Criminal Procedure Act 2011

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Reprint as at 1 July 2018

Criminal Procedure Act 2011

Public Act		2011 No 81
Date of assent		17 October 2011
Commencement		see section 2

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Justice.

1	Title
2	Commencement
	Part 1 Preliminary provisions
3	Purpose
4	Overview
5	Interpretation
6	Categories of offence defined
7	Act subject to other enactments
8	Act binds the Crown
	Jurisdiction of District Court to conduct criminal proceedings
9	Jurisdiction of District Court to conduct criminal proceedings
	Who may conduct proceedings
10	Who may conduct proceedings against defendant
11	Who may conduct proceedings for defendant
12	Representatives of corporations
	Procedural requirements in Act, regulations, and rules
13	Procedural requirements of Act, regulations, and rules to be followed
	Part 2 Commencement of proceedings and preliminary steps
	Subpart 1—Filing a charging document
14	Commencement of criminal proceedings
15	Any person may commence proceeding
16	Charging documents
17	Content of charge
18	Court may order further particulars
19	Charge may be worded in alternative
20	Charge may be representative
21	Court may amend or divide alternative or representative charge
22	Certain charges to disclose range of penalties and previous convictions
23	Offence relating to false or misleading information in charging document
24	Endorsement of consent
25	Time for filing charging document
26	Private prosecutions
27	Power of Registrar to compile charging information
	Subpart 2—Notifying defendant of court appearance
28	Summons in relation to charge may be served
29	Summons following evidential breath test
30	Provisions relating to summons issued under section 28 or 29
31	Charging document must be filed promptly
32	Decision to change charge following summons
33	Summons to defendant in private prosecution
34	Warrant may be issued if summons cannot be served
	Subpart 3—Court dealing with proceeding before trial or transfer for trial
35	Court dealing with proceeding before trial or transfer for trial: categories 1 to 3
36	Court dealing with proceeding before transfer for trial: category 4
	Part 3 Procedure before trial
	Subpart 1—Pleas
	Entering plea
37	Defendant may enter plea
38	Right to plead to category 1 offence by notice
39	Requirement for defendant to plead
40	Not guilty plea for category 4 offence
41	Defendant who refuses or fails to plead under section 39 or 49(3)
42	Defendant may change plea of not guilty
43	Procedure if defendant indicates intention to plead guilty but does not do so
44	Plea where charge alleges previous conviction
	Special pleas
45	Special pleas
46	Previous conviction
47	Previous acquittal
48	Pardon
49	Procedure for dealing with special plea
	Subpart 2—Decision regarding trial by jury for category 3 offences
50	Defendant charged with category 3 offence may elect trial by jury
51	Timing of election
52	Judicial officer or Registrar may receive elections
53	Withdrawal of election
	Subpart 3—Case management
54	Adjournment for case review
55	Case management discussions and case management memorandum
56	Information to be provided in case management memorandum
57	Case review
58	Court may give directions about case management procedure
59	Judge may direct case management procedure for category 1 offence
	Subpart 4—Sentence indications
60	Meaning of sentence indication
61	Giving sentence indication
62	Further provisions relating to giving sentence indication
63	Offence and penalty relating to sentence indication
64	Duration of sentence indication
65	Request for sentence indication not admissible in proceeding
	Subpart 5—Determination of level of trial court for category 2 and 3 offences
	Determination of level of trial court for protocol offences
66	Establishment of protocol
67	District Court Judge may recommend level of trial court for protocol offence
68	High Court Judge must determine level of trial court for protocol offences
69	Proceedings not invalid
	Order that proceeding for category 2 or 3 offence be tried in High Court
70	High Court Judge may order proceedings for category 2 or 3 offence be tried in High Court
	Subpart 6—Trial court, place of trial, transfer of proceedings to trial court, and procedure for trial
71	Category 1 offences
72	Category 2 offences
73	Category 3 offences
74	Category 4 offences
75	Transfer of certain proceedings for category 2 and 3 offences to trial court
76	Transfer of proceeding from trial court to new trial court
77	Notice that defendant to be tried in High Court
	Subpart 7—Provisions applying only to Judge-alone procedure
78	Court may order pre-trial admissibility hearing if trial to be Judge-alone trial
79	Pre-trial admissibility hearing and order that evidence admissible
80	Court may order that certain pre-trial processes under subpart 8 apply
	Subpart 8—Provisions applying only to jury trial procedure
	Application of this subpart
81	Application of this subpart
	Filing of formal statements
82	Requirements for formal statements
83	False statement in formal statement deemed to be perjury
84	Persons who may give evidence under assumed name
85	Prosecutor must file formal statements
86	Evidential status of formal statements
	Trial callover memoranda
87	Trial callover memoranda to be filed in trial court
88	Information to be provided in trial callover memoranda
89	Unrepresented defendants at trial callover hearing
	Application for oral evidence order
90	Application for oral evidence order
91	Application for leave to question undercover Police officer’s identity must be dealt with by High Court
	Oral evidence orders
92	Making oral evidence order
93	Further consideration if application for oral evidence order for complainant in case of sexual nature
94	Withdrawal of charge if oral evidence order made for examination of undercover Police officer
	Procedure for taking oral evidence
95	By whom oral evidence of witness to be taken
96	Restriction on who may take oral evidence of complainant in case of sexual nature
97	Persons who may be present if oral evidence taken from complainant in case of sexual nature
98	Application of sections 103 to 105 of Evidence Act 2006
99	Oral evidence must be recorded
100	Proceeding may be continued despite witness’s failure to appear or give evidence
	Pre-trial orders as to admissibility of evidence: jury trial procedure
101	Pre-trial order relating to admissibility of evidence: jury trial
	Trial before Judge alone may be ordered
102	Judge may order Judge-alone trial in cases likely to be long and complex
103	Judge may order Judge-alone trial in cases involving intimidation of juror or jurors
104	Procedure for trial ordered under section 102 or 103
	Part 4 Trial
	Subpart 1—Provisions applying to Judge-alone trials
105	Conduct of Judge-alone trial
106	Decision of court
	Subpart 2—Provisions applying to jury trials
	Conduct of jury trial
107	Conduct of jury trial
	Charge alleging previous conviction
108	Procedure if charge alleges previous conviction
	Discretion to keep jury together
109	Discretion to keep jury together
	Part of murder charge proved
110	Part of murder charge proved
	Subpart 3—Provisions applying to both Judge-alone and jury trials
	Alibi
111	Alibi
	Dismissal of charge in certain cases
112	Court must dismiss charge in certain cases
	Witnesses
113	Adjourning trial for witness
	Part 5 General provisions
	Subpart 1—Conduct of proceeding
	Defendants who plead guilty or are found guilty
114	Procedure after defendant pleads or is found guilty
115	Plea of guilty may be withdrawn by leave of court
116	Effect of sentence indication
	Presence of defendant at hearings
117	Defendant generally may be present at all hearings
118	Hearings at which defendant must be present
	Powers of court when defendant does not appear
119	Non-attendance of defendant charged with offence in category 1
120	Non-attendance of defendant charged with offence in category 2, 3, or 4: before plea is entered
121	Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing
122	Non-attendance of defendant at trial for offence in category 2, 3, or 4
123	Sentencing for offence in category 2, 3, or 4 not to proceed in absence of defendant
124	Procedure when hearing proceeds in absence of defendant
	Retrial or rehearing if defendant found guilty or sentenced in his or her absence
125	Retrial if defendant found guilty in his or her absence
126	Rehearing if defendant sentenced for category 1 offence in his or her absence
127	Registrar may deal with applications in relation to category 1 offences
128	Effect of application for retrial or rehearing on rights of appeal
129	Procedure if retrial or rehearing ordered
130	Dealing with defendant pending retrial or rehearing
	Powers of court when prosecutor does not appear
131	Powers of court when prosecutor does not appear
	Powers of court when neither party appears
132	Powers of court when neither party appears
	Amendment of charge
133	Amendment of charge
134	Procedure if charge amended before trial
135	Procedure if charge amended after order made under section 68 or 70
136	Procedure if charge amended during trial
	Proceedings conducted together
137	Proceedings against parties to offences, accessories, and receivers
138	Trial of different charges together
139	Procedure if charges to be heard together
140	Procedure if charges to be heard together include new charges
	Further provisions relating to charges
141	Conviction where alternative allegations proved in Judge-alone trial
142	Dealing with charge that fails to disclose range of penalties and previous convictions when required
143	Included offences
144	Conviction of parties
145	Conviction of charge containing allegation of previous conviction
	Withdrawal and dismissal of charges
146	Withdrawal of charge
147	Dismissal of charge
148	Prosecutor must notify court if defendant completes programme of diversion
	Attempts
149	Attempt proved when offence is charged
150	Offence proved when attempt is charged
	Retrial of previously acquitted person
151	Order for retrial may be granted if acquittal tainted
152	Meaning of terms used in sections 153 and 154
153	Consent of Solicitor-General required in certain circumstances for exercise of powers in relation to acquitted person
154	Order for retrial may be granted by Court of Appeal if new and compelling evidence discovered
155	Orders to safeguard fairness of retrial
156	Effect of order for retrial
	Transfer of proceedings to court at different place
157	Transfer of proceedings to court at different place or different sitting
158	Attendance of witness at substitute court
	Obtaining attendance of witnesses
159	Issue of summons to witness
160	Summons to witness to non-party disclosure hearing
161	Issue of warrant to obtain attendance of witness
	Provisions relating to warrants to arrest defendant or witness
162	To whom warrant to be directed and power of person executing warrant to enter premises
163	Withdrawal of warrant
	Dealing with witness arrested under warrant
164	Dealing with witness arrested under warrant
	Dealing with witnesses at the court
165	Witness refusing to give evidence may be imprisoned
166	Witnesses at hearing
	Adjournments and bail
167	Power to adjourn
168	Dealing with defendant on adjournment
169	Order for detention of defendant in hospital or secure facility
170	Defendant in custody may be brought up before expiry of period of adjournment
	Special provisions applying to defendants under the age of 20 pending hearing or sentence
171	Defendants under 16 must not be imprisoned pending hearing or sentence
172	Defendants aged 16 must not be imprisoned pending hearing or sentence except in certain circumstances
173	Remand of defendant under 17 in residence or care
174	Remand of defendant under 17 years for assessment report
175	Remand of defendants aged 17 to 20 years
	Stay of proceedings
176	Stay of proceedings
	Retrial or rehearing
177	Court may order retrial or rehearing as to sentence in certain cases
178	Procedure if retrial or rehearing ordered
179	Dealing with defendant pending retrial or rehearing
	Correction of erroneous sentence
180	Court may correct erroneous sentence
181	Application of chief executive of Department of Corrections to correct erroneous sentence
182	Procedure if court corrects erroneous sentence
	Transfer to wrong court
183	Transfer to wrong court
	Permanent court record
184	Permanent court record
	Subpart 2—Solicitor-General’s responsibility for oversight and conduct of certain prosecutions
185	Solicitor-General responsible for general oversight of public prosecutions
186	Attorney-General’s responsibility and powers not affected
187	Assumption of responsibility for Crown prosecutions by Solicitor-General
188	Duty of Crown prosecutor to comply with Solicitor-General’s directions
189	Crown prosecution notice must be filed
190	Power of Solicitor-General or Crown prosecutor to amend charge
191	Power of Solicitor-General or Crown prosecutor to add new charges
192	Power of Solicitor-General or Crown prosecutor to withdraw charge
193	Independence of Solicitor-General and Crown prosecutors
	Subpart 3—Public access and restrictions on reporting
	Terms used in this subpart
194	Interpretation
195	Context in which publication prohibited
	Court proceedings generally open to public
196	Court proceedings generally open to public
	Power to clear court
197	Power to clear court
198	Exception for members of media
199	Court must be cleared when complainant gives evidence in cases of sexual nature
	Suppression of names
200	Court may suppress identity of defendant
201	Automatic suppression of identity of defendant in specified sexual cases
202	Court may suppress identity of witnesses, victims, and connected persons
203	Automatic suppression of identity of complainant in specified sexual cases
204	Automatic suppression of identity of child complainants and witnesses
	Suppression of evidence and submissions
205	Court may suppress evidence and submissions
	Powers of Registrar
206	Power of Registrar to make and renew interim suppression orders
	General provisions relating to suppression orders
207	Court must give reasons
208	Duration of suppression order and right of review
209	Publication by or at request of Police, etc
210	Standing of members of media
	Offences relating to breach of suppression provisions and orders
211	Offences and penalties
	Part 6 Appeals
	Subpart 1—General matters
212	Interpretation
213	Leave to appeal
214	Duty to determine appeal subject to sections 337 and 338
	Subpart 2—Appeals against pre-trial decisions
	First appeals
215	Right of appeal by prosecutor or defendant against certain pre-trial evidential decisions in Judge-alone case
216	Refusal to give leave to appeal under section 215
217	Right of appeal by prosecutor or defendant against pre-trial decisions in jury trial case
218	Right of appeal by defendant only against pre-trial decisions in jury trial case
219	First appeal courts
220	How to commence first appeal
221	First appeal court to determine appeal
222	Trial court may allow trial to proceed
	Further appeals
223	Right of appeal against determination of first appeal court
224	Second appeal courts
225	How to commence second appeal
226	Second appeal court to determine appeal
227	High Court’s determination of second appeal final
228	Further appeal from determination of second appeal by Court of Appeal
	Subpart 3—Appeals against conviction
	First appeals
229	Right of appeal against conviction
230	First appeal courts
231	How to commence first appeal
232	First appeal court to determine appeal
233	Orders, etc, on successful first appeal
234	Conviction and sentence for different offence may be substituted
235	Acquittal on account of insanity
236	Confirmation or substitution of sentence for another offence
	Further appeals
237	Right of appeal against determination of first appeal court
238	Second appeal courts
239	How to commence second appeal
240	Second appeal court to determine appeal
241	Orders, etc, on successful second appeal
242	High Court’s determination of second appeal final
243	Further appeal from determination of second appeal by Court of Appeal
	Subpart 4—Appeals against sentence
	First appeals
244	Convicted person’s right of appeal against sentence
245	Right of appeal against sentence not affected by sentence indication
246	Prosecutor’s right of appeal
247	First appeal courts
248	How to commence first appeal
249	Appeal by prosecutor treated as abandoned if not heard before sentence completed
250	First appeal court to determine appeal
251	Orders, etc, on successful first appeal
252	Defendant may not withdraw guilty plea after sentence imposed on appeal
	Further appeals
253	Right of appeal against determination of first appeal court
254	Second appeal courts
255	How to commence second appeal
256	Second appeal court to determine appeal
257	Orders, etc, on successful second appeal
258	High Court’s determination of second appeal final
259	Further appeal from determination of Court of Appeal
	Subpart 5—Appeals against finding of or sentence for contempt of court
	First appeals
260	Right of appeal against finding of or sentence for contempt of court
261	First appeal courts
262	How to commence first appeal
263	First appeal court to determine appeal
	Further appeals
264	Right of appeal against determination of first appeal court
265	Second appeal courts
266	How to commence second appeal
267	Second appeal court to determine appeal
268	High Court’s determination of second appeal final
269	Further appeal from determination of Court of Appeal
	Subpart 6—Appeals against decisions on costs orders
	First appeals
270	Interpretation
271	Right of appeal to first appeal court against decision about costs order
272	First appeal courts
273	How to commence first appeal
274	First appeal court to determine appeal
275	Appeal not to suspend trial
	Further appeals
276	Right of appeal against determination of first appeal court
277	Second appeal courts
278	How to commence second appeal
279	Second appeal court to determine appeal
280	High Court’s determination of second appeal final
281	Further appeal from determination of Court of Appeal
	Subpart 7—Appeals against suppression orders
	First appeals
282	Interpretation
283	Right of appeal against decision on suppression order
284	First appeal courts
285	How to commence first appeal
286	Interim suppression order pending determination of first appeal
287	First appeal court to determine appeal
288	Trial court may allow trial to proceed
	Further appeals
289	Right of appeal against determination of first appeal court
290	Second appeal courts
291	How to commence second appeal
292	Interim suppression order pending determination of second appeal
293	Second appeal court to determine appeal
294	Determination of High Court final
295	Further appeal from determination of Court of Appeal
	Subpart 8—Appeals on question of law
	First appeals
296	Right of appeal
297	First appeal courts
298	How to commence first appeal
299	Power of first appeal court to amend question stated
300	First appeal court to determine appeal
301	Deferral or adjournment of trial if notice of application for leave to appeal filed
302	How determination of appeal affects outcome of trial
	Further appeals
303	Right of appeal against determination of first appeal court
304	Second appeal courts
305	How to commence second appeal
306	Second appeal court to determine appeal
307	Orders, etc, on successful second appeal
308	High Court’s determination of second appeal final
309	Further appeal from determination of Court of Appeal
310	Relationship to other appeals
	Subpart 9—Appeals against order under section 106(3) of Sentencing Act 2002
311	Right of appeal
	Subpart 10—Appeals relating to peace bond decisions
312	Right of appeal
	Subpart 11—Solicitor-General’s references
313	Solicitor-General may refer certain questions to Court of Appeal
314	Procedure for references under section 313
315	Rights of appeal to Supreme Court
316	Procedure for appeals under section 315
317	Solicitor-General may refer question to Supreme Court
318	Procedure for references under section 317
319	Power of Court of Appeal or Supreme Court to amend question referred
	Subpart 12—Further provisions
	Procedure for determining jurisdiction where appeals lie to different appeal courts
320	Meaning of related right of appeal
321	Related appeals that are to be heard by Court of Appeal
	Solicitor-General
322	Duty of Solicitor-General
	Registrar of appeal court to arrange appeal
323	Duties of Registrar
324	Custody of exhibits, etc
	Rights of representation and attendance at hearing of appeal or application for leave to appeal
325	Right of representation at hearing
326	Right of attendance at hearing
	How applications to be heard
327	Hearings in Court of Appeal
328	Hearings in District Court or High Court
	How appeals to be heard
329	Hearings in Court of Appeal or Supreme Court
330	Hearings in District Court or High Court
	Hearings on papers
331	Provisions about hearing on papers
	Powers exercisable by 1 or 2 appellate Judges
332	Powers exercisable by Judge of Supreme Court
333	Powers exercisable by Judges of Court of Appeal
	Powers of appeal court to receive evidence, etc
334	Power to receive and hear evidence
335	Special powers of appeal courts in appeal involving conviction, sentence, or contempt
336	Powers of appeal courts
	Abandonment
337	Abandonment of appeal by appellant
338	Power of appeal court to dismiss appeal for non-compliance with procedural orders
339	Appeal against dismissal under section 338
	Judgment of appeal court
340	Reasons to accompany judgment or be given later
341	Delivery of judgment by District Court, High Court, or Court of Appeal
342	Judgment to be provided to parties
	How appeal affects decisions under appeal
343	General effect of appeal on sentence
344	Issue of committal order for detention of convicted person
345	How appeal affects community-based sentences
346	Registrar to notify resumption of sentence
347	Reporting requirement where sentence resumed after unsuccessful or abandoned appeal
348	How appeal affects non-association orders
348A	How appeal affects registration orders
349	Fine recovery not to be enforced pending contempt appeal
350	Successful appellant entitled to return of amount paid under sentence
351	Detention following appeal
352	Revesting and restitution of property on conviction
	Part 7 Provisions concerning jurisdiction of District Court
	Jurisdiction of District Court presided over by District Court Judge
353	Jurisdiction of District Court Judges
	Jurisdiction of District Court in relation to jury trials
354	Jurisdiction of District Court in relation to jury trials
	Jurisdiction of District Court presided over by 1 or more Justices
355	Jurisdiction of Justices
	Jurisdiction of District Court presided over by 1 or more Community Magistrates
356	Jurisdiction of Community Magistrates
357	Jurisdiction of Community Magistrates to impose sentence in respect of certain category 2 offences
358	Power to impose penalties provided for in Land Transport Act 1998
359	Ancillary powers under subpart 3 of Part 5, Costs in Criminal Cases Act 1967, Sentencing Act 2002, and Land Transport Act 1998
360	Power of Community Magistrates to decline jurisdiction
361	Jurisdiction of Justices and Community Magistrates to take pleas
362	Jurisdiction of Justices and Community Magistrates to make and renew interim suppression orders
362A	Jurisdiction of Justices and Community Magistrates relating to amendment or withdrawal of charges
	Transfer to District Court presided over by District Court Judge
363	Power to transfer matter to District Court presided over by District Court Judge
	Part 8 Miscellaneous and transitional provisions
	Subpart 1—Costs orders and contempt
364	Costs orders
365	Contempt of court [Repealed]
	Subpart 2—Conservation of the peace
366	Application for order for bond to keep the peace
367	Making of order for bond
368	Form of, and entering into, bond
369	Making of order for bond where person charged with offence
370	Refusal to enter into bond
371	Persons imprisoned in default of finding sureties may be released on death of person for whose protection order made
372	Forfeiture of bond
	Subpart 3—Miscellaneous provisions
373	Registrar who is also constable
374	Witnesses’ expenses
375	Conviction not to be recorded for infringement offences
376	Person sentenced, etc, deemed to be convicted
377	Restitution of property
378	Who may take affidavit
379	Proceedings not to be questioned for want of form
380	Proceedings not invalid because defendant should have been dealt with in Youth Court
381	Payment of fees, fines, etc
382	Payment and recovery of fees
383	Enforcement of fines
384	Enforcement of fines imposed or varied by appeal court
385	Application of section 168 during epidemic
385A	Judge or Registrar may waive certain fees
	Rules and regulations
386	Rules
387	Regulations
387A	Regulations under section 387(1)(i) or (j) are confirmable instruments
	Subpart 4—Transitional and savings provisions
	Transitional provisions regarding sentence indications
388	Application of provisions regarding sentence indications to existing proceedings
389	Transitional provision regarding terminology in relation to sentence indication provisions
	Transitional provisions regarding public access and restrictions on reporting
390	Transitional provision regarding terminology in relation to public access and restrictions on reporting
391	Application of amendments made by section 393
392	Transitional provision regarding appeals by members of media
393	Consequential amendments relating to public access and restriction on reporting provisions
	Transitional and savings provisions in relation to provisions brought into force under section 2(2) or 2(3)
394	Meaning of commencement date
395	Cities, boroughs, and other places appointed for District Courts under District Courts Act 1947
396	Savings provision in relation to warrants held under section 28B of District Courts Act 1947
397	Proceedings commenced before commencement date
398	Proceedings commenced after commencement date
399	Absconding defendants
400	Defendants and proceedings to be tried together
401	No proceeding invalid if wrongly conducted in accordance with old law
402	Transitional provision regarding withdrawal of warrants to arrest
403	Transitional provision regarding dealing with witness arrested under warrant
403A	Transitional provision regarding effect of appeal on sentence of home detention
404	Transitional provision regarding correction of erroneous sentence
404A	Access to court documents
405	Limitation periods
406	Retrial following acquittal in summary proceedings
406A	Savings
	Other transitional matters
407	Transitional provision relating to abandonment of appeals to Court of Appeal
408	Regulations providing for transitional matters [Expired]
409	Regulations making consequential amendments [Expired]
410	Expiry of sections 408 and 409
	Part 9 Amendments to other enactments
	Criminal Justice Act 1985
411	Criminal Justice Act 1985 repealed
	Criminal Justice Regulations 1985
412	Criminal Justice Regulations 1985 revoked
	Amendments to other enactments
413	Amendments to other enactments
	Schedule 1 Category 4 offences
	Schedule 2 Consequential amendments relating to public access and restrictions on reporting provisions
	Schedule 3 Amendments to other enactments
	Reprint notes

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Criminal Procedure Act 2011.

2 Commencement

(1)

The following provisions come into force on a date appointed by the Governor-General by Order in Council and 1 or more Orders in Council may be made bringing different provisions into force on different dates:

(a)

sections 5, 7, and 8 (which relate to preliminary matters):

(b)

sections 60 to 65, 115(2), 116, 245, 252, 388, and 389 (which relate to sentence indications):

(c)

subpart 3 of Part 5, and sections 390 to 393 (which relate to public access and restrictions on reporting):

(d)

sections 386, 387, 408, and 409 (which are powers to make rules and regulations):

(e)

section 407 (which is a transitional provision relating to appeals).

(2)

The rest of this Act comes into force on a date appointed by the Governor-General by Order in Council.

(3)

Any provision that has not earlier been brought into force comes into force on the day that is 2 years after the date on which this Act receives the Royal assent.

See secondary legislation made under this Act (if published on this website)

Section 2(1): sections 5, 7, 8, 60–65, 115(2), 116, 245, 252, 388, and 389, subpart 3 of Part 5, sections 390–393, 386, 387, 407, 408, and 409 brought into force, on 5 March 2012, by clause 2 of the Criminal Procedure Act Commencement Order 2011 (SR 2011/413).

Section 2(2): sections 3, 4, 6, 9–59, 66–114, 115(1), 117–193, 212–244, 246–251, 253–385, 394–406 and 410–413 brought into force, on 1 July 2013, by clause 2 of the Criminal Procedure Act Commencement Order 2013 (SR 2013/162).

Part 1 Preliminary provisions

3 Purpose

The purpose of this Act is to—

(a)

set out the procedure for the conduct of criminal proceedings; and

(b)

provide for the use of electronic technology in relation to criminal procedure and the court record of criminal proceedings.

4 Overview

(1)

This Act provides for the following matters:

(a)

for procedural purposes, there are 4 categories of offence (see section 6):

(b)

there are 2 types of trial process—Judge-alone trials and jury trials (see Part 4):

Commencement of proceedings

(c)

all proceedings begin in the District Court by the filing of a charging document (see Part 2):

Category 1 offences

(d)

in general terms, a category 1 offence is an offence that is not punishable by imprisonment:

(e)

an infringement offence is a category 1 offence if proceedings in relation to that infringement offence are commenced by filing a charging document under section 14, rather than by issuing an infringement notice:

(f)

all stages of a proceeding for a category 1 offence are dealt with by the District Court:

(g)

if the matter proceeds to trial, the trial will be a Judge-alone trial:

Category 2 offences

(h)

in general terms, a category 2 offence is an offence punishable by a term of imprisonment of less than 2 years:

(i)

a trial for a category 2 offence will be in the District Court unless an order is made transferring the proceeding to the High Court for trial (see sections 68 and 70):

(j)

if the matter proceeds to trial, the trial will be a Judge-alone trial:

Category 3 offences

(k)

in general terms, a category 3 offence is an offence punishable by a term of imprisonment of 2 years or more (other than a category 4 offence):

(l)

a defendant charged with a category 3 offence has a choice about whether or not to elect a trial by jury (see section 50):

(m)

a trial for a category 3 offence will be in the District Court unless an order is made transferring the proceeding to the High Court for trial (see sections 68 and 70):

(n)

the procedure for a category 3 offence generally depends on whether the defendant elects trial by jury:

(o)

if the defendant does not elect trial by jury, and the matter proceeds to trial, the trial will be a Judge-alone trial:

(p)

if the defendant elects trial by jury, and the matter proceeds to trial, the trial will be a jury trial (unless a Judge-alone trial is ordered under section 102 or 103):

Category 4 offences

(q)

category 4 offences are listed in Schedule 1:

(r)

if the matter proceeds to trial, the trial will be a jury trial in the High Court (unless a Judge-alone trial is ordered under section 102 or 103):

Procedure may vary if proceeding joined with proceeding for more serious offences

(s)

the procedure for an offence may vary from the general rule if the proceeding is joined with proceedings for a more serious offence:

Pre-trial procedures

(t)

there will be pre-trial procedures for all categories of offence. These are set out in Part 3. Pre-trial matters include entering a plea and orders about the admissibility of evidence. Sections 54 to 58 set out the case management procedures that must be followed if a defendant pleads not guilty to a category 2, 3, or 4 offence, including requirements to complete case management memoranda and attend at case review hearings in certain cases:

(u)

there are additional pre-trial procedures and powers that automatically apply to jury trials (and that a court may also apply in some Judge-alone proceedings). These include—

(i)

the filing of formal statements; and

(ii)

the possibility of taking oral evidence from a potential witness:

Trial

(v)

Part 4 contains provisions about the trial:

General provisions

(w)

Part 5 contains provisions that may apply to all or various categories of proceedings at stages throughout a proceeding. These include—

(i)

pleading, or being found, guilty; and

(ii)

requirements for the presence of the defendant at hearings, and the powers of the court if the defendant does not attend; and

(iii)

provisions relating to amendment and withdrawal of charges and conducting proceedings together; and

(iv)

provisions relating to the dismissal of charges; and

(v)

certain rights to a retrial or rehearing (for category 1 and 2 offences, or if a defendant is convicted or sentenced in his or her absence); and

(vi)

provisions about dealing with witnesses, adjournments and bail; and

(vii)

provisions relating to the Solicitor-General’s responsibility for oversight and conduct of certain prosecutions; and

(viii)

public access and restrictions on reporting:

Appeals

(x)

Part 6 contains provisions about appeals:

Jurisdiction of District Court

(y)

Part 7 contains provisions about the jurisdiction of the District Court. These set out the jurisdiction of Community Magistrates and Justices to conduct various proceedings and to sentence offenders. They also require a District Court Judge conducting jury trials to hold a jury trial warrant under the District Court Act 2016:

Miscellaneous and transitional provisions

(z)

Part 8 contains miscellaneous and transitional provisions. Among other things, provisions in this Part deal with contempt and costs orders for failure to comply with the requirements of this Act and rules and regulations made under it:

Amendments to other Acts

(za)

Part 9 contains amendments to other Acts.

(2)

This section is by way of explanation only. If a provision of this or any other Act is inconsistent with this section, the other provision prevails.

Section 4(1)(c): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 4(1)(f): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 4(1)(i): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 4(1)(m): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 4(1)(y) heading: replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 4(1)(y): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

5 Interpretation

In this Act, unless the context otherwise requires,—

before the trial means—

(a)

in the case of a Judge-alone trial, before the proceedings under section 105 begin; and

(b)

in the case of a jury trial, before the defendant is given in charge to the jury

category 1 offence, category 2 offence, category 3 offence, and category 4 offence have the meanings given to them in section 6

constable has the meaning given to it in section 4 of the Policing Act 2008

court means a court presided over by a judicial officer with authority to exercise the court’s jurisdiction in relation to the matter

Crown organisation has the same meaning as in section 4 of the Crown Organisations (Criminal Liability) Act 2002

Crown prosecution means a prosecution of a kind specified in regulations made under section 387 other than a private prosecution

Crown prosecutor means—

(a)

a Crown solicitor or a lawyer representing a Crown solicitor; or

(b)

any other lawyer employed or instructed by the Solicitor-General to conduct a Crown prosecution

Crown solicitor means a lawyer holding a warrant of appointment as a Crown solicitor from the Governor-General

defendant means any person charged with an offence; and includes—

(a)

a person against whom proceedings have been commenced by filing a charging document in relation to an offence in any category; and

(b)

a Crown organisation, if proceedings are brought against it for an offence referred to in section 6 of the Crown Organisations (Criminal Liability) Act 2002; and

(c)

a person in respect of whom an application is made under subpart 2 of Part 8

document—

(a)

means a document in any form (including, without limitation, a document in an electronic form); and

(b)

includes, without limitation, any of the following:

(i)

any writing on any material:

(ii)

information recorded or stored by means of a tape recorder, computer, or other device:

(iii)

material subsequently derived from information recorded or stored in the manner described in subparagraph (ii):

(iv)

labels, markings, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

(v)

books, maps, plans, graphs, or drawings:

(vi)

photographs, films, negatives, tapes, or any other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced

electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric, and photonic

formal statement has the meaning given to it in section 82

hearing includes a trial

imprisonable offence means,—

(a)

in the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment:

(b)

in the case of a body corporate, an offence that would be punishable by imprisonment for life or by a term of imprisonment if the offence were committed by an individual

infringement offence has the meaning given to it in section 2 of the Summary Proceedings Act 1957

Judge-alone trial means a trial in accordance with subparts 1 and 3 of Part 4 and any other applicable provision of Part 5

judicial officer means a High Court Judge, a District Court Judge, a Community Magistrate, or a Justice of the Peace

jury trial means a trial in accordance with subparts 2 and 3 of Part 4 and any other applicable provision of Part 5

Justice means a Justice of the Peace

lawyer means a person who holds a current practising certificate as a barrister or as a barrister and solicitor under the Lawyers and Conveyancers Act 2006

level of trial court, in relation to a proceeding, means either the High Court or the District Court as determined under section 71, 72, 73, or 74, as the case may be

permanent court record means the permanent court record referred to in section 184

Police employee has the meaning given to it in section 4 of the Policing Act 2008

private prosecution means a proceeding against a defendant in respect of an offence that is not—

(a)

a public prosecution; or

(b)

a proceeding in respect of an offence commenced by or on behalf of a local authority, or other statutory public body or board,—

and private prosecutor has a corresponding meaning

prosecutor means the person who is for the time being conducting the case against the defendant in accordance with section 10

protocol offence means a category 2 or 3 offence that is covered by the protocol established under section 66

public prosecution means a proceeding in respect of an offence that is commenced by or on behalf of the Crown, and includes a proceeding in respect of an offence that is commenced by or on behalf of a Crown entity within the meaning of section 7 of the Crown Entities Act 2004

Registrar means the Registrar of a court; and includes a Deputy Registrar

representative, in relation to a corporation, means a person duly appointed by the corporation to represent it to do any act or thing specified by the corporation for the purposes of this Act

rules of court means rules made under section 386 of this Act, section 148 of the Senior Courts Act 2016, and section 228 of the District Court Act 2016, or any of those enactments

special plea means a plea referred to in section 45(1)

trial,—

(a)

in subpart 1 of Part 4, means a Judge-alone trial:

(b)

in subpart 2 of Part 4, means a jury trial:

(c)

in the other provisions of this Act, means a Judge-alone trial or jury trial

trial court means, in any particular case, the court before which the defendant, in accordance with subpart 6 of Part 3, is to be tried

victim has the meaning given to it in section 4 of the Victims’ Rights Act 2002

working day means a day of the week other than—

(a)

a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, and Labour Day; and

(b)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(c)

a day in the period commencing on 25 December in any year and ending with 15 January in the following year.

