor or other authority lawfully authorised thereto in any of His Majesty’s dominions, and intended to be used as equivalent to money, either immediately upon their issue or at some time subsequent thereto, and all bank bills and bank post bills:
“Debenture” includes bills, bonds, and debentures issued on behalf of His Majesty’s Government in the United Kingdom or any part thereof, or any dominion, possession, or colony of His Majesty, or on behalf of any foreign State or country, or issued under due authority on behalf of any local authority, public body, corporation, or incorporated company or association within New Zealand, and any coupon attached thereto:
“False document” means—
False document defined. 1893, No. 56, sec. 268
(a.)
A document the whole or some material part whereof purports to be made by or on behalf of any person who did not make or authorise the making thereof, or which, though made by or by the authority of the person who purports to make it, is falsely dated as to time or place of making, where either is material;
(b.)
A document the whole or some material part whereof purports to be made by or on behalf of some person who did not in fact exist; or
(c.)
A document made in the name of an existing person, either by that person or by his authority, with the fraudulent intention that the document should pass as being made by some person, real or fictitious, other than the person who makes or authorises it.
289 Proof of fraudulent intent.
Ibid, sec. 268
It is not necessary that the fraudulent intention should appear on the face of the document, but it may be proved by external evidence.
290 Forgery defined.
Ibid, sec. 269
(1.)
Forgery is the making of a false document, knowing it to be false, with the intention that it shall in any way be used or acted upon as genuine, whether within His Majesty’s dominions or not, or that some person shall be induced by the belief that it is genuine to do or refrain from doing anything; whether within His Majesty’s dominions or not.
(2.)
Making a false document includes altering a genuine document in any material part, and making any material addition to it, or adding to it any false date, attestation, seal, or other thing that is material, or making any material alteration in it either by erasure, obliteration, removal, or otherwise.
(3.)
Forgery is complete as soon as the document is made with such knowledge and intent as aforesaid, though the offender may not have intended that any particular person should use or act upon it as genuine, or be induced by the belief that it is genuine to do or refrain from doing anything.
(4.)
Forgery is complete although the false document may be incomplete, or may not purport to be such a document as would be binding in law, if it be so made and is such as to indicate that it was intended to be acted on as genuine.
291 Punishment of forgery.
Ibid, sec. 270
Every one who commits forgery of the documents hereinafter mentioned is liable to the following punishments:
(a.)
To imprisonment with hard labour for life, if the document forged purports to be, or was intended by the offender to be understood to be, or to be used as—
(i.)
A document containing evidence of or forming the title or any part of the title to any land or hereditament, or to any interest in or charge upon any land or hereditament, or containing evidence of the creation, transfer, or extinction of any such interest or charge;
(ii.)
An entry in any register or book or a memorial or other document kept or lodged under any Act for the registering of deeds, or for the recording or declaring of titles to land, or for declaring lands chargeable with debentures, as a record that any deed has been registered, or any title recorded or declared, or that any lands are declared chargeable or are charged with any debenture;
(iii.)
A register of births, baptisms, marriages, deaths, or burials authorised or required by law to be kept;
(iv.)
A copy of any such register required by law to be transmitted by or to any Registrar or other officer;
(v.)
A will, codicil, or other testamentary document, either of a dead or living person, or a probate or letters of administration, whether with or without the will annexed;
(vi.)
A transfer or assignment of any share or interest in any stock, annuity, or public fund of the United Kingdom or any part thereof, or of any dominion, possession, or colony of His Majesty, or of any local authority or public body in New Zealand, or of any foreign State or country, or a receipt or certificate for interest accruing thereon;
(vii.)
A transfer or assignment of any share or interest in the debt of any local authority, public body, company, or society, British or foreign, or of any share or interest in the capital or stock of any such company or society, or a receipt or certificate for interest accruing thereon;
(viii.)
A power of attorney or other authority to transfer any interest or share hereinbefore mentioned;
(ix.)
An entry in any register or book, or a certificate, coupon, share warrant, or other document which by law or any recognised practice is evidence of the title of any person to any such stock, share, or interest, or to any dividend or interest payable in respect thereof;
(x.)
A debenture or indorsement thereof, or receipt or certificate of interest accruing thereon;
(xi.)
A bank-note, bill of exchange, promissory note, or cheque, or an acceptance, making, indorsement, or assignment thereof;
(xii.)
A document that is evidence of title to any portion of the debt of the United Kingdom, or of any dominion, colony, or possession of His Majesty, or of any local authority or public body in New Zealand, or of any foreign State or country, or a transfer or assignment thereof;
(xiii.)
A deed, bond, or writing obligatory, or a warrant, order, or other security for money or payment of money, whether negotiable or not, or an indorsement or assignment thereof;
(xiv.)
An accountable receipt or acknowledgment of the deposit, receipt, or delivery of money or goods;
(xv.)
A bill of lading, charter-party, policy of insurance, or any shipping document accompanying a bill of lading, or an indorsement or assignment thereof;
(xvi.)
An India warrant, dock-warrant, dock-keeper’s certificate, delivery order, or warrant for the delivery of goods or of any valuable thing, or an indorsement or assignment thereof;
(xvii.)
An authority or request for the payment of money, or for the delivery of goods, or of any note, bill, or valuable security;
(xviii.)
An acquittance or discharge, or a voucher of having received any goods, money, note, bill, or valuable security, or an instrument that is evidence of any such receipt;
(xix.)
Any other document used in the ordinary course of business as proof of the possession or control of goods, or as authorising, either on indorsement or delivery, the possessor of such document to transfer or receive any goods:
(b.)
To fourteen years’ imprisonment with hard labour if the document forged purports to be, or was intended by the offender to be understood to be, or to be used as—
(i.)
A document required for the purpose of procuring the registration of any deed, or the recording or declaring of any title to land, or the declaring that any lands are chargeable or charged with any debenture;
(ii.)
A document that is made by any Act evidence of the registering or recording or declaring of any such deed or title, or chargeability, or charge;
(iii.)
A document that is made by any Act evidence affecting the title to land:
(c.)
To seven years’ imprisonment with hard labour if the document forged purports to be, or was intended by the offender to be understood to be, or to be used as,—
(i.)
A record of any Court of justice, or any document whatever issuing from any Court of justice;
(ii.)
A certificate, office copy, or certified copy or other document which by any statute is made admissible in evidence;
(iii.)
A document made or issued by any officer of State, or law officer of the Crown, or a document upon which, by the law or usage at the time in force, any Court of justice or any officer might act;
(iv.)
A document which a Magistrate is required by law to make or issue;
(v.)
An entry in any register or book kept under the provisions of any law in or under the authority of any Court of justice or Magistrate acting as such;
(vi.)
A certified copy of any entry in or extract from any register of births, baptisms, marriages, deaths, or burials authorised or required by law to be kept;
(vii.)
A certificate required by any Act for the celebration of marriage;
(viii.)
A license for the celebration of marriage which may be given under law;
(ix.)
A contract or document which, with others, amounts to a contract, or is evidence of a contract;
(x.)
A power or letter of attorney or mandate;
(xi.)
Any document forged with intent that the same shall be given in evidence as a genuine document in any judicial proceeding:
(d.)
To two years’ imprisonment with hard labour if the document forged be other than those above mentioned.
292 Uttering forged documents.
1893, No. 56, sec. 271
(1.)
Every one who, knowing a document to be forged, uses, deals with, or acts upon it, or attempts to use, deal with, or act upon it, or causes or attempts to cause any person to use, deal with, or act upon it as if it were genuine, is liable to the same punishment as if he had forged the document.
(2.)
It is immaterial where the document was forged.
293 Counterfeiting public or corporate seals.
Ibid, sec. 272
Every one is liable to imprisonment with hard labour for life who unlawfully makes or counterfeits any public seal in use for the time being for the United Kingdom or any part thereof, or the public seal of New Zealand, or of any dominion, possession, or colony of His Majesty, or the seal or stamp authorised under any law at any time in force within New Zealand to be used by any Court, public office, local authority, public body, public officer, body corporate, or any person whomsoever, or the impression of any such seal or stamp, or uses any such seal, stamp, or impression knowing the same to be counterfeited.
294 Sending false telegram.
Ibid, sec. 273
Every one who, knowingly and with intent to defraud, causes or procures any telegram to be sent or delivered as being sent by the authority of any person, knowing that it is not sent by such authority, with intent that such telegram should be acted on as being sent by that person’s authority, is liable to the same punishment as if he had forged a document to the same effect as the telegram.
295 Procuring execution of document by false pretence.
Ibid, sec. 274
Every one who procures the execution of any document by any person by falsely and fraudulently pretending that the contents thereof are different from what they really are is liable to the same punishment as if he had forged that document.
296 Possessing forged bank-notes.
Ibid, sec. 275
Every one is liable to fourteen years’ imprisonment with hard labour who, without lawful authority or excuse (the proof whereof shall lie on him), purchases or receives from any person, or has in his custody or possession, any forged bank-note, whether complete or not, knowing it to be forged.
297 Drawing document without authority.
Ibid, sec. 276
Every one who, without colour of lawful authority, makes or executes, draws, signs, accepts, or indorses, in the name or on the account of another person, by procuration or otherwise, any document, or makes use of or utters any such document knowing it to be so made, executed, signed, accepted, or indorsed, is liable to the same punishment as if he had forged such document.
298 Using probate obtained by forgery or perjury.
Ibid, sec. 277
Every one is liable to fourteen years’ imprisonment with hard labour who—
(a.)
Demands, receives, obtains, or causes or procures to be delivered or paid to any person, anything whatever under, upon, or by virtue of any probate or letters of administration, knowing the will, codicil, or testamentary writing on which such probate or letters of administration were obtained to be forged, or knowing the probate or letters of administration to have been obtained by any false oath, affirmation, or affidavit; or
(b.)
Attempts to do any such thing as aforesaid.
Preparation for Forgery
299 Revenue paper and Bank of England paper defined.
1893, No. 56, sec. 278
In this section, and also in sections three hundred to three hundred and nine hereof,—
“Revenue paper” means any paper provided by the proper authority in the United Kingdom, or New Zealand, or any other part of His Majesty’s dominions, for the purpose of being used for stamps, licenses, or permits, or for any purpose whatever connected with the public revenue:
“Bank of England paper” means any paper so prepared as to resemble any paper used for bank-notes issued by the Governor and Company of the Bank of England, whether such resemblance is produced in the manufacture of such paper or by some subsequent and independent process.
300 Instruments for forgery.
Ibid, sec. 279
Every one is liable to fourteen years’ imprisonment with hard labour who, without lawful authority or excuse (the proof whereof shall lie on him),—
(a.)
Makes, begins to make, uses, or knowingly has in his possession any machinery or instrument or material for making revenue paper, Bank of England paper, or paper intended to resemble the bill-paper or bank-note paper of any firm, body corporate, company, or person carrying on the business of banking:
(b.)
Engraves or makes upon any plate or material anything purporting to be or apparently intended to resemble the whole or any part of any debenture or bank-note:
(c.)
Uses any such plate or material for printing any part of any such debenture or bank-note:
(d.)
Knowingly has in his possession any such plate or material as aforesaid:
(e.)
Makes, uses, or knowingly has in his possession any revenue paper, Bank of England paper, or paper intended to resemble any bill-paper or bank-note paper of any firm, body corporate, company, or person carrying on the business of banking, or any paper upon which is written or printed the whole or any part of any debenture or of any bank-note:
(f.)
Engraves or makes upon any plate or material anything intended to resemble the whole or any distinguishing part of any bond or undertaking for the payment of money used by any dominion, colony, or possession of His Majesty, or by any foreign prince or State, or by any local authority or public body, or by any company or body corporate, or other body of the like nature, whether within His Majesty’s dominions or without:
(g.)
Uses any such plate or material for printing the whole or any part of such bond or undertaking:
(h.)
Knowingly offers, disposes of, or has in his possession any paper upon which such bond or undertaking or any part thereof has been printed:
1882, No. 35, sec. 70
(i.)
Engraves or makes upon any plate or material any share warrant or coupon purporting to be a share warrant or coupon issued or made by any company, or to be a blank share warrant or coupon issued or made as aforesaid, or to be a part of any such share warrant or coupon: or
(j.)
Uses or knowingly has in his possession any such plate or material for printing the whole or any part of any such share warrant or coupon.
301 Counterfeiting stamps.
1803, No. 56, sec. 260
Every one is liable to seven years’ imprisonment with hard labour who—
(a.)
Counterfeits any stamp, whether impressed or adhesive, used for the purposes of revenue by the Government of the United Kingdom, or by the Government of New Zealand or of any possession or colony of His Majesty, or by any foreign prince or State:
(b.)
Knowingly sells or exposes for sale or utters or uses any such counterfeit stamp:
(c.)
Without lawful excuse (the proof whereof shall lie on him) makes or has knowingly in his possession any die or instrument capable of making the impression of any such stamp as aforesaid:
(d.)
Fraudulently cuts, tears, or in any way removes from any material any such stamp with intent that any use should be made of such stamp or of any part thereof:
(e.)
Fraudulently mutilates any such stamp with intent that any use should be made of any part of any such stamp:
(f.)
Fraudulently fixes or places upon any material, or upon any such stamp as aforesaid, any stamp or part of a stamp which, whether fraudulently or not, has been cut, torn, or in any way removed from any other material, or out of or from any other stamp:
(g.)
Fraudulently erases or otherwise, either really or apparently, removes from any stamped material any name, sum, date, or other matter or thing whatsoever thereon written, with the intent that any use should be made of the stamp upon such material:
(h.)
Knowingly and without lawful excuse (the proof whereof shall lie on him) has in his possession any stamp or part of a stamp which has been fraudulently cut, torn, or otherwise removed from any material, or any stamp which has been fraudulently mutilated, or any stamped material out of which any name, sum, date, or other matter or thing has been fraudulently erased or otherwise, either really or apparently, removed.
302 Falsifying registers.
Ibid, sec. 281
Every one is liable to imprisonment with hard labour for life who—
(a.)
Unlawfully destroys, defaces, or injures any register of births, baptisms, marriages, deaths, or burials required or authorised by law to be kept in the United Kingdom, or in New Zealand, or in any other part of His Majesty’s dominions, or any copy of such register, or any part thereof, required by law to be transmitted to any Registrar or other officer; or
(b.)
Unlawfully inserts in any such register, or any such copy thereof, any entry, known by him to be false, of any matter relating to any birth, baptism, marriage, death, or burial.
303 Falsifying extracts from registers.
1893, No. 56, sec. 282
Every one is liable to fourteen years’ imprisonment with hard labour who,—
(a.)
Being a person authorised or required by law to give a certified copy of any entry in any such register as is mentioned in the last preceding section, certifies any writing to be a true copy or extract knowing it to be false, or knowingly utters any such certificate:
(b.)
Unlawfully and for any fraudulent purpose takes any such register or certified copy from its place of deposit, or conceals it:
(c.)
Being a person having the custody of any such register or certified copy, permits it to be so taken or concealed as aforesaid.
304 Uttering false certificates.
Ibid, sec. 283
Every one is liable to seven years’ imprisonment with hard labour who,—
(a.)
Being by law required to certify that any entry has been made in any such register as in the two last preceding sections mentioned, makes such certificate knowing that such entry has not been made:
(b.)