Compare: 1957 No 87 s 2

Section 5 imprisonable offence: inserted, on 1 July 2013, by section 4 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 5 level of trial court: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 5 rules of court: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 5 rules of court: amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 5 working day: replaced, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

6 Categories of offence defined

(1)

In this Act,—

category 1 offence means—

(a)

an offence that is not punishable by a term of imprisonment, other than—

(i)

an infringement offence; or

(ii)

an offence described in paragraph (b) or (c) of the definition of a category 2 offence; or

(iii)

an offence described in paragraph (b) of the definition of a category 3 offence; or

(b)

an infringement offence, if proceedings in relation to that offence are commenced by filing a charging document under section 14, not by the issuing of an infringement notice

category 2 offence means—

(a)

an offence punishable by a term of imprisonment of less than 2 years; or

(b)

an offence that, if committed by a body corporate, is punishable by only a fine, but that would be punishable by a term of imprisonment of less than 2 years if committed by an individual; or

(c)

an offence punishable by a community-based sentence and not punishable by a term of imprisonment

category 3 offence means an offence, other than an offence listed in Schedule 1,—

(a)

that is punishable by imprisonment for life or by imprisonment for 2 years or more; or

(b)

that, if committed by a body corporate, is punishable by only a fine, but that would be punishable by imprisonment for life or by imprisonment for 2 years or more if committed by an individual

category 4 offence means an offence listed in Schedule 1.

(2)

If an offence is in a given category, then the following is also an offence in that category:

(a)

conspiring to commit that offence:

(b)

attempting to commit that offence, or inciting or procuring or attempting to procure any person to commit an offence of that kind that is not committed:

(c)

being an accessory after the fact to that offence.

(3)

If an offence is punishable by a greater penalty where the defendant has previously been convicted of that offence or of some other offence, the offence is an offence in the category that applies to offences punishable by that greater penalty only if the charge alleges that the defendant has such a previous conviction.

7 Act subject to other enactments

(1)

This Act must be read subject to any special provisions of any other enactment relating to the procedure in any particular case.

(2)

Except as expressly provided in the Armed Forces Discipline Act 1971, this Act does not apply to proceedings under that Act, or to proceedings on appeal from any decision under that Act.

(3)

Except as expressly provided in the Oranga Tamariki Act 1989, this Act does not apply to proceedings in the Youth Court or to proceedings on appeal from any decision of the Youth Court.

Compare: 1957 No 87 s 209; 1961 No 43 s 313(1)

Section 7(3): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 7(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

8 Act binds the Crown

This Act binds the Crown.

Jurisdiction of District Court to conduct criminal proceedings

Heading: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

9 Jurisdiction of District Court to conduct criminal proceedings

(1)

Subject to subsections (2) and (3) and section 114(2), the District Court has jurisdiction to deal with a proceeding for any offence.

(2)

If, in accordance with section 72 or 73, the level of trial court for a proceeding in respect of a category 2 or 3 offence is the High Court, the District Court has jurisdiction over the proceeding only until the time that it is transferred to the High Court under section 75.

(3)

In a proceeding in respect of a category 4 offence, the District Court has jurisdiction to deal with the proceeding only until it is transferred to the High Court under section 36.

(4)

Any reference in this Act or any other enactment to the District Court, or to a court where that reference includes the District Court, or to a Judge of the District Court, must be read subject to Part 7.

(5)

Nothing in this section limits or affects Part 6.

Section 9 heading: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 9(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 9(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 9(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 9(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Who may conduct proceedings

10 Who may conduct proceedings against defendant

(1)

Subject to subsections (2) and (3), only the following persons may conduct proceedings against a defendant:

(a)

the person who commenced the proceeding:

(b)

a lawyer representing the person who commenced the proceeding:

(c)

if the proceeding was commenced by a Police employee, any constable or any other Police employee authorised by the Commissioner of Police to conduct prosecutions:

(d)

if the proceeding was commenced by an officer or employee of any of the following organisations, any other officer or employee of that organisation:

(i)

a Department of State or a Crown entity within the meaning of section 7 of the Crown Entities Act 2004:

(ii)

a local authority or other statutory public body or board.

(2)

If the Solicitor-General or a Crown prosecutor has assumed responsibility under section 187 for a Crown prosecution, only the Solicitor-General or a Crown prosecutor may conduct the proceedings against the defendant.

(3)

If the trial is to be a jury trial, only a lawyer may conduct the proceedings against the defendant after the proceeding has been—

(a)

adjourned to a trial callover, in the case of a category 3 offence; or

(b)

transferred to the High Court under section 36, in the case of a category 4 offence.

Compare: 1957 No 87 s 37

11 Who may conduct proceedings for defendant

The defendant’s case may be conducted by—

(a)

a lawyer; or

(b)

the defendant personally; or

(c)

if the defendant is a corporation, a representative (as defined in section 5) to the extent authorised by the corporation.

Compare: 1957 No 87 s 37(1); 1961 No 43 s 354

12 Representatives of corporations

(1)

A statement that complies with subsection (2) to the effect that the person named in it has been appointed as the representative of a corporation for the purposes of this Act is admissible without further proof as prima facie evidence that the person has been so appointed.

(2)

The statement must—

(a)

be in writing; and

(b)

be made by a managing director of the corporation, or by any person (by whatever name that person is called) having, or being one of the persons having, the management of the affairs of the corporation; and

(c)

specify whether the representative is authorised to represent the defendant in the proceeding for all the purposes of the Act or specified purposes only; and

(d)

be authenticated by the person making it.

(3)

No representative may act for a corporation in relation to any matter under this Act until a statement that complies with subsection (2) is filed in court.

Procedural requirements in Act, regulations, and rules

13 Procedural requirements of Act, regulations, and rules to be followed

All matters to which this Act applies must be dealt with in accordance with this Act, any regulations made under section 387, and rules of court.

Part 2 Commencement of proceedings and preliminary steps

Subpart 1—Filing a charging document

14 Commencement of criminal proceedings

(1)

A criminal proceeding in respect of an offence is commenced by filing a charging document in the office of the District Court that is—

(a)

nearest to where the offence is alleged to have been committed; or

(b)

nearest to where the person filing the charging document believes the defendant can be found.

(2)

Despite subsection (1),—

(a)

if all the parties to the proposed proceeding agree, the charging document may be filed in another office of the District Court; and

(b)

if 2 or more charging documents are to be filed in respect of the same defendant, they may all be filed in an office of the District Court in which any 1 of them could be filed.

(3)

A failure to file a charging document in the correct office of the District Court in accordance with this section does not invalidate any proceeding.

Compare: 1957 No 87 ss 12, 18

Section 14(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 14(2)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 14(2)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 14(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

15 Any person may commence proceeding

Any person may commence a proceeding.

Compare: 1957 No 87 s 13

16 Charging documents

(1)

The charging document must contain 1 charge only.

(2)

The charging document must include—

(a)

particulars of the defendant; and

(b)

particulars of the person commencing the proceeding; and

(c)

a statement by the person commencing the proceeding that he or she has good cause to suspect that the defendant has committed the offence specified in the charge; and

(d)

particulars of the charge that satisfy the requirements of section 17; and

(e)

except if the prosecution is a private prosecution brought by an individual,—

(i)

the name of the prosecuting organisation; and

(ii)

the particulars of an appropriate contact person in relation to the prosecution; and

(f)

any other information required by rules of court.

Compare: 1957 No 87 ss 15, 17; 1961 No 43 ss 329(3)–(5), 331, 336(1)

Section 16(2)(e): replaced, on 1 July 2013, by section 5 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

17 Content of charge

(1)

A charge must relate to a single offence.

(2)

A charge that is worded in the alternative must be identified as such.

(3)

A representative charge must be identified as such.

(4)

A charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed.

(5)

Without limiting subsection (4), the particulars provided under that subsection must include—

(a)

a reference to a provision of an enactment creating the offence that it is alleged that the defendant has committed; and

(b)

if the charge is a representative charge, the information specified in subsection (6).

(6)

The information referred to in subsection (5)(b) is as follows:

(a)

particulars of the offences of which the charge is representative, including, without limitation, when values, amounts, or quantities are relevant, particulars of the minimum values, amounts, or quantities that the prosecution must establish in order for the charge to be proved; and

(b)

the dates on or between which the offending is alleged to have occurred.

(7)

Subsection (1) is subject to sections 19 and 20.

Compare: 1957 No 87 s 16; 1961 No 43 ss 330, 340, 343

18 Court may order further particulars

(1)

A court may, if satisfied that it is necessary for a fair trial, order that further particulars of any document, person, thing, or any other matter relevant to setting out the charge against the defendant be provided by the prosecutor.

(2)

Nothing in subsection (1) limits the power of a court under section 133.

19 Charge may be worded in alternative

A charge may allege several different matters, acts, or omissions in the alternative if the relevant offence is worded in the alternative in the enactment that prescribes it.

Compare: 1957 No 87 s 16(1)

20 Charge may be representative

(1)

A charge may be representative if—

(a)

multiple offences of the same type are alleged; and

(b)

the offences are alleged to have been committed in similar circumstances over a period of time; and

(c)

the nature and circumstances of the offences are such that the complainant cannot reasonably be expected to particularise dates or other details of the offences.

(2)

A charge may also be representative if—

(a)

multiple offences of the same type are alleged; and

(b)

the offences are alleged to have been committed in similar circumstances such that it is likely that the same plea would be entered by the defendant in relation to all the offences if they were charged separately; and

(c)

because of the number of offences alleged, if the offences were to be charged separately but tried together it would be unduly difficult for the court (including, in any jury trial, the jury) to manage the separate charges.

21 Court may amend or divide alternative or representative charge

(1)

The court may on the application of any party or on its own motion, in the interests of justice,—

(a)

order that any charge worded in the alternative, or that is representative, be amended, or divided into 2 or more charges; or

(b)

order that 2 or more charges be amalgamated into a representative charge.

(2)

This section does not limit section 133.

22 Certain charges to disclose range of penalties and previous convictions

(1)

This section applies if a defendant is charged with an offence for which the penalty is greater if the defendant has previously been convicted of that offence, or of some other offence.

(2)

The charge must disclose—

(a)

the range of penalties available on conviction for the offence; and

(b)

the existence of any previous conviction or convictions which, if admitted by or proved against the defendant, would make the defendant liable to a greater penalty.

(3)

To avoid doubt, if a charge discloses the existence of a previous conviction or convictions in accordance with this section, and as a result the offence is a category 3 offence in accordance with section 6(3), the provisions of section 50 apply in the ordinary way.

(4)

A charge must not be dismissed solely on the grounds that it does not comply with subsection (2).

(5)

Nothing in this section or section 142 affects the right of a court, when sentencing the defendant, to take any previous convictions into account.

Compare: 1957 No 87 ss 17A, 69

23 Offence relating to false or misleading information in charging document

(1)

A person commits an offence who includes, or directs any other person to include, in a charging document any false or misleading information that the person knows is false or misleading.

(2)

A person who commits an offence under subsection (1) is liable on conviction to a term of imprisonment not exceeding 3 years.

24 Endorsement of consent

(1)

This section applies if a person is to be charged with an offence in respect of which the consent of the Attorney-General or any other person for the filing of the charging document is required.

(2)

The consent of the Attorney-General or other person may be set out in a memorandum and, if so, must be accepted by the court as proof that the consent has been given.

(3)

A reference in subsection (1) to the consent of the Attorney-General or other person includes a requirement for that person to grant leave or issue a certificate before proceedings can be commenced or progressed.

Compare: 1961 No 43 s 314

25 Time for filing charging document

(1)

A charging document may be filed at any time in respect of a category 4 offence.

(2)

A charging document in respect of a category 3 offence—

(a)

must be filed within 5 years after the date on which the offence was committed, if an enactment specifies that the penalty for the offence includes a term of imprisonment not exceeding 3 years, unless the prior consent of the Solicitor-General is obtained to file a charging document after that date; or

(b)

may be filed at any time in any other case.

(3)

A charging document in respect of a category 1 or 2 offence must be filed—

(a)

within 6 months after the date on which the offence was committed if an enactment specifies that the penalty for the offence—

(i)

includes a term of imprisonment not exceeding 3 months; or

(ii)

does not include a term of imprisonment, but includes a fine not exceeding $7,500; or

(b)

within 12 months after the date on which the offence was committed if an enactment specifies that the penalty for the offence—

(i)

includes a term of imprisonment greater than 3 months but not exceeding 6 months; or

(ii)

does not include a term of imprisonment, but includes a fine greater than $7,500 but not exceeding $20,000; or

(c)

within 5 years after the date on which the offence was committed in any other case, unless the prior consent of the Solicitor-General is obtained to file a charging document after that date.

(4)

In the case of a category 1 or 2 offence that is a continuing offence, the time for filing a charging document must be determined under subsection (3) by reference to the maximum fine that may be imposed for the initial offending (or, if there is no separate fine prescribed for the initial offending, the fine prescribed for each day or each instance of offending) without taking into account the amount of any further fines that may be imposed as a result of the offence continuing.

(5)

If a body corporate is charged with an offence, the limitation period within which a charging document must be filed is the period that would apply to a natural person charged with the same offence, irrespective of the penalty that may be imposed against the body corporate.

(6)

This section is subject to any provision in any other enactment that provides a different limitation period for filing a charging document in relation to an offence.

Compare: 1957 No 87 s 14; 1961 No 43 s 10B

26 Private prosecutions

(1)

If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—

(a)

accept the charging document for filing; or

(b)

refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2)

The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3)

A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—

(a)

the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or

(b)

the proposed prosecution is otherwise an abuse of process.

(4)

If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—

(a)

notify the proposed private prosecutor that the charging document will not be accepted for filing; and

(b)

retain a copy of the proposed charging document.

(5)

Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.

27 Power of Registrar to compile charging information

Nothing in this Act prevents a Registrar compiling the information in any 1 or more charging documents in any manner or form—

(a)

that enables that information to be accessed or used as authorised or required by this Act; or

(b)

for the purposes of maintaining the permanent court record of the proceeding; or

(c)

for any other reason of administrative convenience.

Subpart 2—Notifying defendant of court appearance

28 Summons in relation to charge may be served

(1)

A constable or any other person may issue and serve a summons on a person if that constable or other person—

(a)

has good cause to suspect that the person has committed an offence; and

(b)

has filed, or intends to file, a charging document in respect of that offence.

(2)

Nothing in this section applies in respect of a private prosecution or proposed private prosecution.

(3)

Nothing in this section allows a summons to be issued in respect of an offence for which a person has been arrested under a warrant or released on Police bail.

Compare: 1957 No 87 ss 19, 19A(1)

29 Summons following evidential breath test

(1)

An enforcement officer (within the meaning of section 2(1) of the Land Transport Act 1998) may issue and serve a summons on a person if—

(a)

the person undergoes an evidential breath test under section 69 of the Land Transport Act 1998 and the test is positive; and

(b)

the person does not advise an enforcement officer within 10 minutes of being advised of the matters in section 77(3)(a) of the Land Transport Act 1998 that he or she wishes to undergo a blood test.

(2)

If this section applies, section 28 does not apply.

Compare: 1957 No 87 s 19B(1)

30 Provisions relating to summons issued under section 28 or 29

(1)

A summons under section 28 or 29 must require the person to appear on a day not later than 2 months after the date of the summons at the court where the charging document has been or is to be filed.

(2)

The summons must contain—

(a)

the particulars of the defendant; and

(b)

the particulars of the charge; and

(c)

the court and date and time at which the defendant is required to appear; and

(d)

any other information required by rules of court.

Compare: 1957 No 87 ss 19A(2), 19B(1)

31 Charging document must be filed promptly

(1)

A charging document may be filed before or after a summons is issued or served under section 28 or 29.

(2)

Unless section 32(1)(a) applies, if a charging document has not been filed before a summons is served under section 28 or 29, it must be filed as soon as is reasonably practicable after the summons has been served.

(3)

A constable or other person who issues a summons must ensure that the charging document required by subsection (2) is filed.

Compare: 1957 No 87 ss 19A(3), (4), 19B(3), (4)

Section 31(2): amended, on 1 July 2013, by section 6 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

32 Decision to change charge following summons

(1)

This section applies if a summons has been issued before the charging document has been filed and the person who issued the summons decides that—

(a)

a charging document in respect of the summons will not be filed; or

(b)

a charging document in respect of the summons will be filed but will contain a charge that is different from that for which the person was summoned.

(2)

The person who issued the summons must, as soon as is reasonably practicable after a decision in subsection (1) has been made, take all reasonable steps to notify the person summoned of the decision before the date on which the defendant is required by the summons to appear.

(3)

If subsection (1)(a) applies, the person does not need to appear in court on the date specified in the summons.

33 Summons to defendant in private prosecution

If the Registrar accepts a charging document for filing under section 26 or the Judge determines that the charging document should be accepted for filing under section 26, the Judge or the Registrar must issue a summons to the defendant.

34 Warrant may be issued if summons cannot be served

(1)

This section applies if a charging document has been filed and a summons has been issued under section 28, 29, or 33 that has not been served on the defendant.

(2)

If the summons relates to a category 1 offence, a District Court Judge may issue a warrant to arrest the defendant and bring him or her before the District Court if the Judge is satisfied that reasonable efforts have been made to serve the summons on the defendant.

(3)

If the summons relates to a category 2, 3, or 4 offence, a judicial officer or Registrar may issue a warrant to arrest the defendant and bring him or her before the District Court if the judicial officer or Registrar is satisfied that reasonable efforts have been made to serve the summons on the defendant.

Compare: 1957 No 87 s 19(1)

Section 34(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 34(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Subpart 3—Court dealing with proceeding before trial or transfer for trial

35 Court dealing with proceeding before trial or transfer for trial: categories 1 to 3

(1)

The proceeding for a category 1 offence before the trial must be heard and determined in the District Court at the place where the charging document was filed.

(2)

Subject to section 75, the proceeding for a category 2 or 3 offence before the trial must be heard and determined in the District Court at the place where the charging document was filed.

(3)

This section is subject to—

(a)

section 114(2); and

(b)

any order made under section 72 of the District Court Act 2016 or under section 157 of this Act; and

(c)

section 139.

Section 35(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 35(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 35(3)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

36 Court dealing with proceeding before transfer for trial: category 4

(1)

A defendant’s first appearance in court for a category 4 offence before the proceeding is transferred under subsection (2) must be in the District Court at the place where the charging document was filed.

(2)

On the adjournment of the proceeding after the defendant’s first appearance in court the court must transfer the proceeding to the High Court.

(3)

This section is subject to—

(a)

section 191; and

(b)

any order made under section 72 of the District Court Act 2016 or under section 157 of this Act.

Section 36(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 36(3)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Part 3 Procedure before trial

Subpart 1—Pleas

Entering plea

37 Defendant may enter plea

(1)

At any time before the court requires a plea under section 39 the court may receive a plea from the defendant.

(2)

The defendant may plead either guilty or not guilty, or enter a special plea.

(3)

If the defendant is not represented by a lawyer,—

(a)

the court must be satisfied that the defendant—

(i)

has been informed of his or her rights to legal representation, including the right to apply for legal aid under the Legal Services Act 2011; and

(ii)

has fully understood those rights; and

(iii)

has had a reasonable opportunity to exercise those rights; and

(b)

the substance of the charge must be read to the defendant.

(4)

A defendant who is represented by a lawyer may plead not guilty or enter a special plea by filing a notice in court.

(5)

The Registrar must notify the prosecutor if a notice is received under subsection (4) from the defendant.

(6)

If the defendant is not before the court but indicates that he or she intends to plead guilty, the defendant must be brought before the court to enter a plea.

(7)

A Registrar may exercise the power of the court under this section to receive a not guilty plea from a defendant charged with a category 1, 2, or 3 offence.

38 Right to plead to category 1 offence by notice

(1)

Despite section 37, a defendant charged with a category 1 offence may plead guilty or not guilty, or enter a special plea, by filing a notice in court.

(2)

A defendant who pleads guilty may—

(a)

indicate in the notice whether he or she wishes to appear at court for sentencing; and

(b)

if the defendant thinks fit (and regardless of whether the defendant wishes to appear at court for sentencing), include in or with the notice written submissions to be taken into account at sentencing.

(3)

The Registrar must notify the prosecutor if a notice is received under subsection (1) from the defendant.

(4)

At any time before the trial, the defendant may change a plea of not guilty by giving a notice under subsection (1).

Compare: 1957 No 87 s 41

39 Requirement for defendant to plead

(1)

If the defendant has not pleaded to a charge under section 37 or 38, the court may require a defendant to plead if the court is satisfied that the defendant has had initial disclosure in accordance with section 12(1) of the Criminal Disclosure Act 2008.

(2)

The defendant may plead either guilty or not guilty, or enter a special plea.

(3)

If the defendant is not represented by a lawyer,—

(a)

the court must be satisfied that the defendant—

(i)

has been informed of his or her rights to legal representation, including the right to apply for legal aid under the Legal Services Act 2011; and

(ii)

has fully understood those rights; and

(iii)

has had a reasonable opportunity to exercise those rights; and

(b)

the substance of the charge must be read to the defendant.

(4)

A Registrar may exercise the power of the court under this section to require a plea from a defendant charged with a category 1, 2, or 3 offence.

(5)

If the defendant indicates to a Registrar exercising the powers of the court in accordance with subsection (4) that he or she intends to plead guilty, the defendant must be brought before the court to enter a plea.

40 Not guilty plea for category 4 offence

A not guilty plea to a charge for a category 4 offence may be entered only in the High Court.

41 Defendant who refuses or fails to plead under section 39 or 49(3)

If the defendant refuses to plead, or fails to plead, when required to do so under section 39 or 49(3), the defendant is deemed to have pleaded not guilty and the proceedings must be continued accordingly.

42 Defendant may change plea of not guilty

(1)

A defendant may ask to be brought before the court (or, if the defendant is at that time before the court, ask to be permitted) to change a plea of not guilty to a plea of guilty or to a special plea to the offence with which he or she is charged.

(2)

When the defendant attends before a court for the purposes of this section,—

(a)

if the defendant is not represented by a lawyer, the substance of the charge must be read to the defendant; and

(b)

the defendant must be called on to plead.

Compare: 1957 No 87 s 160

43 Procedure if defendant indicates intention to plead guilty but does not do so

(1)

This section applies if a defendant indicates under section 37(6), 39(5), or 42(1) that he or she intends to plead guilty.

(2)

If the defendant does not plead guilty, or if he or she does not personally attend the proceedings,—

(a)

the defendant must be treated in all respects as if he or she had not indicated any intention to plead guilty; and

(b)

no comment may be made in any subsequent proceedings on the fact that the defendant indicated an intention to plead guilty; and

(c)

the fact that the defendant indicated an intention to plead guilty is not admissible in evidence against the defendant in any proceedings.

Compare: 1957 No 87 s 161(1), (2)

44 Plea where charge alleges previous conviction

If a charge contains an allegation that the defendant has been previously convicted, the defendant is not required to plead to that allegation, unless he or she pleads guilty to the rest of the charge.

Compare: 1961 No 43 s 341(1)(a)

Special pleas

45 Special pleas

(1)

Only the following special pleas may be entered:

(a)

a plea of previous conviction:

(b)

a plea of previous acquittal:

(c)

a plea of pardon.

(2)

More than 1 special plea may be entered in relation to the same charge.

(3)

If the defendant enters any of the special pleas, the defendant must provide information about the conviction, acquittal, or pardon on which the plea is based.

Compare: 1961 No 43 s 357(1), (3), (4)

46 Previous conviction

(1)

If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—

(a)

the same offence as the offence currently charged, arising from the same facts; or

(b)

any other offence arising from those facts.

(2)

Subsection (1) does not apply if—

(a)

the defendant was convicted of an offence and is currently charged with a more serious offence arising from the same facts; and

(b)

the court is satisfied that the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed.

Compare: 1961 No 43 s 358(1)

47 Previous acquittal

If a plea of previous acquittal is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been acquitted of—

(a)

the same offence as the offence currently charged, arising from the same facts; or

(b)

any other offence arising from those facts.

Compare: 1961 No 43 s 358(1)

48 Pardon

If a plea of pardon is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted and pardoned of—

(a)

the same offence as the offence currently charged, arising from the same facts; or

(b)

any other offence arising from those facts.

49 Procedure for dealing with special plea

(1)

If a special plea is entered, the availability of that plea must be decided by a Judge.

(2)

In deciding whether a special plea is available to the defendant, the Judge may consider any evidence the Judge considers appropriate.

(3)

If the Judge decides that the special plea entered is not available to the defendant, the defendant must be required to enter a plea of guilty or not guilty to the charge.

(4)

Despite subsection (1), if a special plea is entered in relation to a charge for a category 4 offence, the availability of that plea must be decided by a High Court Judge.

Compare: 1961 No 43 ss 357(3), 360

Subpart 2—Decision regarding trial by jury for category 3 offences

50 Defendant charged with category 3 offence may elect trial by jury

A defendant who is charged with a category 3 offence, and who pleads not guilty to that offence, may elect to be tried by a jury.

Compare: 1957 No 87 s 66

51 Timing of election

(1)

An election under section 50 must be made at the time of entering a not guilty plea, unless the defendant obtains the leave of the court under subsection (2).

(2)

The court may grant leave to make an election at a later time, but only if the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant’s decision whether to elect a trial by jury.

(3)

The court must not grant leave under subsection (2) after a Judge-alone trial has commenced.

52 Judicial officer or Registrar may receive elections

A judicial officer or Registrar may receive an election under section 50 to be tried by a jury.

Compare: 1957 No 87 s 66A

53 Withdrawal of election

(1)

A defendant may not withdraw his or her election to be tried by a jury unless the defendant obtains the leave of the court under subsection (2).

(2)

A court may grant leave to a defendant to withdraw the defendant’s election to be tried by a jury, but only if—

(a)

the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant’s decision to elect a trial by jury; or

(b)

the court is satisfied that the withdrawal of the defendant’s election is unlikely to cause a delay in the defendant’s trial being concluded; or

(c)

in the case of a defendant who is to be tried by a jury under section 139(2)(a), the defendant’s co-defendant is, or co-defendants are, no longer to be tried by a jury.

(3)

The court must not grant leave under subsection (2) after the jury trial has commenced.

Subpart 3—Case management

54 Adjournment for case review

(1)

If the defendant pleads not guilty to a charge for a category 2, 3, or 4 offence, a judicial officer must adjourn the proceeding for case review.

(2)

A Registrar may exercise the power under subsection (1) to adjourn a proceeding for a category 2 or 3 offence.

55 Case management discussions and case management memorandum

(1)

If the defendant is represented by a lawyer, before the date to which the proceeding is adjourned for case review the prosecutor and defendant must—

(a)

engage in case management discussions to ascertain whether the proceeding will proceed to trial and, if so, make any arrangements necessary for its fair and expeditious resolution; and

(b)

jointly complete a memorandum containing the information specified in section 56 (the case management memorandum).

(2)

If, in accordance with section 138(1)(a), 2 or more charges are to be heard together, a single case management memorandum may be filed in respect of all the charges to be heard together.

(3)

The case management memorandum must be filed by the defendant by the time prescribed in rules of court.

56 Information to be provided in case management memorandum

(1)

A case management memorandum must contain the following information:

(a)

whether the defendant intends to change his or her plea:

(b)

whether the prosecutor intends to seek leave to amend or withdraw any charges:

(c)

whether the prosecutor proposes to add a new charge or charges against the defendant:

(d)

whether the defendant requests a sentence indication under section 61:

(e)

whether the prosecutor or the defendant, or both, consider there is a matter (other than one in paragraph (a), (b), or (d)) that requires judicial intervention and, if so, the nature of that matter:

(f)

if the offence is a category 2 or 3 offence, whether the prosecutor considers that it is a protocol offence and,—

(i)

if so, the views of the prosecutor and the defendant as to the appropriate court in which the proceeding should be tried; or

(ii)

if not, whether the prosecutor or the defendant intends to apply for a transfer of the proceeding under section 70:

(g)

any other information required by rules of court.

(2)

If the trial procedure is the Judge-alone trial procedure, a case management memorandum must also contain the following information:

(a)

notice of any pre-trial applications (other than those referred to in subsection (1)) that the prosecutor or the defendant, or both, intend to make:

(b)

any admissions that the defendant makes under section 9 of the Evidence Act 2006:

(c)

any indication the defendant wishes to give of—

(i)

any fact (not being a fact to which paragraph (b) refers) that the defendant will, or will not, dispute at the trial; and

(ii)

any issue that the defendant will, or will not, dispute at the trial or on which the defendant intends to rely at the trial:

(d)

the number of witnesses proposed to be called, the estimated duration of the trial, and any other information in relation to the management of the trial that is required by rules of court:

(e)

any other information required by rules of court.

57 Case review

(1)

At the case review hearing, the court must deal with any matter in section 56(1)(a) to (e) that has been identified in the case management memorandum.

(2)

If the defendant is unrepresented, the parties must, as appropriate,—

(a)

inform the court of the matters specified in section 56(1); and

(b)

if the matter is to proceed to a Judge-alone trial, inform the court of the matters referred to in section 56(2).

(3)

At the case review hearing the court may,—

(a)

in the case of a proceeding for which there will be a Judge-alone trial, adjourn the proceedings for trial; and

(b)

in the case of a proceeding for which there will be a jury trial, adjourn the proceedings for trial callover.

(4)

A Registrar must exercise the power of the court under this section if—

(a)

the defendant is represented; and

(b)

a case management memorandum has been filed; and

(c)

according to the case management memorandum,—

(i)

the defendant does not intend to change his or her plea; and

(ii)

the prosecutor does not intend to seek leave to amend or withdraw any charge; and

(iii)

the prosecutor does not propose to add any new charge or charges against the defendant; and

(iv)

the defendant does not request a sentence indication; and

(v)

no party has given notice that it intends to make any other pre-trial application; and

(vi)

no other matter is identified of a kind described in section 56(1)(e).

58 Court may give directions about case management procedure

(1)

If the court considers that it will facilitate resolution of the proceeding, or it is otherwise in the interests of justice, the court may—

(a)

authorise or accept a departure from any of the requirements of sections 54 to 57:

(b)

give any other directions in relation to the management of the case.

(2)

A direction under subsection (1) may be given on the court’s own motion or on the application of the prosecutor or the defendant.

Section 58(1)(a): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

59 Judge may direct case management procedure for category 1 offence

(1)

If the defendant pleads not guilty to a charge for a category 1 offence, a Judge may, if the Judge considers that it will facilitate resolution of the proceeding or is otherwise in the interests of justice,—

(a)

direct that all or any of the requirements of sections 54 to 57 apply:

(b)

give any other directions in relation to the management of the case.

(2)

A direction under subsection (1) may be given on the Judge’s own motion or on the application of the prosecutor or the defendant.

Section 59(1)(a): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Subpart 4—Sentence indications

60 Meaning of sentence indication

A sentence indication is a statement by the court that, if the defendant pleads guilty to the offence alleged in the charge, or any other specified offence, at that time, the court would or would not (as the case may be) be likely to impose on the defendant—

(a)

a sentence of a particular type or types; or

(b)

a sentence of a particular type or types within a specified range (for example, periods of time or monetary amounts); or

(c)

a sentence of a particular type or types and of a particular quantum (for example, periods of time or monetary amounts).

61 Giving sentence indication

(1)

A court may give a sentence indication, but only at the request of the defendant made before the trial.

(2)

Subject to subsection (3), if the defendant requests a sentence indication the court may give one if it is satisfied that the information available to it at that time is sufficient for that purpose.

(3)

Without limiting the information that the court may require before giving a sentence indication, the court must have the following information before giving a sentence indication of a kind described in section 60(c):

(a)

a summary of the facts on which the sentence indication is to be given, agreed on by the prosecutor and the defendant; and

(b)

information as to any previous conviction of the defendant; and

(c)

a copy of any victim impact statement that has been prepared in relation to the offence concerned under the Victims’ Rights Act 2002.

62 Further provisions relating to giving sentence indication

(1)

If the court proposes to give a sentence indication, the court may give the prosecutor and the defendant an opportunity to be heard on the matter.

(2)

A sentence indication must be given in open court.

(3)

Every sentence indication must be recorded by the court.

(4)

A second or subsequent sentence indication may be given in a proceeding only if, since the previous sentence indication, there has been a change in circumstances that is likely to materially affect the question of the appropriate sentence type or quantum.

(5)

No party may appeal against a decision to give or not to give a sentence indication.

63 Offence and penalty relating to sentence indication

(1)

Every person commits an offence who, before the defendant has been sentenced or the charge has been dismissed, knowingly publishes any information about—

(a)

a request for a sentence indication; or

(b)

a sentence indication that has been given.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a term of imprisonment not exceeding 3 months:

(b)

in the case of a body corporate, to a fine not exceeding $50,000.

64 Duration of sentence indication

A sentence indication has effect—

(a)

until the close of the date specified by the court; or

(b)

if no date is specified, until the expiry of 5 working days after the date on which the sentence indication was given.

65 Request for sentence indication not admissible in proceeding

The fact that a defendant made a request for a sentence indication is not admissible in evidence in any proceeding.

Subpart 5—Determination of level of trial court for category 2 and 3 offences

Determination of level of trial court for protocol offences

66 Establishment of protocol

(1)

The Chief High Court Judge and the Chief District Court Judge must establish a protocol that identifies those category 2 and 3 offences in relation to which the level of trial court must be determined in accordance with sections 67 and 68.

(2)

Without limiting subsection (1), the protocol may identify—

(a)

specific offences:

(b)

offences where certain circumstances are present (for example, offending that involves more than 1 defendant, or that results in a particular level of harm, or in relation to which the prosecution is brought by a particular prosecuting agency).

(3)

The Chief High Court Judge and the Chief District Court Judge may revise the protocol from time to time.

(4)

The Chief High Court Judge and the Chief District Court Judge must publish in the Gazette the protocol and the revisions of the protocol.

67 District Court Judge may recommend level of trial court for protocol offence

(1)

If the prosecutor identifies the offence charged as a protocol offence, under section 56(1)(f) or otherwise, a District Court Judge may—

(a)

decline to make a recommendation for the purposes of section 68, if he or she considers that the offence is not a protocol offence; or

(b)

if the Judge considers that the offence is a protocol offence,—

(i)

consider whether the trial should be held in the District Court or the High Court; and

(ii)

make a recommendation for the purposes of section 68.

(2)

The District Court Judge must make a recommendation under subsection (1)(b) if—

(a)

the prosecutor or the defendant seeks to have the trial held in the High Court; or

(b)

the Judge considers that not all of the proceedings that are awaiting trial in the District Court at the place at which the trial would be held are able to be heard within a reasonable timeframe.

(3)

For the purposes of subsection (1), the prosecutor and the defendant may make written submissions to the Judge, but no party is entitled to be heard.

(4)

Before making a recommendation under subsection (1), the Judge must—

(a)

consider any submissions from the prosecutor and the defendant, including anything submitted to the court under section 56(1)(f)(i) or otherwise provided to the court under section 57(2)(a); and

(b)

consider the following matters:

(i)

the nature and seriousness of the offence charged; and

(ii)

the complexity of the factual and legal issues likely to arise in the proceeding; and

(iii)

the likelihood that the proceeding will be of wide public concern; and

(iv)

any need for enhanced security or facilities during the trial that are not readily available in the District Court; and

(v)

the desirability of the prompt disposal of trials and the respective workloads of the High Court and the District Court in the locality of the trial; and

(vi)

the likelihood of a sentence beyond the jurisdiction of the District Court; and

(vii)

the interests of justice generally.

Compare: 1957 No 87 s 184Q

68 High Court Judge must determine level of trial court for protocol offences

(1)

A High Court Judge must determine whether the trial of a protocol offence is to be held in the District Court or the High Court and make an order accordingly.

(2)

Before making an order under subsection (1), the High Court Judge must consider—

(a)

any recommendation of the District Court Judge; and

(b)

any submissions made by the prosecutor and the defendant to the District Court Judge; and

(c)

the matters listed in section 67(4)(b).

(3)

No party may appeal against an order under subsection (1).

69 Proceedings not invalid

No proceeding that relates to a protocol offence is invalid only because it failed to be identified as a protocol offence and considered in accordance with sections 67 and 68.

Order that proceeding for category 2 or 3 offence be tried in High Court

70 High Court Judge may order proceedings for category 2 or 3 offence be tried in High Court

(1)

This section applies if a defendant is charged with a category 2 or 3 offence, and a High Court Judge has not made an order under section 68 (whether or not the offence is a protocol offence).

(2)

The defendant or the prosecutor may apply to a High Court Judge for an order directing that the defendant be tried in the High Court.

(3)

The prosecutor and the defendant may make written submissions in relation to an application under subsection (2), but no party is entitled to be heard.

(4)

The Judge must determine whether the defendant is to be tried in the District Court or the High Court and make an order accordingly.

(5)

Before making an order under subsection (4) the Judge must consider—

(a)

any information provided by the District Court about its capacity to hold the trial; and

(b)

any submissions from the prosecutor and the defendant; and

(c)

the matters listed in section 67(4)(b).

(6)

No party may appeal against an order under subsection (4).

Compare: 1947 No 16 s 28J

Subpart 6—Trial court, place of trial, transfer of proceedings to trial court, and procedure for trial

71 Category 1 offences

(1)

This section applies to a proceeding for a category 1 offence.

(2)

The applicable procedure for trial is the Judge-alone trial procedure.

(3)

The trial court is the District Court at the place where the proceeding is being dealt with in accordance with section 35.

(4)

This section is subject to—

(a)

any order made under section 72 of the District Court Act 2016 or section 157 of this Act; and

(b)

section 139.

Section 71(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 71(4)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

72 Category 2 offences

(1)

This section applies to a proceeding for a category 2 offence.

(2)

The applicable procedure for trial is the Judge-alone trial procedure.

(3)

The level of trial court is the District Court unless an order is made under section 68 or 70 that the proceeding be tried in the High Court.

(4)

The place of trial is,—

(a)

if the trial court is the High Court, the High Court at the place nearest to the court that is dealing with the proceeding under subpart 3 of this Part:

(b)

if the trial court is the District Court, the court that is dealing with the proceeding under subpart 3 of this Part.

(5)

This section is subject to—

(a)

any order made under section 72 of the District Court Act 2016 or section 157 of this Act; and

(b)

section 139.

Section 72(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 72(4)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 72(5)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

73 Category 3 offences

(1)

This section applies to a proceeding for a category 3 offence.

(2)

The applicable procedure for trial is—

(a)

the Judge-alone trial procedure if—

(i)

the defendant does not elect trial by jury under section 50 (or withdraws his or her election under section 53); or

(ii)

an order is made under section 102 or 103; or

(b)

the jury trial procedure in any other case.

(3)

The level of trial court is the District Court unless an order is made under section 68 or 70 that the proceeding be tried in the High Court.

(4)

The place of trial is,—

(a)

if the trial court is the High Court, the High Court at the place nearest to the court that is dealing with the proceeding under subpart 3 of this Part:

(b)

if the trial court is the District Court,—

(i)

the court that is dealing with the proceeding under subpart 3 of this Part; or

(ii)

if the trial procedure is jury trial, and the court that is dealing with the proceeding under subpart 3 of this Part does not have jury trial jurisdiction, the District Court with jury trial jurisdiction that is nearest to that court.

(5)

In this section, jury trial jurisdiction, when used in relation to the District Court, means the District Court at the place where the court has jurisdiction in accordance with section 354(2) and (3) to conduct jury trials.

(6)

This section is subject to—

(a)

any order made under section 72 of the District Court Act 2016 or section 157 of this Act; and

(b)

section 139; and

(c)

any regulations made under section 387 that prescribe a different or an alternative place of trial.

Section 73(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 73(4)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 73(5): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 73(6)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 73(6)(c): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

74 Category 4 offences

(1)

This section applies to a proceeding for a category 4 offence.

(2)

The applicable procedure for trial is—

(a)

the jury trial procedure; or

(b)

the Judge-alone trial procedure if an order is made under section 102 or 103.

(3)

The level of trial court is the High Court.

(4)

The trial court is the High Court at the place that is nearest to the District Court at the place where the court is dealing with the proceeding immediately before it is transferred under section 36.

(5)

This section is subject to—

(a)

any order made under section 157; and

(b)

section 139; and

(c)

any regulations made under section 387 that prescribe a different or an alternative place of trial.

Section 74(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 74(4): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 74(5)(c): amended, on 1 March 2017, by section 4 of the Criminal Procedure Amendment Act 2016 (2016 No 61).

75 Transfer of certain proceedings for category 2 and 3 offences to trial court

(1)

The Registrar must transfer a proceeding for a category 2 or 3 offence to the trial court as soon as practicable after any order is made under section 68(1) or 70(4) that the trial is to be in the High Court.

(2)

The Registrar of the court that adjourns the proceeding for a category 3 offence for trial callover (if that court is not the trial court) must transfer the proceeding to the trial court as soon as practicable.

76 Transfer of proceeding from trial court to new trial court

If, as a result of any decision referred to in section 134(6), 135, or 140, the trial court changes but the proceeding had already been transferred to the trial court in accordance with section 75, the Registrar of that court must as soon as practicable transfer the proceeding to the new trial court.

77 Notice that defendant to be tried in High Court

(1)

Where, pursuant to an order under section 68 or 70, a proceeding is to be tried in the High Court, the High Court Registrar must give, or cause to be given, to the defendant—

(a)

a copy of the order; and

(b)

a notice informing the defendant of the date and time at which the defendant must report to the High Court in which the defendant will be tried.

(2)

If the defendant has been remanded in custody, the High Court Registrar must if necessary, issue a new warrant for the detention of the defendant that accords with the date and time on which, and place to which, the defendant must report.

(3)

If the defendant has been released on bail,—

(a)

the conditions of the defendant’s bail are deemed to be varied in accordance with the notice under subsection (1)(b), and no new notice of bail is required; and

(b)

the High Court Registrar must give, or cause to be given, to each surety of the defendant—

(i)

a copy of the order; and

(ii)

a copy of the notice under subsection (1)(b); and

(c)

the terms of each surety bond in relation to which paragraph (b) is complied with are deemed to be varied in accordance with the notice.

(4)

The High Court Registrar must ensure that any witness summoned to attend the proceeding is given notice of the date and time at which and the place at which the defendant will be tried.

(5)

The notice given under subsection (4) has the same effect as if it were a summons to attend the court to which the proceeding is transferred.

Compare: 1957 No 87 s 184R

Subpart 7—Provisions applying only to Judge-alone procedure

78 Court may order pre-trial admissibility hearing if trial to be Judge-alone trial

(1)

This section applies if—

(a)

the prosecutor or the defendant wishes to adduce any particular evidence at a Judge-alone trial; and

(b)

he or she believes that the admissibility of that evidence may be challenged.

(2)

The prosecutor or the defendant may apply to the court for a hearing (a pre-trial admissibility hearing) for the purposes of obtaining a pre-trial order to the effect that the evidence is admissible.

(3)

An application under subsection (2) must be made by the time prescribed by rules of court.

(4)

The court may grant a pre-trial admissibility hearing if the court is satisfied that—

(a)

it is more convenient to deal with the issues before the trial and—

(i)

the evidence raises a complex admissibility issue and the decision about whether it is admissible is likely to make a substantial difference to the overall conduct of the proceeding; or

(ii)

the outcome of the pre-trial admissibility hearing may obviate the need for a trial; or

(b)

the complainant or witness is particularly vulnerable and resolving the admissibility issue is in the interests of justice; or

(c)

the trial is to be in the District Court and the evidence has been obtained under an order made, or warrant issued, by the High Court.

(5)

The court may grant a pre-trial admissibility hearing on any terms and subject to any conditions that the court thinks fit, and may make any order permitted under section 80.

(6)

If a pre-trial admissibility hearing is granted on the ground in subsection (4)(c), that pre-trial hearing must be in the High Court.

Section 78(4)(c): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

79 Pre-trial admissibility hearing and order that evidence admissible

(1)

The court at a pre-trial admissibility hearing must give each party an opportunity to be heard.

(2)

The court may make an order that the evidence is admissible.

(3)

The order may be made on any terms and subject to any conditions that the court thinks fit.

(4)

Nothing in this section, or section 78, or in any order made under this section, affects—

(a)

the right of the prosecutor or the defendant to seek to adduce evidence that he or she claims is admissible during the trial; or

(b)

the discretion of the court at the trial to allow or exclude any evidence in accordance with any rule of law.

Compare: 1961 No 43 s 344A

80 Court may order that certain pre-trial processes under subpart 8 apply

(1)

The court to which an application is made under section 78 may, to assist the court to determine whether or not to make an order as to the admissibility of the evidence under section 79(2),—

(a)

make an order requiring any potential witness or witnesses to file a formal statement; or

(b)

make an order that the evidence of a potential witness be taken orally.

(2)

Sections 82 to 86 and 90 to 100 apply, with any necessary modifications, to any order made under this section.

Subpart 8—Provisions applying only to jury trial procedure

Application of this subpart

81 Application of this subpart

This subpart applies to a proceeding—

(a)

that has been adjourned for trial callover; and

(b)

for which the procedure is a jury trial.

Filing of formal statements

82 Requirements for formal statements

(1)

A formal statement is a statement recorded in any medium by a person who is a potential witness in a criminal proceeding where—

(a)

the statement contains the evidence of that witness; and

(b)

the statement contains, or is accompanied by, a declaration by the witness that the statement is true and that the witness made it with the knowledge that it is to be used in court proceedings; and

(c)

the statement complies with subsections (2) and (3) if applicable.

(2)

If a formal statement under subsection (1) is made by a person aged under 18 years, the statement must specify the age of that person.

(3)

If a formal statement under subsection (1) or a declaration required by subsection (1)(b) is made in written form by a person who cannot read it,—

(a)

the statement or declaration must be read to that person before the person authenticates it; and

(b)

the reader must attach to the statement or declaration an authenticated statement by that reader to the effect that the statement or declaration was read to the person and that the person to whom it was read appeared to understand its contents.

(4)

When filing a formal statement, the prosecutor may file, in addition to the statement itself, a summary of the parts of it that the prosecutor intends to rely on as evidence at the trial.

(5)

A formal written statement that satisfies the requirements of section 162 of the Summary Proceedings Act 1957 may be treated as a formal statement that satisfies the requirements of this section.

Compare: 1957 No 87 s 162

Section 82(5): inserted, on 1 July 2013, by section 7 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

83 False statement in formal statement deemed to be perjury

A formal statement filed under section 85 is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

Compare: 1957 No 87 s 163

84 Persons who may give evidence under assumed name

(1)

An undercover Police officer (within the meaning of section 108 of the Evidence Act 2006)—

(a)

may make a formal statement in the name by which the officer was known during the relevant investigation; and

(b)

may authenticate that statement, or any record of evidence prepared under section 99, in that name.

(2)

A witness who is the subject of an application for an anonymity order made under section 110 or 112 of the Evidence Act 2006, or who is the subject of an anonymity order made under either of those sections,—

(a)

may make a formal statement using the term “witness” followed by an initial or mark; and

(b)

may authenticate that statement, or any record of evidence prepared under section 99, in that manner.

(3)

This section overrides any contrary provision in this subpart.

Compare: 1957 No 87 s 173

85 Prosecutor must file formal statements

(1)

The prosecutor must file in the trial court—

(a)

the formal statements that form the evidence for the prosecution that the prosecutor proposes to call at trial, or such part of that evidence as the prosecutor considers is sufficient to justify a trial; and

(b)

the exhibits referred to in those statements.

(2)

The formal statements must be filed by the time prescribed in rules of court.

(3)

If the prosecutor fails to file formal statements within the prescribed time, the court may—

(a)

extend the time for filing the formal statements; or

(b)

dismiss the charge in accordance with section 147.

(4)

For the purpose of this section, evidence is sufficient to justify a trial of a defendant if, as a matter of law, a properly directed jury could reasonably convict the defendant on that evidence.

Compare: 1957 No 87 s 168

86 Evidential status of formal statements

(1)

A formal statement filed under section 85—

(a)

is admissible as evidence for the purposes of any pre-trial application to the same extent as if it were oral evidence; and

(b)

is to be treated as a previous statement of that witness at the trial.

(2)

Any document or object accompanying a formal statement, and referred to in that statement as an exhibit, must be treated as if it had been identified in court and produced as an exhibit by the maker of the statement.

Compare: 1957 No 87 s 162(5)

Trial callover memoranda

87 Trial callover memoranda to be filed in trial court

(1)

The prosecutor must file in the trial court a memorandum in accordance with section 88(1).

(2)

Unless the defendant is unrepresented, the defendant must file in the trial court a memorandum in accordance with section 88(2).

(3)

The memorandum must be filed by the time prescribed in rules of court.

88 Information to be provided in trial callover memoranda

(1)

A trial callover memorandum filed by the prosecutor must contain the following information:

(a)

notice of any pre-trial applications that the prosecutor intends to make; and

(b)

the number of witnesses proposed to be called, the estimated duration of the prosecution case, and any other information in relation to the management of the trial that is required by rules of court; and

(c)

any other information required by rules of court.

(2)

A trial callover memorandum filed by the defendant must contain the following information:

(a)

any admissions the defendant makes under section 9 of the Evidence Act 2006:

(b)

any indication the defendant wishes to give of—

(i)

any fact (not being a fact to which paragraph (a) refers) that the defendant will, or will not, dispute at the trial; and

(ii)

any issue that the defendant will, or will not, dispute at the trial or on which the defendant intends to rely at the trial:

(c)

notice of any pre-trial applications that the defendant intends to make:

(d)

the number of witnesses proposed to be called, the estimated duration of the defence case, and any other information in relation to the management of the trial that is required by rules of court:

(e)

any other information required by rules of court.

89 Unrepresented defendants at trial callover hearing

At the trial callover hearing an unrepresented defendant must, if the matter is to proceed to trial, inform the court of the matters referred to in section 88(2).

Application for oral evidence order

90 Application for oral evidence order

(1)

Either party may apply to the court for an order allowing the oral examination of a potential witness whether or not that witness has provided a formal statement.

(2)

An application under subsection (1) must be made within the time prescribed by rules of court.

(3)

The requirement under subsection (1) to apply to the court is subject to section 91(b).

Compare: 1957 No 87 s 178

91 Application for leave to question undercover Police officer’s identity must be dealt with by High Court

If the defendant wishes to apply, under section 109(1)(d) of the Evidence Act 2006, for leave to put any questions relating to the identity of a witness called by the prosecutor who is an undercover Police officer,—

(a)

that application must be made at the same time as the application is made for an oral evidence order allowing the oral examination of the person to whom those questions are proposed to be put; and

(b)

both applications must be determined by a High Court Judge.

Compare: 1957 No 87 s 179

Oral evidence orders

92 Making oral evidence order

(1)

On an application under section 90 the court may make an oral evidence order if the court is satisfied that—

(a)

it is necessary to take the oral evidence of the witness in order to determine a pre-trial application on any matter; or

(b)

the person has been requested to give evidence in the form of a formal statement but has failed or refused to do so, and the anticipated evidence of that person is relevant to the charge against the defendant; or

(c)

it is otherwise in the interests of justice to take the oral evidence of the witness.

(2)

Subsection (1) is subject to section 93.

(3)

The court may refuse an application for an oral evidence order if it considers that the application was made—

(a)

for the purpose of delay; or

(b)

for any other improper purpose.

(4)

The court must determine an application for an oral evidence order on the basis of—

(a)

the witness’s formal statement (if any); and

(b)

any other written evidence; and

(c)

any submissions from the parties.

Compare: 1957 No 87 ss 180, 181

93 Further consideration if application for oral evidence order for complainant in case of sexual nature

(1)

This section applies if the court is considering whether to make an oral evidence order under section 92 for the examination of the complainant in a proceeding for—

(a)

any offence against sections 128 to 142A of the Crimes Act 1961:

(b)

any offence against section 144A of the Crimes Act 1961:

(c)

any other offence against the person of a sexual nature:

(d)

being a party to the commission of any offence referred to in paragraph (a), (b), or (c):

(e)

conspiring with any person to commit any of those offences.

(2)

The court must, in addition to the matters in section 92(1), consider—

(a)

the particular vulnerability of the complainant; and

(b)

the impact on the complainant of giving oral evidence.

94 Withdrawal of charge if oral evidence order made for examination of undercover Police officer

(1)

Despite section 146, the prosecutor may withdraw a charge without the leave of the court if—

(a)

an oral evidence order is made under section 92 allowing the oral examination of a prosecution witness; and

(b)

leave is granted to the defendant, on an application under section 109(1)(d) of the Evidence Act 2006, to put any question to that witness relating to the identity of that witness or of another prosecution witness.

(2)

The withdrawal of a charge is not a bar to any other proceedings in the same matter.

Compare: 1957 No 87 s 158

Procedure for taking oral evidence

95 By whom oral evidence of witness to be taken

(1)

If an oral evidence order is made, the court may direct that the evidence be taken at any court or place that the court considers suitable for the purpose before—

(a)

a District Court Judge; or

(b)

a Registrar of the District Court; or

(c)

1 or more Justices; or

(d)

1 or more Community Magistrates; or

(e)

a High Court Judge; or

(f)

a Registrar of the High Court.

(2)

The oral evidence of any witness taken under this section at a court or place other than the trial court—

(a)

must be forwarded to the Registrar of the trial court; and

(b)

has effect as if it were oral evidence taken at the trial court.

(3)

Despite subsection (1) only a High Court Judge may direct that evidence be taken by a High Court Judge or a Registrar of the High Court.

Compare: 1957 No 87 s 182

Section 95(1)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

96 Restriction on who may take oral evidence of complainant in case of sexual nature

Despite section 95(1), the oral evidence of a complainant may be taken only by a Judge if the defendant is charged with an offence specified in section 93(1).

Compare: 1957 No 87 s 185B

97 Persons who may be present if oral evidence taken from complainant in case of sexual nature

(1)

If, in accordance with an oral evidence order, oral evidence is taken from a complainant in a proceeding for an offence specified in section 93(1), no person may be present except the following:

(a)

the Judge:

(b)

the prosecutor:

(c)

the defendant and any person who is for the time being acting as custodian of the defendant:

(d)

any lawyer engaged in the proceedings:

(e)

any officer of the court:

(f)

the Police employee in charge of the case:

(g)

any member of the media as defined in section 198(2):

(h)

any person whose presence is requested by the complainant:

(i)

any person expressly permitted by the Judge to be present.

(2)

Before the complainant starts to give evidence, the Judge must—

(a)

ensure that no person other than those referred to in subsection (1) is present; and

(b)

advise the complainant of the complainant’s right to request the presence of any person under subsection (1)(h).

Compare: 1957 No 87 s 185C(2), (3)

98 Application of sections 103 to 105 of Evidence Act 2006

If an oral evidence order is made, sections 103 to 105 of the Evidence Act 2006 apply with any necessary modifications to the taking of the oral evidence.

99 Oral evidence must be recorded

(1)

Oral evidence must be recorded and that record must be authenticated.

(2)

If the oral evidence is given by a person who cannot read and is recorded in writing,—

(a)

the record of the evidence must be read to that person before the person authenticates it; and

(b)

the reader must attach to the record an authenticated statement by that reader to the effect that the record was read to the person and that the person to whom it was read appeared to understand its contents.

(3)

Judicial notice must be taken of the authentication of any examining judicial officer or Registrar given in a manner prescribed by rules of court to any record of oral evidence taken under this section.

Compare: 1957 No 87 s 184D

100 Proceeding may be continued despite witness’s failure to appear or give evidence

(1)

If a person fails to appear to give oral evidence, the court may—

(a)

direct that the oral evidence of that person be taken at a time or place directed by the court; or

(b)

direct that the proceeding continue to trial without the taking of the oral evidence of that person.

(2)

If subsection (1)(a) applies, sections 159 to 164 apply as if the requirement for the person to appear to give oral evidence were a requirement to appear at a hearing.

Compare: 1957 No 87 s 184E

Pre-trial orders as to admissibility of evidence: jury trial procedure

101 Pre-trial order relating to admissibility of evidence: jury trial

(1)

This section applies if—

(a)

the prosecutor or the defendant wishes to adduce any particular evidence at a jury trial; and

(b)

he or she believes that the admissibility of that evidence may be challenged.

(2)

The prosecutor or the defendant may apply to the court for a pre-trial order to the effect that the evidence is admissible.

(3)

An application under subsection (2) must be made by the time prescribed by rules of court.

(4)

The court must give each party an opportunity to be heard in respect of the application before deciding whether or not to make the order.

(5)

The court may make an order under this section on any terms and subject to any conditions that the court thinks fit.

(6)

Nothing in this section nor in any order made under this section affects—

(a)

the right of the prosecutor or the defendant to seek to adduce evidence that he or she claims is admissible during the trial; or

(b)

the discretion of the court at the trial to allow or exclude any evidence in accordance with any rule of law.

(7)

If the evidence has been obtained under an order made, or a warrant issued, by the High Court, the application must be made to the High Court.

Compare: 1961 No 43 s 344A

Trial before Judge alone may be ordered

102 Judge may order Judge-alone trial in cases likely to be long and complex

(1)

This section applies if the defendant is charged with an offence that is not—

(a)

an offence for which the maximum penalty is imprisonment for life or imprisonment for 14 years or more; or

(b)

an offence of attempting or conspiring to commit, or of being a party to the commission of, or of being an accessory after the fact to, an offence referred to in paragraph (a).

(2)

The court may, on the application of the prosecutor, or of its own motion, order that the defendant be tried for the offence before a Judge without a jury.

(3)

An application by the prosecutor under subsection (2) must be made before the trial within the time prescribed by rules of court.

(4)

The court must not make an order under subsection (2) unless the prosecutor and the defendant have been given an opportunity to be heard in relation to the application and, following such hearing, the court is satisfied—

(a)

that all reasonable procedural orders (if any), and all other reasonable arrangements (if any), to facilitate the shortening of the trial have been made, but the duration of the trial still seems likely to exceed 20 sitting days; and

(b)

that, in the circumstances of the case, the defendant’s right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively.

(5)

For the purposes of subsection (4)(b) the court must consider the following matters:

(a)

the number and nature of the offences with which the defendant is charged:

(b)

the nature of the issues likely to be involved:

(c)

the volume of evidence likely to be presented:

(d)

the imposition on potential jurors of sitting for the likely duration of the trial:

(e)

any other matters the court considers relevant.

(6)

If the defendant is one of 2 or more co-defendants to be tried together, all of them must be tried before a Judge with a jury unless an order under subsection (2) for all of them to be tried by a Judge without a jury is applied for and made.

(7)

This section does not limit section 103.

Compare: 1961 No 43 s 361D

103 Judge may order Judge-alone trial in cases involving intimidation of juror or jurors

(1)

The court may, on the application of the prosecutor, order that the defendant be tried before a Judge without a jury.

(2)

An application under subsection (1) must be made before the trial and within the time prescribed by rules of court.

(3)

The court must not make an order under subsection (1) unless the court is satisfied that there are reasonable grounds to believe—

(a)

that intimidation of any person or persons who may be selected as a juror or jurors has occurred, is occurring, or may occur; and

(b)

that the effects of that intimidation can be avoided effectively only by making an order under subsection (1).

(4)

If the defendant is one of 2 or more co-defendants to be tried together, all of them must be tried before a Judge with a jury unless an order under subsection (1) for all of them to be tried by a Judge without a jury is applied for and made.

(5)

This section does not limit section 102.

Compare: 1961 No 43 s 361E

104 Procedure for trial ordered under section 102 or 103

If an order is made under section 102 or 103 that 1 or more defendants be tried before a Judge without a jury,—

(a)

the provisions of this subpart apply before the trial, with any necessary modifications; and

(b)

subpart 1 of Part 4 applies to the conduct of the trial.

Part 4 Trial

Subpart 1—Provisions applying to Judge-alone trials

105 Conduct of Judge-alone trial

(1)

Unless the court directs otherwise, neither the prosecutor nor the defendant may make an opening statement other than,—

(a)

in the case of the prosecutor, a short outline of the charge or charges the defendant faces; and

(b)

in the case of the defendant, a short outline of the issue or issues at the trial.

(2)

Unless the court directs otherwise, the prosecutor and the defendant must call evidence in the following sequence:

(a)

the prosecutor may adduce the evidence in support of the prosecution case:

(b)

the defendant may adduce any evidence that he or she wishes to present:

(c)

subject to section 98 of the Evidence Act 2006, the prosecutor may adduce evidence in rebuttal of evidence given by or on behalf of the defendant.

(3)

Without limiting subsection (2), the court may give the defendant leave to call 1 or more witnesses (for example, an expert witness) immediately after the prosecutor has called a particular witness or witnesses.

(4)

Unless the court directs otherwise, neither party may—

(a)

make submissions on the facts; or

(b)

address the court on the evidence given by either party.

(5)

Despite subsection (4), the defendant, whether or not he or she intends to call evidence, may address the court at the end of the prosecutor’s case to submit that the charge should be dismissed.

Compare: 1957 No 87 s 67(1), (3), (4), (6), (7)

106 Decision of court

(1)

The court, having heard what each party has to say and the evidence adduced by each, must consider the matter and may find the defendant guilty or not guilty.

(2)

The court must give reasons for its decision under subsection (1).

(3)

The court may, if it thinks fit, reserve its decision under subsection (1).

(4)

If the court reserves its decision, the court must—

(a)

give it at any adjourned or subsequent sitting of the court; or

(b)

record the decision, authenticate it, and send it to the Registrar.

(5)

If a decision is sent to the Registrar under subsection (4), the Registrar must deliver it at a time and place appointed by the Registrar.

(6)

A reserved decision delivered by the Registrar has the same force and effect as if given by the court on that date.

(7)

The reasons for the court’s decision may accompany the court’s decision, or be given later.

Compare: 1957 No 87 s 68

Subpart 2—Provisions applying to jury trials

Conduct of jury trial

107 Conduct of jury trial

(1)

The prosecutor must make an opening statement that indicates to the jury the nature of the offences alleged and the evidence that he or she will call.

(2)

After the opening statement by the prosecutor and before any evidence is adduced, the defendant may make an opening statement for the purposes of identifying the issue or issues at the trial.

(3)

Unless the court directs otherwise, the prosecutor and the defendant must call evidence in the following sequence:

(a)

the prosecutor may adduce the evidence in support of the prosecution case:

(b)

the defendant may adduce any evidence that he or she wishes to present:

(c)

subject to section 98 of the Evidence Act 2006, the prosecutor may adduce evidence in rebuttal of evidence given by or on behalf of the defendant.

(4)

Without limiting subsection (3), the court may give the defendant leave to call 1 or more witnesses (for example, an expert witness) immediately after the prosecutor has called a particular witness or witnesses.

(5)

At the end of the prosecution case, the defendant may make a further statement that indicates to the jury the nature of his or her case and the evidence that he or she will call.

(6)

When all the evidence (including any evidence given on cross-examination, re-examination, or in rebuttal) is concluded, the prosecutor may make a closing address.

(7)

After the closing address (if any) by the prosecutor, the defendant may make a closing address and the prosecutor has no right of reply in any case.

Compare: 1961 No 43 s 367

Charge alleging previous conviction

108 Procedure if charge alleges previous conviction

(1)

If a charge contains an allegation that the defendant has been previously convicted, and the defendant pleads not guilty to the rest of the charge, the allegation must not be mentioned to the jury when the defendant is given in charge to them.

(2)

Despite subsection (1), if during the trial evidence of the defendant’s good character is given by or on behalf of the defendant, the prosecutor, in answer to that evidence, may prove the previous conviction.

Compare: 1961 No 43 s 341(1)(b), (2)

Discretion to keep jury together

109 Discretion to keep jury together

(1)

From the time when the defendant is given in charge to the jury the trial must proceed continuously, subject to the power of the court under section 167 to adjourn it.

(2)

If the court adjourns the trial, it may direct that during the adjournment the jury must be kept together, and that proper provision be made for preventing the jury from communicating with anyone on the subject of the trial.

(3)

If no direction under subsection (2) is given, the jury may separate during the adjournment.

Compare: 1961 No 43 s 373

Part of murder charge proved

110 Part of murder charge proved

On a charge of murder, the jury—

(a)

may,—

(i)

in accordance with section 149, find the defendant guilty of an attempt to commit murder; or

(ii)

if the evidence proves manslaughter but does not prove murder, find the defendant guilty of manslaughter; but

(b)

must not on that charge, except in accordance with section 178(2) of the Crimes Act 1961 (which relates to infanticide), find the defendant guilty of any other offence.

Compare: 1961 No 43 s 339(2)

Subpart 3—Provisions applying to both Judge-alone and jury trials

Alibi

111 Alibi

(1)

Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time when it is to be given, be given before or after evidence is given in support of the alibi.

(2)

For the purposes of this section, evidence in support of an alibi means evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time he or she was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

Compare: 1961 No 43 s 367A

Dismissal of charge in certain cases

112 Court must dismiss charge in certain cases

(1)

Where, on an application under section 109(1)(d) of the Evidence Act 2006, leave is granted to the defendant to put any question relating to the identity of a witness called by the prosecutor, the prosecutor may inform the court that the prosecution does not intend to proceed with the charge.

(2)

In a case described in subsection (1), the court must dismiss the charge under section 147.

Compare: 1961 No 43 s 369A

Witnesses

113 Adjourning trial for witness

(1)

Subsection (2) applies if the court is of the opinion that the defendant is taken by surprise, in a manner likely to prejudice the defendant’s defence, by the production of a prosecution witness without sufficient notice to the defendant.

(2)

The court may, on the application of the defendant,—

(a)

adjourn the trial; or

(b)

discharge the jury and postpone the trial.

(3)

If the court is of the opinion that a witness who is not called for the prosecution ought to be called, it may—

(a)

require the prosecution to call the witness; and

(b)

if the witness is not present, make an order for the attendance of the witness.

(4)

In the case described in subsection (3), the court may—

(a)

adjourn the trial; or

(b)

if it is of the opinion that it would be in the interests of justice to do so, on the application of the defendant, discharge the jury and postpone the trial.

Compare: 1961 No 43 s 368

Part 5 General provisions

Subpart 1—Conduct of proceeding

Defendants who plead guilty or are found guilty

114 Procedure after defendant pleads or is found guilty

(1)

If a defendant pleads guilty or is found guilty, the court may convict or deal with the defendant in any other manner authorised by law and—

(a)

adjourn the proceeding; or

(b)

sentence or otherwise deal with the defendant immediately.

(2)

Despite subsection (1), if the defendant is before the District Court the court must transfer the proceeding to the High Court (at the place determined in accordance with section 74(4) and (5) as if the High Court were the trial court) for the sentencing of the defendant if—

(a)

section 81B of the Sentencing Act 2002 applies; or

(b)

section 90 of the Sentencing Act 2002 applies; or

(c)

the offence is a category 4 offence.

Compare: 1957 No 87 s 67(2)

Section 114(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

115 Plea of guilty may be withdrawn by leave of court

(1)

A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.

(2)

The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—

(a)

the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or

(b)

the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.

Compare: 1957 No 87 s 42

116 Effect of sentence indication

(1)

This section applies to a sentence indication given under section 61 if the defendant pleads guilty to the offence in respect of which it was given within the period that it has effect.

(2)

The sentence indication is binding on the judicial officer that gave it unless—

(a)

information becomes available to the court after the sentence indication was given but before sentencing; and

(b)

the judicial officer is satisfied that the information materially affects the basis on which it was given.

(3)

The sentence indication is not binding on a judicial officer other than the judicial officer who gave the indication.

Presence of defendant at hearings

117 Defendant generally may be present at all hearings

(1)

The defendant may be present in court during any hearing in relation to the charge against him or her.

(2)

Subsection (1) does not apply if the defendant interrupts the hearing to such an extent that it is impracticable to continue in his or her presence.

(3)

The court may permit the defendant to be out of court during the whole or any part of a hearing on any terms the court thinks fit.

Compare: 1957 No 87 s 170; 1961 No 43 s 376

118 Hearings at which defendant must be present

(1)

A defendant must be present at any hearing if he or she—

(a)

is on police bail, or has been summoned, to attend that hearing; or

(b)

has been remanded in custody, or on bail or at large, to attend that hearing.

(2)

Subsection (1) does not apply if—

(a)

the court excuses the defendant from attending the hearing or any part of the hearing; or

(b)

the court orders that the defendant be removed from the court for interrupting the hearing to such an extent that it is impracticable to continue in the defendant’s presence; or

(c)

the defendant is represented by a lawyer and the hearing is only in respect of—

(i)

the place or date of the trial:

(ii)

case review, where the Registrar is exercising the power of the court under section 57(4) and the defendant is in custody:

(iii)

an alternative way of giving evidence under subpart 5 of Part 3 of the Evidence Act 2006:

(iv)

whether 2 or more charges are to be tried together, or whether the charges against 1 defendant are to be tried with charges against 1 or more other defendants:

(v)

an application to take oral evidence under section 90:

(vi)

a matter concerning the admissibility of evidence under sections 78 and 79 or section 101; or

(d)

the defendant has pleaded guilty by filing a notice in court under section 38 and the hearing is not one that the defendant has indicated under section 38(2)(a) that he or she wishes to attend.