Being by law required to make any statement, or a certificate or declaration concerning any particular required for the purpose of making entries in such register, knowingly makes such statement falsely, or makes any such certificate or declaration knowing the same to contain a falsehood:
(c.)
Being an officer having custody of the records of any Court, or being the deputy of any such officer, wilfully utters a false copy or certificate of any record:
(d.)
Not being such officer or deputy, fraudulently signs or certifies any copy or certificate of any record, or any copy of any certificate, as if he were such officer or deputy.
305 Forging certificates.
Ibid, sec. 284
Every one is liable to two years’ imprisonment with hard labour who,—
(a.)
Being an officer required or authorised by law to make or issue a certified copy of any document, or a certified extract from any document, wilfully certifies as a true copy of any document or as a true extract from any such document any writing which he knows to be untrue in any material particular:
(b.)
Not being such officer as aforesaid, fraudulently signs or certifies any copy of any document, or any extract from any document, as if he were such officer.
306 Making false entries in books relating to public funds.
1893, No. 56, sec. 285
Every one is liable to imprisonment with hard labour for life who, with intent to defraud,—
(a.)
Makes any untrue entry or any alteration in any book of account kept by any bank or by any local authority or public body, or by any body corporate, company, or society established or incorporated by charter, or under an Act of the Imperial Parliament, or of the General Assembly of New Zealand, in which hook are kept accounts of the owners of any stock, annuity, or other public fund, or of any share or interest of or in the debt of any local authority or public body, or of or in the debt or capital stock of any such body corporate, company, or society transferable for the time being at the office of such bank, local authority, public body, body corporate, company, or society; or
(b.)
In any manner wilfully falsifies any of the accounts of any such owners in any of the said books; or
(c.)
Makes any transfer of any share or interest of or in any stock, annuity, or public fund or debt or capital stock transferable for the time being at any Dank or office, in the name of any person other than the owner of such share or interest.
307 Issuing false dividend warrants.
Ibid, sec. 286
Every one is liable to seven years’ imprisonment with hard labour who, being in the employment of any bank, local authority, public body, body corporate, company, or society as mentioned in the last preceding section, with intent to defraud, makes out or delivers any dividend warrant, or any warrant for the payment of any annuity, interest, or money payable at the office of such bank, local authority, public body, body corporate, company, or society, for an amount greater or less than that to which the person on whose account such warrant is made out is entitled.
308 Imitating authorised marks.
Ibid, sec. 287
Every one is liable to seven years’ imprisonment with hard labour who fraudulently counterfeits, or imitates in a manner calculated to deceive, any mark which under law is impressed upon or otherwise made upon or affixed to any chattel, or upon or to anything containing or connected with such chattel, for the purpose of denoting the quality of such chattel, or the fact that it has been tested or examined and approved by or under the authority of any local authority or public body, or by any public officer.
309 Imitating customary marks.
Ibid, sec. 288
Every one is liable to two years’ imprisonment with hard labour who fraudulently counterfeits, or imitates in a manner calculated to deceive, any mark impressed or otherwise made upon or affixed to any chattel, or upon or to anything containing or connected with such chattel, which mark is by recognised practice understood to denote that the thing marked has been examined and certified to be of a particular quality by any particular officer or person, whether such officer or person is or is not authorised by law so to certify.
Personation
310 Personation.
Ibid, sec. 289
Every one is liable to imprisonment with hard labour for life who personates any person, living or dead, or the executor, administrator, wife, widow, next-of-kin, or any relation of any person, with intent fraudulently to obtain any property.
311 Personation of certain persons.
1893, No. 56, sec. 290
Every one is liable to imprisonment with hard labour for life who falsely and deceitfully personates—
(a.)
Any owner of any share or interest of or in any stock, annuity, or other public fund transferable at any bank or office; or
(b.)
Any owner of any share or interest of or in the debt of any local authority or public body, or of or in the debt or capital stock of any body corporate, company, or society established or incorporated by charter, or under an Act of the Imperial Parliament or of the General Assembly of New Zealand; or
(c.)
Any owner of any dividend, coupon, certificate, or money payable in respect of any such share or interest as aforesaid; or
(d.)
Any person duly authorised by any power of attorney to transfer any such share or interest, or to receive any dividend, coupon, certificate, or money on behalf of the person entitled thereto,—
and thereby transfers or endeavours to transfer any share or interest belonging to such owner, or thereby obtains or endeavours to obtain, as if he were the true and lawful owner, or were the person so authorised by such power of attorney, any money due to any such owner or payable to the person so authorised, or any certificate, coupon, or share-warrant, or other document, which by any law in force, or any usage existing at the time, is deliverable to the owner of any such stock or fund, or to the person authorised by any such power of attorney.
312 Acknowledging instrument in false name.
Ibid, sec. 291
Every one is liable to seven years’ imprisonment with hard labour who, without lawful authority or excuse (the proof whereof shall lie on him), acknowledges in the name of any other person before any Court, Judge, or other person lawfully authorised in that behalf, any recognisance or bail, or any cognovit actionem, or consent to judgment, or judgment, or any deed or other instrument.
Crimes relating to Coin
313 Interpretation of terms.
Ibid, sec. 292
In this section and also in sections three hundred and fourteen to three hundred and twenty-six hereof—
“Current,” applied to coin, means coin coined in any of His Majesty’s mints, or lawfully current under any Proclamation or otherwise in any part of His Majesty’s dominions:
“Copper,” applied to coin, includes every kind of coin inferior in value to silver:
“Counterfeit coin” includes genuine coin prepared or altered so as to resemble or pass for coin of a higher denomination, and genuine coin clipped, filed, or otherwise diminished in size or weight, and altered or prepared so as to conceal such clipping, filing, or diminution, and counterfeit coin in an unfinished state:
“Gilds” and “silvers,” as applied to coin, include producing the appearance of gold and silver respectively:
“Having in possession,” when used in reference to any person, includes not only having in his personal possession, but also
(a.)
Having in the actual possession or custody of any other person; and
(b.)
Having in any place (whether occupied by himself or not) for the use or benefit of himself or of any other person.
314 Counterfeiting gold and silver coin.
1893, No. 56, sec. 293
Every one is liable to imprisonment with hard labour for life who—
(a.)
Makes or begins to make any counterfeit coin, with intent to make it resemble or pass for current gold or silver coin respectively:
(b.)
Without lawful authority or excuse (the proof whereof shall lie on him)—
(i.)
Buys, sells, receives, or puts off any counterfeit gold or silver current coin at a lower rate than it imports, or was apparently intended to import, or offers to do any such thing; or
(ii.)
Imports or receives from beyond the seas any counterfeit current coin knowing it to be counterfeit:
(c.)
Without lawful authority or excuse (the proof whereof shall lie on him) makes or mends, or begins or proceeds to make or mend, or buys or sells, or has in his possession or custody—
(i.)
Any stamp or mould intended to make the resemblance of both or either of the sides of any current coin, or of any coin of any foreign prince or State, or any part of either of such sides, knowing the same to be such, or to be so adapted and intended as aforesaid; or
(ii.)
Any tool or instrument intended for marking coin round the edges with marks or figures apparently resembling those on the edges of any such coin as aforesaid, knowing the same to be so adapted and intended as aforesaid; or
(iii.)
Any press for coinage, or any machine or tool for cutting round blanks out of gold, silver, or other metal, or mixture of metals, knowing such press, machine, or tool to be intended to be used for or in order to counterfeit any such coin as aforesaid:
(d.)
Knowingly conveys out of any of His Majesty’s mints any such thing above mentioned or any useful part thereof, or any coin, bullion, metal, or mixture of metals.
315 Preparation for coining.
Ibid, sec. 294
Every one is liable to imprisonment with hard labour for life who—
(a.)
Makes any piece of metal or mixture of metals whatever into a fit size or figure to facilitate the coinage therefrom of any counterfeit gold or silver current coin, with intent that thereby counterfeit current gold or silver coin should be made; or
(b.)
Gilds or silvers any piece of metal or mixture of metal whatever of a fit size or figure to be coined, with intent that it shall be coined into counterfeit current gold or silver coin.
316 Clipping current coin.
1893, No. 56, sec. 295
Every one is liable to fourteen years’ imprisonment with hard labour who diminishes or lightens any current gold or silver coin, with intent that when so dealt with it may pass as current gold or silver coin.
317 Possessing clippings of current coin.
Ibid, sec. 296
Every one is liable to seven years’ imprisonment with hard labour who unlawfully has in his custody or possession any things or clippings, or silver in dust or solution or other state, obtained by impairing current gold or silver coin, knowing the same to have been so obtained.
318 Counterfeiting foreign gold and silver coin.
Ibid, sec. 297
Every one is liable to seven years’ imprisonment with hard labour who—
(a.)
Makes or begins to make counterfeit gold or silver coin of any foreign prince, State, or country; or
(b.)
Gilds or silvers any counterfeit coin of any foreign prince, State, or country; or
(c.)
Makes any piece of metal or mixture of metals whatever into a tit size or figure to facilitate the coining therefrom of any such counterfeit gold or silver coin, with intent that thereby counterfeit gold or silver coin should be made; or
(d.)
Gilds or silvers any piece of metal or mixture of metals whatever of a tit size or figure to facilitate the coining therefrom of any such counterfeit gold or silver coin, with intent that thereby counterfeit gold or silver coin should be made; or
(e.)
Brings or receives into New Zealand, without lawful authority or excuse (the proof whereof shall lie on him), counterfeit gold or silver coin of any foreign prince, State, or country, knowing the same to be counterfeit.
319 Counterfeiting copper coin.
Ibid, sec. 298
Every one is liable to seven years’ imprisonment with hard labour who—
(a.)
Makes or begins to make any counterfeit current copper coin; or
(b.)
Without lawful authority or excuse (the proof whereof shall lie upon him), knowingly makes or mends, or begins to make or mend, or buys or sells, or has in his custody or possession, any instrument adapted and intended for counterfeiting any current copper coin; or buys, sells, receives, or puts off any counterfeit copper coin at a lower rate or value than the same imports or was apparently intended to import.
320 Counterfeiting foreign copper coin.
Ibid, sec. 299
Every one is liable to one year’s imprisonment with hard labour who makes any counterfeit copper coin of any foreign prince, State, or country.
321 Possessing counterfeit coin.
Ibid, sec. 300
Every one is liable to one year’s imprisonment with hard labour who has in his possession any counterfeit current gold or silver coin knowing such coin to be counterfeit, and with intent to utter it.
322 Possessing three pieces of counterfeit coin.
Ibid, sec. 301
Every one is liable to three years’ imprisonment with hard labour who has in his possession three or more pieces of counterfeit current gold or silver coin knowing such coin to be counterfeit, and with intent to utter it.
323 Uttering counterfeit coin.
1893, No. 56. sec. 302
Every one is liable to one year’s imprisonment with hard labour who utters any counterfeit current gold or silver coin knowing it to be counterfeit.
324 Uttering after previous uttering.
Ibid, sec. 303
Every one is liable to two years’ imprisonment with hard labour who utters any counterfeit current gold or silver coin knowing it to be counterfeit, and
(a.)
Has at the time of such uttering in his custody or possession any other piece of counterfeit current gold or silver coin; or
(b.)
Has on the day of such uttering as aforesaid, or within ten days preceding exclusive of the day of uttering such coin, uttered any other counterfeit current gold or silver coin.
325 Exporting counterfeit coin.
Ibid, sec. 304
Every one is liable to two years’ imprisonment with hard labour who, without lawful authority or excuse (the proof whereof shall lie on him), exports, or puts on board any vessel or boat for the purpose of being exported, any counterfeit current coin whatever knowing the same to be counterfeit.
326 Uttering or possessing counterfeit coin.
Ibid, sec. 305
Every one is liable to one year’s imprisonment with hard labour who—
(a.)
Utters any counterfeit current copper coin knowing it to be counterfeit; or
(b.)
Has in his possession three or more counterfeit current copper coins knowing them to be counterfeit, and with intent to utter them; or
(c.)
With intent to defraud, utters as current gold or silver coin any coin which is not current coin, or any medal or piece of metal or mixed metal being of less value than the current coin as and for which it is uttered; or
(d.)
Defaces any current coin whatever by stamping thereon any word, whether such coin is or is not thereby diminished or lightened; or
(e.)
Utters any counterfeit gold or silver com of any foreign prince, State, or country knowing it to be counterfeit.
327 Punishment after previous conviction.
Ibid, sec. 306
Every one who, alter a previous conviction of any offence relating to coin under this or any other Act, is convicted of any offence specified in sections three hundred and fourteen to three hundred and twenty-six hereof is liable to imprisonment with hard labour for life if he would otherwise have been liable to fourteen years’ imprisonment with hard labour only; or to fourteen years’ imprisonment with hard labour if he would otherwise have been liable to imprisonment with hard labour for less than fourteen but not less than three years; or to five years’ imprisonment with hard labour if he would otherwise have been liable to imprisonment with or without hard labour for less than three years.
Mischief
328 What constitutes mischief.
Ibid, sec. 307
(1.)
For the purposes of sections three hundred and twenty-nine to three hundred and forty-one hereof, every one who causes any event by an act which he knew would probably cause it, being reckless whether such event happens or not, shall be deemed to have caused it wilfully.
(2.)
Nothing shall be a crime under any provision contained in those sections unless it is done without legal justification or excuse, and without colour of right.
(3.)
Where the crime consists in an injury to anything in which the offender has an interest, the existence of such interest, if partial, shall not prevent his act being a crime, and, if total, shall not prevent his act being a crime if done with intent to defraud.
329 Arson.
1893, No. 56, sec. 308
Every one commits arson and is liable to imprisonment with hard labour for life who wilfully sets fire to any building, erection, or structure whatever fixed to the soil, whether such building, erection, or structure is completed or not, or to any stack of vegetable produce, or of mineral or vegetable fuel, or to any mine, or to any ship or vessel whether completed or not.
330 Attempt to commit arson.
Ibid, sec. 309
Every one is liable to fourteen years’ imprisonment with hard labour who wilfully attempts to set fire to anything mentioned in the last preceding section, or who wilfully sets fire to any substance so situated that he knows that anything mentioned in that section is likely to catch fire therefrom.
331 Setting fire to crops.
Ibid, sec. 310
Every one commits arson, and is liable to fourteen years’ imprisonment with hard labour, who wilfully sets fire to any crop, whether standing or cut down, or to any wood, coppice, or plantation, or to any indigenous or tussock grass, heath, gorse, furze, or fern.
332 Attempting to set fire to crops.
Ibid, sec. 311
Every one is liable to seven years’ imprisonment with hard labour who wilfully attempts to set fire to anything mentioned in the last preceding section, or who wilfully sets fire to any substance so situated that he knows that anything mentioned in that section is likely to catch fire therefrom.
333 Obstruction on railway or damage to building or ship by explosives.
Ibid, sec. 312 1896, No. 7, sec. 6(1)
Every one is liable to fourteen years’ imprisonment with hard labour who—
(a.)
Wilfully places or throws any obstruction upon any railway; or
(b.)
Wilfully places or throws any explosive substance into or near any building or ship with intent to destroy or damage the same, or any machinery, working-tools, or chattels whatever, whether any explosion takes place or not.
334 Mischief on railways and tramways, &c.
1893, No. 56. sec. 313 1896, No. 7, sec. 6(2)
(1.)
Every one is liable to two years’ imprisonment with hard labour who, in a manner likely to cause danger to valuable property,—
(a.)