Powers of court when defendant does not appear

119 Non-attendance of defendant charged with offence in category 1

(1)

This section applies to any hearing, including a sentencing hearing, if—

(a)

the offence charged is a category 1 offence; and

(b)

the defendant is required, under section 118, to be present at the hearing; and

(c)

the prosecutor attends the hearing, but the defendant does not.

(2)

The court may proceed with the hearing in the absence of the defendant.

(3)

If the court proceeds with a trial in the absence of the defendant, it must proceed as if the defendant had entered a plea of not guilty.

Compare: 1957 No 87 s 61(b)(ii)

120 Non-attendance of defendant charged with offence in category 2, 3, or 4: before plea is entered

(1)

This section applies to any hearing if—

(a)

the offence charged is a category 2, 3, or 4 offence; and

(b)

the defendant has not entered a plea; and

(c)

the defendant is required, under section 118, to be present at the hearing; and

(d)

the prosecutor attends the hearing, but the defendant does not.

(2)

A judicial officer or the Registrar may issue a warrant to arrest the defendant and bring him or her before the court.

Compare: 1957 No 87 s 61

121 Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing

(1)

This section applies to any hearing, other than a trial or a sentencing hearing, if—

(a)

the offence charged is a category 2, 3, or 4 offence; and

(b)

a not guilty plea has been entered to the offence charged; and

(c)

the defendant is required, under section 118, to be present at the hearing; and

(d)

the prosecutor attends the hearing, but the defendant does not.

(2)

When this section applies, the court may do either or both of the following:

(a)

proceed in the absence of the defendant:

(b)

issue a warrant to arrest the defendant and bring him or her before the court.

(3)

Despite subsection (2), the court must not proceed with a hearing in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

(4)

Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:

(a)

any information available to the court about the reasons for the defendant’s absence:

(b)

any issues that the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues:

(c)

the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:

(d)

the nature and seriousness of the offence:

(e)

the interests of any co-defendant.

(5)

If the hearing is in front of a Registrar under section 57(4), the Registrar may—

(a)

proceed with the hearing in the absence of the defendant; or

(b)

issue a warrant to arrest the defendant and bring him or her before the court.

122 Non-attendance of defendant at trial for offence in category 2, 3, or 4

(1)

This section applies to any trial if—

(a)

the offence charged is a category 2, 3, or 4 offence; and

(b)

the defendant is required, under section 118, to be present at the trial; and

(c)

the prosecutor attends the trial, but the defendant does not.

(2)

If the court is satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court must not proceed with the trial unless it is satisfied that the defendant’s absence will not prejudice his or her defence.

(3)

If the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court may do either or both of the following:

(a)

proceed with the trial in the absence of the defendant:

(b)

issue a warrant to arrest the defendant and bring him or her before the court.

(4)

Despite subsection (3), the court must not proceed with the trial in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

(5)

Without limiting the matters the court may consider in making its decision under subsection (4), the court must consider the matters set out in section 121(4).

123 Sentencing for offence in category 2, 3, or 4 not to proceed in absence of defendant

(1)

A court must not sentence a defendant for an offence in category 2, 3, or 4 in the absence of the defendant.

(2)

If a defendant does not attend a sentencing hearing for an offence in category 2, 3, or 4, the court may issue a warrant to arrest the defendant and bring him or her before the court.

124 Procedure when hearing proceeds in absence of defendant

(1)

A hearing at which the defendant is required by section 118 to be present may proceed in the absence of the defendant even if the defendant is not, or ceases to be, represented by a lawyer.

(2)

If a hearing at which the defendant is required by section 118 to be present proceeds in the absence of the defendant,—

(a)

the lawyer for the defendant may continue to represent the defendant; and

(b)

all provisions that relate to the conduct of the proceedings continue to apply, with any necessary modifications; and

(c)

if the offence charged is a category 1 offence, evidence of a fact or opinion that would be admissible if given by oral evidence, is also admissible if given by way of an affidavit or a formal statement; and

(d)

the charge against the defendant may be proceeded with up to and including,—

(i)

in the case of a category 1 offence, sentencing; or

(ii)

in any other case, delivery of the decision or verdict of the Judge or jury.

(3)

If a person is found guilty in his or her absence at a hearing at which the defendant is required by section 118 to be present, the court may—

(a)

direct that a notice be served on the defendant advising the defendant—

(i)

that he or she has been found guilty in his or her absence; and

(ii)

of the date on which he or she must appear for sentencing; and

(iii)

that, if he or she wishes to apply for a retrial under section 125, the application must be filed no later than 15 working days after the date of service of the notice; or

(b)

if the person is liable on conviction to a sentence of imprisonment, issue a warrant to arrest the defendant and bring him or her before the court for sentencing.

(4)

If a person is sentenced in his or her absence for a category 1 offence at a hearing at which the defendant was required by section 118 to be present, the court may direct that a notice be served on the defendant advising the defendant that—

(a)

he or she has been sentenced in his or her absence; and

(b)

if he or she wishes to apply for a rehearing under section 126, the application must be filed no later than 15 working days after the date of service of the notice.

(5)

A formal statement admitted as evidence under subsection (2)(c) is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

Retrial or rehearing if defendant found guilty or sentenced in his or her absence

125 Retrial if defendant found guilty in his or her absence

(1)

A defendant who is found guilty following a trial that proceeded in his or her absence may apply to a court for an order granting a retrial of the charge.

(2)

The application—

(a)

must be filed in the court in which the defendant’s trial was held; and

(b)

must be filed no later than 15 working days after the date on which—

(i)

a notice is served on the defendant under section 124(3)(a); or

(ii)

the defendant appears in court pursuant to a warrant issued under section 124(3)(b); and

(c)

must be determined by the judicial officer who presided over the trial or, if that is impracticable, any Judge.

(3)

If the application is on the ground described in subsection (7)(b), it must be supported by—

(a)

an outline of the defence on which the defendant intends to rely if a retrial is granted; and

(b)

a formal statement from each witness who the defendant intends to call.

(4)

The Registrar of the court must cause a copy of the application to be served on the prosecutor.

(5)

The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.

(6)

The court may consider the application on the papers or at an oral hearing.

(7)

The court may order a retrial of the charge if—

(a)

the court is satisfied that—

(i)

the defendant was notified of the trial and had a reasonable excuse for non-attendance at the trial, but that reasonable excuse was not known to the court at the time of the trial; and

(ii)

it is in the interests of justice; or

(b)

regardless of whether the defendant had a reasonable excuse for non-attendance, the court is satisfied that the defendant had a defence that would have had a reasonable prospect of success if he or she had attended the trial.

(8)

Despite subsection (7), the court must order a retrial if satisfied that the defendant was not notified of the trial.

(9)

A formal statement provided to the court in accordance with subsection (3)(b) is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

126 Rehearing if defendant sentenced for category 1 offence in his or her absence

(1)

A defendant who is sentenced for a category 1 offence, following a sentencing hearing at which the defendant was required by section 118 to be present but that proceeded in his or her absence, may apply to a court for a rehearing in relation to the sentence or order imposed on the defendant.

(2)

The application—

(a)

must be filed in the court in which the sentence or order was imposed; and

(b)

must be filed no later than 15 working days after the date on which a notice is served on the defendant under section 124(4); and

(c)

must be determined by the judicial officer who imposed the sentence or order or, if that is impracticable, any Judge.

(3)

The Registrar of the court must cause a copy of the application to be served on the prosecutor.

(4)

The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.

(5)

The court may consider the application on the papers or at an oral hearing.

(6)

The court may order a rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that—

(a)

the defendant was notified of the hearing and had a reasonable excuse for non-attendance at the hearing, but that reasonable excuse was not known to the court at the time; and

(b)

it is in the interests of justice.

(7)

Despite subsection (6), the court must order a rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that the defendant was not notified of the hearing.

127 Registrar may deal with applications in relation to category 1 offences

Despite section 125(2)(c) or 126(2)(c), a Registrar may exercise the power under section 125 in relation to a category 1 offence or the power under section 126 if—

(a)

the prosecutor does not object; and

(b)

the application for the retrial or rehearing is made on the grounds that the defendant was not notified of the trial or hearing.

128 Effect of application for retrial or rehearing on rights of appeal

(1)

A defendant who applies for a retrial of a charge under section 125 must not appeal his or her conviction unless that application for a retrial is denied.

(2)

A defendant who applies for a rehearing under section 126 must not appeal his or her sentence unless that application for a rehearing is denied.

(3)

If an application for a retrial or rehearing is made under section 125 or 126, the time period for filing an appeal under Part 6 is suspended until the application is determined.

(4)

Subsections (1) and (2) do not limit any right of appeal in relation to a further conviction, sentence, or order entered, imposed, or made at the defendant’s retrial or rehearing.

129 Procedure if retrial or rehearing ordered

If a retrial or rehearing is ordered under section 125 or 126, section 178 applies with any necessary modifications.

130 Dealing with defendant pending retrial or rehearing

If a retrial or rehearing is ordered under section 125 or 126,—

(a)

the court may—

(i)

issue a summons to bring the defendant before the court; or

(ii)

issue a warrant to arrest the defendant and bring him or her before the court; and

(b)

if the retrial or rehearing is to be proceeded with at a later date, section 168(1) applies with any necessary modifications as if the proceeding was adjourned.

Powers of court when prosecutor does not appear

131 Powers of court when prosecutor does not appear

(1)

This section applies to any hearing if the defendant appears but the prosecutor does not.

(2)

If the defendant is in custody or has been released on bail and the prosecutor has not had adequate notice of the hearing, the court must adjourn the hearing to the time and place, and on the conditions, that it thinks fit to enable the prosecutor to appear.

(3)

In any other case, the court may—

(a)

dismiss the charge under section 147; or

(b)

adjourn the hearing to a time and place, and on any conditions, that the court thinks fit.

Compare: 1957 No 87 s 62

Powers of court when neither party appears

132 Powers of court when neither party appears

(1)

This section applies to any hearing if neither the prosecutor nor the defendant appears.

(2)

The court may—

(a)

dismiss the charge under section 147; or

(b)

adjourn the hearing to a time and place, and on any conditions, that the court thinks fit.

Compare: 1957 No 87 s 63

Amendment of charge

133 Amendment of charge

(1)

A charge (including any of the particulars required to be specified in a charging document under section 16(2)) may be amended by the court at any stage in a proceeding before the delivery of the verdict or decision of the court.

(2)

The amendment may be made on the court’s own motion or on the application of the prosecutor or the defendant.

(3)

A Registrar may, in respect of any offence other than a category 4 offence, exercise the power under subsection (1) if the prosecutor and the defendant consent to the amendment.

Compare: 1957 No 87 ss 43, 43A

Section 133(3): inserted, on 1 March 2017, by section 5 of the Criminal Procedure Amendment Act 2016 (2016 No 61).

134 Procedure if charge amended before trial

(1)

This section applies if the court amends a charge before the trial.

(2)

Subject to this section and section 135, any pre-trial decisions and determinations made in the proceedings apply, to the extent that they are still applicable.

(3)

If the defendant entered a plea to the charge before it was amended,—

(a)

the court may ask the defendant to plead to the charge as amended, and subpart 1 of Part 3 applies with all necessary modifications; and

(b)

subpart 3 of Part 3 does not apply in respect of the charge as amended unless the court directs otherwise.

(4)

The court may, under subsection (3)(b),—

(a)

direct that all or any of the requirements of sections 54 to 57 apply; or

(b)

give any other directions in relation to the management of the case.

(5)

If the charge is amended to substitute one offence for another and the substituted offence is a category 3 offence, the defendant may make an election under section 50.

(6)

If the charge is amended to substitute one offence for another and the substituted offence is a category 2 or 3 offence, then, subject to section 135,—

(a)

if the prosecutor identifies the substituted offence as a protocol offence, a District Court Judge may make a recommendation under section 67 and a High Court Judge must determine the level of trial court under section 68; and

(b)

in any other case, the defendant or the prosecutor may make an application to transfer the proceeding to the High Court under section 70.

Compare: 1957 No 87 s 43(2)–(4)

135 Procedure if charge amended after order made under section 68 or 70

(1)

This section applies if a charge is amended before the trial to substitute one offence for another offence that is a category 2 or 3 offence and an order determining the level of trial court had been made under section 68 or 70 in relation to the charge before it was amended.

(2)

If the order made under section 68 or 70 was that the trial be held in the District Court—

(a)

if the prosecutor identifies the offence in the charge (as amended) as a protocol offence, the court may (but is not required to) refer the charge for sections 67 and 68 to be applied; and

(b)

in any other case, the defendant or the prosecutor may make an application to transfer the proceeding to the High Court under section 70.

(3)

If the order made under section 68 or 70 was that the trial be held in a High Court, a High Court Judge—

(a)

may, on his or her own motion, or on application by the prosecutor or defendant, reconsider whether the trial is to be held in the District Court or the High Court; and

(b)

may, without seeking a new recommendation from the District Court Judge under section 67, order that the trial be held in the District Court, if doing so will not unduly delay proceedings and is otherwise in the interests of justice.

136 Procedure if charge amended during trial

(1)

Despite sections 21 and 133, during the trial a charge may be amended to substitute one offence for another offence only if—

(a)

there appears to be a variance between the proof and the charge; and

(b)

the amendment will make the charge fit with the proof.

(2)

A charge must be amended under subsection (1) if in the court’s opinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment.

(3)

Subsection (4) applies if, in the court’s opinion, the defendant has been misled or prejudiced in his or her defence by any amendment of a charge made during the trial under section 133.

(4)

If, in the court’s opinion, the effect of the defendant having been misled or prejudiced might be removed by adjourning or postponing the trial, the court may make the amendment and—

(a)

adjourn the trial; or

(b)

postpone the trial and discharge the jury.

Compare: 1957 No 87 s 43(5); 1961 No 43 s 335(1), (2), (4), (5)

Proceedings conducted together

137 Proceedings against parties to offences, accessories, and receivers

(1)

This section applies to every person charged—

(a)

as a party to an offence (not being the person who actually committed it); or

(b)

with being an accessory after the fact to any offence; or

(c)

with receiving property knowing it to have been stolen or dishonestly obtained.

(2)

Every person to whom subsection (1) applies may be proceeded against and convicted for the offence whether or not the principal offender or any other party to the offence or the person by whom the property was obtained has been proceeded against or convicted.

(3)

Every person to whom subsection (1) applies may be proceeded against and convicted—

(a)

alone as for a substantive offence; or

(b)

jointly with the principal or other offender or person by whom the property was stolen or dishonestly obtained.

(4)

If any property has been stolen or dishonestly obtained, any number of receivers at different times of that property, or of any part or parts of it, may be charged with substantive offences, and may be tried together.

Compare: 1957 No 87 s 76; 1961 No 43 s 344

138 Trial of different charges together

(1)

The prosecutor may—

(a)

notify the court before which a proceeding is being conducted proposing that—

(i)

2 or more charges be heard together; or

(ii)

the charges against 1 defendant be heard with charges against 1 or more other defendants:

(b)

amend a notification given under paragraph (a).

(2)

Despite subsection (1), if the prosecutor seeks to give or amend a notification involving a charge in respect of which the proceeding has been adjourned after the entry of a not guilty plea, the prosecutor must seek the leave of the court.

(3)

Charges must be heard together in accordance with any notification given under subsection (1)(a) or amended under subsection (1)(b) unless the court—

(a)

does not grant leave where the prosecutor seeks leave under subsection (2); or

(b)

makes an order under subsection (4).

(4)

If the court before which the proceeding is being conducted thinks it is in the interests of justice to do so, it may, on its own motion or on the application of a defendant, order that 1 or more charges against the defendant be heard separately.

(5)

An order under subsection (4) may be made either before or during the trial, and,—

(a)

if it is made during the course of a Judge-alone trial, the court must adjourn the trial of the charges in respect of which the trial is not to proceed; and

(b)

if it is made during the course of a jury trial, the jury must be discharged from giving a verdict on the charges on which the trial is not to proceed.

Section 138: replaced, on 1 July 2013, by section 8 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

139 Procedure if charges to be heard together

(1)

If, in accordance with section 138, 2 or more charges against a defendant are to be heard together—

(a)

if 1 charge is to be tried by a jury, all charges must be tried by a jury; and

(b)

if 1 charge is to be tried in the High Court, all charges must be tried in the High Court.

(2)

If in accordance with section 138 the charges against a defendant are to be heard with charges against 1 or more other defendants, unless there are exceptional circumstances that make separate trials necessary in the interests of justice, then,—

(a)

if 1 defendant elects to be tried by a jury on 1 charge, all charges against all the defendants must be tried by a jury; and

(b)

if 1 charge is to be tried in the High Court, all charges against all defendants must be tried in the High Court.

Compare: 1961 No 43 ss 329, 340

140 Procedure if charges to be heard together include new charges

(1)

This section applies if—

(a)

a charging document charging a defendant with an offence is filed (including one deemed by section 191(2) to have been filed) (the new charge); and

(b)

proceedings in respect of 1 or more other charges against the defendant (the existing charge or charges) are in progress; and

(c)

in accordance with section 138 the new charge and the existing charge or charges are to be heard together; and

(d)

the defendant pleads not guilty to the new charge.

(2)

If a case management memorandum has been filed under section 55(3) in respect of the existing charge or charges, subpart 3 of Part 3 does not apply in respect of the new charge unless the court directs otherwise.

(3)

If the defendant is unrepresented and a case review hearing has been held, subpart 3 of Part 3 does not apply in respect of the new charge unless the court directs otherwise.

(4)

The court may, under subsection (2) or (3),—

(a)

direct that all or any of the requirements of sections 54 to 57 apply; or

(b)

give any other directions in relation to the management of the case.

(5)

If the new charge is for a category 2 or 3 offence, then unless, in accordance with section 74 or 139 the trial court is the High Court, sections 134(6) and 135 apply with any necessary modifications.

(6)

If formal statements have been filed in respect of the existing charge or charges, the prosecutor is not required to file formal statements in respect of the new charge.

(7)

If the defendant has filed a trial callover memorandum in respect of the existing charge or charges neither party is required to file a trial callover memorandum in respect of the new charge.

(8)

Nothing in this section limits any other provision of this Act not referred to in subsections (2) to (7).

Further provisions relating to charges

141 Conviction where alternative allegations proved in Judge-alone trial

When convicting a defendant of a charge that includes alternative allegations, the court in a Judge-alone trial must limit that conviction to 1 of the alternatives charged.

Compare: 1957 No 87 s 16(4)

142 Dealing with charge that fails to disclose range of penalties and previous convictions when required

(1)

This section applies if a charge that is required by section 22 to disclose the range of penalties available on conviction, and any relevant previous convictions of the defendant, does not do so.

(2)

The charge may be amended before or during the trial in accordance with section 133.

(3)

If the charge is amended before the trial to disclose a previous conviction, and the offence becomes a category 2 or 3 offence in accordance with section 6(3),—

(a)

the proceeding must otherwise continue as if the defendant were originally charged with the charge as amended; and

(b)

section 134(5) and (6) applies as if the charge was amended to substitute one charge for another.

(4)

If the charge is not amended, and the defendant is convicted, then the maximum penalty to which the defendant is liable for the offence is the penalty to which he or she would be liable if he or she did not have previous convictions for the same or any other specified offence.

Compare: 1957 No 87 ss 17A(4), 69(4)

143 Included offences

If the commission of the offence alleged (as described in the enactment creating the offence or in the charge) includes the commission of any other offence, the defendant may be convicted of that other offence if it is proved, even if the whole offence in the charge is not proved.

Compare: 1961 No 43 s 339

144 Conviction of parties

Every person who is a party to any offence may be convicted either on a charge that the person committed that offence, where the nature of the charge allows, or on a charge specifying how the person was a party to that offence.

Compare: 1961 No 43 s 343

145 Conviction of charge containing allegation of previous conviction

(1)

This section applies if—

(a)

a charge contains an allegation that the defendant has been previously convicted; and

(b)

the defendant, in accordance with section 44, has not pleaded to that allegation; and

(c)

the defendant pleads guilty to or is found guilty of the charge.

(2)

Before the defendant is sentenced, he or she must be asked whether or not he or she has been previously convicted as alleged.

(3)

If the defendant says that he or she has not been previously convicted as alleged, or does not say that he or she has been so convicted, the judicial officer must determine the matter.

Compare: 1961 No 43 s 341(1)(c)

Withdrawal and dismissal of charges

146 Withdrawal of charge

(1)

The prosecutor may, with the leave of the court, withdraw a charge before the trial.

(2)

The withdrawal of a charge under this section is not a bar to any other proceeding in the same matter.

(3)

A Registrar may, in respect of any offence other than a category 4 offence, exercise the power under subsection (1) if the defendant consents to the prosecutor withdrawing the charge.

Compare: 1957 No 87 s 36

Section 146(3): inserted, on 1 March 2017, by section 6 of the Criminal Procedure Amendment Act 2016 (2016 No 61).

147 Dismissal of charge

(1)

The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.

(2)

The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.

(3)

A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.

(4)

Without limiting subsection (1), the court may dismiss a charge if—

(a)

the prosecutor has not offered evidence at trial; or

(b)

in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or

(c)

in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.

(5)

A decision to dismiss a charge must be given in open court.

(6)

If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.

(7)

Nothing in this section affects the power of the court to convict and discharge any person.

Compare: 1961 No 43 s 347

148 Prosecutor must notify court if defendant completes programme of diversion

(1)

The prosecutor must ensure that the court is notified if a defendant has successfully completed a programme of diversion (being a programme conducted in relation to any public prosecution) in respect of the offence charged.

(2)

If notification is given under subsection (1), the court or the Registrar must dismiss the charge under section 147.

Attempts

149 Attempt proved when offence is charged

Where the commission of the offence charged is not proved, but the evidence establishes an attempt to commit the offence, the defendant may be convicted of the attempt.

Compare: 1961 No 43 s 337

150 Offence proved when attempt is charged

(1)

Where an attempt to commit an offence is charged, but the evidence establishes the commission of the full offence, the court may,—

(a)

if in the court’s opinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment, amend the charge; or

(b)

convict the defendant of the attempt.

(2)

After a conviction for that attempt the defendant is not liable to be tried again for the offence that he or she was charged with attempting to commit.

Compare: 1961 No 43 s 338

Retrial of previously acquitted person

151 Order for retrial may be granted if acquittal tainted

(1)

In this section,—

acquittal—

(a)

includes—

(i)

the dismissal of a charge under section 147; and

(ii)

the setting aside of a conviction on appeal, without an order for a retrial; but

(b)

does not include a discharge without conviction under section 106 of the Sentencing Act 2002

acquitted person means a person who has previously been acquitted of a specified offence, and who has, since that acquittal, been convicted of an administration of justice offence

administration of justice offence means an offence against any of sections 101, 104, 109, 113, 116, and 117 of the Crimes Act 1961

prosecution means—

(a)

a prosecutor acting with the prior consent of the Solicitor-General; or

(b)

the Solicitor-General

specified offence, in relation to an acquitted person,—

(a)

means an offence that is punishable by a term of imprisonment and for which the person has previously been acquitted; and

(b)

includes any offence for which the person may not be tried because of that acquittal.

(2)

The High Court may, on the application of the prosecution, order that an acquitted person be retried for a specified offence if the High Court is satisfied that—

(a)

it is more likely than not that the commission of the administration of justice offence was a significant contributing factor in the person’s acquittal for the specified offence; and

(b)

no appeal or application in relation to the administration of justice offence is pending before any court; and

(c)

the retrial is in the interests of justice.

(3)

In determining whether the retrial sought by the prosecution is in the interests of justice, the High Court must have particular regard to the following matters:

(a)

the length of time since the acquitted person is alleged to have committed the specified offence:

(b)

whether the prosecution acted with reasonable speed since discovering evidence of the administration of justice offence:

(c)

the interests of any victim of the specified offence alleged to have been committed:

(d)

whether the retrial for which leave is sought can be conducted fairly.

(4)

If the prosecution makes an application under this section,—

(a)

the prosecution must take all reasonable steps to serve a copy of the application on the acquitted person, and must file in the office of the High Court notice that the copy has been served or that a copy has not been served but all reasonable steps to do so have been taken:

(b)

the acquitted person is entitled to be heard at the hearing of the application, which must be held not less than 10 working days after notice is filed in the office of the High Court under paragraph (a):

(c)

if the application is granted, and the acquitted person is again acquitted at the retrial, the prosecution may not make any further application for an order for the retrial of the acquitted person for the specified offence that was the subject of the application.

(5)

This section does not apply if the acquitted person was acquitted of the specified offence before 26 June 2008.

Compare: 1961 No 43 s 378A

152 Meaning of terms used in sections 153 and 154

(1)

In sections 153 and 154,—

acquittal—

(a)

includes—

(i)

the dismissal of a charge under section 147; and

(ii)

the setting aside of a conviction on appeal, without an order for retrial; but

(b)

does not include a discharge without conviction under section 106 of the Sentencing Act 2002

acquitted person means a person who has previously been acquitted of a specified serious offence

specified serious offence, in relation to an acquitted person,—

(a)

means an offence that is punishable by imprisonment for life or by imprisonment for 14 years or more and for which the person has previously been acquitted; and

(b)

includes any offence for which the person may not be tried because of that acquittal.

(2)

For the purposes of sections 153 and 154, evidence is new if—

(a)

it was not given in the proceedings that resulted in the acquittal of the acquitted person; and

(b)

it could not, with the exercise of reasonable diligence, have been given in those proceedings.

(3)

For the purposes of sections 153 and 154, evidence is compelling if—

(a)

it is a reliable and substantial addition to the evidence given in the proceedings that resulted in the acquittal of the acquitted person; and

(b)

it implicates the acquitted person with a high degree of probability in the commission of the specified serious offence.

Compare: 1961 No 43 s 378B

Section 152(1) specified serious offence paragraph (a): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

153 Consent of Solicitor-General required in certain circumstances for exercise of powers in relation to acquitted person

(1)

Subsection (2) applies if a constable has good cause to suspect that information obtained, or likely to be obtained as a result of an investigation, will tend to implicate an acquitted person in the commission of a specified serious offence.

(2)

If this subsection applies, a constable may exercise any of the powers referred to in subsection (3) in the course of a further investigation of whether the acquitted person has committed a specified serious offence only if a constable first obtains the consent of the Solicitor-General.

(3)

The powers in respect of which subsection (2) applies are the following:

(a)

questioning the acquitted person or any other person:

(b)

searching the acquitted person or any other person:

(c)

searching any premises or vehicles:

(d)

seizing any thing:

(e)

taking fingerprints or samples:

(f)

conducting or commissioning forensic tests or analyses.

(4)

The acquitted person does not need to be notified of any proposal to seek the Solicitor-General’s consent under subsection (2) or of the fact that the consent is being, or has been, sought.

(5)

The Solicitor-General may consent under subsection (2) only if he or she has reasonable grounds to believe that there is, or that a further investigation is likely to reveal, or confirm the existence of, new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence.

(6)

This section does not prevent a constable from taking any action if—

(a)

the action is necessary as a matter of urgency to prevent substantial prejudice to an investigation or to the administration of justice; and

(b)

it is not reasonably practicable to obtain the consent of the Solicitor-General; and

(c)

the Solicitor-General’s consent is sought as soon as is reasonably practicable after the action is taken.

Compare: 1961 No 43 s 378C

154 Order for retrial may be granted by Court of Appeal if new and compelling evidence discovered

(1)

The Court of Appeal may, on the application of the Solicitor-General, order that an acquitted person be retried for a specified serious offence, if the Court of Appeal is satisfied that—

(a)

there is new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence; and

(b)

a further trial of the acquitted person is in the interests of justice.

(2)

In determining whether a retrial of the acquitted person is in the interests of justice, the Court of Appeal must have particular regard to the following matters:

(a)

whether before or during the proceedings that led to the acquittal of the acquitted person for the specified serious offence all reasonable efforts were made to obtain and present all relevant evidence then available:

(b)

the length of time since the acquitted person is alleged to have committed the specified serious offence:

(c)

whether the Police and the Solicitor-General acted with reasonable speed in making the application after obtaining new evidence against the acquitted person:

(d)

the interests of any victim of the specified serious offence alleged to have been committed:

(e)

whether the retrial for which leave is sought can be conducted fairly.

(3)

The Court of Appeal may, if it thinks it just to do so, exclude from its consideration any evidence against the acquitted person that has been obtained in contravention of section 153.

(4)

The Solicitor-General may apply under this section only if satisfied of the matters stated in subsection (1)(a) and (b).

(5)

If the Solicitor-General makes an application under this section,—

(a)

the Solicitor-General must take all reasonable steps to serve a copy of the application on the acquitted person, and must file in the Court of Appeal notice that the copy has been served or that a copy has not been served but all reasonable steps to do so have been taken:

(b)

the acquitted person is entitled to be heard at the hearing of the application, which must be held not less than 10 working days after notice is filed in the office of the Court of Appeal under paragraph (a):

(c)

if the application is granted, and the acquitted person is again acquitted, the Solicitor-General may not make any further application for an order for the retrial of the person for the specified serious offence that was the subject of the application.

(6)

This section does not apply if the acquitted person was acquitted of the specified serious offence before 26 June 2008.

Compare: 1961 No 43 s 378D

155 Orders to safeguard fairness of retrial

An order for a retrial under section 151 or 154 may be granted subject to—

(a)

any conditions that the court considers are required to safeguard the fairness of the retrial:

(b)

any other directions as to the conduct of the retrial.

Compare: 1961 No 43 s 378E

156 Effect of order for retrial

(1)

If an order for a retrial is granted under section 151 or 154,—

(a)

the order of the court must be certified by the Judge or, as the case requires, the presiding Judge to the Registrar of the court before which the person was tried, and the order must be carried into effect:

(b)

the court that orders the retrial or the court before which the person was tried may—

(i)

issue a summons to the person to attend at the court before which the person was tried (and the provisions of this Act apply as if it were a summons to attend a hearing); or

(ii)

issue a warrant to arrest the person and bring him or her before a court (and the provisions of this Act apply as if it were a warrant to arrest a defendant):

(c)

if the person appears in court in accordance with a summons or is brought before a court under an arrest warrant, section 168(1) applies with any necessary modifications as if the proceeding was adjourned:

(d)

the retrial must be conducted in the same manner as a retrial ordered following a successful appeal by a defendant against conviction.

(2)

Subsection (1) overrides sections 45 to 48 and any other enactment or rule of law.

Compare: 1961 No 43 s 378F

Transfer of proceedings to court at different place

157 Transfer of proceedings to court at different place or different sitting

(1)

A District Court Judge may, on his or her own motion or on the application of the prosecutor or the defendant, transfer a proceeding to the District Court at a place or sitting other than that determined in accordance with section 35, 71, 72, or 73, as the case may be, if the court is satisfied that it is in the interests of justice that the proceeding be heard at that other place or sitting.

(2)

The High Court at a place may, on its own motion or on the application of the prosecutor or the defendant, transfer a proceeding to the High Court at a place or sitting other than that determined in accordance with section 72, 73, or 74, as the case may be, if the court is satisfied that it is in the interests of justice that the proceeding be heard at that other place or sitting.

(3)

With the consent of all parties, an order under this section may be made by the District Court presided over by 1 or more Justices or 1 or more Community Magistrates in respect of a proceeding for—

(a)

a category 1 or 2 offence; or

(b)

a category 3 offence punishable by a term of imprisonment not exceeding 3 years, if the defendant has not elected a jury trial.

(3A)

A Registrar may exercise the power specified in subsection (3).

(4)

Except as provided in sections 217 and 218, no person may object to any order under this section.

Compare: 1961 No 43 ss 322, 326(2)

Section 157(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 157(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 157(3): amended, on 1 July 2013, by section 9(1) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 157(3A): inserted, on 1 July 2013, by section 9(2) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

158 Attendance of witness at substitute court

(1)

If a proceeding is transferred under section 157, the Registrar of the court that transfers the proceeding must ensure that any witness summoned to attend the proceeding is given notice of the transfer.

(2)

The notice given under subsection (1) has the same effect as if it were a summons to attend the court to which the proceeding is transferred.

Compare: 1961 No 43 s 324

Obtaining attendance of witnesses

159 Issue of summons to witness

(1)

Either the prosecutor or the defendant may at any time obtain from a judicial officer or a Registrar a summons calling on any person to appear as a witness at any hearing in relation to a charge.

(2)

A summons issued under subsection (1) may require the person summoned to bring with him or her and produce at the hearing any document or thing that is specified in the summons.

(3)

A person commits an offence if that person—

(a)

has been served with a summons issued under subsection (1) requiring the person to appear as a witness at a hearing; and

(b)

refuses or fails, without reasonable excuse, to appear or to produce any document or thing required by the summons to be produced.

(4)

A person who commits an offence under subsection (3) is liable on conviction to a fine not exceeding $1,000.

Compare: 1957 No 87 s 20(1), (2), (5); 1961 No 43 s 351(2)

160 Summons to witness to non-party disclosure hearing

(1)

If an application for a non-party disclosure hearing is granted under section 25 of the Criminal Disclosure Act 2008, the defendant may apply to a judicial officer or the Registrar for the issue of a summons calling on any person to appear at that hearing.

(2)

If subsection (1) applies, sections 159(2) to (4) and 161 to 164 apply with any necessary modifications.

Compare: 1957 No 87 s 20(1A)

161 Issue of warrant to obtain attendance of witness

(1)

A judicial officer may issue a warrant to arrest a person and bring him or her before the court if—

(a)

the person summoned as a witness under section 159 fails to appear at the time and place appointed and no reasonable excuse is offered for his or her failure, and the judicial officer is satisfied that the summons was served on the person; or

(b)

the judicial officer is satisfied, whether or not a summons has been issued or served, that—

(i)

a person’s evidence is required at the hearing by either the prosecutor or the defendant; and

(ii)

the person will not attend to give evidence without being compelled to do so.

(2)

A Registrar may exercise the power under this section.

Compare: 1957 No 87 s 20(4); 1961 No 43 s 351(1)

Provisions relating to warrants to arrest defendant or witness

162 To whom warrant to be directed and power of person executing warrant to enter premises

(1)

A warrant to arrest a defendant or a warrant to arrest a person required as a witness must be directed either to any constable by name or generally to every constable.

(2)

The warrant may be executed by any constable.

(3)

For the purposes of executing the warrant, the constable executing it may at any time enter on to any premises, if he or she has reasonable cause to believe that the person against whom it is issued is on those premises.

(4)

Before entry onto the premises, the constable must—

(a)

announce his or her intention to enter the premises; and

(b)

identify himself or herself.

(5)

Before or on entry onto the premises, the constable must—

(a)

give the occupier of the premises a copy of the warrant; and

(b)

produce to the occupier of the premises evidence of his or her identity (which may include details of a unique identifier instead of a name).

(6)

For the purposes of subsection (5), the following persons must not be treated as the occupier of the premises:

(a)

any person who is under the age of 14 years:

(b)

any person who the constable has reasonable grounds to believe is not the occupier of the premises.

(7)

The constable is not required to comply with subsection (4) or (5) if he or she has reasonable grounds to believe that compliance with subsection (4) or (5) would endanger the safety of any person or prejudice the successful exercise of the entry and execution of the warrant.

(8)

The constable may use reasonable force in order to effect entry into the premises if subsection (7) applies or if, following a request, the person present refuses entry or does not allow entry within a reasonable time.

Compare: 1957 No 87 s 22

163 Withdrawal of warrant

(1)

A warrant to arrest a defendant or a warrant to arrest a person required as a witness may, at any time before it is executed, be withdrawn by leave of a judicial officer.

(2)

A Registrar, at any time before it is executed, may withdraw a warrant to arrest a defendant or a warrant to arrest a person required as a witness, whether or not the warrant was issued by the Registrar, if,—

(a)

in the case of a warrant to arrest a defendant,—

(i)

the warrant was issued under this Act or section 37 of the Bail Act 2000 because the defendant failed to appear at court; and

(ii)

the defendant reports to the court (whether or not the defendant actually makes an appearance in the court that day); and

(iii)

no breaches of bail by the defendant in relation to the charge have been recorded under section 39 of the Bail Act 2000; and

(iv)

no other warrants for the arrest of the defendant in relation to the proceeding have been issued; and

(v)

the defendant is charged with an offence for which the maximum penalty is 10 or fewer years’ imprisonment:

(b)

in the case of a warrant to arrest a witness,—

(i)

the warrant was issued under this Act because the witness failed to appear at court; and

(ii)

the witness reports to the court (whether or not the defendant actually makes an appearance in the court that day); and

(iii)

no other warrants for the arrest of the witness in relation to the proceeding have been issued; and

(iv)

the defendant in the proceeding is charged with an offence for which the maximum penalty is 10 or fewer years’ imprisonment.

Compare: 1957 No 87 s 23

Dealing with witness arrested under warrant

164 Dealing with witness arrested under warrant

(1)

A person who is arrested under a warrant issued under section 161 must be brought as soon as possible before a Judge of the court that issued the warrant, who may—

(a)

issue a warrant ordering that the person be committed to a prison to be detained until the hearing for which the witness is required; or

(b)

grant the person bail.

(2)

A person committed to prison under subsection (1)—

(a)

must be treated in the same way as a prisoner awaiting trial; and

(b)

must, if he or she so requests, be brought before a District Court Judge for the purpose of making an application for bail, and the Judge may grant or refuse to grant bail on that application.

(3)

If a person is granted bail under subsection (1) or (2), sections 28, 29(3), and 30 to 39 of the Bail Act 2000, as far as they are applicable and with any necessary modifications, apply as if—

(a)

that person were a defendant remanded in custody who had been granted bail; and

(b)

for the words “evading justice” in section 35(1)(a) of the Bail Act 2000 there were substituted the words “avoiding giving evidence”.

Compare: 1957 No 87 s 20(4A)–(4D)

Dealing with witnesses at the court

165 Witness refusing to give evidence may be imprisoned

(1)

At any hearing any person present in court who could have been compelled to give evidence for the party seeking to call the person as a witness may be required to give evidence, whether that person has been summoned to give evidence or not.

(2)

Subsection (3) applies if a person—

(a)

without offering any just excuse refuses to give evidence when required; or

(b)

refuses to be sworn; or

(c)

having been sworn refuses to answer any questions concerning the charges that are put to him or her.

(3)

If this subsection applies, the court may—

(a)

order that, unless he or she consents to give evidence or to be sworn or to answer the questions put to him or her, as the case may be, he or she be detained in custody for any period not exceeding 7 days; and

(b)

issue a warrant for his or her arrest and detention in accordance with the order.

(4)

If the person is under the age of 20 years, the warrant issued under subsection (3)(b) may direct that the person be detained in the custody of the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989.

(5)

Subsection (6) applies if a person detained under subsection (3), on being brought up at the adjourned hearing, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him or her.

(6)

If this subsection applies, the court, if it thinks fit, may again direct the witness to be detained in custody for the period referred to in subsection (3), until he or she consents to give evidence or to be sworn or to answer as described in subsection (2).

(7)

The power in subsection (6) may be exercised more than once.

(8)

Nothing in this section limits or affects any power or authority of the court to punish any witness for contempt of court.

Compare: 1957 No 87 s 39; 1961 No 43 s 352

Section 165(4): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

166 Witnesses at hearing

The court may if it thinks fit, on its own motion or at the request of any party at any time during a hearing, order all or any witnesses other than any witness who has given or is giving his or her evidence to leave the courtroom and to remain out of hearing but within call until required to give evidence.

Compare: 1957 No 87 s 40

Adjournments and bail

167 Power to adjourn

(1)

Any proceeding may from time to time be adjourned by a judicial officer to a time and place then appointed.

(2)

A Registrar may adjourn any proceeding before the trial to a time and place then appointed if the defendant is not in custody.

(3)

Despite subsection (2), a Registrar may adjourn a proceeding in any case if the Registrar is exercising the power of the court under section 57.

Compare: 1957 No 87 ss 45, 45A

168 Dealing with defendant on adjournment

(1)

If a proceeding is adjourned, a judicial officer or Registrar may, subject to sections 171 and 172, and in accordance with any applicable provisions of the Bail Act 2000,—

(a)

allow the defendant to go at large; or

(b)

grant the defendant bail under the Bail Act 2000; or

(c)

if the defendant is liable on conviction to a sentence of imprisonment or if the defendant has been arrested, remand the defendant in custody.

(2)

A Registrar may exercise the power conferred by subsection (1)(c) to remand a defendant in custody if—

(a)

both the defendant and the prosecutor agree to the remand; and

(b)

the defendant—

(i)

is legally represented or has indicated that he or she has received legal advice; or

(ii)

has declined an opportunity to obtain legal advice.

(3)

If a Registrar remands a person in custody under subsection (1)(c) the defendant must be brought before a judicial officer at the earliest opportunity if, at any time during the period of remand, the defendant withdraws his or her agreement under subsection (2)(a) and the judicial officer must declare what action (if any) should be taken under subsection (1) in respect of the defendant.

(4)

If a defendant is remanded in custody under subsection (1)(c), the judicial officer or Registrar must issue a warrant for the detention of the defendant in a prison—

(a)

for the period of the adjournment; or

(b)

pending and during the defendant’s trial; or

(c)

pending the defendant being brought up for sentence and during his or her sentencing.

(5)

If a Registrar adjourns a proceeding and the defendant or the prosecutor are not present, the Registrar must notify the absent party in writing.

Compare: 1957 No 87 s 46

169 Order for detention of defendant in hospital or secure facility

(1)

Despite section 168(4), the court may, instead of issuing a warrant under that subsection, make an order for the defendant’s detention in a hospital or secure facility pending the defendant’s trial if the court is satisfied of the matters in subsection (2).

(2)

Before making an order under subsection (1), the court must be satisfied, on the production of a certificate or certificates by 2 health assessors, that—

(a)

the defendant is mentally impaired; and

(b)

the defendant’s mental condition requires that, in the defendant’s own interest, the defendant should be detained in a hospital or secure facility instead of in a prison.

(3)

In this section,—

(a)

health assessor has the same meaning as in section 4(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:

(b)

hospital has the same meaning as in section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992:

(c)

secure facility has the same meaning as in section 9(2) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Compare: 1957 No 87 s 184T(2), (3)

Section 169 heading: amended, on 1 July 2013, by section 10 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

170 Defendant in custody may be brought up before expiry of period of adjournment

A defendant who has been remanded in custody on any charge may be brought before a court at any time to be dealt with on that charge, even if the period for which the defendant was remanded in custody has not expired.

Compare: 1957 No 87 s 59

Special provisions applying to defendants under the age of 20 pending hearing or sentence

171 Defendants under 16 must not be imprisoned pending hearing or sentence

(1)

Despite any other enactment, no person under the age of 16 years may be remanded to a prison pending any hearing in relation to any charge, or pending sentence.

(2)

In this section a reference to a prison does not include a police jail.

(3)

If a person under the age of 16 years is charged with or convicted of an offence in the District Court or the High Court, and the court remands the person for hearing or sentence, section 15 of the Bail Act 2000 applies.

(4)

Nothing in subsection (1) applies in respect of any person who is subject to a sentence or term of imprisonment.

Compare: 1985 No 120 s 142(1), (2A), (6)

Section 171(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

172 Defendants aged 16 must not be imprisoned pending hearing or sentence except in certain circumstances

(1)

Despite any other enactment, a person who has attained the age of 16 years but has not attained the age of 17 years must not be remanded to a prison pending any hearing in relation to any charge, or pending sentence, unless subsection (4) applies.

(2)

In this section a reference to a prison does not include a police jail.

(3)

If a person who has attained the age of 16 years but has not attained the age of 17 years is charged with or convicted of an offence in the District Court or the High Court, and the court remands the person for hearing or sentence, section 15 of the Bail Act 2000 applies.

(4)

Despite section 15(1) of the Bail Act 2000, the court may direct that a person who has attained the age of 16 years but has not attained the age of 17 years be detained in a prison if—

(a)

that person is charged with or convicted of—

(i)

a category 4 offence; or

(ii)

a category 3 offence punishable by imprisonment for life or for at least 14 years; and

(b)

in the court’s opinion no other course is desirable, having regard to all the circumstances.

(5)

Nothing in subsection (1) applies in respect of any person who is subject to a sentence or term of imprisonment.

Compare: 1985 No 120 s 142(2), (2A), (3), (4), (4A), (6)

Section 172(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

173 Remand of defendant under 17 in residence or care

(1)

This section applies to any person under the age of 17 years who is charged with or convicted of an offence in the District Court or High Court.

(2)

Despite section 15 of the Bail Act 2000, the court may remand the person in the custody of the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 if—

(a)

in the court’s opinion it is desirable to do so by reason of special circumstances; and

(b)

the court is satisfied that the chief executive of that department is able and willing to keep the person in custody in accordance with this section.

(3)

If a person is remanded in the custody of the chief executive, that person may, until he or she is brought up for hearing or sentence, be placed in any residence under the Oranga Tamariki Act 1989, or under the care of any suitable person pursuant to this Act.

(4)

This section is subject to the Oranga Tamariki Act 1989.

Compare: 1985 No 120 s 142(3), (4B), (5)

Section 173(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 173(2): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 173(3): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 173(4): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

174 Remand of defendant under 17 years for assessment report

(1)

Any court may remand a defendant who is under 17 years in the custody of the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 for the purposes of an assessment report under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 if—

(a)

the court is satisfied that the chief executive is able and willing to keep the defendant in custody for the purpose of the assessment report for any period, not exceeding 14 days, that the court thinks fit; and

(b)

the court would (in the absence of section 171 or 172) have remanded the defendant to a prison in accordance with section 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 for the purposes of the assessment report.

(2)

If, in any case to which section 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 applies, the defendant is under the age of 17 years, the provisions of section 38(2)(c) to (4) and sections 40 to 44 of that Act must be read as if—

(a)

any reference to remand to a prison were a reference to remand to the custody of the chief executive; and

(b)

any reference to the manager of a prison were a reference to the chief executive; and

(c)

any reference to penal custody were a reference to the custody of the chief executive.

(3)

If a person is remanded in the custody of the chief executive under subsection (1), that person may, until he or she is brought up for hearing or sentence, be placed in any residence under the Oranga Tamariki Act 1989, or under the care of any suitable person pursuant to that Act.

Compare: 1985 No 120 s 142(5)–(5C)

Section 174(1): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 174(3): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

175 Remand of defendants aged 17 to 20 years

(1)

This section applies to a person who is remanded pending hearing or sentence and who appears to the court to be of or over the age of 17 years but under the age of 20 years.

(2)

Despite section 15 of the Bail Act 2000, the court may—

(a)

remand the defendant in the custody of the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 if—

(i)

in the court’s opinion it is desirable to do so by reason of special circumstances; and

(ii)

the court is satisfied that the chief executive of that department is able and willing to keep the person in custody in accordance with this section; or

(b)

direct that the defendant be detained in a prison if, in the court’s opinion, no other course is desirable having regard to all of the circumstances.

(3)

(4)

This section is subject to the Oranga Tamariki Act 1989.

Compare: 1985 No 120 s 142(4)–(5)

Section 175(2)(a): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 175(3): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 175(4): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Stay of proceedings

176 Stay of proceedings

(1)

The Attorney-General may, at any time after a person has been charged with an offence and before judgment is given, direct that the proceedings be stayed.

(2)

If a direction is given under subsection (1), the relevant proceedings are stayed.

(3)

If a charge is filed against the Crown Law Office in respect of an offence referred to in section 6 of the Crown Organisations (Criminal Liability) Act 2002, any decision to issue a direction under subsection (1) in respect of the proceedings to which the charge relates must be made by the Attorney-General personally.

(4)

The Attorney-General must give notice to the court if he or she gives a direction under subsection (1), but failure to give notice does not affect that direction.

Compare: 1957 No 87 s 77A; 1961 No 43 s 378

Retrial or rehearing

177 Court may order retrial or rehearing as to sentence in certain cases

(1)

This section applies if—

(a)

a defendant is convicted of—

(i)

a category 1 or 2 offence; or

(ii)

a category 3 offence punishable by a term of imprisonment not exceeding 3 years, if the defendant did not elect a jury trial; or

(b)

an order is made under section 106(3) of the Sentencing Act 2002 in relation to a defendant who pleads guilty or is found guilty of—

(i)

a category 1 or 2 offence; or

(ii)

a category 3 offence punishable by a term of imprisonment not exceeding 3 years, if the defendant did not elect a jury trial; or

(c)

an order is made under section 375(1)(b) in relation to an infringement offence.

(2)

A court may order—

(a)

a retrial of the charge; or

(b)

a rehearing in relation to the sentence or order imposed on the defendant.

(3)

An application for a retrial or rehearing must be determined by the judicial officer who presided over the first trial or hearing.

(4)

If it is impracticable for the judicial officer who presided over the first trial or hearing to determine the application, any Judge may determine it.

(5)

A retrial or rehearing may be ordered under subsection (2), on any terms the court thinks fit, and as to the whole matter, or only as to the sentence or order.

(6)

Despite subsection (1), a defendant who is eligible to apply for a retrial under section 125 or a rehearing under section 126 must not apply for a retrial or rehearing under this section.

Compare: 1957 No 87 s 75(1)

178 Procedure if retrial or rehearing ordered

(1)

If a retrial or rehearing is ordered,—

(a)

the conviction or, as the case may be, the sentence or order only, immediately ceases to have effect; and

(b)

the retrial or rehearing may be proceeded with immediately or at a later date.

(2)

At the retrial,—

(a)

all pre-trial decisions and determinations made in the proceeding apply to the extent that they are still applicable; and

(b)

the court has the same powers and must apply the procedure in this subpart as if the retrial were the first trial.

(3)

The retrial or rehearing need not take place before the judicial officer who presided at the first trial or hearing.

(4)

If the defendant does not appear at the retrial or rehearing, the court may, without rehearing the matter, direct that the original conviction, sentence, or order be restored.

Compare: 1957 No 87 s 75(2), (3), (5), (6)

179 Dealing with defendant pending retrial or rehearing

If a retrial or rehearing is ordered—

(a)

the court may—

(i)

issue a summons to bring the defendant before the court; or

(ii)

issue a warrant to arrest the defendant and bring him or her before the court; and

(b)

if the retrial or rehearing is to be proceeded with at a later date, section 168(1) applies with any necessary modifications as if the proceeding were adjourned.

Compare: 1957 No 87 s 75(4)

Correction of erroneous sentence

180 Court may correct erroneous sentence

(1)

If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—

(a)

on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or

(b)

on its own motion.

(2)

The decision of the court may be made,—

(a)

if sentence was imposed in the High Court, by the High Court Judge who imposed the sentence or, if that Judge is not available, by any High Court Judge; or

(b)

if sentence was imposed in the District Court,—

(i)

by the District Court Judge who imposed the sentence; or

(ii)

by any District Court Judge if the Judge who imposed the sentence is not available or the sentence was imposed by 1 or more Community Magistrates or Justices.

(3)

The court may, by order, remove the matter into the first appeal court described in section 297, and that court may deal with it as if it were an appeal on a question of law under section 296.

(4)

In this section, the term sentence includes—

(a)

an order, and references to the imposition of a sentence include references to the making of an order:

(b)

a record of first warning (within the meaning of section 86A of the Sentencing Act 2002) and a record of final warning (within the meaning of that section), and references to the imposition of a sentence include references to the giving and recording of a warning of either kind.

Compare: 1957 No 87 s 77; 1961 No 43 s 372

Section 180(2)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

181 Application of chief executive of Department of Corrections to correct erroneous sentence

(1)

The chief executive of the Department of Corrections may make an application under section 180(1) if the sentence that was imposed or that the chief executive alleges ought to have been imposed is—

(a)

a sentence of imprisonment within the meaning of section 4 of the Sentencing Act 2002:

(b)

a sentence of home detention:

(c)

a community-based sentence.

(2)

The chief executive of the Department of Corrections must give notice of the application to the prosecutor and the offender.

182 Procedure if court corrects erroneous sentence

(1)

In order for a new sentence to be imposed in accordance with section 180, the court may—

(a)

issue a summons to bring the defendant before the court to be sentenced; or

(b)

whether or not a summons has been issued or served, issue a warrant to arrest the defendant and bring him or her before the court to be sentenced.

(2)

If the court imposes a new sentence, the time for appeal against conviction or sentence, or both, runs from the date of the new sentence.

Transfer to wrong court

183 Transfer to wrong court

(1)

If a proceeding is transferred to a court, but the court to which it is transferred is not the correct court, the court to which the proceeding is transferred may transfer the proceeding to the appropriate court.

(2)

If the court that is transferring the proceeding so directs, the Registrar of that court must give or cause to be given a notice to the prosecutor, and to the defendant, of the date and time at which the defendant must report to the court to which the proceedings have been transferred.

(3)

If the defendant has been released on bail, the conditions of bail are deemed to be varied in accordance with the notice, and no new notice of bail is required.

(4)

If the defendant has been remanded in custody, the Registrar must, if necessary, issue a new warrant for the detention of the defendant that accords with the date and time on which, and place to which, the defendant must report.

Compare: 1957 No 87 s 184P

Permanent court record

184 Permanent court record

(1)

Courts conducting criminal proceedings must continue to maintain a permanent court record of the formal steps in those proceedings.

(2)

Courts must maintain the permanent court record in accordance with rules of court.

(3)

The permanent court record is, subject to the power of the court to amend it, conclusive evidence of the matters recorded in it.

Compare: 1957 No 87 s 71; 1961 No 43 s 353

Subpart 2—Solicitor-General’s responsibility for oversight and conduct of certain prosecutions

185 Solicitor-General responsible for general oversight of public prosecutions

(1)

The Solicitor-General is responsible for maintaining general oversight of the conduct of public prosecutions.

(2)

In discharging his or her responsibility under subsection (1), the Solicitor-General may—

(a)

maintain guidelines for the conduct of public prosecutions; and

(b)

provide general advice and guidance to agencies that conduct public prosecutions on the conduct of those prosecutions.

(3)

Nothing in this section requires the Solicitor-General to supervise the conduct of any particular public prosecution or makes the Solicitor-General responsible for the conduct of any public prosecution.

186 Attorney-General’s responsibility and powers not affected

Nothing in section 185 limits or affects—

(a)

the responsibilities of the Attorney-General relating to the administration of the criminal law; or

(b)

the exercise of any power by the Attorney-General under any enactment or rule of law.

187 Assumption of responsibility for Crown prosecutions by Solicitor-General

(1)

The Solicitor-General must assume responsibility for and conduct every Crown prosecution from the time or stage in the proceedings prescribed in regulations.

(2)

The Solicitor-General’s duty under subsection (1) may be performed by any Crown prosecutor.

(3)

The Solicitor-General may specify in any proceeding the Crown prosecutor who is to conduct the prosecution.

(4)

Subsection (2) is subject to subsection (3).

(5)

No Crown prosecution is invalid only because the Crown—

(a)

did not assume responsibility for a prosecution in accordance with regulations made under this Act; or

(b)

assumed responsibility for a prosecution for which it should not have assumed responsibility.

Section 187(5): inserted, on 1 July 2013, by section 11 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

188 Duty of Crown prosecutor to comply with Solicitor-General’s directions

A Crown prosecutor who conducts a Crown prosecution under section 187 must conduct that prosecution in accordance with any directions given by the Solicitor-General (either generally or in the particular case).

189 Crown prosecution notice must be filed

When the Solicitor-General or a Crown prosecutor assumes responsibility for a Crown prosecution in accordance with section 187, he or she must file a notice in the court.

190 Power of Solicitor-General or Crown prosecutor to amend charge

(1)

Without the leave of the court, the Solicitor-General or a Crown prosecutor may, on filing a notice under section 189 in relation to a proceeding, or before the trial and within any prescribed period after filing that notice, file in the court hearing the proceeding a notice to amend any charge to which that proceeding relates.

(2)

On receipt of a notice to amend a charge under subsection (1) the court hearing the proceeding must amend the charge in accordance with the notice.

(3)

Nothing in this section prevents the Solicitor-General or a Crown prosecutor at any other time requesting that the court amend a charge under section 133.

(4)

The power to amend a charge under subsection (1) includes a power to substitute one offence for another offence, in which case section 134(2) applies.

191 Power of Solicitor-General or Crown prosecutor to add new charges

(1)

(2)

For the purposes of this Act,—

(a)

a charging document is deemed to have been filed in accordance with section 14 in respect of each new charge specified in the notice; and

(b)

a notice filed under subsection (1)—

(i)

satisfies the requirements of section 138(1); and

(ii)

section 138(2) does not apply when new charges are added to a proceeding in accordance with that notice; and

(c)

section 25 (time for filing charging document) applies to the new charges.

Section 191(2)(b): replaced, on 1 July 2013, by section 12 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

192 Power of Solicitor-General or Crown prosecutor to withdraw charge

(1)

Without leave of the court and despite section 146(1), on filing a notice under section 189 in relation to a proceeding, or before the trial and within any prescribed period after filing that notice, the Solicitor-General or a Crown prosecutor may file in the court hearing the proceeding a notice to withdraw any charge to which that proceeding relates.

(2)

Despite subsection (1), the Solicitor-General or a Crown prosecutor may only file a notice to withdraw all of the charges to which a proceeding relates with the leave of the court.

(3)

If the Solicitor-General or a Crown prosecutor seeks to withdraw all the charges, the court may—

(a)

give leave for the notice to withdraw the charges to be filed; or

(b)

dismiss the charges under section 147.

(4)

A charge is withdrawn under this section on the filing of a notice to withdraw the charge.

(5)

The withdrawal of a charge under this section is not a bar to any other proceeding in the same matter.

193 Independence of Solicitor-General and Crown prosecutors

The Solicitor-General and every Crown prosecutor must, in conducting a Crown prosecution, act independently of the agency from which the Solicitor-General or Crown prosecutor assumed responsibility for the prosecution.

Subpart 3—Public access and restrictions on reporting

Terms used in this subpart

194 Interpretation

In this subpart, unless the context otherwise requires,—

name, in relation to a person, means the person’s name and any particulars likely to lead to the person’s identification

suppression order means an order under any of sections 200, 202, and 205.

195 Context in which publication prohibited

For the purposes of this subpart, publication means publication in the context of any report or account relating to the proceeding in respect of which the section applies or the order was made (as the case may be), and publish has a corresponding meaning.

Court proceedings generally open to public

196 Court proceedings generally open to public

(1)

Every hearing is open to the public.

(2)

Subsection (1) does not apply to any hearing on the papers.

(3)

This section is subject to sections 97, 197, and 199, and any other enactment.

Compare: 1985 No 120 s 138(1)

Power to clear court

197 Power to clear court

(1)

A court may make an order excluding from the whole or any part of any proceeding in respect of an offence all or any persons other than the following:

(a)

the presiding judicial officer and jury:

(b)

the prosecutor:

(c)

the defendant and any person who is for the time being acting as custodian of the defendant:

(d)

any lawyer engaged in the proceedings:

(e)

any officer of the court:

(f)

the Police employee in charge of the case.

(2)

The court may make an order under subsection (1) only if the court is satisfied that—

(a)

the order is necessary to avoid—

(i)

undue disruption to the conduct of the proceedings; or

(ii)

prejudicing the security or defence of New Zealand; or

(iii)

a real risk of prejudice to a fair trial; or

(iv)

endangering the safety of any person; or

(v)

prejudicing the maintenance of the law, including the prevention, investigation and detection of offences; and

(b)

a suppression order is not sufficient to avoid that risk.

(3)

Even if an order is made under subsection (1), the announcement of the verdict or decision of the court, and the passing of sentence, must take place in public; but, if the court is satisfied that exceptional circumstances exist, it may decline to state in public all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision or verdict, or in determining the sentence.

(4)

The power conferred by this section is in substitution for any power to clear the court that a court may have had under any inherent jurisdiction or any rule of law.

Compare: 1985 No 120 s 138(2)(c), (5), (6)

198 Exception for members of media

(1)

An order under section 197 may not exclude members of the media except on the ground set out in section 197(2)(a)(ii) (which relates to the security or defence of New Zealand).

(2)

For the purposes of this section, member of the media means—

(a)

a person who is in the court for the purpose of reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—

(i)

a code of ethics; and

(ii)

the complaints procedure of the Broadcasting Standards Authority or the Press Council; or

(b)

any other person reporting on the proceedings with the permission of the court.

Compare: 1985 No 120 s 138(3)

199 Court must be cleared when complainant gives evidence in cases of sexual nature

(1)

In any case of a sexual nature, no person may be present in the courtroom while the complainant gives oral evidence (whether in chief or under cross-examination or on re-examination), except for the following:

(a)

the Judge and jury:

(b)

the prosecutor:

(c)

the defendant and any person who is for the time being acting as custodian of the defendant:

(d)

any lawyer engaged in the proceedings:

(e)

any officer of the court:

(f)

the Police employee in charge of the case:

(g)

any member of the media (as defined in section 198(2)):

(h)

any person whose presence is requested by the complainant:

(i)

any person expressly permitted by the Judge to be present.

(2)

Before the complainant starts to give evidence, the Judge must—

(a)

ensure that no person other than those referred to in subsection (1) is present in the courtroom; and

(b)

advise the complainant of the complainant’s right to request the presence of any person under subsection (1)(h).

(3)

For the purposes of this section, case of a sexual nature means proceedings in which a person is charged with, or is to be sentenced for, any of the following offences:

(a)

any offence against sections 128 to 142A of the Crimes Act 1961:

(b)

any offence against section 144A of the Crimes Act 1961:

(c)

any other offence against the person of a sexual nature:

(d)

being a party to the commission of any offence referred to in paragraphs (a) to (c):

(e)

conspiring with any person to commit any such offence.

Compare: 1961 No 43, s 375A

Suppression of names

200 Court may suppress identity of defendant

(1)

A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

(2)

The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)

cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

(b)

cast suspicion on another person that may cause undue hardship to that person; or

(c)

cause undue hardship to any victim of the offence; or

(d)

create a real risk of prejudice to a fair trial; or

(e)

endanger the safety of any person; or

(f)

lead to the identification of another person whose name is suppressed by order or by law; or

(g)

prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(h)

prejudice the security or defence of New Zealand.

(3)

The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

(4)

Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5)

An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

(6)

When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.

Compare: 1985 No 120 s 140(1), (4A)

201 Automatic suppression of identity of defendant in specified sexual cases

(1)

This section applies if a person is accused or convicted of an offence against section 130 or 131 of the Crimes Act 1961.

(2)

The purpose of this section is to protect the complainant.

(3)

No person may publish the name, address, or occupation of a person accused or convicted of an offence mentioned in subsection (1) unless the court, by order, permits that publication.

(4)

The court must make an order referred to in subsection (3) if—

(a)

the complainant (or, if there were 2 or more complainants, each complainant)—

(i)

is aged 18 years or older (whether or not he or she was aged 18 years or older when the offence was, or is alleged to have been, committed); and

(ii)

applies to the court for such an order; and

(b)

the court is satisfied that the complainant (or, as the case requires, each complainant) understands the nature and effect of his or her decision to apply to the court for the order; and

(c)

no order or further order has been made under section 200 prohibiting publication of the identity of the person convicted of the offence.

(5)

An order made under subsection (4) ceases to have effect if—

(a)

the person convicted of the offence applies to a court for an order or further order under section 200 prohibiting publication of his or her identity; and

(b)

the court makes the order or further order under section 200.

Compare: 1985 No 120 s 139(1AA), (2), (2A), (2B)

202 Court may suppress identity of witnesses, victims, and connected persons

(1)

A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—

(a)

is called as a witness; or

(b)

is a victim of the offence; or

(c)

is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.

(2)

The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)

cause undue hardship to the witness, victim, or connected person; or

(b)

create a real risk of prejudice to a fair trial; or

(c)

endanger the safety of any person; or

(d)

lead to the identification of another person whose name is suppressed by order or by law; or

(e)

prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(f)

prejudice the security or defence of New Zealand.

(3)

Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.

(4)

An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.

Compare: 1985 No 120 ss 138(2)(b), 140(1)

203 Automatic suppression of identity of complainant in specified sexual cases

(1)

This section applies if a person is accused or convicted of an offence against any of sections 128 to 142A or 144A of the Crimes Act 1961.

(2)

The purpose of this section is to protect the complainant.

(3)

No person may publish the name, address, or occupation of the complainant, unless—

(a)

the complainant is aged 18 years or older; and

(b)

the court, by order, permits such publication.

(4)

The court must make an order referred to in subsection (3)(b) if—

(a)

the complainant—

(i)

is aged 18 years or older (whether or not he or she was aged 18 years or older when the offence was, or is alleged to have been, committed); and

(ii)

applies to the court for such an order; and

(b)

the court is satisfied that the complainant understands the nature and effect of his or her decision to apply to the court for the order; and

(c)

in any case where publication of the identity of the complainant may lead to the identification of the person who is charged with or convicted of the offence, no order or further order has been made under section 200 prohibiting publication of the identity of that person.

(5)

An order made under subsection (3)(b) ceases to have effect if—

(a)

publication of the identity of the complainant may lead to the identification of the person who is charged with or convicted of the offence; and

(b)

that person applies to a court for an order or further order under section 200 prohibiting publication of his or her identity; and

(c)

the court makes the order or further order under section 200.

Compare: 1985 No 120 s 139(1AA), (1), (1A)

204 Automatic suppression of identity of child complainants and witnesses

(1)

Unless the court, by order, permits publication, no person may publish the name, address, or occupation of a person who is under the age of 18 years who—

(a)

is the complainant; or

(b)

is called as a witness in any proceeding in respect of an offence.

(2)

Despite subsection (1), the name, address, or occupation of a child who dies as a result of the offence may be published.

(3)

Nothing in subsection (1) prevents publication of the name of the defendant or the nature of the charge.

(4)

The court must make an order permitting any person to publish the name, address, or occupation of a complainant or witness, if—

(a)

the complainant or witness, having reached the age of 18 years, applies to the court for such an order; and

(b)

the court is satisfied that the complainant or witness understands the nature and effect of his or her decision to apply to the court for the order; and

(c)

in any case where publication of the identity of the complainant or witness may lead to the identification of the person who is charged with or convicted of the offence, no order or further order has been made under section 200 prohibiting publication of the identity of that person.

(5)

An order made under subsection (4) ceases to have effect if—

(a)

publication of the identity of the complainant or witness may lead to the identification of the person who is charged with or convicted of the offence; and

(b)

that person applies to a court for an order or further order under section 200 prohibiting publication of his or her identity; and

(c)

the court makes the order or further order under section 200.

Compare: 1985 No 120 s 139A

Suppression of evidence and submissions

205 Court may suppress evidence and submissions

(1)

A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.

(2)

The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)

cause undue hardship to any victim of the offence; or

(b)

create a real risk of prejudice to a fair trial; or

(c)

endanger the safety of any person; or

(d)

lead to the identification of a person whose name is suppressed by order or by law; or

(e)

prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(f)

prejudice the security or defence of New Zealand.

Compare: 1985 No 120 s 138(2)(a)

Powers of Registrar

206 Power of Registrar to make and renew interim suppression orders

(1)

On a defendant’s first appearance in court, a Registrar may make an interim order under section 200(4) if—

(a)

the Registrar adjourns the hearing of any charge; and

(b)

both parties agree to the making of the order.

(2)

If a Registrar makes an interim order, that order may have effect for a limited period of up to 28 days from the date on which the order is made.

(3)

No Registrar may exercise the power under subsection (1) more than once in relation to any particular charge.

(4)

A Registrar may exercise the power conferred by section 208(1)(b) to renew an order made by the court until the date on which the defendant next appears before the court.

Compare: 1957 No 87, s 46A

General provisions relating to suppression orders

207 Court must give reasons

(1)

The court must give reasons for making, varying, or revoking a suppression order.

(2)

If the court is satisfied that exceptional circumstances exist, it may decline to state in public all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision.

208 Duration of suppression order and right of review

(1)

A suppression order—

(a)

may be made permanently, or for a limited period ending on a date specified in the order; and

(b)

if it is made for a limited period, may be renewed for a further period or periods by the court; and

(c)

if it is made permanently, may be revoked by the court at any time.

(2)

If the term of a suppression order is not specified, it has permanent effect.

(3)

A suppression order may be reviewed and varied by the court at any time.