Places any obstruction upon any tramway:
(b.)
Shoots or throws anything at an engine or other vehicle:
(c.)
Interferes without authority with the points or signals upon any railway or tramway:
(d.)
Makes any false signal on or near any railway or tramway:
(e.)
Wilfully omits to do any act which it is his duty to do:
(f.)
Does any other unlawful act.
(2.)
Every one who does any of the acts mentioned in this section with intent to cause such danger is liable to imprisonment with hard labour for life.
335 Wrecking.
1893, No. 56, sec. 314
Every one is liable to imprisonment with hard labour for life who—
(a.)
Casts away or destroys any ship, whether complete or unfinished:
(b.)
Does any act tending to the immediate loss or destruction of any ship in distress:
(c.)
Interferes with any marine signal, or exhibits any false signal, with intent to bring a ship or boat into danger.
336 Attempting to wreck.
Ibid, sec. 315
Every one is liable to fourteen years’ imprisonment with hard labour who attempts to cast away or destroy any ship, whether complete or unfinished.
337 Interfering with marine signals.
Ibid, sec. 316
Every one is liable to seven years’ imprisonment with hard labour who alters, removes, or conceals, or attempts to alter, remove, or conceal, any signal or mark used for the purposes of navigation.
338 Mischief to mines.
Ibid, sec. 317
Every one is liable to seven years’ imprisonment with hard labour who, with intent to injure a mine or obstruct the working thereof,—
(a.)
Causes water to run into the mine or any subterranean channel communicating therewith:
(b.)
Damages any shaft or any passage of the mine:
(c.)
Damages, with intent to render useless, any apparatus, building, bridge, or road belonging to the mine, whether the object damaged be complete or not:
(d.)
Hinders the working of any such apparatus:
(e.)
Damages or unfastens, with intent to render useless, any rope, chain, or tackle used in any mine, or upon any way or work connected therewith.
339 Punishment of mischief.
Ibid, sec. 318
Every one who wilfully destroys or damages any of the property hereinafter mentioned commits mischief, and is liable to the punishments hereinafter specified:—
(a.)
To imprisonment with hard labour for life if the object damaged is—
(i.)
A dwellinghouse, ship, or boat, and the damage is caused by an explosion, and if any person is in such dwellinghouse, ship, or boat, or the damage causes actual danger to life;
(ii.)
A bank or wall of the sea, or of any inland water, or any work belonging to any port, harbour, dock, or inland water, and the damage causes actual danger of inundation;
(iii.)
A bridge over which a highway passes, damaged with the intent of rendering, and so as to render, such highway dangerous or impassable;
(iv.)
A railway damaged with the intent of rendering, and so as to render, such railway dangerous or impassable;
(v.)
Manufacturing machines, or manufacturing implements, or goods in process of manufacture, damaged with intent to render them useless:
(b.)
To fourteen years’ imprisonment with hard labour if the object damaged is—
(i.)
A ship in distress, or wrecked, or any goods, merchandise, or articles belonging thereto;
(ii.)
A horse, mare, or gelding, ass, mule, bull, cow, ox, or heifer, ram, ewe, or other sheep, boar, sow, or other pig, or goat, or the young of any such animal, and the damage be caused by killing, maiming, or wounding:
(c.)
To seven years’ imprisonment with hard labour if the object damaged is—
(i.)
A ship damaged with intent to destroy or render useless such ship;
(ii.)
A signal or mark used for the purposes of navigation;
(iii.)
A bank or wall of the sea, or of any inland water, or any materials fixed in the ground for securing the same, or any work belonging to any port, harbour, dock, or inland water;
(iv.)
A navigable river or canal damaged by interference with the flood-gates or sluices thereof, or otherwise, with intent and so as to obstruct the navigation thereof;
(v.)
The flood-gate or sluice of any private water, damaged with intent to take or destroy, or so as to cause the loss or destruction of, the fish therein;
(vi.)
A private fishery or salmon river damaged by lime or other noxious material put into the water with intent to destroy fish then being or to be put therein;
(vii.)
The flood-gate of any millpond, reservoir, or pool cut through or destroyed;
(viii.)
Agricultural machines or agricultural implements damaged with intent to render them useless;
(ix.)
A hop-bind growing in a plantation of hops:
(d.)
To five years’ imprisonment with hard labour if the object damaged is—
Any property, for damage to which no special punishment is by law prescribed, damaged by night to the value of five pounds:
(e.)
To three years’ imprisonment with hard labour if the object damaged is—
(i.)
A tree, shrub, or underwood injured to an extent exceeding in value five pounds;
(ii.)
A tree, shrub, or underwood growing in a park, pleasure-ground, or garden, or in any land adjoining or belonging to a dwellinghouse, injured to an extent exceeding in value one pound;
(iii.)
A vegetable production growing in a garden, orchard, or greenhouse, the offender having been already convicted summarily of a like offence:
(f.)
To two years’ imprisonment with hard labour if the object damaged is—
(i.)
A turnpike gate, or toll-bar, or any fence belonging thereto, or any house or weighing-machine used for the collection of toll;
(ii.)
Anything that forms part of or is used about an electric or magnetic telegraph or telephone, with intent to obstruct the transmission or delivery of any message;
(iii.)
A book, manuscript, or work of art, an article kept for the purposes of art, science, or literature, any painted glass, any statue or monument, or any fence surrounding the same;
(iv.)
Any tree, shrub, or underwood injured to the extent of one shilling in value, the offender having been twice summarily convicted of a like offence;
(v.)
Any property, for damage to which no special punishment is by law prescribed, damaged to the value of five pounds.
340 Providing gunpowder to commit crime.
1893, No. 56, sec. 319
Every one is liable to two years’ imprisonment with hard labour who knowingly has in his possession or makes any gunpowder or any explosive substance, or any dangerous engine, instrument, or thing, with intent thereby to commit, or for the purpose of enabling any other person to commit, a crime.
341 Whipping.
Ibid, sec. 320
Every one convicted of any crime under the preceding sections relating to mischief, other than that specified in the last preceding section, may, if under sixteen years, be sentenced to be once whipped in addition to any other punishment.
Threatening and attempting to commit Crimes
342 Threatening to kill.
Ibid, sec. 321
Every one is liable to ten years’ imprisonment with hard labour, and if under sixteen to be once whipped, who sends or causes to be received, knowing the contents thereof, any letter or writing containing threats to kill or do grievous bodily harm to any person.
343 Threatening to burn.
Ibid, sec. 322
Every one is liable to ten years’ imprisonment with hard labour, and if under sixteen to be once whipped, who, knowing the contents thereof, sends or causes to be received any letter or writing threatening—
(a.)
To burn or destroy any building, or any stack or standing crop of grain, or other vegetable produce, or any ship or vessel; or
(b.)
To kill, maim, or wound any horse, mare, or gelding, ass, mule, bull, cow, ox, or heifer, ram, ewe, or other sheep, boar, sow, or other pig, or goat, or the young of any such animal.
344 Threatening by night.
Ibid, sec. 323
Every one is liable to five years’ imprisonment with hard labour, and if under sixteen years to be once whipped, who, by night, with intent to intimidate or annoy any person,—
(a.)
Breaks or injures or threatens to break or injure any dwellinghouse; or
(b.)
By the discharge of firearms or otherwise alarms or attempts to alarm any person in any dwellinghouse.
345 Threatening acts.
Ibid, sec. 324
Every one is liable to two years’ imprisonment with hard labour who, with intent to intimidate or annoy any person,—
(a.)
Breaks or injures or threatens to break or injure any dwellinghouse; or
(b.)
By the discharge of firearms or otherwise alarms or attempts to alarm any person in any dwellinghouse.
346 Conspiring to prevent collection of rates or taxes.
Ibid, sec. 325
Every one is liable to two years’ imprisonment with hard labour who conspires with any other person by force and intimidation to prevent the collection of any rates or taxes the levying and collection of which is authorised by law.
347 Conspiring to commit a crime punishable by three years’ imprisonment.
1893, No. 56, sec. 326
Every one is liable to five years’ imprisonment with hard labour who, in any case not hereinbefore provided for, conspires with any person to commit any crime punishable by imprisonment with hard labour for three years or upwards, or to do anything in any part of the world which if done in New Zealand would be a crime so punishable.
348 Conspiring to commit other crimes.
Ibid, sec. 327
Every one is liable to two years’ imprisonment with hard labour who conspires with any person to commit any crime for which the punishment is of less severity than three years’ imprisonment, with hard labour, or to do anything in any part of the world which if done in New Zealand would be a crime so punishable.
349 Attempting to commit certain crimes.
Ibid, sec. 328
Every one is liable to two years’ imprisonment with hard labour who attempts, in any case not hereinbefore provided for, to commit any crime punishable by imprisonment with hard labour for three years or upwards.
350 Attempting to commit other crimes.
Ibid, sec. 329
Every one who attempts to commit any crime for which the punishment is of less severity than three years’ imprisonment with hard labour, in any case where no express provision is made by law for the punishment of such attempt, is liable to imprisonment with hard labour for a term equal to one-half of the longest term to which a person committing the crime attempted to be committed may be sentenced.
351 Attempting to commit statutory offences.
Ibid, sec. 330
Every one is liable to two years’ imprisonment with hard labour who attempts to commit any crime under any statute not inconsistent with this Act, or incites or attempts to incite any person to commit any such crime.
352 Accessories after the fact to certain crimes.
Ibid, sec. 331
Every one is liable to two years’ imprisonment with hard labour who, in any case where no express provision is made by this Act for the punishment of an accessory, is accessory after the fact to any crime punishable on a first conviction by imprisonment with hard labour for three years or upwards.
353 Accessories after the fact to other crimes.
Ibid, sec. 332
Every one who is accessory after the fact to any crime punishable with less severity than three years’ imprisonment with hard labour is liable, in any case where no express provision is made for the punishment of such accessory, to imprisonment with hard labour for a term equal to one-half of the longest term to which a person committing the crime to which he is accessory may be sentenced.
Part X Procedure
General Provisions
354 Power to make rules.
Ibid, sec. 333
(1.)
Any three or more of the Judges of the Supreme Court (of whom the Chief Justice shall be one) may at any time and from time to time make such rules for regulating practice, pleading, and procedure under this Act as may be found necessary.
(2.)
Such rules shall come into force upon their publication in the Gazette, or on such day subsequent to such publication as by the said rules may be appointed in that behalf, and shall, within twenty days of such publication, be laid before Parliament if sitting, and if not, then within twenty days after the commencement of the next ensuing session.
(3.)
If an address is presented to the Governor by either House of Parliament within the said session praying that any rule so made may be annulled, the Governor may thereupon by Order in Council annul the same.
(4.)
Until such rules are made, and so far as they do not extend, the existing practice, pleading, and procedure in New Zealand shall remain and be in force so far as they are not altered by or inconsistent with the provisions of this Act.
355 Civil remedy not suspended.
1893, No. 56, sec. 334
No civil remedy for any act or omission shall be suspended by reason that such act or omission amounts to a criminal offence.
356 Procedure to be uniform.
Ibid, sec. 335
(1.)
The procedure, from information up to commitment for trial or holding to bail, shall be that prescribed by “The Justices of the Peace Act, 1908.”
(2.)
Except where herein otherwise provided, there shall be one uniform procedure in respect of all offences for which the offender is proceeded against by indictment.
357 Construction of Acts.
Ibid, sec. 336
(1.)
Every statute shall be read and construed as if any offence therein mentioned for which the offender may be prosecuted by indictment (however such offence may be therein described or referred to) were described or referred to as a crime; and ail provisions of this Act relating to crimes generally shall apply to every such offence.
(2.)
Every commission, Proclamation, warrant, or other document relating to criminal procedure in which offences that are crimes as defined by this Act are described or referred to by any names whatever, shall be read and construed as if such offences were therein described and referred to as crimes.
358 Rules as to arrest in graver crimes.
Ibid, sec. 337
Any one charged with a crime for which the punishment is death, or imprisonment with hard labour for three years or upwards on a first conviction, may be arrested without warrant:
Provided that no one is liable to be arrested without warrant on a charge of having committed any of the crimes mentioned in—
Section one hundred and eight hereof;
Sections one hundred and twenty-six to one hundred and twenty-eight hereof;
Section one hundred and thirty-one or one hundred and thirty-two hereof;
Sections one hundred and thirty-five to one hundred and thirty-seven hereof;
Section one hundred and forty hereof;
Section one hundred and forty-four or one hundred and forty-five hereof;
Section one hundred and forty-seven or one hundred and forty-eight hereof;
Section one hundred and fifty-four hereof;
Section one hundred and sixty-six hereof;
Section one hundred and sixty-nine hereof;
Section one hundred and eighty-nine or one hundred and ninety-two hereof;
Sections two hundred and three to two hundred and five hereof;
Sections two hundred and twenty to two hundred and twenty-three hereof;
Section two hundred and twenty-five hereof;
Section two hundred and twenty-seven hereof;
Section two hundred and twenty-nine or two hundred and thirty hereof;
Paragraph (c) of section two hundred and thirty-five hereof;
Section two hundred and fifty-four hereof;
Section two hundred and fifty-six, two hundred and fifty-seven, two hundred and fifty-nine, or two hundred and sixty hereof;
Section two hundred and seventy hereof;
Section two hundred and eighty-seven hereof;
Section two hundred and ninety-two, two hundred and ninety-five, or two hundred and ninety-seven hereof, in cases where the punishment is imprisonment with hard labour for three years or upwards;
Sections three hundred and three to three hundred and eight hereof;
Section three hundred and ten hereof;
Section three hundred and twelve hereof;
Sections three hundred and forty-two to three hundred and forty-four hereof; and
Section three hundred and forty-seven hereof:
Provided also that no one shall be arrested without warrant upon charge of having committed any crime mentioned in section two hundred and fifty-two or three hundred and twenty-two hereof, unless he is found committing such crime.
359 Rules as to arrest in lesser crimes.
1893, No. 56, sec. 337
Any one charged with a crime for which the punishment on a first conviction is of less severity than three years’ imprisonment with hard labour shall not be arrested without warrant:
Provided that any one may be arrested without warrant who is charged with any crime mentioned in—
Section one hundred and ninety-three hereof:
Section two hundred hereof:
Section two hundred and ninety-two hereof:
Sections three hundred and fourteen to three hundred and twenty-seven hereof, in cases where the punishment for the crime is imprisonment and the offender is found committing such crime:
Sections three hundred and twenty-eight to three hundred and forty-one hereof.
360 Saving of express power of arrest in any other statute.
Ibid, sec. 337
Nothing in the two last preceding sections shall be construed to annul or limit any provision made by any statute giving express power of arrest without warrant.
Procedure in Particular Cases
361 Judicial corruption.
Ibid, sec. 338
No one holding any judicial office shall be prosecuted for the crime of judicial corruption as defined in section one hundred and twenty-six hereof without the leave of the Attorney-General; and no Judge who holds his office for life, subject only to a power of removal by His Majesty on an address presented by both Houses of Parliament, shall be prosecuted for any such crime except by the Attorney-General in pursuance of a resolution of both Houses of Parliament.
362 Selling offices, &c.
1893, No. 56, secs. 339, 340
No one shall be prosecuted without the leave of the Attorney-General for the crime of selling offices as defined in section one hundred and twenty-eight hereof, or criminal breach of trust as defined in section two hundred and fifty-four hereof, or any crime mentioned in section two hundred and sixty-two hereof.
363 Notice to accused.
Ibid, sec. 340
In every case where the leave of the Attorney-General to prosecute is required by this Act such previous notice as he directs of the application for leave to prosecute must be given to the person whom it is intended to prosecute.
364 Special as to defamatory libel.
The provisions of this Part of this Act shall in the case of the crimes of defamatory libel and criminal defamation be read subject to the special provisions of sections two hundred and thirty-three and two hundred and thirty-four hereof.
Procedure before Appearance of Accused
365 Search-warrant.
Ibid, sec. 341
(1.)
Any Justice who is satisfied upon oath that there is reasonable ground for believing that there is in any building, ship, carriage, box, receptacle, or place—
(a.)
Anything upon or in respect whereof any crime for which under this or any other Act the offender may be arrested without warrant has been or is suspected to have been committed; or
(b.)
Anything which there is reasonable ground to believe will afford evidence as to the commission of any such crime; or
(c.)
Anything which there is reasonable ground to believe is intended to be used for the purpose of committing any crime against the person, for which, under this or any other Act, the offender may be arrested without warrant,—
may at any time by warrant under his hand (in the form numbered (1) in the Third Schedule hereto or to the like effect) authorise some constable named therein to search such building, ship, carriage, box, receptacle, or place for any such thing, and to seize and carry it before any Justice, to be by him dealt with according to law.
(2.)
Every such warrant shall be executed by day, unless the Justice by the warrant authorises the constable to execute it at night.
(3.)
When any such thing is seized and brought before the Justice he may detain it, taking reasonable care to preserve it until the conclusion of the investigation; and, if any one is committed for trial, he may order it to be further detained for the purpose of evidence on the trial.
(4.)
If no one is committed, the Justice shall direct such thing to be restored to the person from whom it was taken, except in the cases next hereinafter mentioned, unless he is authorised or required by law to dispose of it otherwise.
(5.)
If under any such warrant there is brought before a Justice any forged bank-note, bill-paper, bank-note paper, instrument, or other thing the possession whereof, in the absence of lawful excuse, is a crime under any provision of this or any other Act, the Court to which any such person is committed for trial, or, if there is no commitment for trial, such Justice, may cause such thing to be defaced or destroyed.
(6.)
If under any such warrant there is brought before a Justice any counterfeit coin or other thing the possession of which, with knowledge of its nature and without lawful excuse, is a crime, every such thing shall be delivered up to any Inspector or other superior officer of Police, or to any person authorised by him to receive the same, as soon as it has been produced in evidence, or as soon as it appears that it will not be required to be so produced.
(7.)
If the thing to be searched for is gunpowder, or any other explosive or dangerous or noxious thing, the person making the search shall have the same powers and protections as are given by any statute in force for the time being to any person lawfully authorised to search for any such thing, and the things themselves shall be disposed of in the manner directed by any such statute:
Provided that this section shall not be held to repeal the special provisions of any statute regulating searches and search-warrants in cases within such statute.
Procedure after Appearance of Accused
366 Deposition of witness taken after committal.
1893, No. 56, sec. 344
(1.)
After any one has been committed for trial for any crime, proof upon oath may be given either by the prosecutor or the accused that any person who has not been examined as a witness is able to give evidence tending to prove either the guilt or the innocence of the accused.
(2.)
Such proof shall be given before any one of the Justices by whom the accused was committed, or some other Justice acting at the same place:
Provided that if the person intended to be examined is prevented by illness, or any other cause, from appearing, such proof may be given before a Justice at the place in which the person intended to be examined then is.
(3.)
In any case the Justice before whom such proof is given shall take it in the form of a deposition as provided in “The Justices of the Peace Act, 1908.”
(4.)
The Justice, if satisfied by the proof that it is for the interests of justice that the examination should take place, shall appoint a time and place for the examination of the person intended to be examined, and, if such person is able to attend, the Justice shall have the same powers for compelling his attendance as are by law provided for compelling the attendance of witnesses at the preliminary inquiry.
(5.)
If application is made on behalf of the prosecution, the person making the application shall give notice to the accused of the time and place at which the examination is to be held.
(6.)
If application is made on behalf of the accused, the person making the application shall give the like notice to the prosecutor.
(7.)
The notice shall in either case be in writing, and may be in the form numbered (2) in the Third Schedule hereto or to the like effect.
(8.)
The person giving the notice must, if required, tender to the person to whom it is given reasonable travelling-expenses to the place where the evidence is to be taken:
Provided that if the application is made by the prosecutor, and if the accused is in prison, any one of the Justices by whom the prisoner was committed, or any Justice attending at the prison in which he is confined, may, by an order in writing under his hand, direct the governor of the prison having the custody of the accused person to convey him or cause him to be conveyed to the place where the examination is to be taken, for the purpose of being present when it is taken, and to take him back to prison afterwards. The expenses of such conveyance shall be paid out of the funds applicable to the expenses of the conveyance of any prisoner taken from that prison before a Justice for examination.
(9.)
At the time and place appointed the Justice shall take the deposition of the person to be examined in the same way as other depositions are taken; and all the provisions of “The Justices of the Peace Act, 1908,”
relating to the signing and reading-over of depositions, and to their admissibility in evidence, shall apply to every such deposition.
(10.)
If the party against whom such deposition is to be read neglects to attend at the time when it is taken, after receiving due notice thereof, such deposition shall be admissible in evidence against him, although it was taken and signed in his absence.
(11.)
The prosecutor and the accused may be represented by counsel or solicitor, and such counsel or solicitor shall be entitled to cross-examine the witness.
367 Form of deposition.
1893, No. 56, sec. 344
Depositions taken under the last preceding section may be in the form numbered (32) in the Second Schedule to “The Justices of the Peace Act, 1908,”
or to the like effect; and every such deposition shall be transmitted to the proper officer of the Court before which the accused is to be tried, and shall be treated in all respects as, and shall be considered as being for all purposes, a deposition taken upon the preliminary inquiry.
368 Rule as to bail.
Ibid, sec. 345
(1.)
Any one charged with any crime mentioned in section ninety-four, ninety-eight, or ninety-nine hereof shall not be bailed without an order from the Governor or a Judge of the Supreme Court.
(2.)
Any one charged with any other crime for which the punishment is death, or imprisonment with hard labour for three years or upwards on a first conviction, is bailable at discretion:
Provided that any one shall be bailable as of right who is charged with any of the crimes mentioned in—
Sections one hundred and eight, one hundred and sixty-six, one hundred and sixty-nine, two hundred and four, two hundred and five, two hundred and twenty-two, two hundred and twenty-three, paragraph (c) of section two hundred and thirty-five, sections two hundred and fifty-six, two hundred and fifty-seven, two hundred and fifty-nine, two hundred and sixty, two hundred and seventy, two hundred and eighty-seven, three hundred and five to three hundred and eight, three hundred and ten to three hundred and twelve, three hundred and twenty-two, three hundred and forty-four, and three hundred and forty-seven hereof.
(3.)
Any one charged with a crime for which the punishment on a first conviction is of less severity than three years’ imprisonment with hard labour is bailable as of right:
Provided that no one shall be bailable as of right who is charged with any of the crimes mentioned in—
Sections one hundred and ninety-three, two hundred and ninety-two, two hundred and ninety-five, and two hundred and ninety-seven hereof.
(4.)
Every one bailable as of right shall be released at any stage of the proceedings, whether he has been committed to prison or not, upon providing sureties sufficient in the opinion of the Justices to secure his appearance, or upon his own recognisance if they think fit.
(5.)
In cases where the accused is bailable at discretion, bail shall at any stage of the proceedings be allowed or refused at the discretion of the Justices.
(6.)
Where the preliminary inquiry is for any reason adjourned or interrupted, the Justices holding it, instead of remanding the accused to prison, shall, if the accused is bailable as of right, or may, if the accused is bailable at discretion, admit him to bail on condition of his appearing at the time to which the inquiry is adjourned, or at an earlier day if so required.
(7.)
The recognisances to be taken when an accused person is bailed or allowed to be at large on his own recognisance may be in the form numbered (1) in the Second Schedule of “The Justices of the Peace Act, 1908,”
or to the like effect.
(8.)
If an accused person who has appeared and has been admitted to bail (either on the recognisance of sureties or on his own recognisance) fails to appear at any adjournment according to the condition of such recognisance, the Justice before whom he ought to have appeared, or any other Justice, may issue a warrant for his apprehension, whether there has been any information in writing and on oath or not.
(9.)
Every such warrant may be in the form numbered (5) in the Third Schedule hereto or to the like effect.
Place and Mode of Trial
369 Information by Attorney-General.
1893, No. 56, sec. 346
(1.)
An information may be filed by the Attorney-General for any offence not punishable by death or imprisonment with hard labour for three years or upwards.
(2.)
The existing practice as to the time and mode of pleading upon information shall, until altered by rules under this Act, apply to informations under this Act.
370 Changing place of trial before or after indictment.
Ibid, sec. 347
(1.)
Where any person is committed or held to bail for any crime to appear at any sitting of the Supreme Court (hereinafter called “the Court of committal”
), and it appears to a Judge of the Court that it is expedient for the ends of justice that such person should be tried for such crime at some sitting of the Court other than the Court or sitting for trial at which such person was committed or held to bail, or at which such person would in the ordinary course of law be tried for such crime, such Judge, either of his own motion, or on application made by or on behalf of the prosecutor or the person charged, may by order, either before or after indictment found, direct that such person shall be tried for such crime at such sitting of the Court (hereinafter called “the substituted Court”
) as he thinks fit, held either within the same district wherein such person is committed or held to bail, or in some other district.
(2.)
Any application for an order as aforesaid may be made to a Judge when sitting in Court or in Chambers; and it shall not be necessary for the person charged to be brought or appear in person before such Judge, either upon the making or the determination of such application, and it shall not be necessary for such person to plead any plea to any such indictment in the Court of committal.
(3.)
The Judge may make any such order subject to such conditions concerning bail, the payment of the costs of the prosecutor and witnesses, and of the removal and transmission, or removal of the indictment, and of the removal of the person charged, and concerning any other matter or thing whatsoever as such Judge, in his discretion, thinks fit to impose.
(4.)
After any such order has been made, no indictment shall be presented to or at the Court of committal by the Attorney-General, or other person appointed to prosecute on behalf of the Crown, against such person for such offence.
(5.)
If the indictment has not been found when the order is made, the Attorney-General on behalf of His Majesty, or any person appointed to prosecute on behalf of His Majesty, or the prosecutor, may present to the Grand Jury at the substituted Court an indictment charging such person with such crime; and the indictment shall be presented, and the person charged shall be arraigned and shall plead and be tried, and the like proceedings shall be had in the substituted Court as if such person had been committed in the first instance to the prison which is usually delivered by or at, or had been held to bail to appear and plead at, the substituted Court.
(6.)
If the indictment has been found when the order is made, the Judge shall by such order or by a separate order direct that the Registrar of the Court of committal before or at which any indictment charging such person with such crime is then pending for trial, upon delivery to him of an office copy of such order, shall forthwith transmit such indictment to the Registrar of the substituted Court; and the person charged by such indictment shall be arraigned, and shall plead, and be tried, in the substituted Court in the same manner in all respects as if such indictment had been originally presented at or returned to the substituted Court.
(7.)
The Judge may by such order or by a separate order direct that the Justice or Justices before or by whom the person so committed or held to bail or charged with any crime was examined, or the Registrar of the Court, or other person having the custody or possession thereof, shall forthwith, upon delivery to him of an office copy of such order, transmit to the Registrar of the substituted Court any recognisances, depositions, examinations, or informations in his custody or possession relating to the crime for which such person was committed or held to bail, or with which he is charged in the indictment.
371 Power of Court of committal to compel attendance at substituted Court.
1893, No. 56, sec. 348
Where an order for the trial of any person in a substituted Court is delivered to any Court of committal or the Judge thereof, or to the Registrar of the Court of committal, such Court of committal—
(a.)
Shall require any person attending the Court of committal under any recognisance or subpœna to prosecute, or to prosecute and give evidence, or to give evidence upon the trial of such person, to enter into a recognisance in such sum of money as the Court of committal deems fit, to prosecute, or to prosecute and give evidence, or to give evidence, as the case may be, upon the trial at the substituted Court whenever the same is held; and
(b.)
May either require any person attending the Court of committal under any recognisance to take his trial to enter into such recognisance with so many sureties and in such sum or sums of money, and with such condition for his appearance and taking his trial at the substituted Court whenever the same is held, as the Court of committal deems fit, or may commit such person to the prison at or nearest to the place where the Court of committal is held, there to remain until he is removed or otherwise delivered in due course of law.
372 Recognisances to hold good at substituted Court.
Ibid, sec. 349
(1.)
Every person who has entered into any recognisance for the purposes of the trial at the Court of committal shall, where an order is made as aforesaid for the trial of any crime at a substituted Court, be bound by such recognisance in like manner as if the same had been originally entered into for the purposes of the trial before the substituted Court.
(2.)
Notice in writing shall be given to every one bound by such recognisance, either personally or by leaving the same at his place of residence as described in the recognisance, to appear before the substituted Court upon the trial of the said crime.
(3.)
The Judge of the Court of committal may cause the party applying for such order, whether he be the prosecutor or the party charged, to enter into a recognisance, with or without sureties, for such sum as the Judge directs, conditioned to give such notice as aforesaid.
(4.)
Where it appears to any Court of committal to which an order is delivered for the purpose of removing any indictment from such Court that any person so bound by recognisance has been personally served with any such notice as aforesaid, it shall not be necessary for the Court to require such person to enter into a fresh recognisance, unless it appears to the Court that it is expedient that such person should enter into such recognisance.
373 Substituted Court may issue process for enforcing appearance of defendant or witnesses.
Ibid, sec. 350
For the purposes of the trial before the substituted Court such Court may issue process for apprehending the person to be tried, and may compel the attendance of witnesses as well on the part of the prosecution as on the part of the defence, or of the person to be tried, in like manner as in cases of indictments originally found at such substituted Court, and every such process may be lawfully executed at any place within New Zealand.
374 Substituted Court may require new recognisances for further appearance of prosecutor and witnesses.
1893, No. 56, sec. 351
The substituted Court may also from time to time require the prosecutor and witnesses to enter into such recognisances, in such sums of money and with such conditions as to appearance and otherwise as it deems fit.
375 Defendant on bail may be bailed again by substituted Court on committal.
Ibid, sec. 352
Such Court may also from time to time require the person charged to enter into such recognisances, with such sureties and in such sum or sums of money and with such condition for his appearance and otherwise as it deems fit, or may commit him to the custody of the gaoler of the prison at or nearest to the place of trial, there to remain until he is delivered in due course of law.
376 Prisoner may be removed to prison at or nearest place of trial.
Ibid, sec. 353
Where an order is made directing that the trial of any person confined in any prison for any crime shall be held at a substituted Court, then such person shall not be discharged out of prison by the Court of committal; but, whether or not an indictment is presented or found against such person for such crime at the Court of committal, the gaoler of such prison shall forthwith, upon the delivery to him of an office copy of such order, without writ of habeas corpus or other writ for that purpose, cause such person with his commitment and detainer to be safely removed to the prison at or nearest to the place at which the substituted Court is to be held; and thereupon the gaoler of such last-mentioned prison shall receive such person into his custody in such prison, there to remain until he is delivered in due course of law.