Compare: 1985 No 120 ss 138(4), 140(2)

209 Publication by or at request of Police, etc

(1)

Nothing in sections 200 to 205 prevents publication by or at the request of any Police employee of the name, address, or occupation of any person who has escaped from lawful custody or has failed to attend any court when lawfully required to do so if that publication is made for the purpose of facilitating that person’s recapture or arrest.

(2)

Nothing in sections 200 to 205 prevents publication of the name, address, or occupation of any person, or any details of the offences charged to—

(a)

any person assisting with the administration of the sentence imposed on the person or with the rehabilitation of the person; or

(b)

any Police employee, or any officer or employee of the Department of Corrections or of the Ministry of Justice, who requires the information for the purposes of his or her official duties; or

(ba)

any specified agency, corresponding Registrar, corresponding overseas agency, or affected person within the meaning of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 in accordance with sections 43 to 45 of that Act; or

(c)

any person who is conducting or proposing to conduct a public prosecution against the person for an offence, and who requires the information for the purposes of—

(i)

deciding whether or not to commence proceedings; or

(ii)

conducting that public prosecution.

Compare: 1985 No 120 s 141

Section 209(2)(ba): inserted, on 14 October 2016, by section 60 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (2016 No 42).

210 Standing of members of media

(1)

This section applies to—

(a)

a person who is reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—

(i)

a code of ethics; and

(ii)

the complaints procedures of the Broadcasting Standards Authority or the Press Council; and

(b)

any other person reporting on the proceedings with the permission of the court.

(2)

A person to whom this section applies has standing to initiate, and be heard in relation to, any application for a suppression order, and any application to renew, vary, or revoke a suppression order.

Offences relating to breach of suppression provisions and orders

211 Offences and penalties

(1)

Every person commits an offence who knowingly or recklessly publishes any name, address, occupation, or other information in breach of a suppression order or in breach of any of sections 201, 203, and 204.

(2)

Every person commits an offence who publishes any name, address, occupation, or other information in breach of a suppression order or in breach of any of sections 201, 203, and 204.

(3)

Subsection (2) does not apply to a person who hosts material on websites or other electronic retrieval systems that can be accessed by a user unless the specific information has been placed or entered on the site or system by that person.

(4)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a term of imprisonment not exceeding 6 months:

(b)

in the case of a body corporate, to a fine not exceeding $100,000.

(5)

A person who commits an offence against subsection (2) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $25,000:

(b)

in the case of a body corporate, to a fine not exceeding $50,000.

(6)

In a prosecution for an offence against subsection (2), it is not necessary for the prosecution to prove that the defendant intended to commit an offence.

Part 6 Appeals

Subpart 1—General matters

212 Interpretation

In this Part, unless the context otherwise requires,—

appeal court means a first appeal court, second appeal court, or other appeal court specified by this Part

prosecution has the meaning given to it in section 364

sentence—

(a)

includes any method of disposing of a case following conviction; but

(b)

does not include—

(i)

a decision, on conviction, to make or decline to make an order against the convicted person for the payment of costs under section 364 or under the Costs in Criminal Cases Act 1967; or

(ii)

a decision, on conviction, to make or decline to make an order under any of sections 200, 202, or 205 (suppression orders); or

(iii)

a decision, on conviction, under section 208 to vary or revoke an order under any of those sections specified in subparagraph (ii).

213 Leave to appeal

(1)

All rights of appeal to the Supreme Court under this Part are subject to Part 4 of the Senior Courts Act 2016. See, especially, sections 73 to 75 of that Act.

(2)

Leave to appeal to any court other than the Supreme Court under this Part is required only if leave is expressly required by this Part or any other Act.

(3)

An appeal court’s decision to give or refuse leave for the purposes of this Part is final unless otherwise expressly provided by this Part or any other Act.

(4)

The duty of an appeal court to determine an appeal is subject to any leave requirements being met.

Section 213(1): replaced, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

214 Duty to determine appeal subject to sections 337 and 338

The duty of an appeal court to determine an appeal under subparts 2 to 10 is subject to sections 337 and 338 (when appeal abandoned or dismissed).

Subpart 2—Appeals against pre-trial decisions

First appeals

215 Right of appeal by prosecutor or defendant against certain pre-trial evidential decisions in Judge-alone case

(1)

This section applies if a court makes a decision specified in subsection (2) in proceedings to be tried by Judge-alone trial procedure.

(2)

The defendant or the prosecutor may, with the leave of the first appeal court, appeal to that court against a decision that is one of the following:

(a)

making or refusing to make an order under section 79 (as to admissibility of evidence):

(b)

granting or refusing to grant permission under section 44 of the Evidence Act 2006 (which relates to the cross-examination of a complainant):

(c)

giving or refusing to give leave on an application under section 109(1)(d) of the Evidence Act 2006 (which relates to the identity of a witness):

(d)

making or refusing to make a witness anonymity order under section 112 of the Evidence Act 2006.

Compare: 1961 No 43 s 379A(1)(aa), (e), (f), (g)

Section 215(1): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

216 Refusal to give leave to appeal under section 215

(1)

This section applies if an application for leave to appeal under section 215 is filed.

(2)

The first appeal court may refuse to give leave to appeal if the court considers that it is expedient for the issue under appeal to be determined by way of an appeal at the conclusion of the trial.

(3)

Subsection (2) does not limit the first appeal court’s power to refuse to give leave for any other reason.

217 Right of appeal by prosecutor or defendant against pre-trial decisions in jury trial case

(1)

This section applies if a court makes a decision specified in subsection (2) in proceedings for—

(a)

a category 3 offence after the defendant elected a jury trial; or

(b)

a category 4 offence.

(2)

The defendant or the prosecutor may, with the leave of the first appeal court, appeal to that court against a decision that is one of the following:

(a)

making or refusing to make an order under section 21 (to amend, divide, or amalgamate charges):

(b)

making or refusing to make an order under section 101 (pre-trial order about admissibility of evidence):

(c)

making or refusing to make an order under section 102 (that Judge-alone trial be held in case likely to be long and complex):

(d)

making or refusing to make an order under section 103 (that Judge-alone trial be held in case involving intimidation of jurors):

(e)

amending or refusing to amend a charge under section 133:

(f)

making or refusing to make an order under section 138(4) (that defendant be tried separately on 1 or more charges):

(g)

making or refusing to make an order under section 151 (for a person to be retried on ground that acquittal tainted):

(h)

refusing to make an order under section 157 (to transfer proceeding to a court at another place):

(i)

granting or refusing to grant permission under section 44 of the Evidence Act 2006 (relating to the cross-examination of a complainant):

(j)

giving or refusing to give leave on an application under section 109(1)(d) of the Evidence Act 2006 (relating to the identity of a witness):

(ja)

making or refusing to make a pre-trial witness anonymity order under section 110 of the Evidence Act 2006:

(k)

making or refusing to make a witness anonymity order under section 112 of the Evidence Act 2006.

Compare: 1961 No 43 s 379A(1)

Section 217(2)(ja): inserted, on 8 January 2017, by section 38(1) of the Evidence Amendment Act 2016 (2016 No 44).

218 Right of appeal by defendant only against pre-trial decisions in jury trial case

(1)

This section applies if a court makes a decision specified in subsection (2) in proceedings for—

(a)

a category 3 offence after the defendant elected a jury trial; or

(b)

a category 4 offence.

(2)

The defendant may, with the leave of the first appeal court, appeal to that court against a decision that is either of the following:

(a)

refusing to make an order under section 18 (that prosecutor provide further particulars relevant to setting out of charge):

(b)

making an order under section 157 (to transfer proceeding to court at another place).

Compare: 1961 No 43 s 379A(2)

219 First appeal courts

The first appeal court for an appeal under this subpart is—

(a)

the District Court presided over by a District Court Judge, if the appeal is against a decision of the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

(b)

the High Court, if the appeal is against a decision of the District Court presided over by a District Court Judge, other than a decision—

(i)

made in proceedings for a category 3 offence after the defendant elected a jury trial; or

(ii)

made in proceedings for a category 4 offence; or

(c)

either the Court of Appeal or the Supreme Court, in any other case.

Section 219(a): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 219(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

220 How to commence first appeal

(1)

A defendant or prosecutor commences a first appeal under this subpart by filing in the first appeal court a notice of application for leave to appeal to that court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the decision to which the appeal relates.

(3)

The first appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

Compare: 1961 No 43 s 379A(5), (6)

221 First appeal court to determine appeal

A first appeal court must determine a first appeal under this subpart by—

(a)

confirming the decision appealed against; or

(b)

varying the decision appealed against; or

(c)

setting aside the decision appealed against and making any other order it considers appropriate.

Compare: 1961 No 43 s 379A(3)

222 Trial court may allow trial to proceed

(1)

This section applies if—

(a)

a notice of application for leave to appeal has been filed under this subpart but not determined; or

(b)

leave to appeal has been given under this subpart but the appeal has not been determined.

(2)

The trial court may allow the trial to which the application or appeal relates to commence or continue, as the case may be, even though the application or appeal has not been determined, if satisfied that it is in the interests of justice to do so.

Section 222(1)(a): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Further appeals

223 Right of appeal against determination of first appeal court

(1)

The defendant or the prosecutor may, with the leave of the second appeal court, appeal to that court against the determination of an appeal under section 215 or 217.

(2)

The defendant may, with the leave of the second appeal court, appeal to that court against the determination of an appeal under section 218.

(3)

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)

the appeal involves a matter of general or public importance; or

(b)

a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

224 Second appeal courts

The second appeal court for an appeal under this subpart is—

(a)

the High Court, if the appeal is against a determination of the District Court; or

(b)

either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or

(c)

the Supreme Court, if the appeal is against a determination of the Court of Appeal.

Section 224(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

225 How to commence second appeal

(1)

A party commences a second appeal under this subpart by filing a notice of application for leave to appeal in the second appeal court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

(3)

The second appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

226 Second appeal court to determine appeal

(1)

A second appeal court must determine a second appeal under this subpart in accordance with this section.

(2)

The second appeal court determines the appeal by exercising any powers that the first appeal court exercised or could have exercised in determining the first appeal under section 221.

227 High Court’s determination of second appeal final

Every determination of a second appeal under this subpart by the High Court is final.

228 Further appeal from determination of second appeal by Court of Appeal

(1)

A party to a second appeal determined under this subpart by the Court of Appeal in a case to which section 215 applies may, with the leave of the Supreme Court, appeal under this subpart to the Supreme Court against the determination.

(2)

An appeal under this section may be brought only on a question of law.

(3)

Section 225 (how to commence appeal) applies with necessary modifications.

(4)

The Supreme Court may allow an appeal only if satisfied that the determination appealed against is wrong in law.

(5)

The Supreme Court has the same powers as a first appeal court has to determine a first appeal under this subpart, subject to subsection (4).

Subpart 3—Appeals against conviction

First appeals

229 Right of appeal against conviction

(1)

A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.

(2)

An appeal against a finding that the convicted person is guilty of a contempt of court must be brought under subpart 5.

Compare: 1957 No 87 s 115(1), (2); 1961 No 43 s 383(1)(a)

230 First appeal courts

The first appeal court for an appeal under this subpart is—

(a)

the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

(b)

the High Court, if the appeal is against a conviction entered by the District Court presided over by a District Court Judge, other than a conviction for—

(i)

a category 3 offence after the convicted person elected a jury trial; or

(ii)

a category 4 offence; or

(c)

either the Court of Appeal or the Supreme Court, in any other case.

Section 230(a): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 230(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

231 How to commence first appeal

(1)

A convicted person commences a first appeal under this subpart by filing in the first appeal court—

(a)

a notice of appeal, if the court appealed to is the District Court, High Court, or Court of Appeal; or

(b)

a notice of application for leave to appeal, if the court appealed to is the Supreme Court.

(2)

A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.

(3)

The first appeal court may, at any time, extend the time allowed for filing a notice of appeal or notice of application for leave to appeal.

Compare: 1961 No 43 s 388

232 First appeal court to determine appeal

(1)

A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)

The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a)

in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or

(b)

in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)

in any case, a miscarriage of justice has occurred for any reason.

(3)

The first appeal court must dismiss a first appeal under this subpart in any other case.

(4)

In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)

has created a real risk that the outcome of the trial was affected; or

(b)

has resulted in an unfair trial or a trial that was a nullity.

(5)

In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

Compare: 1957 No 87 ss 119(1), 121; 1961 No 43 s 385; Criminal Procedure Act 2009 s 276 (Victoria)

233 Orders, etc, on successful first appeal

(1)

This section applies if a first appeal court allows a first appeal under this subpart.

(2)

The court must set aside the conviction.

(3)

The court must also—

(a)

direct that a judgment of acquittal be entered; or

(b)

direct that a new trial be held; or

(c)

exercise the powers under section 234; or

(d)

exercise the powers under section 235(2); or

(e)

make any other order it considers justice requires.

(4)

The court may also exercise the powers under section 236.

Compare: 1961 No 43 ss 385(2), 386

234 Conviction and sentence for different offence may be substituted

(1)

Subsection (2) applies if a person was found guilty at trial of an offence (offence A) and the first appeal court allows the convicted person’s appeal against conviction for that offence.

(2)

The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that—

(a)

the person could have been found guilty, at the person’s trial for offence A, of offence B; and

(b)

the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.

(3)

Subsection (4) applies if a person pleaded guilty before or at trial to an offence (offence A) and the first appeal court allows the convicted person’s appeal against conviction for that offence.

(4)

If the first appeal court is satisfied that facts admitted by the convicted person in relation to the charge for offence A support a conviction for a different offence (offence B), the first appeal court may, if the convicted person agrees, direct that a judgment of conviction for offence B be entered.

(5)

On making a direction under subsection (2) or (4), the first appeal court may—

(a)

impose a sentence for offence B (whether more or less severe) that is allowed by law; or

(b)

remit the proceeding to the court that imposed the sentence for offence A and direct that court to take the action described in paragraph (a).

Compare: 1957 No 87 s 132; 1961 No 43 s 386(2)

235 Acquittal on account of insanity

(1)

This section applies if a first appeal court is satisfied that the convicted person should have been acquitted at trial on account of his or her insanity at the time of the offence.

(2)

Sections 23 to 26, 28, and 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 apply in that case as far as applicable and as if the convicted person had been acquitted on the ground of insanity.

Compare: 1957 No 87 s 121(2A); 1961 No 43 s 386(4)

236 Confirmation or substitution of sentence for another offence

(1)

This section applies if—

(a)

a first appeal court allows a convicted person’s appeal against conviction for one offence (offence A); and

(b)

the sentencing court took the sentence it imposed for offence A into account in imposing sentence for a conviction for a different offence (offence B) and the convicted person remains convicted of offence B.

(2)

The first appeal court may—

(a)

confirm the trial court’s sentence for offence B; or

(b)

substitute any sentence that is allowed by law; or

(c)

remit the proceeding to the court that imposed the sentence for offence B and direct that court to take any action of a kind described in paragraph (a) or (b).

Compare: 1961 No 43 s 386(1)

Further appeals

237 Right of appeal against determination of first appeal court

(1)

A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2)

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)

the appeal involves a matter of general or public importance; or

(b)

a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

238 Second appeal courts

The second appeal court for an appeal under this subpart is—

(a)

the High Court, if the appeal is against a determination of the District Court; or

(b)

either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or

(c)

the Supreme Court, if the appeal is against a determination of the Court of Appeal.

Section 238(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

239 How to commence second appeal

(1)

A convicted person commences a second appeal under this subpart by filing a notice of application for leave to appeal in the second appeal court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

(3)

The second appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

240 Second appeal court to determine appeal

(1)

A second appeal court must determine a second appeal under this subpart in accordance with this section.

(2)

The second appeal court must allow the appeal if satisfied that the appeal should be allowed on any of the grounds described in section 232(2).

(3)

The second appeal court must dismiss the appeal in any other case.

241 Orders, etc, on successful second appeal

(1)

This section applies if a second appeal court allows a second appeal under this subpart.

(2)

The second appeal court may exercise any powers that the first appeal court exercised or could have exercised under this subpart if it had allowed the first appeal.

242 High Court’s determination of second appeal final

Every determination of a second appeal under this subpart by the High Court is final.

243 Further appeal from determination of second appeal by Court of Appeal

(1)

A party to a second appeal determined under this subpart by the Court of Appeal may, with the leave of the Supreme Court, appeal under this subpart to the Supreme Court against the determination.

(2)

The appeal may be brought only on a question of law.

(3)

The Supreme Court must allow the appeal if satisfied that—

(a)

the determination appealed against is wrong in law; and

(b)

the appeal should be allowed on any of the grounds described in section 232(2).

(4)

The Supreme Court must dismiss the appeal in any other case.

(5)

The following provisions apply with the necessary modifications:

(a)

section 239 (how to commence appeal):

(b)

section 241 (orders, etc, on successful appeal).

Compare: 1961 No 43 s 383A

Subpart 4—Appeals against sentence

First appeals

244 Convicted person’s right of appeal against sentence

(1)

A person convicted of an offence may appeal under this subpart to the first appeal court against the sentence imposed for that offence, unless the sentence is one fixed by law.

(2)

An appeal by a person against a sentence imposed on finding the person guilty of a contempt of court must be brought under subpart 5.

Compare: 1957 No 87 s 115(2), (2A); 1961 No 43 s 383(1)(b)

245 Right of appeal against sentence not affected by sentence indication

The fact that a defendant has received a sentence indication does not affect the right of the defendant or the prosecutor to appeal against sentence.

246 Prosecutor’s right of appeal

(1)

A prosecutor may, in accordance with this section, appeal under this subpart to the first appeal court against the sentence imposed for an offence, unless the sentence is one fixed by law.

(2)

An appeal under this subpart by a prosecutor may be brought only by or with the consent of the Solicitor-General.

(3)

However, if the defendant is the Crown Law Office, the appeal may be brought only with the consent of the Attorney-General and any decision to give consent must be given personally by the Attorney-General.

Compare: 1957 No 87 s 115A(1)–(2A); 1961 No 43 s 383(2), (2A)

247 First appeal courts

The first appeal court for an appeal under this subpart is—

(a)

the District Court presided over by a District Court Judge, if the appeal is against a sentence imposed by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

(b)

the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge and if—

(i)

the sentence was for a category 1 or 2 offence; or

(ii)

the sentence was for a category 3 offence and the convicted person did not elect a jury trial; or

(c)

the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge for a category 3 offence and if—

(i)

the convicted person elected a jury trial; and

(ii)

the convicted person pleaded guilty to the offence before the trial; and

(iii)

the sentence appealed against is not a sentence of imprisonment exceeding 5 years; or

(d)

either the Court of Appeal or the Supreme Court, in any other case.

Section 247(a): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 247(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 247(c): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

248 How to commence first appeal

(1)

A convicted person or prosecutor commences a first appeal under this subpart by filing in the first appeal court—

(a)

a notice of appeal, if the court appealed to is the District Court, the High Court, or the Court of Appeal; or

(b)

a notice of application for leave to appeal, if the court appealed to is the Supreme Court.

(2)

A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of the sentence appealed against.

(3)

In an appeal by a prosecutor, any document evidencing consent required under section 246 must be filed with the notice of appeal or notice of application for leave to appeal.

(4)

The first appeal court may, at any time, extend the time allowed for filing—

(a)

a notice of appeal or notice of application for leave to appeal; or

(b)

a document evidencing consent required under section 246.

Compare: 1961 No 43 s 388

Section 248(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

249 Appeal by prosecutor treated as abandoned if not heard before sentence completed

(1)

Every appeal under this subpart by the prosecutor against a sentence of imprisonment that is not heard before the date on which the person convicted has completed serving that sentence lapses on that date.

(2)

The manager of any prison from which the defendant is released must, if he or she has knowledge of the appeal, notify the Registrar of the appeal court that the defendant has been released.

(3)

The appeal must be treated as having been abandoned under section 337.

Compare: 1957 No 87 s 115A(3); 1961 No 43 s 383(3)

250 First appeal court to determine appeal

(1)

A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)

The first appeal court must allow the appeal if satisfied that—

(a)

for any reason, there is an error in the sentence imposed on conviction; and

(b)

a different sentence should be imposed.

(3)

The first appeal court must dismiss the appeal in any other case.

Compare: 1957 No 87 s 121; 1961 No 43 s 385

251 Orders, etc, on successful first appeal

(1)

This section applies if a first appeal court allows an appeal under this subpart.

(2)

The first appeal court must, within the limits allowed by law,—

(a)

set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or

(b)

vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or

(c)

remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.

(3)

In remitting a sentence under subsection (2)(c), the first appeal court may give the sentencing court any further directions it considers appropriate about the manner in which the specified action is to be taken by the sentencing court.

Compare: 1961 No 43 s 385(3)

252 Defendant may not withdraw guilty plea after sentence imposed on appeal

Except with the leave of the appeal court if that court considers it is in the interests of justice, a defendant who has received a sentence indication is not entitled to withdraw his or her guilty plea if a more severe sentence than that indicated is imposed on appeal.

Further appeals

253 Right of appeal against determination of first appeal court

(1)

A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of a first appeal by that person or the prosecutor under this subpart in respect of the person’s sentence.

(2)

A prosecutor may, with the leave of the second appeal court, appeal to that court against the determination of the prosecutor’s first appeal under this subpart.

(3)

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)

the appeal involves a matter of general or public importance; or

(b)

a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

254 Second appeal courts

The second appeal court for an appeal under this subpart is—

(a)

the High Court, if the appeal is against a determination of the District Court; or

(b)

either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or

(c)

the Supreme Court, if the appeal is against a determination of the Court of Appeal.

Section 254(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

255 How to commence second appeal

(1)

A convicted person or prosecutor commences a second appeal under this subpart by filing a notice of application for leave to appeal in the second appeal court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

(3)

The second appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

256 Second appeal court to determine appeal

(1)

A second appeal court must determine a second appeal under this subpart in accordance with this section.

(2)

The second appeal court must allow the appeal if satisfied that,—

(a)

for any reason, there is an error in the sentence imposed on conviction; and

(b)

a different sentence should be imposed.

(3)

The second appeal court must dismiss the appeal in any other case.

257 Orders, etc, on successful second appeal

(1)

This section applies if a second appeal court allows a second appeal under this subpart.

(2)

The second appeal court may exercise any powers that the first appeal court exercised or could have exercised under this subpart if it had allowed the first appeal.

258 High Court’s determination of second appeal final

Every determination of a second appeal under this subpart by the High Court is final.

259 Further appeal from determination of Court of Appeal

(1)

A party to a second appeal determined under this subpart by the Court of Appeal may, with the leave of the Supreme Court, appeal under this subpart to the Supreme Court against the determination.

(2)

The appeal may be brought only on a question of law.

(3)

The Supreme Court must allow the appeal if satisfied that—

(a)

the determination appealed against is wrong in law; and

(b)

for any reason, there is an error in the sentence imposed on conviction; and

(c)

a different sentence should be imposed.

(4)

In any other case, the Supreme Court must dismiss the appeal.

(5)

The following provisions apply with the necessary modifications:

(a)

section 255 (how to commence appeal):

(b)

section 257 (orders, etc, on successful appeal).

Compare: 1961 No 43 s 383A

Subpart 5—Appeals against finding of or sentence for contempt of court

First appeals

260 Right of appeal against finding of or sentence for contempt of court

(1)

This section applies if a court finds a person guilty of a criminal contempt of court, whether or not committed in the face of a court.

(2)

The person found guilty of the contempt may appeal under this subpart to the first appeal court against either or both of the following:

(a)

the finding of contempt of court:

(b)

any sentence imposed, other than an order that the person be detained in custody until the rising of the court.

Compare: 1957 No 87 s 115B; 1961 No 43 s 384

261 First appeal courts

The first appeal court for an appeal under this subpart is—

(a)

the District Court presided over by a District Court Judge, if the finding of contempt was made by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

(b)

the High Court, if the finding of contempt was made by the District Court presided over by a District Court Judge; or

(c)

either the Court of Appeal or the Supreme Court, in any other case.

Section 261(a): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 261(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

262 How to commence first appeal

(1)

A person commences a first appeal under this subpart by filing in the first appeal court—

(a)

a notice of appeal, if the court appealed to is the District Court, the High Court, or the Court of Appeal; or

(b)

a notice of application for leave to appeal, if the court appealed to is the Supreme Court.

(2)

A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after—

(a)

the date of the finding of contempt, if the appeal is against the finding only:

(b)

the date of the sentence imposed for the contempt, in any other case.

(3)

The first appeal court may, at any time, extend the time allowed for filing a notice of appeal or notice of application for leave to appeal.

Section 262(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

263 First appeal court to determine appeal

(1)

A first appeal court must determine a first appeal under this subpart against a finding of contempt as if it were a first appeal against conviction under subpart 3, and the following provisions apply as far as applicable and with the necessary modifications:

(a)

section 232 (appeal court to determine appeal):

(b)

section 233(1) to (3) (orders, etc, on successful appeal):

(c)

section 234 (conviction and sentence for different offence may be substituted):

(d)

section 235 (acquittal on account of insanity).

(2)

A first appeal court must determine a first appeal against a sentence imposed for contempt as if it were a first appeal against sentence under subpart 4, and the following provisions apply as far as applicable and with the necessary modifications:

(a)

section 250 (appeal court to determine appeal):

(b)

section 251 (orders, etc, on successful appeal).

(3)

In a first appeal against both the finding of contempt and the sentence imposed on that finding, the first appeal court must apply subsections (1) and (2) as appropriate.

Further appeals

264 Right of appeal against determination of first appeal court

(1)

A person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2)

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)

the appeal involves a matter of general or public importance; or

(b)

a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

265 Second appeal courts

The second appeal court for an appeal under this subpart is—

(a)

the High Court, if the appeal is against a determination of the District Court; or

(b)

either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or

(c)

the Supreme Court, if the appeal is against a determination of the Court of Appeal.

Section 265(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

266 How to commence second appeal

(1)

A person commences a second appeal under this subpart by filing a notice of application for leave to appeal in the second appeal court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

(3)

The second appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

267 Second appeal court to determine appeal

(1)

A second appeal court must determine a second appeal under this subpart against a finding of contempt as if it were a second appeal against conviction under subpart 3, and the following provisions apply as far as applicable and with the necessary modifications:

(a)

section 240 (appeal court to determine appeal):

(b)

section 241 (orders, etc, on successful appeal).

(2)

A second appeal court must determine a second appeal against a sentence imposed for contempt as if it were a second appeal against sentence under subpart 4, and the following provisions apply as far as applicable and with the necessary modifications:

(a)

section 256 (appeal court to determine appeal):

(b)

section 257 (orders, etc, on successful appeal).

(3)

In a second appeal against both the finding of contempt and the sentence imposed on that finding, the second appeal court must apply subsections (1) and (2) as appropriate.

268 High Court’s determination of second appeal final

Every determination of a second appeal under this subpart by the High Court is final.

269 Further appeal from determination of Court of Appeal

(1)

A party to a second appeal determined under this subpart by the Court of Appeal may, with the leave of the Supreme Court, appeal under this subpart to the Supreme Court against the determination.

(2)

The appeal may be brought only on a question of law.

(3)

Section 266 (how to commence appeal) applies with the necessary modifications.

(4)

The Supreme Court may allow an appeal only if satisfied that the determination appealed against is wrong in law.

(5)

The Supreme Court has the same powers as a second appeal court has to determine an appeal under this subpart, subject to subsection (4).

Subpart 6—Appeals against decisions on costs orders

First appeals

270 Interpretation

In this subpart, costs order means an order for the payment of costs under section 364 or the Costs in Criminal Cases Act 1967.

271 Right of appeal to first appeal court against decision about costs order

A person affected by a decision to make or refuse to make a costs order may appeal under this subpart against the decision to the first appeal court.

Compare: 1961 No 43 s 379CA

272 First appeal courts

The first appeal court for an appeal under this subpart is—

(a)

(b)

the High Court, if the appeal is against a decision of the District Court presided over by a District Court Judge other than a decision—

(i)

made in proceedings for a category 3 offence after the defendant elected a jury trial; or

(ii)

made in proceedings for a category 4 offence; or

(c)

either the Court of Appeal or the Supreme Court, in any other case.

Section 272(a): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 272(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

273 How to commence first appeal

(1)

A person commences a first appeal under this subpart by filing in the first appeal court—

(a)

a notice of appeal, if the court appealed to is the District Court, High Court, or Court of Appeal; or

(b)

a notice of application for leave to appeal, if the court appealed to is the Supreme Court.

(2)

A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of the decision appealed against.

(3)

The first appeal court may, at any time, extend the time allowed for filing the notice of appeal or notice of application for leave to appeal.

274 First appeal court to determine appeal

The first appeal court must determine a first appeal under this subpart by—

(a)

confirming the decision appealed against; or

(b)

varying the decision appealed against; or

(c)

setting aside the decision appealed against; or

(d)

making any other order it considers appropriate.

275 Appeal not to suspend trial

A court is not required to suspend the commencement or continuation of a trial just because, in the course of the prosecution to which the trial relates, an appeal has been filed against a decision to make or refuse to make a costs order.

Further appeals

276 Right of appeal against determination of first appeal court

(1)

Any party to a first appeal under this subpart may, with the leave of the second appeal court, appeal to that court against the determination of the first appeal under this subpart.

(2)

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)

the appeal involves a matter of general or public importance; or

(b)

a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

277 Second appeal courts

The second appeal court for an appeal under this subpart is—

(a)

the High Court, if the appeal is against a determination of the District Court; or

(b)

either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or

(c)

the Supreme Court, if the appeal is against a determination of the Court of Appeal.

Section 277(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

278 How to commence second appeal

(1)

A party commences a second appeal under this subpart by filing a notice of application for leave to appeal in the second appeal court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

(3)

The second appeal court may, at any time, extend the time allowed for filing the notice of application for leave to appeal.

279 Second appeal court to determine appeal

(1)

A second appeal court must determine a second appeal under this subpart in accordance with this section.

(2)

The second appeal court has the same powers as a first appeal court has to determine a first appeal under this subpart.

280 High Court’s determination of second appeal final

Every determination of a second appeal under this subpart by the High Court is final.

281 Further appeal from determination of Court of Appeal

(1)

Any party to a second appeal determined under this subpart by the Court of Appeal may, with the leave of the Supreme Court, appeal to the Supreme Court against the determination.

(2)

An appeal under this subpart against a determination of a second appeal by the Court of Appeal may be brought only on a question of law.

(3)

Section 278 (how to commence appeal) applies with necessary modifications.

(4)

The Supreme Court may allow an appeal only if satisfied that the determination appealed against is wrong in law.

(5)

The Supreme Court has the same powers as a first appeal court has to determine a first appeal under this subpart, subject to subsection (4).

Subpart 7—Appeals against suppression orders

First appeals

282 Interpretation

In this subpart, suppression order means an order made under section 200, 202, or 205.

283 Right of appeal against decision on suppression order

(1)

A person specified in subsection (2) may appeal under this subpart to the first appeal court against a decision of a court—

(a)

to make or refuse to make a suppression order; or

(b)

to renew, vary, or revoke a suppression order under section 208.

(2)

The persons who may appeal are—

(a)

the applicant for the suppression order; or

(b)

the prosecutor; or

(c)

a member of the media to whom section 210(1) applies.

Compare: 1957 No 87 s 115C(1); 1961 No 43 s 379A(1)(ba)

284 First appeal courts

The first appeal court for an appeal under this subpart is—

(a)

(b)

the High Court, if the appeal is against a decision of the District Court presided over by a District Court Judge; or

(c)

either the Court of Appeal or the Supreme Court, in any other case.

Section 284(a): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 284(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

285 How to commence first appeal

(1)

A person commences a first appeal by filing in the first appeal court—

(a)

a notice of appeal, if the court appealed to is the District Court, High Court, or Court of Appeal; or

(b)

a notice of application for leave to appeal, if the court appealed to is the Supreme Court.

(2)

A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of the decision appealed against.

(3)

The first appeal court may, at any time, extend the time allowed for filing the notice of appeal or notice of application for leave to appeal.

Section 285(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

286 Interim suppression order pending determination of first appeal

(1)

This section applies if a court refuses to make the suppression order sought by the applicant and the applicant for the order satisfies that court that an appeal against that decision is to be filed under section 285.

(2)

The court must make an interim order to the effect sought by the applicant.

(3)

An interim order made under subsection (2) continues in force until—

(a)

the expiry of the period specified in section 285(2) for filing a notice of appeal or notice of application for leave to appeal; or

(b)

the appeal is finally determined, if the notice is filed within that specified period.

Compare: 1957 No 87 s 115C(2)

287 First appeal court to determine appeal

A first appeal court must determine a first appeal by—

(a)

confirming the decision appealed against; or

(b)

varying the decision appealed against; or

(c)

setting aside the decision appealed against; or

(d)

making any other order it considers appropriate.

288 Trial court may allow trial to proceed

(1)

This section applies if an appeal has been filed under this subpart against—

(a)

a decision to make or refuse to make a suppression order; or

(b)

a decision to renew, vary, or revoke a suppression order under section 208.

(2)

The trial court may allow the trial to which the appeal relates to commence or continue, as the case may be, even though the appeal has not been determined.

Further appeals

289 Right of appeal against determination of first appeal court

(1)

Any party to a first appeal under this subpart may, with the leave of the second appeal court, appeal to that court against the determination of the first appeal under this subpart.

(2)

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)

the appeal involves a matter of general or public importance; or

(b)

a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

290 Second appeal courts

The second appeal court for an appeal under this subpart is—

(a)

the High Court, if the appeal is against a determination of the District Court; or

(b)

either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or

(c)

the Supreme Court, if the appeal is against a determination of the Court of Appeal.

Section 290(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

291 How to commence second appeal

(1)

A party commences a second appeal under this subpart by filing a notice of application for leave to appeal in the second appeal court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

(3)

The second appeal court may, at any time, extend the time allowed for filing the notice of application for leave to appeal.

292 Interim suppression order pending determination of second appeal

(1)

This section applies if the applicant for the suppression order satisfies the first appeal court that an appeal against the court’s determination under section 287 is to be filed under section 291.

(2)

The court may make an interim order to the effect sought by the applicant.

(3)

An interim order made under subsection (2) continues in force until—

(a)

the expiry of the period specified in section 291(2) for filing a notice of application for leave to appeal; or

(b)

the appeal is finally determined, if the notice is filed within that specified period and leave is given.