377 Person removed may be taken to and from Court for trial as often as necessary.
Ibid, sec. 354
Where any person is removed under any such order into the custody of the gaoler of the prison at or nearest to the place of trial as aforesaid, or is committed to the custody of such gaoler by the substituted Court, such person, with his commitment and detainer, shall, without writ of habeas corpus or other writ for that purpose, be removed by the gaoler of the said last-mentioned prison into and from the said substituted Court when and as often as necessary in order that he may be tried, sentenced, or otherwise dealt with according to law, and such removal shall not be deemed an escape.
378 Every person removed to be deemed to be in custody.
Ibid, sec. 355
Every prisoner removed as mentioned in any of the preceding sections shall, during the time of such removal, and during the time of his being removed hack to the prison to which he was originally committed, and from which he has been brought, as often as he is for any reason so removed back, and also for and during such time as he is detained in the prison at or near the place of trial, or in any other prison, or in any other place to or through which he has been so removed, and until he is delivered by due course of law, be to all intents and purposes deemed to be in proper legal custody wherever in New Zealand, he may, in the course of such removal, be taken or detained.
379 Protection of gaoler, &c.
Ibid, sec. 355
No action or other proceeding, civil or criminal, shall be maintained by such prisoner or any other person against the gaoler of the prison to or from which such prisoner is removed, or against any other person, by reason or in consequence of any such removal or detainer of such prisoner.
380 Powers and authorities of Judge of substituted Court.
1893, No. 56, sec. 356
Where any indictment is transmitted or removed to any substituted Court, or any indictment is presented and found at any such Court, the crime charged may be dealt with, tried, and determined by and before the Judge of the substituted Court in the same manner and with the same consequences in all respects as if the person charged had been originally committed or held to bail for trial at that Court, and, where an indictment has been removed, as if such indictment had been originally presented at or returned to that Court.
381 No objection may be had to order for removal of indictment.
Ibid, sec. 357
(1.)
ft shall not be lawful for any person, by himself or by his counsel, to take any objection either in any Court of committal or in any substituted Court, or in the Court of Appeal, to any order of a Judge of the Supreme Court, or to any other proceeding under which an indictment is transmitted or removed to, or a trial ordered to be had at, any substituted Court, or to any matter or thing set out or appearing on the face of the record, save and except only to the indictment alone.
Proof of proper transmission of indictment not necessary.
(2.)
It shall not be necessary for any purpose to prove that an indictment has been duly transmitted or removed into such substituted Court, but every such indictment shall be presumed to have been duly removed and transmitted upon production of the same in such substituted Court by the proper officer having the custody of the records of that Court, and no evidence or proof to the contrary shall be admitted.
382 Verdicts and judgments valid.
Ibid, sec. 358
Every verdict and judgment given upon an indictment transmitted or removed to or upon an indictment presented and found at any substituted Court shall be of the same force and effect in all respects as if such indictment had been duly found at that Court originally, and as if the offender had originally been duly committed or held to bail for trial thereat.
383 Expenses of witnesses to be advanced to defendant if indictment removed at instance of the Crown.
Ibid, sec. 360
Where application is made on behalf of His Majesty or of any prosecutor to a Judge of the Supreme Court for an order that any person charged with any crime shall be tried at a substituted Court, the Judge may issue a certificate, upon the production of which the Minister of Finance may order to be paid to the person so charged, out of any moneys provided by Parliament for the cost of criminal prosecutions, a sum not exceeding thirty pounds, to enable such person to defray the charges and expenses of the attendance of his witnesses.
384 Except where substituted Court in same district.
Ibid, sec. 360
Such order shall not be made where the substituted Court is to be held in the same district wherein such person was committed or held to bail.
385 Regulations for conduct of Sheriffs and gaolers.
Ibid, sec. 361
(1.)
The Governor in Council may from time to time make regulations for the purposes of sections three hundred and sixty-nine to three hundred and eighty-five hereof respecting—
(a.)
The government and keeping of prisons:
(b.)
The duties of Sheriffs and gaolers under those sections:
(c.)
The alteration of any proceeding for carrying into effect the purposes of those sections.
(2.)
All such regulations shall be of the like force and effect as if the same had been made by authority of Parliament, and shall be notified in the Gazette, or in such other manner as the Governor in Council directs.
Forms. 1893, No. 56, sec. 359(4)
(3.)
The several forms in the Fourth Schedule hereto, or forms to the like effect, shall be deemed good, valid, and sufficient in law; and in the case of any order directed to any Sheriff and commanding him to execute any sentence it shall be sufficient to deliver such order either to such Sheriff or to his deputy.
Indictments
386 Heading of indictment.
Ibid, sec. 362
(1.)
It shall not be necessary to state in any indictment that the jurors present upon oath.
(2.)
It shall be sufficient if an indictment begins in the form numbered (3) in the Third Schedule hereto or to the like effect.
(3.)
Any mistake in the heading shall upon being discovered be forthwith amended, and whether amended or not shall be immaterial.
387 Forms and contents of counts.
Ibid, sec. 363
(1.)
Every count of an indictment shall contain and shall be sufficient if it contains in substance a statement that the accused has committed some crime therein specified.
(2.)
Such statement may be made in popular language, without any technical averments or any allegations of matter not essential to be proved.
(3.)
Such statement may be in the words of the enactment describing the crime or declaring the matter charged to be a crime, or in any words sufficient to give the accused notice of the crime with which he is charged.
(4.)
Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.
(5.)
A count may refer to any section or subsection of any statute creating the crime charged therein, and in estimating the sufficiency of such count the Court shall have regard to such reference.
(6.)
Every count shall in general apply only to a single transaction.
388 Crimes may be charged in the alternative.
Ibid, sec. 364
(1.)
A count shall not be deemed objectionable on the ground that it charges in the alternative several different matters, acts, or omissions which are stated in the alternative in the enactment describing any crime, or declaring the matters, acts, or omissions charged to be a crime, or on the ground that it is double or multifarious.
(2.)
The accused may at any stage of the trial apply to the Court to amend or divide any such count on the ground that it is so framed as to embarrass him in his defence.
(3.)
The Court, if satisfied that the ends of justice require it, may order any count to be amended, or divided into two or more counts; and on such order being made such count shall be so divided or amended, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.
389 Certain objections not to vitiate counts.
Ibid, sec. 365
No count shall be deemed objectionable or insufficient on the ground—
(a.)
That it does not contain the name of the person injured; or
(b.)
That it does not state who is the owner of any property therein mentioned; or
(c.)
That it charges an intent to defraud, without naming or describing the person whom it was intended to defraud; or
(d.)
That it does not set out any document which may be the subject of the charge; or
(e.)
That it does not set out the words used, where words used are the subject of the charge; or
(f.)
That it does not specify the means by which the crime was committed; or
(g.)
That it does not name or describe with precision any person or thing:
Provided that the Court may, if satisfied that it is necessary for a fair trial, order that further particulars in writing of such document, words, means, person, or thing be furnished by the prosecutor.
390 Indictment for perjury or fraud.
1893, No. 56, sec. 366
(1.)
No count charging perjury, the making of a false oath or of a false statement, or the fabrication of evidence, or subornation or procuring the commission of any of these crimes, shall be deemed insufficient on the ground that it does not state the nature or the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used, or the evidence fabricated, or that it does not expressly negative the truth of the words used; but the Court may order that the prosecutor shall furnish particulars in writing of what is relied on in support of the charge.
(2.)
No count charging any false pretence, or any fraud, or any attempt or conspiracy by fraudulent means, shall be deemed insufficient because it does not set out in detail in what the false pretence, or the fraud, or fraudulent means consisted; but the Court may order that the prosecutor shall furnish further particulars in writing of the above matters, or any of them.
(3.)
No provision hereinbefore contained as to matters that are not to render any count objectionable or insufficient shall be construed as restricting or limiting in any way the general provisions respecting the form and contents of counts contained in this Part of this Act.
391 Further particulars.
Ibid, sec. 367
(1.)
When any such further particulars as aforesaid are delivered, a copy shall be given without charge to the accused or his solicitor.
(2.)
Such further particulars shall be entered in or attached to the Crown Book; and the trial shall proceed in all respects as if the indictment had originally contained such further particulars.
(3.)
In determining whether further particulars are required or not, and whether a defect in the indictment is material to the substantial justice of the case or not, the Court may have regard to the depositions.
392 Variance and amendment.
Ibid, sec. 368
(1.)
If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment, either as found or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.
(2.)
If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make such amendment.
(3.)
If it appears that the indictment has been preferred under some other statute instead of under this Act, or under this Act instead of under some other statute, or that there is in the indictment or in any count in it an omission to state or a defective statement of anything requisite to constitute the crime, or an omission to negative any exception that ought to be negatived, but that the matter omitted is proved by the evidence, the Court before which the trial takes place, or the Court of Appeal, if of opinion that the accused has not been misled or prejudiced in his defence by such error or omission, shall amend the indictment or count as may be necessary.
(4.)
In any such case the trial or the appeal may then proceed in all respects as if the indictment or count had been originally framed as amended.
(5.)
If the Court is of opinion that the accused has been misled or prejudiced in his defence by any such variance, error, or omission, or defective statement as aforesaid, but that the effect of such misleading or prejudice might be removed by adjourning or postponing the trial, the Court may in its discretion make the amendment and adjourn the trial to a future day in the same sittings, or discharge the jury and postpone the trial to the next sittings of the Court, on such terms as it thinks just.
(6.)
The Court of Appeal may, in making such amendment, in its discretion, either affirm the sentence or direct a new trial.
(7.)
In determining whether the accused has been misled or prejudiced in his defence, the Court that has to determine the question shall consider the contents of the depositions, as well as the other circumstances of the case.
(8.)
The propriety of making or refusing to make any such amendment shall be deemed a question for the Court, and the decision of the Court upon it may be reserved for the Court of Appeal, or may be brought before the Court of Appeal, in the same manner as any other decision on a point of law.
393 Indictment for treason.
1893, No. 56, sec. 369
(1.)
Every indictment for treason or for treasonable crimes as by this Act defined must state overt acts, and no evidence shall be admitted of any overt act not stated unless it is otherwise relevant as tending to prove some overt act stated.
(2.)
The power of amending indictments herein contained shall not extend to authorise the Court to add to the overt acts stated in the indictment.
394 Attempt proved when crime is charged.
Ibid, sec. 370
Where the complete commission of the crime charged is not proved, but the evidence establishes an attempt to commit the crime, the accused may be convicted of such attempt, and punished accordingly.
395 Crime proved when attempt is charged.
Ibid, sec. 371
(1.)
Where an attempt to commit a crime is charged, but the evidence establishes the commission of the full crime, the accused shall not be entitled to be acquitted, but the jury may convict him of the attempt.
(2.)
After a conviction for such attempt the accused shall not be liable to be tried again for the crime which he was charged with attempting to commit.
396 Part of charge proved.
1893, No. 56, sec. 372
Every count shall be deemed divisible; and if the commission of 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 person accused may be convicted of any crime so included which is proved, although the whole crime charged is not proved; or he may be convicted of an attempt to commit any crime so included:
Provided that on a count charging murder, if the evidence proves manslaughter but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter, but shall not on that count find the accused guilty of any other offence:
Provided also that, upon a count charging rape, the accused shall not be found guilty of any charge other than rape or an attempt to commit rape.
397 Joinder of counts.
Ibid, sec. 373
(1.)
Any number of counts for any crime whatever may be joined in the same indictment, and shall be distinguished in the manner shown in the form numbered (3) in the Third Schedule hereto or to the like effect:
Provided that, to a count charging murder, no count charging any offence other than murder shall be joined.
(2.)
Where there are more counts than one in an indictment each count may be treated as a separate indictment.
(3.)
If the Court thinks it conducive to the ends of justice to do so it may order that the accused shall be tried upon any one or more of such counts separately.
(4.)
Such order may be made either before or in the course of the trial, and if made in the course of the trial the jury shall be discharged from giving a verdict on the counts on which the trial is not to proceed.
(5.)
The counts in the indictment which are not then tried shall be proceeded upon in all respects as if they had been found in a separate indictment.
(6.)
Unless there are special reasons, no order shall be made preventing the trial at the same time of any number of crimes involving dishonesty not exceeding five, alleged to have been committed within six months from the first to the last of such crimes, whether committed against the same person or not.
(7.)
If one sentence is passed upon any verdict of guilty on more counts than one the sentence shall be good if any of such counts would have justified the sentence.
398 Charge of previous conviction.
Ibid, sec. 374
Where an indictment contains a count charging the accused with having been previously convicted, he shall not, at the time of his arraignment, be required to plead to it unless he pleads guilty to the rest of the indictment, nor shall such count be mentioned to the jury when the accused is given in charge to them, nor shall he be tried upon it if he is acquitted on the other counts; but if he is convicted on any other count of the indictment he shall, before he is called upon to say why sentence should not be passed upon him, be asked whether or not he has been previously convicted as alleged, and if he says that he has not, or does not say that he has been so convicted, the jury shall be charged to inquire into the matter, as in other cases:
Provided that where upon the trial of any such person for any such subsequent crime as aforesaid evidence is given on the part of the accused of his good character, the prosecutor may, in answer thereto, prove such previous conviction, and the jury shall be charged to inquire thereof, together with the other crime to be tried.
399 Objections to indictment.
1893, No. 56, sec. 375
(1.)
No objection to an indictment shall be taken by way of demurrer, but, if an indictment docs not state in substance a crime, or states a crime not triable by the Court before which the accused is arraigned, the accused may move the Court to quash it, or in arrest of judgment, as herein provided.
(2.)
If such motion is made before the accused pleads, the Court shall in its discretion either quash the indictment or amend it.
(3.)
If the defect in the indictment appears to the Court during the trial, and the Court does not think fit to amend it, it may in its discretion quash the indictment, or leave the objection to be taken in arrest of judgment.
400 Indictment of parties.
Ibid, sec. 376
Every one who is a party to any crime within the meaning of this Act may be convicted either upon a count charging him with having committed that crime, where the nature of the crime charged will admit of such course, or upon a count alleging how he became a party to it.
401 Accessories after the fact, and receivers.
Ibid, sec. 377
(1.)
Every one charged with being an accessory after the fact to any crime, or with receiving property knowing it to have been dishonestly obtained, may be indicted, whether the principal offender or other party to the crime or the person by whom such property was so obtained has or has not been indicted or convicted, or is or is not amenable to justice; and such accessory may be indicted either alone, as for a substantive crime, or jointly with such principal or other offender or person by whom such property was dishonestly obtained.
(2.)
Where any property has been dishonestly obtained, any number of receivers at different times of such property, or of any part or parts thereof, may be charged with substantive crimes, and may be tried together, whether the person by whom the property was so obtained is or is not indicted with them, or is or is not in custody or amenable to justice.
402 Special pleas.
Ibid, sec. 378
(1.)
The following special pleas, and no others, may be pleaded according to the provisions hereinafter contained—that is to say, a plea of previous acquittal, a plea of previous conviction, and a plea of pardon.
(2.)
All other grounds of defence may be relied on under the plea of not guilty.
(3.)
The pleas of previous acquittal, or previous conviction, and pardon may be pleaded together, and if pleaded shall be disposed of before the accused is called on to plead further; and, if every such plea is disposed of against the accused, he shall be allowed to plead not guilty.
(4.)
In any plea of previous acquittal or previous conviction it shall be sufficient for the accused to state that he has been lawfully acquitted or convicted, as the case may be, of the crime charged in the count or counts to which such plea is pleaded.
(5.)
Nothing in this section shall be taken to restrict or modify the provisions of section two hundred and thirty-four hereof respecting the manner of pleading to an indictment for defamatory libel or criminal defamation.
403 Pleas of previous acquittal and conviction.
1893, No. 56, sec. 379
(1.)
On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the crimes of which he may be convicted on any count to which such plea is pleaded, the Court shall give judgment that he be discharged from such count.
(2.)
If it appears that the accused might on the former trial have been convicted of any crime of which he might be convicted on the count to which such plea is pleaded, but that he may be convicted on any such count of some crime of which he could not have been convicted on the former trial, the Court shall direct that he shall not be convicted on any such count of any crime of which he might have been convicted on the former trial, but that he shall plead over as to any other crime charged.
404 Second accusation.
Ibid, sec. 880
(1.)
Where an indictment charges substantially the same crime as that charged in the indictment on which the accused was given in charge on a former trial, but adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to such subsequent indictment.
(2.)
A previous conviction or acquittal on an indictment for murder shall be a bar to a second indictment for the same homicide charging it as manslaughter; and a previous conviction or acquittal on an indictment for manslaughter shall be a bar to a, second indictment for the same homicide charging it as murder.
(3.)
If on the trial of an issue on a plea of previous acquittal or conviction to an indictment for murder or manslaughter it appears that the former trial was for a crime against the person alleged to have been now killed, and that the death of such person is now alleged to have been caused by the crime previously charged, but that the death happened after the trial on which the accused was acquitted or convicted, as the case may be, then, if it appears that on the former trial the accused might if convicted have been sentenced to imprisonment with hard labour for three years or upwards, the Court shall direct that the accused be discharged from the indictment before it.
(4.)
If it does not, so appear the Court shall direct that he plead over.
405 Evidence of former trial.
Ibid, sec. 381
On the trial of an issue on a plea of previous acquittal or conviction, the depositions transmitted to the Court on the former trial, together with a copy of the Judge’s notes, if available, certified by an officer of the Court, and the depositions transmitted to the Court on the subsequent charge, shall be admissible in evidence to prove or disprove the identity of the charges.
406 Application of this Part to criminal informations.
1893, No. 56, sec. 382
The provisions of this Part of this Act relating to indictments shall, so far as applicable, apply to criminal informations.
Preferring Indictment
407 Sending bill before Grand Jury.
Ibid, sec. 383
(1.)
Any one who is bound over to prosecute any person, whether committed for trial or not, may prefer a bill of indictment before the Grand Jury for the charge on which the accused was committed, or in respect of which the prosecutor is so bound over, or for any charge founded on the facts or evidence disclosed in the depositions taken before the Justice.
(2.)
The Attorney-General, or any one with the written consent of a Judge of the Supreme Court or of the Attorney-General, may prefer a bill of indictment for any offence before the Grand Jury of any Court specified in such consent; and any person may, by order of the Supreme Court, prefer any bill of indictment before that Court at a sitting for the trial of criminal cases.
(3.)
It shall not be necessary to state such consent or order in the indictment.
(4.)
Objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge to the petty jury.
(5.)
The accused may, at any time before he is given in charge to the petty jury, apply to the Court to quash any count in the indictment, on the ground that it is not founded on such facts or evidence, and the Court shall quash such count if satisfied that it is not so founded.
(6.)
If at any time during the trial it appears to the Court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of such count remaining in the indictment, the Court may quash such count and discharge the jury from finding any verdict upon it, but the Court shall not do so unless satisfied that justice requires it.
(7.)
Save as aforesaid no bill of indictment shall be preferred:
Provided that nothing herein shall affect the practice whereby the Attorney-General or any person duly appointed for such purpose, or the Crown counsel at any District Court, may prefer any bill of indictment in any case.
408 Swearing of witnesses before Grand Jury.
Ibid, sec. 384
(1.)
The foreman of every Grand Jury shall administer an oath to all persons appearing before such Grand Jury to give evidence in support of a bill of indictment; and all such persons attending before such Grand Jury to give evidence may be sworn and examined by such Grand Jury touching the matters in question.
(2.)
The name of any witness so examined, or intended to be so examined, shall be indorsed on the bill of indictment, and the foreman of such Grand Jury shall write his initials against the name of each witness sworn and examined touching such bill of indictment.
(3.)
Upon the written order of the presiding Judge, but not otherwise, any other witness may be sworn and examined by and before the Grand Jury, though the name of the witness may not have been indorsed on the bill of indictment.
(4.)
It shall not be necessary for any person to take an oath in open Court to qualify such person to give evidence before any Grand Jury.
409 Presentment to be upon indictment only.
1893, No. 56. sec. 385
(1.)
No Grand Jury shall present that any one has committed an offence except upon a bill of indictment duly sent before them.
(2.)
No one shall be tried upon any Coroner’s inquisition.
410 Copy of indictment.
Ibid, sec. 386
After the indictment is found, every one charged therein shall be entitled to have a copy thereof, free of charge, from the officer of the Court.
411 Special provisions in treason.
Ibid, sec. 387
(1.)
Where any one is indicted for treason, or for being accessory after the fact to treason, the following documents shall be delivered to him after the indictment has been found, and at least ten days before his arraignment, that is to say:—
(a.)
A copy of the indictment;
(b.)
A list of the witnesses to be produced on the trial to prove the indictment; and
(c.)
A copy of the panel of the jurors who are to try him, returned by the Sheriff.
(2.)
The list of the witnesses and the copy of the panel of the jurors must mention the names, occupations, and places of abode of the said witnesses and jurors.
(3.)
The documents aforesaid must all be given to the accused at the same time and in the presence of two witnesses:
Provided that, if the trial is to be heard in the Court of Appeal, the list of jurors aforesaid may be given to the accused after his arraignment, if given ten days before the trial.
412 Beench warrant.
Ibid, sec. 388
(1.)
Where any one against whom an indictment has been duly preferred and found, and who is then at large, does not appear to plead to such indictment, whether he is under recognisance to appear or not, the following provisions shall apply:—
(a.)
The Court before which the accused ought to have been tried may issue a warrant for his apprehension, which may be executed in any part of New Zealand.
(b.)
The officer of the Court at which the said indictment is found, or, if the place of trial has been changed, the officer of the Court before which the trial is to take place, shall, at any time after the end of the sittings at which the accused ought to have appeared and pleaded, grant to the prosecutor, upon application made on his behalf, and upon payment of one shilling, a certificate of such indictment having been found.
(c.)
The certificate may be in the form numbered (4) in the Third Schedule hereto, or to the like effect.
(d.)
Any Justice to whom such certificate is produced shall issue his warrant to apprehend the accused, and to cause him to be brought before a Justice, to be dealt with according to law.
(e.)
The warrant may be in the form numbered (5) in the Third Schedule hereto, or to the like effect.
(f.)
If it is proved on oath before a Justice that any one apprehended and brought before him on such warrant is the person charged and named in such indictment, such Justice shall, without further inquiry or examination, either commit him to prison by a warrant (in the form numbered (6) in the Third Schedule hereto, or to the like effect), or admit him to bail as in other cases provided; but if the accused has, without reasonable excuse, failed to appear according to his recognisance, he shall not in any case be bailable as of right.
(2.)
If it is proved before the Justice upon oath that any such accused person is, at the time of such application and production of the said certificate as aforesaid, confined in any prison for any other offence than that charged in the said indictment, such Justice shall issue his warrant directed to the gaoler of the prison in which such person is then confined as aforesaid, commanding him to detain him in his custody until by lawful authority he is removed therefrom.
(3.)
Such warrant may be in the form numbered (6) in the Third Schedule hereto, or to the like effect.
413 Outlawry and forfeitures abolished.
1893, No. 56, sec. 389
(1.)
Outlawry in criminal cases is abolished.
(2.)
No confession, verdict, inquest, conviction, or judgment of or for any crime, or for felo de se, shall cause any attainder or corruption of blood, or any forfeiture or escheat, other than any fine or penalty imposed by the sentence of the Court.
Trial
414 Record of proceedings.
Ibid, sec. 390
(1.)
It shall not in any case be necessary to draw up any formal record of the proceedings on a trial for a crime; but the proper officer of the Court before which the trial takes place shall cause to be preserved all indictments and all depositions transmitted to him, and he shall keep a book to be called the Crown Book, which book shall be the property of the Court, and shall be deemed a record thereof, and the contents thereof provable by a certified copy or extract, without production of the original.
(2.)
In the Crown Book shall be entered the names of the Judge of the Court and of the grand jurors, and a memorandum of the substance of all proceedings at every trial and of the result of every trial.
(3.)
Such entries, or a certified copy thereof or of so much thereof as is material, may be referred to in any proceeding by way of appeal as herein provided.
(4.)
A certificate of any indictment, trial, conviction, or acquittal, or of the substance thereof, made up from the memorandum in such book, shall be received in evidence for the same purpose and to the same extent as certificates of records, or the substantial parts thereof, are now receivable.
(5.)
Any erroneous or defective entry in the Crown Book may at any time be amended in accordance with the fact by the Judge who presided at the trial:
Provided that nothing herein shall dispense with the taking of notes by the Judge presiding at the trial.
(6.)
If the trial takes place before any Court other than that to which the accused was committed for trial, or before which the indictment was found, a statement shall be made in the Crown Book of the order under which the trial is held, and by whom or where it was made.
(7.)
The officer of the Court shall cause to be entered in the Crown Book a statement of the following particulars:—
(a.)
The name of the committing Justice, and the charge on which the accused was committed; or
(b.)
If the accused was not committed, and the prosecutor was bound over to prosecute, the name of such prosecutor, and by whom he was bound over; or
(c.)
If the indictment is preferred by leave, the name of the Court or other authority granting such leave;
(d.)
The names of all the witnesses whose depositions have been transmitted to the officer of the Court, and of the Justices before whom and of the places where such depositions were taken:
Provided that the absence of such a statement, or any mistake therein, shall not be an objection to the proceeding’s; but the Court to which the Crown Book belongs may, and shall on the application at any time of either the prosecutor or accused, order a statement of these particulars to be entered, or amend the statement where erroneous or defective.
415 Right to be defended.
1893, No. 56, sec. 391
Every person accused of any offence whatever may make his full defence thereto by himself or by counsel, or by solicitor in Courts where solicitors practise as advocates.
416 Bringing up prisoner for arraignment.
Ibid, sec. 392
Where any person against whom any indictment is found is at the time confined for some other cause in prison, the Court may, by order in writing, without writ of habeas corpus, direct the governor of the prison to bring up the body of such person as often as is required for the purposes of the trial, and such governor shall obey such order.
417 Arraignment.
Ibid, sec. 393
Every accused person shall, upon being called upon to plead, be entitled to have the indictment on which he is to be tried read over to him, if he so requires.
418 Pleas in abatement abolished.
Ibid, sec. 394
(1.)
Pleas in abatement shall not be allowed.
(2.)
Any objection to the constitution of the Grand Jury may be taken by motion to the Court, and the indictment shall be quashed if the Court is of opinion both that such objection is well founded and that the accused has suffered or will suffer prejudice thereby, but not otherwise.
419 Plea.
Ibid, sec. 395
(1.)
When the accused is called upon to plead he may plead either guilty or not guilty, or such special pleas as are hereinbefore provided for.
(2.)
If the accused wilfully refuses to plead, or will not answer directly, the Court may, if it thinks fit, order the proper officer to enter a plea of not guilty.
420 Challenging the array.
Ibid, sec. 396
(1.)
Either the accused or the prosecutor may challenge the array on the ground of partiality, fraud, or wilful misconduct on the part of the Sheriff or his deputies by whom the panel was returned, but on no other ground.
(2.)
The objection shall be in writing, in the form numbered (7) in the Third Schedule hereto, or to the like effect, and shall state that the person returning the panel was partial, or was fraudulent, or wilfully misconducted himself, as the case may be.
(3.)
If partiality, fraud, or wilful misconduct, as the case may be, is denied, the Court shall appoint two indifferent persons to try whether the alleged ground of challenge is true or not.
(4.)
If the triers find, or if the party who has not challenged the array admits, that the ground of challenge is true in fact, the Court shall direct a new panel to be returned.
421 Challenges and directions to stand by.
1893, No. 56, sec. 397
(1.)
Besides the peremptory challenges provided for by “The Juries Act, 1908,”
every prosecutor and every accused person shall be entitled to any number of challenges for cause on any of the following grounds, that is to say:—
(a.)
That any juror’s name docs not appear in the Jury Book Provided that no misnomer or misdescription in the Jury Book shall be a ground of challenge if it appears to the Court that the description given in the Jury Book sufficiently designates the person referred to; or
(b.)
That any juror is not indifferent between the King and the accused; or
(c.)
That any juror is disqualified under the law in force for the time being.
(2.)
No ground of challenge for cause other than those above mentioned shall be allowed.
(3.)
Where such challenge is made, the Court may, in its discretion, require the party challenging to put his challenge in writing in the form numbered (8) in the Third Schedule hereto, or to the like effect.
(4.)
The other party may deny that the ground of challenge is true.
(5.)
If the ground of challenge is that the juror’s name does not appear in the Jury Book, the issue shall be determined by the Court on inspection of the Jury Book, and such other evidence as the Court thinks fit to receive.
(6.)
If the ground of challenge is other than aforesaid, the two jurors last sworn, or, if two jurors have not been sworn, then any two persons present whom the Court may appoint for that purpose shall be sworn, to try whether the juror objected to stands indifferent between the King and the accused, or is disqualified as aforesaid, as the case may be.
(7.)
If the Court or the triers find against the challenge the juror shall be sworn; but if they find for the challenge he shall not be sworn.
(8.)
If, after what the Court considers a reasonable time, the triers are unable to agree, the Court may discharge them from giving a verdict and may direct other persons to be sworn in their place.
(9.)
The prosecutor may direct any number of jurors not peremptorily challenged by either party to stand by until all the jurors have been called who are available for the purpose of trying that indictment.
(10.)
The accused may be called upon to declare whether he challenges any juror peremptorily or otherwise before the prosecutor is called upon to declare whether he requires such juror to stand by, or challenges him.
422 Evidence of accused when undefended.
1893, No. 56, sec. 399
Where an accused person, or any one of several accused persons being tried together, is not defended by counsel, then, on the completion of the examination of the witnesses on the part of the prosecution, the following caution, or words to the like effect, shall be addressed to him by or under the direction of the Court, that is to say:—
“Having heard the evidence against you, do you wish to be called as a witness and give evidence in answer to the charge? You are not obliged to give evidence, and if you decide not to be examined the fact will not be allowed to be subject of comment; but, if you are called, the evidence you give may be used against you.”
423 No adverse comment allowed.
Ibid, sec. 400
Where a person charged with an offence refrains from giving evidence, or from calling his wife or her husband, as the case may be, as a witness, no comment adverse to the person charged shall be allowed to be made thereon.
424 Summing up.
Ibid, sec. 401
(1.)