293 Second appeal court to determine appeal

(1)

A second appeal court must determine a second appeal under this subpart in accordance with this section.

(2)

The second appeal court has the same powers as a first appeal court has to determine a first appeal under this subpart.

294 Determination of High Court final

Every determination of a second appeal under this subpart by the High Court is final.

295 Further appeal from determination of Court of Appeal

(1)

A party to a second appeal determined under this subpart by the Court of Appeal may, with the leave of the Supreme Court, appeal under this subpart to the Supreme Court against the determination.

(2)

The appeal may be brought only on a question of law.

(3)

Sections 291 (how to commence appeal) and 292 (interim suppression order) apply with necessary modifications.

(4)

The Supreme Court may allow an appeal only if satisfied that the determination appealed against is wrong in law.

(5)

The Supreme Court has the same powers as a first appeal court has to determine a first appeal under this subpart, subject to subsection (4).

Subpart 8—Appeals on question of law

First appeals

296 Right of appeal

(1)

This section applies if a person has been charged with an offence.

(2)

The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)

The question of law in a first appeal under this subpart must arise—

(a)

in proceedings that relate to or follow the determination of the charge; or

(b)

in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

(4)

The question of law must not be one that—

(a)

arises from a jury verdict; or

(b)

arose before the trial and has already been decided under subpart 2.

Compare: 1957 No 87 ss 78, 107; 1961 No 43 ss 380, 381A

297 First appeal courts

The first appeal court for an appeal under this subpart is—

(a)

the District Court presided over by a District Court Judge, if the appeal is against a ruling by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

(b)

the High Court, if the appeal is against a ruling by the District Court presided over by a District Court Judge, other than a ruling—

(i)

made in proceedings for a category 3 offence after the person charged elected a jury trial; or

(ii)

made in proceedings for a category 4 offence; or

(c)

either the Court of Appeal or the Supreme Court, in any other case.

Section 297(a): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 297(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

298 How to commence first appeal

(1)

A defendant or prosecutor commences a first appeal under this subpart by filing a notice of application for leave to appeal in the first appeal court.

(2)

The notice of application for leave to appeal must state the question of law on which the appeal is being taken.

(3)

A notice of application for leave to appeal must be filed within 20 working days after the date of the ruling to which the appeal relates.

(4)

The first appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

299 Power of first appeal court to amend question stated

The first appeal court may, at any time before determining an appeal under this subpart, amend or restate any question of law to be determined in the appeal if it considers it necessary or desirable to do so.

300 First appeal court to determine appeal

(1)

A first appeal court must determine a first appeal under this subpart by—

(a)

confirming the ruling appealed against; or

(b)

doing any of the following if the court considers the ruling is erroneous and, in the case of the person’s conviction or acquittal or of a direction by a court to stay the prosecution or to dismiss the charge under section 147, also resulted in a miscarriage of justice:

(i)

setting aside the conviction and entering an acquittal, if the person has been convicted; or

(ii)

directing a new trial, in any case; or

(c)

varying or substituting the sentence or remitting the sentence to the sentencing court with directions, if the decision relates to sentence and the court thinks the decision is erroneous; or

(d)

remitting the matter to the trial court in accordance with the opinion of the appeal court; or

(e)

making any other order that the court considers justice requires.

(2)

The District Court may order that a first appeal to that court be removed to the High Court, and the High Court then has the same powers under this subpart as if it were the first appeal court for the purpose of determining the appeal.

(3)

The High Court may order that a first appeal to that court be removed to the Court of Appeal, and the Court of Appeal then has the same powers under this subpart as if it were the first appeal court for the purpose of determining the appeal.

(4)

The first appeal court may give separate directions concerning each charge to which the appeal relates.

Compare: 1961 No 43 s 382

Section 300(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

301 Deferral or adjournment of trial if notice of application for leave to appeal filed

(1)

Subsection (2) applies if a notice of application for leave to appeal under this subpart is filed before the trial.

(2)

The trial must not commence before the first appeal court determines the application for leave and (if it gives leave) the question of law, unless the trial court is satisfied that it is in the interests of justice to do so and proceeds accordingly.

(3)

Subsection (4) applies if a notice of application for leave to appeal under this subpart is filed during the trial.

(4)

The trial court—

(a)

must continue with the trial if it is a jury trial, unless the court considers it in the interests of justice for the jury to be discharged:

(b)

may adjourn the trial in any other case until the first appeal court determines the application and (if it gives leave) the question of law if satisfied that the determination of the question of law may—

(i)

make the trial unnecessary; or

(ii)

have a substantial impact on the outcome of the trial; or

(iii)

substantially reduce the length of the trial; or

(iv)

answer a novel question of law that is necessary for the proper conduct of the trial.

302 How determination of appeal affects outcome of trial

(1)

This section applies if, before a first appeal is determined, the trial to which a first appeal relates proceeds and the outcome is an acquittal, a conviction, a dismissal under section 147, or a stay of prosecution.

(2)

The trial court may, if the person is convicted, postpone sentencing the person or defer the commencement of any sentence imposed until—

(a)

the first appeal court determines the application for leave to appeal or determines the question of law; or

(b)

an application for leave to make a further appeal or (if leave is given) the further appeal has been determined.

(3)

If the outcome of the trial is an acquittal or a dismissal, or the prosecution is stayed, a person is subject to being rearrested or summoned to appear if the first appeal court orders a new trial.

Compare: 1961 No 43 ss 380(4), (5), 381A(3)

Further appeals

303 Right of appeal against determination of first appeal court

(1)

A party to a first appeal under this subpart may, with the leave of the second appeal court, appeal under this subpart to that court against the determination of the first appeal.

(2)

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)

the appeal involves a matter of general or public importance; or

(b)

a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

304 Second appeal courts

The second appeal court for an appeal under this subpart is—

(a)

the High Court, if the appeal is against a determination of the District Court; or

(b)

either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or

(c)

the Supreme Court, if the appeal is against a determination of the Court of Appeal.

Section 304(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

305 How to commence second appeal

(1)

A party commences a second appeal under this subpart by filing a notice of application for leave to appeal in the second appeal court.

(2)

A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

(3)

The second appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

306 Second appeal court to determine appeal

A second appeal court must determine a second appeal by allowing the appeal or dismissing it.

307 Orders, etc, on successful second appeal

(1)

This section applies if a second appeal court allows a second appeal under this subpart.

(2)

The second appeal court may exercise any power that the first appeal court could have exercised under this subpart if it had allowed the first appeal.

308 High Court’s determination of second appeal final

Every determination of a second appeal under this subpart by the High Court is final.

309 Further appeal from determination of Court of Appeal

(1)

A party to a second appeal determined under this subpart by the Court of Appeal may, with the leave of the Supreme Court, appeal under this subpart to the Supreme Court against the determination.

(2)

The following provisions apply with the necessary modifications:

(a)

section 305 (how to commence appeal):

(b)

section 306 (appeal court to determine appeal):

(c)

section 307 (orders, etc, on successful appeal).

310 Relationship to other appeals

A defendant who appeals under this subpart against a ruling may not appeal under any other subpart of this Part against the same ruling unless the first appeal court gives the defendant leave to withdraw the appeal under this subpart and extends the time within which a notice of application for leave to appeal or a notice of appeal under any other subpart of this Part may be filed.

Compare: 1957 No 87 s 114

Subpart 9—Appeals against order under section 106(3) of Sentencing Act 2002

311 Right of appeal

(1)

A person against whom an order is made under section 106(3) of the Sentencing Act 2002 (orders that may be made on discharge of offender) may appeal under this subpart against that order.

(2)

This Part applies with all necessary modifications to an appeal under this subpart as if the order appealed against were a sentence.

Subpart 10—Appeals relating to peace bond decisions

312 Right of appeal

(1)

A person who is ordered to enter into a bond under section 367 may appeal under this subpart against that decision to the High Court.

(2)

A person whose bond is ordered to be forfeit under section 372 may appeal under this subpart against that decision to the High Court.

(3)

This Part applies as far as applicable with all necessary modifications to an appeal under subsection (1) or (2) as if the order appealed against were a costs order within the meaning of section 364.

(4)

A person who is committed to a prison under section 370 for refusing to enter into a bond or failure to obtain a surety may appeal under this subpart against that decision to the High Court.

(5)

This Part applies as far as applicable with all necessary modifications to an appeal under subsection (4) as if the order appealed against were a sentence.

Subpart 11—Solicitor-General’s references

313 Solicitor-General may refer certain questions to Court of Appeal

(1)

The Solicitor-General may, with the leave of the Court of Appeal, refer a question of law to that court under this subsection if—

(a)

the question arose in or in relation to a trial of a person in the District Court or the High Court for an offence (the criminal proceeding); and

(b)

the criminal proceeding in the District Court or High Court has ended, whether because the person tried for the offence has been acquitted or convicted, the charge has been dismissed, or the proceeding has been stayed or otherwise brought to an end.

(2)

The fact that an appeal against conviction or sentence has been filed does not prevent the Solicitor-General referring a question to that court under subsection (1).

(3)

The Solicitor-General may, with the leave of the Court of Appeal, refer a question of law to that court under this subsection if—

(a)

the question of law arose in or in relation to a defendant’s first appeal against conviction or sentence; and

(b)

the High Court was the first appeal court and it allowed the appeal, and the prosecutor has no right of appeal against that court’s determination.

Compare: Supreme Court Act 1933 s 37S (ACT); Criminal Justice Act 1972 s 36 (UK)

Section 313(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

314 Procedure for references under section 313

(1)

An application for leave under section 313(1) must be made within 60 working days after the day on which the criminal proceeding ended.

(2)

An application for leave under section 313(3) must be made within 60 working days after the date of the determination by the High Court.

(3)

The Court of Appeal may, at any time, extend the time allowed for filing the application for leave.

(4)

The Court of Appeal must, if it gives leave under section 313,—

(a)

appoint counsel to assist the court; and

(b)

deal with the reference by way of a hearing involving oral submissions; and

(c)

determine the question referred.

(5)

For the purpose of section 178 of the Senior Courts Act 2016, a hearing of a reference under section 313 must be treated as an appeal.

(6)

The Court of Appeal’s determination of a reference under section 313 does not affect anything done in any proceeding to which the reference relates by another court before the date of that determination.

Section 314(5): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

315 Rights of appeal to Supreme Court

(1)

The Solicitor-General may, with the leave of the Supreme Court, appeal to that court under this subsection against a decision of the Court of Appeal refusing to give leave under section 313.

(2)

The Solicitor-General may, with the leave of the Supreme Court, appeal to that court under this subsection against the Court of Appeal’s determination of a question of law under section 314.

316 Procedure for appeals under section 315

(1)

An application for leave under section 315(1) or (2) must be made within 30 working days after the date of the determination appealed against.

(2)

The Supreme Court may, at any time, extend the time allowed for filing the application for leave.

(3)

The Supreme Court may, on an application under section 315(1),—

(a)

refuse to give leave; or

(b)

give leave and direct that the Court of Appeal hear and determine the question as if it were a reference under section 313; or

(c)

give leave and hear and determine the question itself.

(4)

Subsection (5) applies if the Supreme Court—

(a)

gives leave to appeal under section 315(1) and decides to hear and determine the question itself; or

(b)

gives leave under section 315(2).

(5)

The Supreme Court must, if this subsection applies,—

(a)

appoint counsel to assist the court; and

(b)

deal with the appeal or reference by way of a hearing involving oral submissions; and

(c)

determine the question referred.

(6)

For the purpose of section 178 of the Senior Courts Act 2016, a hearing of a reference by the Supreme Court under this section must be treated as an appeal.

(7)

The Supreme Court’s determination of a reference under section 315 does not affect anything done in any proceeding to which the reference relates by another court before the date of that determination.

(8)

Section 314(4) to (6) apply with the necessary modifications if the Supreme Court directs the Court of Appeal to hear and determine a question.

Section 316(6): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

317 Solicitor-General may refer question to Supreme Court

The Solicitor-General may, with the leave of the Supreme Court, refer a question of law to that court under this subsection if—

(a)

the question arose in or in relation to a defendant’s first appeal against conviction or sentence; and

(b)

the Court of Appeal was the first appeal court and it allowed the appeal, and the prosecutor has no right of appeal against that court’s determination.

318 Procedure for references under section 317

(1)

An application for leave under section 317 must be made within 60 working days after the date of the determination by the Court of Appeal.

(2)

The Supreme Court may, at any time, extend the time allowed for filing the application for leave.

(3)

The Supreme Court must, if it gives leave under section 317,—

(a)

appoint counsel to assist the court; and

(b)

deal with the reference by way of a hearing involving oral submissions; and

(c)

determine the question referred.

(4)

For the purpose of section 178 of the Senior Courts Act 2016, a hearing of a reference under section 317 must be treated as an appeal.

(5)

The Supreme Court’s determination of a reference under section 317 does not affect anything done in any proceeding to which the reference relates by another court before the date of that determination.

Section 318(3): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 318(4): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

319 Power of Court of Appeal or Supreme Court to amend question referred

(1)

The Court of Appeal may, at any time before determining a question of law referred to it under this subpart, amend or restate the question if it considers it necessary or desirable to do so.

(2)

The Supreme Court has the same powers as the Court of Appeal under subsection (1) if the Supreme Court decides to determine a question referred to it under this subpart.

Subpart 12—Further provisions

Procedure for determining jurisdiction where appeals lie to different appeal courts

320 Meaning of related right of appeal

(1)

For the purpose of section 321, related right of appeal,—

(a)

in relation to a first appeal by a convicted person to the Court of Appeal against conviction or sentence, means a right of appeal to the High Court or the Supreme Court against conviction or sentence for—

(i)

an offence that arises from the same incident or series of incidents as the offence to which the appeal to the Court of Appeal relates; or

(ii)

an offence for which the convicted person was sentenced on the same occasion as that on which the sentencing court imposed the sentence to which the appeal to the Court of Appeal relates:

(b)

in relation to a first appeal by a convicted person to the Court of Appeal against conviction, means a right of appeal to the High Court or the Supreme Court against the sentence for the offence to which the appeal to the Court of Appeal relates:

(c)

in relation to a first appeal by the prosecutor to the Court of Appeal against sentence, means a right of appeal to the High Court or the Supreme Court against sentence for—

(i)

an offence that arises from the same incident or series of incidents as the offence to which the prosecutor’s appeal to the Court of Appeal relates; or

(ii)

an offence for which the convicted person was sentenced on the same occasion as that on which the sentencing court imposed the sentence to which the prosecutor’s appeal to the Court of Appeal relates:

(d)

in relation to a first appeal by the convicted person to the Court of Appeal against conviction or sentence or a first appeal by the prosecutor to the Court of Appeal against sentence, means a right of appeal to the High Court against a suppression decision made on conviction for the offence to which the convicted person’s appeal to the Court of Appeal relates.

(2)

In subsection (1)(d), suppression decision means a decision—

(a)

to make or refuse to make a suppression order within the meaning of section 282; or

(b)

to renew, vary, or revoke a suppression order under section 208.

Compare: 1961 No 43 s 384A(1)

321 Related appeals that are to be heard by Court of Appeal

(1)

This section applies if—

(a)

a convicted person appeals to the Court of Appeal against conviction under section 229:

(b)

a convicted person appeals to the Court of Appeal against sentence under section 244 or the prosecutor appeals to that court against sentence under section 246.

(2)

Appeals arising from the exercise of a related right of appeal by the convicted person or the prosecutor must be heard and determined by the Court of Appeal.

(2A)

Subsection (2) does not apply to any appeal to the Supreme Court for which the Supreme Court has given leave.

(3)

This Part applies accordingly with the necessary modifications.

Compare: 1961 No 43 s 384A

Section 321(2): replaced, on 1 July 2013, by section 13 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 321(2A): inserted, on 1 July 2013, by section 13 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Solicitor-General

322 Duty of Solicitor-General

(1)

The Solicitor-General must represent the Crown on the following appeals under this Part:

(a)

every first appeal to the Court of Appeal against conviction or sentence and every further appeal to the Supreme Court against a decision of the Court of Appeal; and

(b)

every first appeal to the Supreme Court against conviction or sentence.

(2)

The Solicitor-General must appear at every hearing involving oral submissions on the following appeals or applications for leave to appeal under this Part:

(a)

every first appeal to the Court of Appeal and every further appeal to the Supreme Court against a decision of the Court of Appeal:

(b)

every first appeal to the Supreme Court.

(3)

The Solicitor-General’s duties under this section—

(a)

may be performed by any lawyer employed or instructed by the Solicitor-General; and

(b)

do not apply in the case of a private prosecution.

Compare: 1961 No 43 s 390

Registrar of appeal court to arrange appeal

323 Duties of Registrar

(1)

The Registrar of the appeal court must take all necessary steps for obtaining a hearing of any appeal or application for leave to appeal for which notice is filed.

(2)

The Registrar of the appeal court must obtain and provide to the court all documents, exhibits, and other things that appear necessary for the proper determination of the appeal or application.

(3)

The Registrar of the appeal court must inform the parties to the appeal or application of the procedures and time frames for hearing the appeal or application.

Compare: 1961 No 43 s 392(1), (4), (6)

324 Custody of exhibits, etc

Any documents, exhibits, or other things connected with the trial of any person who, if convicted, is entitled or may be authorised to appeal against conviction or sentence—

(a)

must be kept in the custody of the trial court or appeal court, as the case may be, in accordance with any rules of court:

(b)

may be released in accordance with any rules of court.

Compare: 1961 No 43 s 392(3)

Rights of representation and attendance at hearing of appeal or application for leave to appeal

325 Right of representation at hearing

(1)

This section applies to appeals and applications for leave to appeal under this Part.

(2)

A party may be represented by a lawyer at the hearing of—

(a)

an application for leave to appeal; or

(b)

an appeal; or

(c)

proceedings preliminary or incidental to an application or appeal.

(3)

Subsection (2) is subject to section 76 of the Senior Courts Act 2016 and to section 331(3).

Compare: 1961 No 43 s 395(1)

Section 325(3): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

326 Right of attendance at hearing

(1)

This section applies to appeals and applications for leave to appeal under this Part.

(2)

A party who is in custody is not entitled to be present at a hearing involving oral submissions unless the court gives leave for him or her to be present.

(3)

However, a party who is in custody is entitled to present his or her case or argument in writing instead of by oral argument.

(4)

The power of the appeal court to impose any sentence under this Part may be exercised in the absence of a party.

Compare: 1961 No 43 s 395(1A)–(3)

How applications to be heard

327 Hearings in Court of Appeal

(1)

This section applies to the following applications under this Part to the Court of Appeal:

(a)

applications for leave to appeal:

(b)

applications to extend the time for filing an application or notice.

(2)

A Judge of the Court of Appeal, acting alone, may decide how a particular application is to be heard, but no Judge acting alone may reverse a decision of the court on how an application is to be heard.

(3)

A decision to deal with an application for leave just on the basis of written material must be in writing, be accompanied by reasons, and be provided by the Registrar to the parties.

Compare: 1961 No 43 s 393; 2003 No 53 s 15

328 Hearings in District Court or High Court

(1)

This section applies to applications for leave to appeal under this Part to the District Court or the High Court.

(2)

The court may decide whether an oral hearing of an application should be held or whether an application should be determined just on the basis of written material provided to the court.

(3)

A decision to deal with an application just on the basis of written material must be in writing, be accompanied by reasons, and be provided by the Registrar to the parties.

Compare: 2003 No 53 s 15

Section 328(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

How appeals to be heard

329 Hearings in Court of Appeal or Supreme Court

(1)

An appeal under this Part to the Court of Appeal or the Supreme Court must be dealt with by way of a hearing involving oral submissions unless the court directs that the appeal be determined just on the basis of written material.

(2)

The court may at any time direct that an appeal be determined just on the basis of written material provided to it if—

(a)

the court is satisfied that the appeal can fairly be determined on that basis, having regard to the following:

(i)

whether the parties have been assisted by counsel in preparing the appeal:

(ii)

whether the parties have been provided with copies of the relevant trial documentation:

(iii)

the gravity of the offence:

(iv)

the nature and complexity of the issues raised by the appeal:

(v)

whether evidence should be called:

(vi)

any relevant cultural or personal factors; and

(b)

either the appeal has no realistic prospect of success or should clearly be allowed.

(3)

The court may at any time direct that an appeal be determined just on the basis of written material provided to it if both parties agree that the appeal should be determined on that basis.

(4)

A Judge of the Court of Appeal, acting alone, may decide how a particular appeal is to be heard, but no Judge acting alone may reverse a decision of the court on how an appeal is to be heard.

(5)

A decision to deal with an appeal just on the basis of written material must be in writing, be accompanied by reasons, and be provided by the Registrar to the parties.

Compare: 1961 No 43 s 392A(1)–(4)

330 Hearings in District Court or High Court

An appeal under this Part to the District Court or the High Court must be dealt with by way of a hearing involving oral submissions.

Section 330: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Hearings on papers

331 Provisions about hearing on papers

(1)

This section applies to the following if they are determined just on the basis of written material before the court:

(a)

every application for leave to appeal under this Part to any appeal court:

(b)

every application under this Part to the Court of Appeal for an extension of time:

(c)

every appeal under this Part to the Court of Appeal or the Supreme Court.

(2)

The parties may make written, but not oral, submissions to the court, and may include in their submissions—

(a)

additional relevant written material; and

(b)

responses to any submissions made by the other party.

(3)

Neither the parties nor their representatives may appear before the court.

(4)

The appeal must be determined by the court on the basis of the written material before it.

(5)

The court may consider the written material before it in any manner it thinks fit.

Compare: 1961 No 43 s 392A(5), (6)

Powers exercisable by 1 or 2 appellate Judges

332 Powers exercisable by Judge of Supreme Court

(1)

A Judge of the Supreme Court may exercise, in the same manner as it may be exercised by that court and subject to the same provisions, any power of that court to—

(a)

extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(b)

allow a party to be present at any proceedings in cases where he or she is not entitled to be present without leave; or

(c)

issue a warrant for the detention of the defendant pending a new trial; or

(d)

grant bail to a party.

(2)

A party may have an application for the exercise of a power under subsection (1) decided by the court if a Judge refuses to exercise the power in favour of the party.

Compare: 1961 No 43 s 393(2), (3)

333 Powers exercisable by Judges of Court of Appeal

(1)

Any 2 or more Judges of the Court of Appeal (of whom at least 1 must hold office under section 45 of the Senior Courts Act 2016) may act as the court to determine any application for leave to appeal.

(2)

A Judge of the Court of Appeal (whether holding office under section 45 or 48 of the Senior Courts Act 2016) may exercise, in the same manner as it may be exercised by that court and subject to the same provisions, the power of that court to—

(a)

determine any application to extend the time for filing an application or notice:

(b)

allow a party to be present at any proceedings in cases where he or she is not entitled to be present without leave:

(c)

issue a warrant for the detention of the defendant pending a new trial:

(d)

grant bail to a party.

(3)

A party may have an application for the exercise of a power under subsection (2) decided by the court if a Judge refuses to exercise the power in favour of the party.

(4)

A Judge of the Court of Appeal (whether holding office under section 45 or 48 of the Senior Courts Act 2016) may make any incidental orders and give any incidental directions that he or she thinks fit, other than an order or a direction that determines the appeal or disposes of any question or issue that is before the court in the appeal.

(5)

An order or direction made or given by a Judge of the Court of Appeal under subsection (4) may be discharged or varied by the court but subsection (3) does not apply to the exercise of a power under subsection (4).

Compare: 1908 No 89 s 61A(1)–(4); 1961 No 43 s 393(2), (3)

Section 333(1): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 333(2): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 333(4): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Powers of appeal court to receive evidence, etc

334 Power to receive and hear evidence

(1)

An appeal court may require the court appealed from to provide it with—

(a)

documents, exhibits, or other things relevant to the appeal; and

(b)

a copy of notes made by the judicial officer who presided at the hearing; and

(c)

a report from the judicial officer who presided at the hearing about any matter arising at or relating to the hearing.

(2)

The appeal court may rehear the whole or any part of the evidence.

(3)

The appeal court has the same jurisdiction and authority as the court appealed from had—

(a)

to hear and receive evidence, and to require evidence to be taken before another court or Registrar; and

(b)

to make any related order or issue any related summons, warrant, or other process.

Compare: 1957 No 87 s 119(2), (3)

335 Special powers of appeal courts in appeal involving conviction, sentence, or contempt

(1)

This section applies to an appeal or application for leave to appeal under subpart 3, 4, or 5.

(2)

For the purposes of an appeal or application for leave to appeal, an appeal court may, if it thinks it necessary or expedient in the interests of justice,—

(a)

order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, whether or not they were called at the trial:

(b)

order the examination of those witnesses to be conducted before any Judge of the court or before any officer of the court or other person appointed by the court for the purpose, and allow the admission of any formal statements before the court:

(c)

receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness:

(d)

order that a question arising on the appeal be referred to a special commissioner appointed by the court if the court thinks the question involves prolonged examination of documents or accounts, or any scientific or local investigation, and cannot conveniently be conducted before the court, and act on the report of the commissioner so far as the court thinks fit to adopt it:

(e)

order the production of any document, exhibit, or other thing connected with the proceeding if the court considers that its production is necessary:

(f)

appoint any person with special expert knowledge to act as assessor to the court if the court thinks that special knowledge is required for the proper determination of the case.

(3)

Subsection (2)(a) to (d) and (f) do not apply if an appeal or application is determined just on the basis of written material before the appeal court.

Compare: 1961 No 43 s 389

Section 335(3): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

336 Powers of appeal courts

(1)

The Court of Appeal and the Supreme Court may each exercise any other powers that may for the time being be exercised by the court on appeals in civil matters.

(2)

Any appeal court may issue any warrants necessary for enforcing the orders made under section 335, and sections 162 to 164 apply to those warrants.

Abandonment

337 Abandonment of appeal by appellant

(1)

An appellant may, at any time, abandon an appeal by filing in the appeal court a notice advising that he or she—

(a)

does not intend further to prosecute the appeal; and

(b)

abandons all further proceedings concerning that appeal.

(2)

The notice must be authenticated by—

(a)

the appellant personally; or

(b)

the appellant’s lawyer.

Compare: 1957 No 87 s 129; SR 2004/199 r 39

338 Power of appeal court to dismiss appeal for non-compliance with procedural orders

(1)

Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.

(2)

Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.

(3)

The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.

(4)

A reference in any enactment other than this section to the abandonment of an appeal under this Act must, unless the context otherwise requires, be read as including a reference to a dismissal under subsection (1).

(5)

In this section, appeal includes an application for leave to appeal.

Compare: SR 2004/199 r 38(4)

339 Appeal against dismissal under section 338

(1)

An appellant may, with the leave of the relevant appeal court, appeal to that court against a dismissal of an appeal under section 338.

(2)

The relevant appeal court is—

(a)

the High Court, if the appeal is against the dismissal of an appeal under that section by the District Court; or

(b)

the Court of Appeal, if the appeal is against the dismissal of an appeal under that section by the High Court; or

(c)

the Supreme Court, if the appeal is against the dismissal of an appeal under that section by the Court of Appeal.

(3)

An appellant commences an appeal under this section by filing a notice of application for leave to appeal in the relevant appeal court.

(4)

A notice of application for leave to appeal must be filed within 20 working days after the date of the dismissal appealed against.

(5)

The relevant appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.

(6)

The relevant appeal court must determine an appeal under this section by either—

(a)

dismissing the appeal; or

(b)

allowing the appeal and remitting the matter to the court appealed from with any directions it considers appropriate.

(7)

The determination of an appeal by the relevant appeal court under this section is final.

Section 339(2)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Judgment of appeal court

340 Reasons to accompany judgment or be given later

(1)

Reasons must be given for an appeal court’s determination of an appeal or application under this Part.

(2)

The court’s reasons must accompany the court’s judgment or be given later.

(3)

However, subsection (1) does not apply to a determination—

(a)

giving leave to appeal; or

(b)

relating to a preliminary or incidental matter.

Compare: 1961 No 43 s 398; 2003 No 53 s 16(1)

341 Delivery of judgment by District Court, High Court, or Court of Appeal

(1)

This section applies to a judgment of the District Court, the High Court, or the Court of Appeal under this Part.

(2)

The court may—

(a)

deliver its judgment orally; or

(b)

reserve its judgment.

(3)

A judgment that is delivered orally is given when a Judge or Judges deliver it in open court.

(4)

A judgment that is reserved may be delivered—

(a)

in open court; or

(b)

through the Registrar.

Compare: SR 2001/371 r 33

Section 341(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

342 Judgment to be provided to parties

After an appeal or application is determined by an appeal court under this Part, the Registrar must—

(a)

send a copy of the court’s judgment to the parties as soon as is reasonably practicable; and

(b)

send a notice of the decision to the court appealed from.

Compare: 1957 No 87 s 134; 1961 No 43 s 392(7)

How appeal affects decisions under appeal

343 General effect of appeal on sentence

No sentence may be suspended just because a person files a notice of appeal or notice of an application for leave to appeal under this Part, unless—

(a)

the appeal court expressly directs that the sentence be suspended; or

(b)

an enactment provides for the sentence to be suspended in that case.

Compare: 1961 No 43 s 399(1)

344 Issue of committal order for detention of convicted person

(1)

This section applies if a notice of an appeal or notice of an application for leave to appeal is filed by either party under this Part and the convicted person has been sentenced to imprisonment under the determination to which the appeal relates.

(2)

The sentencing court must issue a committal order in the form of a warrant, writ, order, direction, or authority requiring the detention of the convicted person, despite the appeal.

(3)

However, if the convicted person is released on bail before the committal order is enforced, the order is suspended until the appeal has been determined or abandoned.

Compare: 1957 No 87 s 124(1), (2)

345 How appeal affects community-based sentences

(1)

On a conviction to which an appeal relates where the court appealed from sentenced the convicted person to community detention, community work, supervision, or intensive supervision under the Sentencing Act 2002, that sentence ceases to run on the day on which notice of appeal or of application for leave to appeal is filed.

(2)

A sentence to which subsection (1) applies, as imposed by the court appealed from or as varied by the appeal court, as the case may be, is resumed from the date on which—

(a)

the appeal is dismissed or abandoned; or

(b)

leave to appeal is refused; or

(c)

the appeal is decided, if neither the sentence nor the conviction on which it was made is set aside.

Compare: 1961 No 43 s 399(3)–(4B)

346 Registrar to notify resumption of sentence

(1)

This section applies if a sentence is resumed in accordance with section 345.

(2)

The Registrar of the appeal court must—

(a)

notify the controlling officer of the probation area in which the sentence is to be served of the date on which the sentence is to resume; and

(b)

notify the convicted person of that date if he or she is not present in court at the time the appeal is disposed of in the manner referred to in section 345.

Compare: 1957 No 87 s 137(5)

347 Reporting requirement where sentence resumed after unsuccessful or abandoned appeal

(1)

This section applies if an appeal is unsuccessful or abandoned, and the convicted person is subject to a sentence of community detention, community work, supervision, or intensive supervision under the Sentencing Act 2002.

(2)

After the sentence is resumed in accordance with section 345, the convicted person must report in accordance with the same reporting requirement that applied to him or her after that sentence was imposed by the sentencing court (as specified in section 49(1)(a), 54F(1)(a), 59(a), or 69E(1)(b) of the Sentencing Act 2002).

348 How appeal affects non-association orders

(1)

On a conviction to which an appeal relates where the court appealed from made a non-association order in respect of the convicted person, the period of non-association ceases to run on the day on which notice of appeal or of application for leave to appeal is filed.

(2)

The period of non-association as imposed by the court appealed from or as varied by the appeal court, as the case may be, resumes from the date on which—

(a)

the appeal is dismissed or abandoned; or

(b)

leave to appeal is refused; or

(c)

the appeal is decided, if neither the non-association order nor the conviction on which it was imposed is set aside.

Compare: 1961 No 43 s 399(4G), (4H)

348A How appeal affects registration orders

(1)

On a conviction to which an appeal relates where the court appealed from made a registration order under section 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 in respect of the convicted person, the reporting period ceases to run on the day on which notice of appeal or of application for leave to appeal is filed.

(2)

The reporting period resumes from the date on which—

(a)

the appeal is dismissed or abandoned; or

(b)

leave to appeal is refused; or

(c)

the appeal is decided, if neither the registration order nor the conviction on which it was imposed is set aside.

Section 348A: inserted, on 14 October 2016, by section 61 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (2016 No 42).

349 Fine recovery not to be enforced pending contempt appeal

(1)

This section applies if a person is fined for criminal contempt of court and has a right of appeal under subpart 5 against the finding of contempt.

(2)

Nothing in section 20 of the Crown Proceedings Act 1950 (which relates to the recovery of fines imposed otherwise than by judgment or conviction) applies until the time for filing notice of appeal or application for leave to appeal has expired, or, if that notice is filed, until the appeal has been determined or abandoned.

(3)

On the determination of the appeal where the decision appealed against is not set aside and the amount of the fine imposed by the court appealed from is varied by the appeal court, the amount for which final judgment may be signed under section 20 of that Act is varied accordingly.

Compare: 1961 No 43 s 399(5)

350 Successful appellant entitled to return of amount paid under sentence

An appellant who has paid a fine or other monetary amount in accordance with a sentence and is successful on an appeal under this Part relating to that sentence is entitled, subject to the order of the appeal court, to the return of the amount paid or part of the amount paid, as the case may be.

Compare: SR 2004/199 r 46

351 Detention following appeal

(1)

This section applies on—

(a)

the determination of an appeal under this Part against conviction or sentence or on a question of law:

(b)

the determination of an appeal under this Part against a finding of, or sentence for, contempt of court:

(c)

abandonment of an appeal under this Part.

(2)

If the convicted person is not in custody, a constable or officer of a prison may arrest the convicted person without warrant if, under the determination appealed against or the determination of the appeal court, the person is liable to be detained to serve a sentence of imprisonment.

(3)

If the appeal court sets aside the convicted person’s sentence of imprisonment and does not impose another sentence of imprisonment or remit the proceeding for sentence,—

(a)

the Registrar of the appeal court must send to the manager of the prison in which the person sentenced is detained or from which he or she was released on bail a notice setting out the result of the appeal; and

(b)

if that person is in the custody of the manager and is not in custody for any other matter, he or she must be released.

(4)

If the appeal court varies a sentence of imprisonment imposed by the court appealed from or amends the conviction for which a sentence of imprisonment was imposed by that court,—

(a)

(b)

the committal order for the sentence of the court appealed from has effect as if it were amended in accordance with the notice.