Where an accused person, or any one of several accused persons being tried together, is defended by counsel, such counsel shall at the end of the case for the prosecution declare whether or not he intends to adduce evidence on behalf of the accused person for whom be appears, and, if no counsel for any such accused person thereupon announces his intention to adduce evidence, the counsel for the prosecution may address the jury by way of summing up.
(2.)
Upon the trial of any accused person, whether he is defended by counsel or not, he shall be allowed, if he thinks fit, to open bis case, and after the conclusion of such opening shall be entitled to examine such witnesses as he thinks fit, and, when all the evidence is concluded, to sum up the evidence.
(3.)
Where evidence for the defence is adduced, the counsel for the prosecution has the right to reply.
425 Adjourning trial for witnesses.
Ibid, sec. 402
(1.)
If the Court is of opinion that the accused is taken by surprise, in a manner likely to be prejudicial to his defence, by the production on behalf of the prosecutor of a witness who has not made any deposition, and of the intention to produce whom the accused has not had sufficient notice, the Court may, on the application of the accused, either adjourn the further hearing of the case, or discharge the jury from giving a verdict, and postpone the trial.
(2.)
If the Court is of opinion that any witness who is not called for the prosecution ought to be so called, it may require the prosecutor to call him, and, if the witness is not in attendance, make an order that his attendance shall be procured; and the Court may, if it thinks proper, adjourn the further hearing of the ease to some other time during the sittings until such witness attends.
(3.)
If in such case the Court is of opinion that it would be conducive to the ends of justice to do so, it may, upon the application of the accused, discharge the jury and postpone the trial.
426 Admissions.
1893, No. 56, sec. 403
Any accused person on his trial, or his counsel or solicitor, may admit any fact alleged against the accused so as to dispense with proof thereof.
427 Jury retiring to consider verdict.
Ibid, sec. 404
(1.)
If the jury retire to consider their verdict they shall be kept under the charge of an officer of the Court in some private place, where they shall be allowed to have the use of necessary tire and lights, and, with the consent of the Court, to have reasonable refreshment.
(2.)
No person other than the officer of the Court who has charge of them shall be permitted to speak or communicate in any way with any of the jury without the leave of the Court.
(3.)
Disobedience to the provisions of this section shall not affect the validity of the proceedings:
Provided that, if such disobedience is discovered before the verdict of the jury is returned, the Court, if of opinion that such disobedience has produced substantial mischief, may discharge the jury and direct a new jury to be sworn or empanelled during the sitting of the Court, or postpone the trial on such terms as justice requires.
428 Motion in arrest of judgment.
Ibid, sec. 405
(1.)
If the jury find the accused guilty, or if the accused pleads guilty, it shall be the duty of the officer of the Court to ask him whether he has anything to say why sentence should nut be passed upon him according to law; but the omission so to ask shall have no effect on the validity of the proceedings.
(2.)
The accused may, at any time before sentence, move in arrest of judgment on the ground that the indictment does not (after any amendment has been made therein that the Court is willing and has power to make) state any crime.
(3.)
The Court may in its discretion either hear and determine the matter during the same sitting, or reserve the matter for the Court of Appeal.
(4.)
If the Court decides in favour of the accused he shall be discharged from that indictment.
(5.)
If no such motion is made, or if the Court decides against the accused upon such motion, the Court may sentence the accused during the sitting of the Court, or may in its discretion discharge him on his recognisance, with or without sureties, as it thinks fit, to appear and receive judgment at some future sitting of the Court, or when called upon.
Sentence.
(6.)
If sentence is not passed during the sitting, any Judge of the Court may, at a subsequent sitting, pass sentence upon him or direct him to be discharged.
(7.)
Where sentence is passed upon any person after a trial had under an order for changing the place of trial, the Court may, in its discretion, either direct the sentence to be carried out at the place where the trial was had, or order the person sentenced to be removed to the place where his trial would have been had but for such order, so that the sentence may be there carried out.
429 Woman sentenced to death while pregnant.
Ibid, sec. 406
(1.)
If sentence of death is passed upon any woman, she may move in arrest of execution on the ground that she is pregnant.
(2.)
If such a motion is made the Court shall direct one or more registered medical practitioners to be sworn to examine the woman in some private place, either together or successively, and to inquire whether she is with child or not.
(3.)
If upon the report of any of them it appears to the Court that she is so with child, execution shall be arrested till she is delivered of a child, or until it is no longer possible in the course of nature that she should be so delivered.
(4.)
No jury de ventre inspeciendo shall be empanelled.
430 Adjournment.
1893, No. 56, sec. 407
(1.)
From the time when the accused is given in charge to the jury the trial shall proceed continuously, subject to the power of the Court to adjourn it.
(2.)
Upon every such adjournment the Court may in all cases, if it thinks fit, direct that during the adjournment the jury shall be kept together, and that proper provision be made for preventing the jury from holding communication with any one on the subject of the trial.
(3.)
Such direction shall be given in all cases in which the accused may upon conviction be sentenced to death.
(4.)
In other cases, if no such direction is given, the jury shall be permitted to separate.
(5.)
No formal adjournment of the Court shall hereafter be required, and no entry thereof in the Crown Book shall be necessary.
431 Discharge of jury.
Ibid, sec. 408
(1.)
The Court may, in case of any emergency or casualty rendering it, in its opinion, highly expedient for the ends of justice so to do, in its discretion discharge the jury without giving a verdict, and direct a new jury to be empanelled during the sittings of the Court, or postpone the trial on such terms as justice requires.
(2.)
It shall not be lawful for any Court to review the exercise of this discretion.
(3.)
If the presiding Judge becomes incapable of trying the case or directing the jury to be discharged the officer of the Court shall discharge the jury.
(4.)
If one or more of the jurors, before they retire to consider their verdict, become in the opinion of the Court incapable of continuing to perform their duty, the Court may either discharge the jury and direct a new jury to be empanelled during the sitting of the Court, or postpone the trial, or, in its discretion, and with the consent of the prosecutor and the accused, proceed with the remaining jurors and take their verdict, which shall have the same effect as the verdict of the whole number.
432 Power to clear the Court.
1905, No. 6, sec. 3
(1.)
Where on any trial before any Court of justice the Court is of opinion that the interests of public morality require that all or any persons should be excluded from the Court, it may exclude such persons therefrom accordingly:
Proviso.
Provided that such power shall not be exercised for the purpose of excluding the prosecutor or the accused, or his counsel or solicitor, or any accredited newspaper reporter.
Power to forbid report of proceedings. Ibid, sec. 4
(2.)
The Court in any such case may also, by order, forbid the publication of any report or account of the evidence therein, either as to the whole or any portion thereof; and the breach of any such order, or any colourable or attempted evasion thereof, may be dealt with as contempt of Court.
433 Presence of the accused.
1893, No. 56, sec. 409
(1.)
Every accused person shall be entitled to be present in Court during the whole of his trial, unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.
(2.)
The Court may permit the accused to be out of Court during the whole or any part of any trial on such terms as it thinks proper.
434 Proceedings on Sunday.
Ibid, sec. 410
The taking of the verdict of the jury or other proceeding of the Court shall not be invalid by reason of its happening on Sunday.
435 Stay of proceedings.
Ibid, sec. 411
(1.)
The Attorney-General may at any time after an indictment has been found against any person for any crime, and before judgment is given thereon, direct the officer of the Court to make in the Crown Book an entry that the proceedings are stayed by his direction, and, on such entry being made, the proceedings shall be stayed accordingly.
(2.)
The Attorney-General may delegate such power in any particular Court to any counsel nominated by him.
Criminal Lunatics
436 Lunatic defined.
1882, No. 34, sec. 2
For the purposes of sections four hundred and thirty-six to four hundred and forty-one hereof—
“Lunatic” means any insane person, idiot, lunatic, or person of unsound mind and incapable of managing himself or his affairs, whether found lunatic by inquisition or not, and includes any person detained in any public or private establishment or house authorised or used for the reception of lunatics under the provisions of any Act in force relating to lunatics:
“Minister” means the Minister of Internal Affairs.
437 Where accused unable to plead by reason of insanity.
Ibid, sec. 7
(1.)
Where any person against whom an indictment has been found appears on arraignment to be lunatic so that he cannot plead to the indictment, the Court shall order a jury to be empanelled to try whether he is lunatic or not.
(2.)
If the jury so empanelled find him to be lunatic, the Court shall direct the finding to be recorded, and shall thereupon order him to be kept in strict custody in such asylum, prison, or place of confinement, and in such manner as the Court thinks fit, until the Minister’s pleasure is known; and the Minister may order him to be kept in safe custody in such place and in such manner as he thinks fit.
Ibid, sec. 11(1)
(3.)
If at any time thereafter such person becomes of sound mind so as to be able to plead to the indictment, and the fact is proved to the satisfaction of the Minister by the certificate of two registered medical practitioners, the Minister may order him to be detained in some convenient prison, and to be brought up at the next sitting of the Court before which the indictment was found to be arraigned on that indictment.
438 Where accused acquitted on ground of insanity.
Ibid, sec. 9
(1.)
Where, on the trial of any person for any crime, it appears in evidence that he was lunatic at the time of committing the crime, and he is acquitted, the jury shall be required to find specially whether he was lunatic at the time of committing the crime, and to declare whether he was acquitted by them on that ground.
(2.)
If the jury find that he was lunatic at the time aforesaid, the Court shall order him to be kept in strict custody as aforesaid until the Minister’s pleasure is known.
439 Where accused not prosecuted on ground of insanity.
1882, No. 34, sec. 8
(1.)
Where a person charged with any indictable offence is brought before any Court to be discharged for want of prosecution, and he appears to be lunatic, the Court shall order a jury to be empanelled to try whether he is lunatic or not.
(2.)
If the jury so empanelled find him to be lunatic, the Court shall order him to be kept in strict custody as aforesaid until the Minister’s pleasure is known.
440 Power of Minister.
Ibid, sec. 10
In every case under the two last preceding sections the Minister may order the person found to be lunatic to be kept in safe custody at such place and in such manner as the Minister thinks fit.
441 Release of accused from custody.
Ibid, sec. 11(2), (3), (4)
(1.)
Where any person has been ordered by the Minister to be kept in custody under the last preceding section, and afterwards two registered medical practitioners certify that he has become of sound mind, or is harmless, and may be released without danger to himself or others, the Minister may order him to be released:
Provided that where such person has been dealt with under section four hundred and thirty-eight hereof, and the crime of which he was acquitted is one punishable by death or by imprisonment with hard labour for life, the power of release shall be exercisable by the Governor in Council and not by the Minister.
(2.)
Every order of release under this section shall be by warrant under the hand of the Minister, or of the Governor in Council, as the case may be, and shall be made subject to such terms and conditions (if any) as are specified in the warrant.
Appeal
442 Reserving question of law.
1893, No. 56, sec. 412
(1.)
The Court before which any accused person is tried may, either during or after the trial, reserve any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto, or arising out of the direction of the Judge, for the opinion of the Court of Appeal in manner hereinafter provided.
(2.)
If the decision of the question may in the opinion of the Court depend on any questions of fact, the Court may in its discretion ask the jury questions as to such facts separately, and the Court shall make a note of such questions and the findings thereon.
(3.)
Either the prosecutor or the accused may during the trial apply to the Court to reserve any such question as aforesaid, and the Court, if it refuses so to reserve it, shall nevertheless take a note of such application, unless it considers the same to be frivolous.
(4.)
If the result of the trial is acquittal the accused shall be discharged, subject to being again arrested if the Court of Appeal orders a new trial.
(5.)
If the result of the trial is conviction the Court may in its discretion respite the execution of the sentence, or postpone sentence till the question reserved has been decided, and in either case shall in its discretion either commit the person convicted to prison or admit him to bail with one or two sufficient sureties, in such sums as the Court thinks fit, to surrender at such time as the Court directs.
(6.)
If the question is reserved, a ease shall be stated for the opinion of the Court of Appeal, to be approved and signed by the Judge who presided at the trial.
443 Appeal where no question reserved.
1893, No. 56, sec. 413
(1.)
If the Court refuses to reserve the question the party applying may, with the leave in writing of the Attorney-General, move the Court of Appeal as hereinafter provided.
(2.)
The Attorney-General may in his discretion either give or refuse such leave.
(3.)
The Attorney-General, or any person to whom such leave as aforesaid is given, may, on notice of motion to be given to the accused or prosecutor, as the case may be, move the Court of Appeal for leave to appeal.
(4.)
The Court of Appeal may, upon the motion, and upon considering such evidence (if any) as it thinks tit to require, grant or refuse such leave.
(5.)
If leave to appeal is granted, a case shall be stated for the opinion of the Court of Appeal as if the question had been reserved.
(6.)
If the sentence is alleged to be one that could not by law be passed, either party may, with the leave in writing of the Attorney-General, upon giving notice of motion to the other side, move the Court of Appeal to pass a proper sentence.
(7.)
If the Court has arrested judgment, and refused to pass any sentence, the prosecutor may without leave make such a motion.
444 Evidence for Court of Appeal.
Ibid, sec. 414
(1.)
On any appeal or application for a new trial, the Court before which the trial was had shall, if it thinks necessary, or if the Court of Appeal so desires, send to the Court of Appeal a copy of the whole or of such part as is material of the notes taken by the Judge presiding at the trial.
(2.)
The Court of Appeal may, if it considers such notes defective, refer to such other evidence of what took place at the trial as it thinks fit.
(3.)
The Court of Appeal may, in its discretion, send back any case to the Court by which it was stated to be amended or restated.
445 Powers of Court of Appeal.
Ibid, sec. 415
(1.)
Upon the hearing of any appeal under this Act the Court of Appeal may—
(a.)
Confirm the ruling appealed from; or
(b.)
If of opinion that the ruling was erroneous, and that there has been a mis-trial in consequence, direct a new trial; or
(c.)
If it considers the sentence erroneous or the arrest of judgment erroneous, pass such a sentence as ought to have been passed, or set aside any sentence passed by the Court below, and remit the case to the Court below with a direction to pass the proper sentence; or
(d.)
If of opinion, where the accused has been convicted, that the ruling was erroneous, and that the accused ought to have been acquitted, direct that the accused be discharged, which order shall have all the effects of an acquittal; or
(e.)
In any case, whether the appeal is on behalf of the prosecutor or of the accused, direct a new trial; or
(f.)
Make such other order as justice requires:
Provided that no conviction or acquittal shall be set aside, nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial, or some misdirection given, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage was thereby occasioned on the trial:
Provided also that, if the Court of Appeal is of opinion that any challenge was improperly disallowed, a new trial shall be granted.
(2.)
if it appears to the Court of Appeal that such wrong or miscarriage affected some count only of the indictment the Court may give separate directions as to each count, and may pass sentence on any count that stands good and unaffected by such wrong or miscarriage, or remit the case to the Court below with a direction to pass such sentence as justice requires.
(3.)
The order or direction of the Court of Appeal shall be certified under the hand of the presiding Judge to the proper officer of the Court before which the case was tried, and such order or direction shall be carried into effect.
446 Application for new trial.
1893, No. 56, sec. 416
(1.)
After the conviction of any person for a crime, the Court before which the trial took place may, either during the sitting or afterwards, give leave to the person convicted to apply to the Court of Appeal for a new trial on the ground that the verdict was against the weight of evidence; and the Court of Appeal, on hearing such motion, may, if it thinks fit, direct a new trial.
(2.)
In the case of a trial before a District Court such leave may be given during or at the end of the sitting by the Judge who presided at the trial.
447 New trial by order of Governor in Council.
Ibid, sec. 417
Where on application for the mercy of the Crown on behalf of any person convicted of a crime the Governor in Council entertains a doubt whether such person ought to have been convicted, he may, instead of remitting or commuting the sentence, after such inquiry as he thinks proper, by an order in writing, direct a new trial at such time and before such Court as he thinks proper.
448 Intermediate effects of appeal.
Ibid, sec. 418
(1.)
The sentence of a Court shall not be suspended by reason of any appeal, unless the Court expressly so directs, except where the sentence is that the accused suffer death, flogging, or whipping.
(2.)
The production of a certificate from the officer of the Court that a question has been reserved, or that leave has been given to apply for a new trial, or of a certificate from the Attorney-General that he has given leave to move the Court of Appeal, or of a certificate from the Governor in Council that he has directed a new trial, shall be a sufficient warrant to suspend the execution of any sentence of death, flogging, or whipping.
(3.)
In all cases it shall be in the discretion of the Court of Appeal or the Governor in Council, in directing a new trial, to order the accused to be admitted to bail or kept in custody as it or he thinks fit.
Costs
449 Accused may be ordered to pay costs and compensation.
1893, No. 56, sec. 419
(1)
Where an accused person is convicted of any crime, the Court may, in addition to passing sentence on him, order him to pay the costs of the prosecution; and may also order him to pay to any person aggrieved any sum not exceeding one hundred pounds by way of satisfaction or compensation for any loss of property suffered by such person through or by means of the crime of the offender.
(2.)
Such order, upon being tiled in the Supreme Court, shall have the effect of a judgment.
(3.)
Where, on the apprehension of the accused, any money was taken from him, the Court may, in its discretion, order the whole or any part thereof to be applied to any such payment.
(4.)
No such order as aforesaid shall affect the claim of the prosecutor or witnesses to be paid their costs, allowances, or expenses in the same manner as if this Act had not passed.
450 Costs of conveying persons to and from prison.
Ibid, sec. 420
The provisions of any Act relating to the payment of the expenses of conveying any person to or from prison under the provisions of such Act shall apply to the payment of the expenses of conveying any person to or from prison under the provisions of this Act.
Restitution of Property
451 Restitution of property.
Ibid, sec. 421
(1.)
Where any one is convicted of a crime, any property found in his possession, or in the possession of any other person for him, may be ordered by the Court to be delivered to the person who appears to the Court to be entitled thereto.
(2.)
Where any one is convicted of having stolen or dishonestly obtained any property, and it appears to the Court that the same has been pawned to a pawnbroker, the Court may order the delivery thereof to the person appearing to the Court to be the owner, either on payment or without payment to the pawnbroker of the amount of the loan or any part thereof, as the Court under all the circumstances of the case deems just.
(3.)
If the person in whose favour any such order is made pays the money to the pawnbroker under such order and obtains the property, he shall not afterwards question the validity of the pawn; but, save to that extent, no order made under this section shall have any further effect than to change the possession, and no such order shall prejudice any right of property or of action in respect to property existing or acquired in the goods either before or after the offence was committed.
Restoration to Civil Rights
452 Persons convicted of crime restored to civil rights.
1882, No. 23. secs. 2, 3.
Where an offender convicted of any crime not punishable by death has endured the punishment to which he was adjudged, the punishment so endured shall have the like effect and consequences as a free pardon:
Provided that nothing herein, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other crime.
(2.)
For the purposes of this section punishment remitted by authority of law shall be deemed to be punishment endured.
SCHEDULES
FIRST SCHEDULE Enactments Consolidated
1882, No. 23.—“The Public Offenders Disqualification Act 1867 Amendment, Act. 1882.”
1882, No. 34.—“The Lunatics Act, 1882”
: Sections 7 to 11.
1882, No. 35.—“The Companies Act, 1882.”
1883, No. 7.—“The Criminals Execution Act, 1883.”
1893, No. 56.—“The Criminal Code Act. 1893”
: Except sections 342 and 343.
1894, No. 13.—“The Conspiracy Law Amendment Act, 1894”
: Section 2.
1896, No. 7.—“The Criminal Code Act Amendment Act, 1896.”
1900, No. 26.—“The Criminal Code Act 1893 Amendment Act. 1900.”
1901, No. 56.—“The Criminal Code Amendment Act, 1901.”
1905, No. 6.—“The Criminal Code Amendment Act, 1905.”
1905, No. 14.—“The Offensive Publications Act, 1905”
: So far as concerns the Criminal Code Act.
1905, No. 33.—“The Criminal Code Amendment Act, 1905 (No. 2).”
1906, No. 8.—“The Habitual Criminals and Offenders Act, 1906.”
SECOND SCHEDULE
(1.) Certificate of Execution of Sentence of Death
Section 17. 1883, No. 7. First Schedule.
I., A. B., the Medical Officer in attendance at the execution of C. D., at the prison of [or at the place of execution at ], do hereby certify and declare that I have this day witnessed the execution of the said C. D. at the said prison for place]; and I do further certify and declare that the said C. D. was, in pursuance of the sentence of the Supreme Court, hanged by the neck until his body was dead.
Given under my hand this day of , one thousand nine hundred and , at the prison of [or at the place of execution at ].
A. B.
(2.) Declaration of Execution of Sentence of Death
Section 18.
WE do hereby testify and declare that we have this day been present when the extreme penalty of the law was carried into execution on the body of C. D., convicted at the criminal sittings of the Supreme Court held at , on the day of last [instant], and sentenced to death, and that the said C. D. was, in pursuance of the said sentence, hanged by the neck until his body was dead.
Dated this day of , one thousand nine hundred and at the prison of [or at the place of execution at ].
, Sheriff.
, Gaoler.
, Warder.
, Justice.
, Other spectators.
THIRD SCHEDULE
(1.) Search-Warrant
Section 365. 1893, No. 56, First Schedule.
WHEREAS it appears on the oath of C. B., of M. N., that there is reason to suspect that [Insert description of the things to be searched for, and of the offence in respect of which the search is made] are concealed in at :
This is therefore to authorise and require you to enter between the hours of [*] into the said premises, and to search for the said things, and to bring the same before me or some other Justice.
Dated at , this day of , 19 .
J. S., Justice.
To [Address to the constable who is to execute the warrant, by his proper title], of.
* The warrant may be executed between 6 a.m. and 9 p.m., unless the Justice otherwise directs.
(2.) Notice of Intention to take Deposition of witness after Committal
Section 366(7).
To A. B., of .
In the matter of the prosecution of [State name of accused and nature of charge]
TAKE notice that, whereas it has been proved upon the oath of , before [Name and residence of Justice], that [Name and full description of witness] is able to give evidence tending to prove the guilt [or innocence] of the accused, the examination of the said will be taken at , on , at o’clock, in the noon, on which occasion, if you think proper, you, or your counsel or solicitor, may attend and cross-examine the said ; and take notice that, whether you attend or not, the deposition then taken of the said may be given in evidence at the trial, notwithstanding your absence from such examination.
Dated at this day of , 19 .
J. S., Justice.
(3.) Indictment
Sections 386, 397.
[Heading.]
In the [Name of Court in which the indictment is found].
THE jurors for our Lord the King present that .
[Where there are more counts than one, add at the beginning of each count: The said jurors further present that ]
Charge Examples of the Manner of stating Offences
(a.)
A. murdered B. at , on .
(b.)
A. stole a sack of flour from a ship called the “ ,”
at on.
(c.)
A. obtained by false pretences from B. a horse, a cart, and the harness of a horse, at , on .
(d.)
A. committed perjury with intent to procure the conviction of B. for an offence punishable with imprisonment with hard labour for three years or upwards, namely, robbery, by swearing on the trial of B. for the robbery of C. at the sittings of the Court for the , held at on the day of , 19 : First, that he, A., saw B. at on the day of ; secondly, that B. asked A. to lend B. money on a watch belonging to C.; thirdly, &c.
Or,
(e.)
A. committed perjury on the trial of B. at a sitting of the Court held at on , for an assault alleged to have been committed by B. on C. at on the day of , by swearing to the effect that B. could not have been at at the time of the alleged assault, inasmuch as A. had seen him at that time in .
(f.)
A., with intent to maim, disfigure, disable, or do grievous bodily harm to B., [or with intent to resist the lawful apprehension or detainer of A., or C.], did actual bodily harm to B. [or D.].
(g.)
A., with intent to injure or endanger the safety of persons on the Railway, did an act calculated to interfere with an engine, a tender, and certain carriages on the said railway on at , by [Describe with so much detail as is sufficient to give the accused reasonable information as to the acts or omissions relied on against him, and to identify the transaction].
(h.)
A., without leave of His Majesty, did at equip, furnish, fit out, or arm, or attempt or endeavour to equip, furnish, fit out, or arm [This statement in the alternative is rendered sufficient by the Act; section 90 renders it unnecessary to proceed to state that they “procured, aided, or assisted”
in the equipment] a ship called the “ ,”
in order that it might be employed in the service of a certain foreign Power to wit against a foreign Power to wit , with which His Majesty was not then at war.
(4.) Certificate of Indictment being Found
Section 412(1).
[Heading.]
I HEREBY certify that at the [Insert name of Court] held at , in the on the day of , a bill of indictment was found by the Grand Jury against A. B., therein described as A. B., of M. N., for that on the day of at [Insert offence as in indictment]; and that the said A. B. has not appeared or pleaded to the said indictment.
Dated at this day of , 19 .
C. C., Registrar of Court.
(5.) Warrant to Arrest
Sections 368(9), 412(1).
[Heading.]
WHEREAS an information has been made on oath and in writing that [Insert charge as in information]: And whereas a summons has been issued to A. B. (the accused), or G. H., of , (a witness), and A. B. or G. H. has neglected to appear in obedience to the summons, and oath has been made of the service of the summons [or whereas oath has been made that G. H. can give material evidence, but will not attend voluntarily; or whereas oath has been made that G. H. is keeping out of the way of personal service of a summons; if after indictment, whereas it has been certified to me that (State as in certificate of officer of Court)]:
This is to command you to whom this warrant is addressed no arrest the said A. B. or G. H., of , and to bring him before me or some other Justice to answer to the said information.
Dated at , this day of , 19 .
J. S., Justice.
To W. T., constable [by his proper title], of [or To W. T. and all other constables in , or To all constables in ].
Where an Accused Person on Bail has absconded
Section 368(9).
[Heading.]
WHEREAS A. B., who stands charged before me [or C. D., a Justice], at was admitted to bail to appear at , on , and has made default therein:
This is to command you, &c. [as in the last preceding form].
(6.) Warrant to Commit (or Detain) for Trial, etc
Section 412(1), (3).
WHEREAS a charge was made on the day of , on the information on the oath of G. H. [or G. H. and others, as the case may be], that [Insert charge, with time and place]: And [Insert recitals: If indictment found, whereas a bill of indictment has been found against the said A. B. for the said offence]:
[If adjournments: Whereas the hearing of the said information has been adjourned to the day of at (or Whereas the hearing of the said charge was adjourned, &c.), and the said A. B. was admitted to bail to appear on that day (or such earlier day as is required), and whereas he was summoned to attend on the day of , but did not appear according to his recognisance:]
[Remands on arrest: Whereas the said A. B. has been brought before me under a warrant of arrest, and the said charge is to be heard on the day of at :]
[If already in prison: Whereas the said A. B. is now confined in the prison at for another offence than that charged in the said indictment:]
[Refractory witness: Whereas G. H., a material witness, has, without just excuse, refused to make oath as a witness (or to answer certain questions, or to enter into recognisance to give evidence on the trial of the said A. B.) in that behalf:]
This is to command you to whom this warrant is addressed to lodge the said [Name of person to be commuted], of , in the prison at , there to be imprisoned by the Gaoler of the said prison, as follows: [Period of imprisonment: For trial, until his trial for the said offence, or until he is discharged in due course of the law; for witness, until the trial of the said A. B., unless in the meantime he enters into such recognisance as required (or until the day of , unless in the meantime he consents to answer as required); for adjournments, until the above time of adjournment (or hearing, or such earlier day as may be required), when you shall have him at the above place.]
[Or, if already in prison, to detain the said A. B. in your custody until by lawful authority he is removed therefrom.]
Dated at , this day of , 19 .
J. S., Justice.
To W. T., constable [by his proper title], of , and to all other constables in .
[Or, if the accused is already in prison, To , the Gaoler of the prison at .]
Section 420(2).
Challenges
(7.) Challenge to Array
The King v. A. B. C. D., who prosecutes for our Lord the King [or The said A. B., as the case may be], challenges the array of the panel on the ground that it was returned by X. Y., Sheriff of the District of [or E. F., deputy of X. Y., Sheriff of the District of , as the case may be], and that the said X. Y. [or E. F., as the case may be] was guilty of partiality [or fraud, or wilful misconduct] on returning the said panel.
Dated at , this day of , 19 .
C. D. [or A. B.]
(8.) Challenge to Poll.
Section 421(3).
The King v. A. B. C. D., who prosecutes, &c. [or The said A. B., as the case may be], challenges G. H., on the ground that his name does not appear in the Jury Book [or that he is not indifferent between the King and the said A. B., or that he is disqualified under the law for the time being in force].
Dated at , this day of , 19 .
C. D. [or A. B.]
FOURTH SCHEDULE
(1.) Commitment by a Substituted Court
Section 385(3). 1893, No. 56, Second Schedule.
To the Gaoler of the prison at , and to the Gaoler of the prison at .
In the Supreme Court of New Zealand, District, To wit.
Whereas at a sitting for the trial of criminal cases of the Supreme Court holden at , on the day of , 19 , [Prisoner’s name] was convicted of [Here state shortly the offence], and was thereupon sentenced by the said Court to be [Here state the sentence, including the place where it is directed to be executed]:
These are therefore in His Majesty’s name to command you, the said Gaoler of the said prison at , forthwith to cause the said [Prisoner’s name] to be delivered into the custody of the said Gaoler at the said prison at , together with this order: and also to command you, the said Gaoler of the said last-mentioned prison, to receive the said [Prisoner’s name] into your custody in the same prison, and there safely to keep him until the said sentence has been executed according to law, or until he is otherwise delivered in due course of law.
Given under the hand [s] of me [or us], the undersigned Judge [or Judges] of the said Supreme Court at , this day of , 19 .
A. B.
C. D.
(2.) Order for Removal of Prisoner
To the Sheriff of the Sheriff s. District of
In the Supreme Court of New Zealand, District, To wit.
WHEREAS at a sitting for trial of criminal cases of the Supreme Court holden at on the day of , 19 , [Prisoner’s name] was convicted
of [Here state shortly the offence], and was thereupon sentenced by the said Court to be [Here state the sentence, including the place where it is directed to be executed]: And whereas the said [Prisoner’s name] has been ordered to be removed into your said district in order that the said sentence may there be executed upon him:
These are therefore in His Majesty’s name to command you, the said Sheriff, to execute the said sentence upon the said [Prisoner’s name] within your said district according to law.
Given under the hand [s] of the undersigned Judge [or Judges] of the said Supreme Court at , this day of , 19 .
A. B.
C. D.
"Related Legislation
"Related Legislation
"Related Legislation
Versions
Crimes Act 1908
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