(5)

Subsections (2) to (4) apply to a finding of, or sentence for, contempt of court with the necessary modifications.

Compare: 1957 No 87 s 136(1)–(3)

352 Revesting and restitution of property on conviction

(1)

The operation of an order for the restitution of property to a person made on a conviction, and the operation in that case of the provisions of section 152(1) of the Contract and Commercial Law Act 2017 as to the revesting of the property in stolen goods on conviction, is suspended—

(a)

in all cases until the end of any period for filing a notice of appeal or notice of application for leave to appeal against conviction or sentence; and

(b)

if a notice of appeal against conviction or sentence is filed, until the appeal is determined or abandoned unless the court orders otherwise.

(2)

A suspension that applies to the operation of an order or of section 152(1) of the Contract and Commercial Law Act 2017 until an appeal is determined does not take effect as to the property in question if the conviction is set aside on appeal.

(3)

The court in which a conviction is entered may direct that there be no suspension under subsection (1) if it considers that the title to the property is not in dispute.

(4)

The first appeal court may set aside or vary any order made on conviction for the restitution of any property to any person, although the conviction itself is not set aside.

Compare: 1961 No 43 s 387

Section 352(1): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 352(2): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Part 7 Provisions concerning jurisdiction of District Court

Part 7 heading: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Jurisdiction of District Court presided over by District Court Judge

353 Jurisdiction of District Court Judges

(1)

Subject to section 354, the jurisdiction described in section 9(1) may be exercised by the District Court presided over by a District Court Judge.

(2)

Nothing in subsection (1) limits sections 360 to 362.

Section 353(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Jurisdiction of District Court in relation to jury trials

Heading: replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

354 Jurisdiction of District Court in relation to jury trials

(1)

This section applies if the trial of a proceeding is to be a jury trial and the level of trial court is the District Court.

(2)

Only the District Court at a place appointed under section 10(5) of the District Court Act 2016 has jurisdiction to conduct a jury trial.

(3)

Only the District Court presided over by a District Court Judge who holds a warrant under section 14 of the District Court Act 2016 to conduct jury trials has jurisdiction to conduct the jury trial or exercise any of the powers of the court under subpart 8 of Part 3 in relation to the proceeding.

Section 354: replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Jurisdiction of District Court presided over by 1 or more Justices

355 Jurisdiction of Justices

(1)

The District Court presided over by a Justice has jurisdiction in respect of an offence only if the enactment creating the offence or another enactment provides that jurisdiction may be exercised by a Justice.

(2)

The District Court presided over by 2 or more Justices has jurisdiction in respect of an offence if—

(a)

the enactment creating the offence or another enactment provides that jurisdiction may be exercised by a Justice or Justices:

(b)

the offence is an infringement offence.

(3)

The District Court presided over by a Justice or Justices does not have any jurisdiction in respect of an offence that is a continuing offence.

Compare: 1957 No 87 s 9A

Section 355(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 355(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 355(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Jurisdiction of District Court presided over by 1 or more Community Magistrates

356 Jurisdiction of Community Magistrates

(1)

The District Court presided over by 1 or more Community Magistrates has jurisdiction in respect of—

(a)

a category 1 offence in respect of which the District Court presided over by 1 or more Justices has jurisdiction under section 355(1) or (2)(a); and

(b)

a category 1 offence, if the enactment creating the offence or another enactment states that the jurisdiction may be exercised by 1 or more Community Magistrates; and

(c)

a category 1 offence punishable by a fine not exceeding $40,000 unless the offence is prescribed by regulations made under section 387; and

(d)

an infringement offence.

(2)

The District Court presided over by 1 or more Community Magistrates does not have any jurisdiction in respect of a category 1 offence that is a continuing offence.

(3)

Nothing in section 357 or 358 limits this section.

Compare: 1957 No 87 s 9B

Section 356(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 356(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 356(1)(c): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 356(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

357 Jurisdiction of Community Magistrates to impose sentence in respect of certain category 2 offences

(1)

This section applies to any category 2 offence (not being a continuing offence) in respect of which—

(a)

the maximum term of imprisonment that can be imposed does not exceed 3 months:

(b)

the sentence that can be imposed relates to an offence punishable by a community-based sentence and not punishable by a term of imprisonment.

(2)

If a person who is charged with an offence to which this section applies pleads guilty to that offence, the District Court presided over by 1 or more Community Magistrates may, in accordance with the Sentencing Act 2002, do 1 or more of the following acts:

(a)

impose, under section 32 of that Act, a sentence of reparation on the offender:

(b)

subject to section 40(3) of that Act, sentence the offender to pay a fine:

(c)

impose, under section 45 of that Act, a sentence of supervision on the offender:

(d)

impose, under section 54B of that Act, a sentence of intensive supervision on the offender:

(e)

impose, under section 55 of that Act, a sentence of community work on the offender:

(f)

impose, under section 69B of that Act, a sentence of community detention on the offender:

(g)

discharge the offender without conviction under section 106 of that Act and, if the court thinks fit, make an order under subsection (3) of that section:

(h)

discharge the offender under section 108 of that Act and, if the court thinks fit, make an order under subsection (2) of that section:

(i)

make, under section 110 of that Act, an order requiring the offender to appear for sentence if called upon to do so within a period, not exceeding 1 year commencing with the date of conviction, that the court may specify in the order:

(j)

on making an order under section 110(1) of that Act, also make an order under section 110(3) of that Act:

(k)

make, under section 112 of that Act, a non-association order in respect of the offender:

(l)

make, under section 124 of that Act, an order that disqualifies the offender from holding or obtaining a driver licence:

(m)

make, under section 128 or 129 of that Act, a confiscation order in respect of a motor vehicle:

(ma)

make, under section 129A of that Act, a confiscation and destruction order in respect of a motor vehicle:

(mb)

make, under section 129B of that Act, an order that a written caution be issued and served:

(n)

make, under section 131(2)(a) of that Act, an order that prohibits the offender from acquiring any interest in any motor vehicle within 12 months after the date of the order:

(o)

make, under section 131(3)(a) of that Act, an order that sets aside the disposition by the offender of a motor vehicle or of an interest in a motor vehicle.

(3)

The District Court presided over by 1 or more Community Magistrates may not impose on any person for any offence a sentence of imprisonment (within the meaning of section 4(1) of the Sentencing Act 2002).

(4)

The District Court presided over by 1 or more Community Magistrates does not have any jurisdiction to impose a sentence under this section in respect of a category 1 or 2 offence that is a continuing offence.

Compare: 1957 No 87 s 9C

Section 357 heading: amended, on 1 July 2013, by section 14(1) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 357(1): replaced, on 1 July 2013, by section 14(2) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 357(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 357(2)(ma): inserted, on 1 July 2013, by section 14(3) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 357(2)(mb): inserted, on 1 July 2013, by section 14(3) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 357(3): replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 357(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

358 Power to impose penalties provided for in Land Transport Act 1998

(1)

If a person who is charged with an offence to which section 357 applies pleads guilty to that offence, the District Court presided over by 1 or more Community Magistrates—

(a)

may, if that offence is an offence to which section 80 of the Land Transport Act 1998 applies, make, under that section, an order disqualifying the person from holding or obtaining a driver licence for any period that the court thinks fit, whether or not the court imposes any other penalty for the offence:

(b)

must, if that offence is a first or second offence to which section 32 of the Land Transport Act 1998 applies, make, in addition to any other penalties it may impose but subject to sections 81 and 94 of that Act, an order under section 32 of that Act disqualifying the person from holding or obtaining a driver licence for 6 months or more, unless the court, for special reasons relating to the offence, thinks fit to order otherwise:

(ba)

must, if that offence is an offence to which section 33 of the Land Transport Act 1998 applies, make, in addition to any other penalties it may impose but subject to sections 81 and 94 of that Act, an order under section 33 of that Act disqualifying the person from holding or obtaining a driver licence for 6 months or more, unless the court, for special reasons relating to the offence, thinks fit to order otherwise:

(c)

must, if that offence is an offence to which section 35 or 38 of the Land Transport Act 1998 applies, make, in addition to any other penalties it may impose but subject to sections 81 and 94 of that Act, an order under section 35 or 38 of that Act disqualifying the person from holding or obtaining a driver licence for 6 months or more, unless the court, for special reasons relating to the offence, thinks fit to order otherwise:

(d)

must, if that offence is a first or second offence to which section 56, 57A, 58, or 60 of the Land Transport Act 1998 applies, make, in addition to any other penalties it may impose but subject to sections 81 and 94 of that Act, an order under section 56, 57A, 58, or 60 of that Act disqualifying the person from holding or obtaining a driver licence for 6 months or more, unless the court, for special reasons relating to the offence, thinks fit to order otherwise:

(e)

must, if that offence is an offence to which section 57 or 57AA(3) of the Land Transport Act 1998 applies, make, in addition to any other penalties it may impose but subject to sections 81 and 94 of that Act, an order under section 57 or 57AA(3) of that Act disqualifying the person from holding or obtaining a driver licence for 3 months or more, unless the court, for special reasons relating to the offence, thinks fit to order otherwise:

(f)

may, if that offence is an offence to which section 59 of the Land Transport Act 1998 applies, make an order under that section disqualifying the person from holding or obtaining a driver licence for any period that the court thinks fit, whether or not the court imposes any other penalty for the offence:

(g)

must, if the offence is one to which section 65 of the Land Transport Act 1998 applies, make, subject to subsection (3) of that section, an order under that section requiring the person to attend an Assessment Centre and disqualifying the person from holding or obtaining a driver licence until the New Zealand Transport Agency makes an order under section 100 of that Act removing that disqualification:

(ga)

must, if the offence is a qualifying offence as described in section 65AB(1) of the Land Transport Act 1998, impose an alcohol interlock sentence:

(gb)

[Repealed]

(gc)

must, if section 65AI of the Land Transport Act 1998 applies, make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the date on which the licence is issued:

(h)

must, if the offence is one to which section 63 of the Land Transport Act 1998 applies, make, in addition to any other penalty the court may impose, and despite section 94 of that Act, an order under section 63 of that Act disqualifying the person from driving any vehicle being used in a transport service (other than a rental service) for any period exceeding 1 year but not exceeding 10 years that the court thinks fit:

(i)

must, if that offence is an offence to which section 79D of the Land Transport Act 1998 applies, make, in addition to any other penalties it may impose but subject to sections 81 and 94 of that Act, an order under section 79D of that Act disqualifying the person from holding or obtaining a transport service licence for 6 months or more, unless the court, for special reasons relating to the offence, thinks fit to order otherwise.

(2)

Nothing in this section restricts section 357 or any other duty or power of the District Court presided over by 1 or more Community Magistrates—

(a)

to disqualify any person from holding or obtaining a driver licence; or

(b)

to impose any other penalty.

Compare: 1957 No 87 s 9D

Section 358(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 358(1)(ba): inserted, on 1 July 2013, by section 15(1) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 358(1)(d): amended, on 1 July 2013, by section 15(2) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 358(1)(e): amended, on 1 July 2013, by section 15(3) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 358(1)(g): amended, on 1 July 2013, by section 15(4) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 358(1)(ga): replaced, on 1 July 2018, by section 110(1) of the Land Transport Amendment Act 2017 (2017 No 34).

Section 358(1)(gb): repealed, on 1 July 2018, by section 110(1) of the Land Transport Amendment Act 2017 (2017 No 34).

Section 358(1)(gc): inserted, on 1 July 2013, by section 15(5) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 358(1)(gc): amended, on 1 July 2018, by section 110(1) of the Land Transport Amendment Act 2017 (2017 No 34).

Section 358(1)(i): inserted, on 1 July 2013, by section 15(6) of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 358(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

359 Ancillary powers under subpart 3 of Part 5, Costs in Criminal Cases Act 1967, Sentencing Act 2002, and Land Transport Act 1998

The District Court presided over by 1 or more Community Magistrates has, in exercising any power conferred on it by section 357 or 358,—

(a)

power to make any suppression order under subpart 3 of Part 5:

(b)

power to make an order under section 4(3) of the Costs in Criminal Cases Act 1967:

(c)

all the powers and processes that a court has under the Sentencing Act 2002 or the Land Transport Act 1998 for the purpose of perfecting, or giving full effect to, any sentence imposed or order made under any of the provisions of those Acts referred to in section 357 or 358.

Compare: 1957 No 87 s 9E

Section 359: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

360 Power of Community Magistrates to decline jurisdiction

(1)

The District Court presided over by 1 or more Community Magistrates may decline jurisdiction in respect of an offence and may refer the case to the District Court presided over by a District Court Judge.

(2)

If, under subsection (1), the District Court declines jurisdiction in respect of an offence, that court must immediately adjourn the proceeding to a time and place then appointed.

(3)

The District Court to which a matter is referred under subsection (1) may complete or otherwise deal with the matter as if it had been brought before that court in the first instance.

Compare: 1957 No 87 s 9F

Section 360(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 360(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 360(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

361 Jurisdiction of Justices and Community Magistrates to take pleas

(1)

The District Court presided over by 1 or more Justices or 1 or more Community Magistrates may—

(a)

receive a plea under section 37 from a defendant charged with an offence that is not a category 4 offence:

(b)

require a plea under section 39 from a defendant charged with an offence that is not a category 4 offence.

(2)

If the defendant indicates to the court exercising the power under subsection (1) that he or she wishes to plead guilty to an offence, the defendant must be brought before a Judge to enter a plea.

(3)

Subsection (2) does not apply if—

(a)

the defendant is entering a plea in respect of any offence to which section 357(1) applies; and

(b)

the court exercising jurisdiction under subsection (1) is presided over by 1 or more Community Magistrates.

(4)

Nothing in this section applies when the District Court presided over by 1 or more Justices or 1 or more Community Magistrates is exercising jurisdiction in accordance with section 355 or 356.

Section 361: replaced, on 1 July 2013, by section 16 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 361(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 361(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

362 Jurisdiction of Justices and Community Magistrates to make and renew interim suppression orders

(1)

Nothing in this section applies when the District Court presided over by 1 or more Justices, or 1 or more Community Magistrates, is exercising—

(a)

jurisdiction in accordance with section 355 or 356; or

(b)

the power in section 359(a).

(2)

On a first appearance in court by a defendant, the District Court presided over by 1 or more Justices, or 1 or more Community Magistrates, may make a suppression order under subpart 3 of Part 5.

(3)

On a subsequent appearance in court by a defendant, the District Court presided over by 1 or more Justices, or 1 or more Community Magistrates, may make a suppression order under subpart 3 of Part 5 if both parties agree to the making of the order.

(4)

Despite section 208, a suppression order made by the District Court presided over by 1 or more Justices, or 1 or more Community Magistrates in the exercise of its jurisdiction under this section may only have effect for a limited period of up to 28 days from the date on which the order is made.

(5)

In this section, suppression order has the meaning given to it in section 194.

Section 362(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 362(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 362(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 362(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

362A Jurisdiction of Justices and Community Magistrates relating to amendment or withdrawal of charges

(1)

A presiding Justice or Community Magistrate (as the case may be) may exercise the power specified in—

(a)

section 133 (amendment of charge) if the prosecutor and the defendant consent to the amendment:

(b)

section 146 (withdrawal of charge) if the defendant consents to the prosecutor withdrawing the charge.

(2)

This section applies to category 1, 2, and 3 offences, but not to category 4 offences.

(3)

Nothing in this section applies when the District Court presided over by 1 or more Justices or 1 or more Community Magistrates is exercising jurisdiction in accordance with section 355 or 356.

Section 362A: inserted, on 1 March 2017, by section 7 of the Criminal Procedure Amendment Act 2016 (2016 No 61).

Transfer to District Court presided over by District Court Judge

363 Power to transfer matter to District Court presided over by District Court Judge

(1)

A District Court Judge may, in any case in which the District Court Judge considers it appropriate, order that any matter before the District Court presided over by 1 or more Justices or 1 or more Community Magistrates be transferred to the District Court presided over by a District Court Judge.

(2)

The District Court to which a matter is transferred under subsection (1) may complete or otherwise deal with the matter as if it had been brought before a court presided over by a District Court Judge in the first instance.

Compare: 1957 No 87 s 9G

Section 363(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 363(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Part 8 Miscellaneous and transitional provisions

Subpart 1—Costs orders and contempt

364 Costs orders

(1)

In this section,—

costs order means an order under subsection (2)

procedural failure means a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act

prosecution—

(a)

means any proceedings commenced by the filing of a charging document; but

(b)

does not include an appeal.

(2)

A court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.

(3)

The sum must be no more than is just and reasonable in the light of the costs incurred by the court, victims, witnesses, and any other person.

(4)

A costs order may be made on the court’s own motion, or on application by the defendant, the defendant’s lawyer, or the prosecutor.

(5)

Before making a costs order, the court must give the person against whom it is to be made a reasonable opportunity to be heard.

(6)

A costs order may be made even if the defendant has not yet been convicted, or is eventually discharged, or the charge is dismissed.

(7)

The court may make more than 1 costs order against the same person in the course of the same prosecution.

(8)

The court may order that some or all of the amount ordered to be paid under a costs order be paid to any person connected with the prosecution.

(9)

Subsections (2) to (8) do not limit or affect the Costs in Criminal Cases Act 1967.

Section 364(1): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

365 Contempt of court

[Repealed]

Section 365: repealed, on 1 March 2017, by section 8 of the Criminal Procedure Amendment Act 2016 (2016 No 61).

Subpart 2—Conservation of the peace

366 Application for order for bond to keep the peace

Any person may apply to the District Court presided over by a District Court Judge for an order requiring any other person to enter into a bond, either with or without sureties, for keeping the peace, on any of the following grounds:

(a)

that the applicant has cause to fear that the defendant will—

(i)

do bodily harm to the applicant or his or her wife, husband, civil union partner, or de facto partner or his or her child or any member of his or her household; or

(ii)

destroy or damage the applicant’s house; or

(iii)

procure any other person to do anything described in subparagraph (i) or (ii); or

(b)

that the defendant has, to or in the presence of the applicant for the purpose of annoyance or provocation, or to the common annoyance of members of the public,—

(i)

used provoking or insulting language; or

(ii)

exhibited any offensive writing or object; or

(iii)

done any offensive act; or

(c)

that the defendant has threatened to do, or to procure some other person to do, any act that, if done, would constitute an offence under any of the following provisions of the Crimes Act 1961:

(i)

section 188(1) (which relates to wounding with intent to do grievous bodily harm):

(ii)

section 189(2) (which relates to injuring with intent to injure):

(iii)

section 196 (which relates to common assault):

(iv)

section 267 (which relates to arson):

(v)

section 269 (which relates to intentional damage):

(vi)

section 270 (which relates to endangering transport):

(vii)

section 271 (which relates to waste or diversion of electricity, gas, or water).

Compare: 1957 No 87 s 186

Section 366: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

367 Making of order for bond

(1)

On the hearing of an application under section 366, the court may order the defendant to enter into a bond if it considers that there are good grounds to do so.

(2)

The bond—

(a)

may be either with or without sureties as the court thinks fit; and

(b)

must be in the sum or sums that the court thinks sufficient; and

(c)

is subject to the condition that, for the period specified by the court, the defendant keep the peace towards the applicant and refrain from doing the act feared or threatened or repeating the conduct complained of.

(3)

The period specified by the court for the purpose of subsection (2)(c) must not exceed 1 year from the date of the bond.

(4)

No order may be made under this section, unless—

(a)

in the case of an application under section 366(a), the court is satisfied that the applicant has just cause for his or her fear; or

(b)

in the case of an application under section 366(b), the court is of the opinion that the conduct complained of is likely to be repeated and may tend to provoke a breach of the peace; or

(c)

in the case of an application under section 366(c), the court is satisfied that there is just cause for fear that the defendant will, if not prevented, carry the threats into execution.

Compare: 1957 No 87 s 187(1), (2)

368 Form of, and entering into, bond

(1)

A bond under section 367 must be entered into by any of the parties to it before a District Court Judge, Justice, Community Magistrate, or Registrar of the District Court.

(2)

It is not necessary for all the parties to the bond to be present at the same time or place, and more than 1 copy or form of the bond may be authenticated.

(3)

The persons before whom a bond is entered into must give each of the persons entering into it before him or her a notice.

(4)

If a surety or sureties are required, the court may at any time, if it is satisfied that the defendant is unable to obtain the surety or sureties, order that the surety or, as the case may be, any or all of the sureties be dispensed with.

Compare: 1957 No 87 s 187(3), (4)

Section 368(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 368(3): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

369 Making of order for bond where person charged with offence

(1)

This section applies if—

(a)

a person is charged before the District Court presided over by a District Court Judge with an offence; and

(b)

the evidence establishes 1 or more grounds that would justify the making of an order for a bond for keeping the peace.

(2)

Whether or not the defendant is convicted of the offence and whether or not any penalty is imposed on the defendant in respect of the offence, the court may make an order under section 367 as if an application had been made under section 366.

Compare: 1957 No 87 s 188

Section 369(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

370 Refusal to enter into bond

(1)

If a defendant refuses to enter into a bond for keeping the peace when ordered or fails to obtain a surety or sureties as required by the order, the court may order that he or she be committed to a prison for any period not exceeding 2 months.

(2)

Despite subsection (1), a defendant who has failed to obtain the required surety or sureties must not be ordered to be committed to a prison if the defendant satisfies the court that he or she has taken reasonable steps to obtain them.

(3)

A defendant who has been committed to a prison must be immediately released if he or she enters into the bond, or obtains the required surety or sureties, or before the expiry of the period of his or her detention satisfies the District Court presided over by a District Court Judge that he or she has taken reasonable steps to obtain the surety or sureties.

Compare: 1957 No 87 s 189

Section 370(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

371 Persons imprisoned in default of finding sureties may be released on death of person for whose protection order made

(1)

This section applies if—

(a)

the person for whose protection the District Court has required the defendant to find a surety or sureties of the peace dies; and

(b)

the defendant is then in a prison in default of finding the surety or sureties.

(2)

The District Court presided over by a District Court Judge may, if it thinks fit, order that the defendant be released from custody without finding the surety or sureties.

Compare: 1957 No 87 s 190

Section 371(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 371(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

372 Forfeiture of bond

(1)

Any person who has obtained an order requiring any other person to enter into a bond for keeping the peace may apply to the District Court presided over by a District Court Judge for an order for forfeiture of the bond on the ground that the other person has failed to keep the condition of the bond.

(2)

On the filing of the application the Registrar must—

(a)

fix a time and place for the hearing of the application; and

(b)

not less than 5 working days before the time fixed, cause to be served on every person bound by the bond a notice of that time and place.

(3)

Subsection (4) applies if on the hearing of any application made under this section it is proved to the satisfaction of the court that the condition of the bond has not been kept.

(4)

The court may make an order that the bond is forfeit to the amount that it thinks fit as to any person bound by the bond on whom notice is proved to have been served in accordance with this section.

(5)

Any penalty payable in accordance with this section is recoverable as if it were a fine.

Compare: 1957 No 87 s 191

Section 372(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Subpart 3—Miscellaneous provisions

373 Registrar who is also constable

A Registrar who is also a constable has no jurisdiction to exercise any power or take any step in his or her capacity as a Registrar in a proceeding in which he or she has exercised any power or taken any step in his or her capacity as a constable.

374 Witnesses’ expenses

(1)

The court may order any party at whose instance a witness appears at the court to pay the costs and expenses of that witness, in accordance with regulations made under this Act.

(2)

An order under this section may be enforced in the same manner as a fine.

Compare: 1957 No 87 s 73

375 Conviction not to be recorded for infringement offences

(1)

If a defendant is found guilty of, or pleads guilty to, an infringement offence (whether or not an infringement notice has been issued), the court—

(a)

must not convict the defendant; but

(b)

may order the defendant to pay any fine and costs and may make any other order that the court would be authorised to order or make on convicting the defendant of that offence.

(2)

Every reference in this or any other Act, or in any regulation or bylaw, to a conviction for an offence is, in relation to an infringement offence, deemed to be a reference to—

(a)

an order that the defendant pay a fine and costs under subsection (1)(b); or

(b)

a deemed order that the defendant pay a fine and costs under section 21(5) or (5A) of the Summary Proceedings Act 1957.

(3)

However, sections 229, 244, and 246 do not apply to any deemed order that the defendant pay a fine and costs under section 21(5) or (5A) of the Summary Proceedings Act 1957.

(4)

Subsection (1) overrides any other provision of this Act or any other Act.

Compare: 1957 No 87 s 78A

376 Person sentenced, etc, deemed to be convicted

Except as otherwise ordered by the court or as specifically provided under any other provision of this Act, if a court proceeds to sentence a defendant or make an order under section 108 or 110 of the Sentencing Act 2002 but does not make an order convicting the defendant, the defendant is deemed to be convicted.

377 Restitution of property

(1)

If a person is convicted of an offence, any property found in his or her possession, or in the possession of any other person for him or her, may be ordered by the court to be delivered to the person who appears to the court to be entitled to it.

(2)

If an order is made under subsection (1), and it appears to the court that a purchaser has bought the property in good faith and without knowledge that it was dishonestly obtained, the court may order that on the restitution of the property the offender must pay to the purchaser a sum not exceeding the amount paid by the purchaser.

(3)

If, on the arrest of the offender, any money was taken from him or her, the court may in its discretion order the whole or any part of the money to be applied to any payment required to be made under subsection (2).

(4)

An order for payment under subsection (2) may be enforced in the same manner as a fine.

(5)

An order for payment under subsection (2) does not affect the right of any person to recover by civil proceedings any sum in excess of the amount received under the order.

(6)

If a person is convicted of having stolen or dishonestly obtained any property, and it appears to the court that the property has been pawned to a pawnbroker, the court may order the pawnbroker to deliver it to the person appearing to the court to be entitled to it, either on payment or without payment to the pawnbroker of the amount of the loan or any part of the loan, as the court in all the circumstances of the case considers just.

(7)

Before an order is made for the delivery of the property without payment to the pawnbroker under subsection (6), the pawnbroker must be given an opportunity to be heard.

(8)

If a person in whose favour any order under subsection (6) is made, by that order, obtains the property, that person may not afterwards question the validity of the pawn.

(9)

Except as provided in subsection (8), an order made under this section—

(a)

has no further effect than to change the possession; and

(b)

does not prejudice any right of property, or any right of action in respect of any property, existing or acquired in the goods either before or after the offence was committed.

Compare: 1961 No 43 s 404

378 Who may take affidavit

An affidavit required for the purposes of this Act may be sworn or affirmed before any judicial officer or Registrar or before any lawyer not engaged in the proceedings.

Compare: 1957 No 87 s 202

379 Proceedings not to be questioned for want of form

No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.

Compare: 1957 No 87 s 204

380 Proceedings not invalid because defendant should have been dealt with in Youth Court

(1)

This section applies if—

(a)

section 177(1) applies; or

(b)

the defendant—

(i)

is convicted of a category 3 offence punishable by a term of imprisonment exceeding 3 years; and

(ii)

did not elect a jury trial.

(2)

No conviction or order or other process or proceeding is invalid by reason only that at the time the defendant was convicted the defendant should by reason of his or her age have been dealt with in the Youth Court.

(3)

On the application of either party, a retrial of the charge may be granted under section 177.

(4)

If, at the time appointed for the retrial, the defendant is still a child or young person within the meaning of the Oranga Tamariki Act 1989, the court must remit the proceedings to the Youth Court to be dealt with in that court.

Section 380: replaced, on 1 July 2013, by section 17 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 380(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 380(4): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 380(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

381 Payment of fees, fines, etc

(1)

Section 208 of the Summary Proceedings Act 1957 applies to all fees, fines, reparation, costs, and other money payable on any proceedings commenced by the filing of a charging document.

(2)

Section 364 and this section override every enactment other than the Diplomatic Privileges and Immunities Act 1968 and the Consular Privileges and Immunities Act 1971 (whether passed before or after the commencement of this section) having the effect of granting people of any description, or the holders of stated offices or positions, protection or immunity from criminal or civil liability (or both).

382 Payment and recovery of fees

(1)

All prescribed fees must be paid in the first instance by the party on whose behalf any proceedings are taken.

(2)

Subject to subsection (4), no judicial officer or Registrar may do any act for which a prescribed fee is payable unless the fee is first paid.

(3)

No act referred to in subsection (2), if done without the prescribed fee being first paid, is invalid by reason only of the non-payment of the fee.

(4)

Except as provided in regulations made under this Act, no fee is payable by any of the following persons in respect of proceedings instituted by that person in the execution of his or her duty:

(a)

a constable:

(b)

a duly appointed officer or employee of the Crown or of any local authority or other statutory public body or board.

(5)

In default of the payment of any prescribed fees by the person by whom they are payable in the first instance, the amount is recoverable as a debt due to the Crown.

(6)

[Repealed]

(7)

[Repealed]

Compare: 1957 No 87 s 207

Section 382(6): repealed (without coming into force), on 1 July 2013, by section 18 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 382(7): repealed (without coming into force), on 1 July 2013, by section 18 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

383 Enforcement of fines

(1)

If the District Court imposes 1 or more fines, Part 3 of the Summary Proceedings Act 1957 applies.

(2)

If the High Court imposes 1 or more fines, section 19 of the Crimes Act 1961 applies.

(3)

In this section and section 384, fine has the meaning given to it in section 79 of the Summary Proceedings Act 1957.

Compare: 1947 No 16 s 28I

Section 383(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

384 Enforcement of fines imposed or varied by appeal court

(1)

If an appeal court (within the meaning of section 212) imposes or varies a fine, the fine is enforceable in accordance with subsection (2) or (3).

(2)

If the court that imposed the sentence or made the decision or order under appeal was the District Court, Part 3 of the Summary Proceedings Act 1957 applies.

(3)

In any other case, section 19 of the Crimes Act 1961 applies.

385 Application of section 168 during epidemic

(1)

While an epidemic management notice is in force, section 168 has effect as if the reference in subsection (3) to the earliest opportunity is a reference to the earliest opportunity that is reasonable in the circumstances.

(2)

If the notice applies to only stated parts of New Zealand, subsection (1) applies within those parts only.

(3)

In this section,—

epidemic management notice means a notice under section 8(1) of the Epidemic Preparedness Act 2006 stating that the application of this Act is modified in order to deal with the practical effects of the outbreak of the disease referred to in the notice.

Compare: 1957 No 87 s 46AC

385A Judge or Registrar may waive certain fees

A Judge or Registrar may, subject to any terms or conditions that the Judge or Registrar thinks fit, waive the payment of a fee prescribed under section 387 for accessing documents (in whole or in part) if the Judge or Registrar is satisfied that the person is unable, or should not be required, to pay the fee.

Section 385A: inserted, on 1 July 2013, by section 19 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Rules and regulations

386 Rules

(1)

The power to make rules of court under section 148 of the Senior Courts Act 2016 and section 228(1) of the District Court Act 2016 includes the power to make rules regulating the practice and procedure of courts in the exercise of jurisdiction conferred by this Act.

(2)

Without limiting the generality of subsection (1), rules made in accordance with that subsection may—

(a)

prescribe the manner in which applications and notices or notifications may be made or given (including whether orally or in writing), and the manner in which they may be responded to:

(b)

prescribe the manner in which charging documents, applications, notices, and other documents are to be filed:

(c)

prescribe the manner in which charging documents, summons, warrants, applications, notices, and other documents are to be authenticated (including by signature or any other means):

(d)

prescribe the manner in which summons, warrants, notices, and other documents are to be issued by a court, a Registrar, or any other person:

(e)

prescribe information that must be contained in charging documents, summons, warrants, applications, notices, and other documents to be filed, made, or given:

(f)

prescribe forms for charging documents, applications, summons, warrants, notices, and other documents, or other requirements relating to the form or presentation of documents:

(g)

prescribe other information that may be required in connection with proceedings to which this Act applies and any requirements relating to the form and presentation of that information:

(h)

require the service of any summons, application, or other document:

(i)

prescribe who has responsibility for serving any summons, application, or other document:

(j)

prescribe who may, on behalf of a person responsible under the Act or by rules as described in paragraph (i), serve any summons, application, notice, or other document:

(k)

prescribe the procedure for the service of summonses, notices, and other documents:

(l)

prescribe the manner of proving service:

(m)

prescribe requirements relating to the custody of documents, exhibits, and other things connected with proceedings to which this Act applies:

(n)

prescribe periods, or minimum or maximum periods, within which, or times or stages in the proceedings before or after which, steps required or permitted by the Act or the rules must, or must not, be taken:

(o)

prescribe circumstances in which a judicial officer may grant leave for applications or any other matter to be made or done later than a time prescribed in the rules:

(p)

impose duties on Registrars, and prescribe the manner in which Registrars must carry out any action for the purposes of this Act:

(q)

prescribe procedures relating to the delivery of judgments and other decisions in proceedings to which this Act applies:

(r)

prescribe the manner in which proceedings are to be transferred between courts:

(s)

provide for the translation of documents into the Māori language and into sign language:

(t)

prescribe matters relating to the permanent court record, including—

(i)

the formal steps in a proceeding that must be recorded:

(ii)

the manner in which the permanent court record must be maintained:

(iii)

who may discharge courts’ obligations to maintain the permanent court record:

(iv)

procedures for ensuring the accuracy of the permanent court record:

(v)

procedures for correcting the permanent court record:

(u)

prescribe the manner in which a record of oral evidence is to be authenticated:

(v)

provide for the establishment, form, and maintenance of registers of notices of appeal and judgments, and provide for the registers to be available for inspection by members of the public in accordance with the rules:

(w)

provide for any other matters in respect of which rules are contemplated by this Act.

(3)

Without limiting the generality of subsection (1), rules made in accordance with that subsection may provide for the use of electronic technology in relation to any matter described in subsection (2).

(4)

Rules made in accordance with subsection (1) may—

(a)

apply generally or only to a particular class of prosecutor or defendant, category of offence, class of document, or other matter or thing:

(b)

apply differently to different classes of prosecutor or defendant, categories of offence, or classes of document, or on any other differential basis.

(5)

Rules made in accordance with subsection (1) may regulate the practice and procedure in proceedings under this Act in the Supreme Court, the Court of Appeal, the High Court, and the District Court (including the practice and procedure for appeals).

Compare: 1957 No 87 s 212

Section 386(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 386(1): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 386(5): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

387 Regulations

(1)

The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

(a)

providing that proceedings with specified features, or in relation to particular offences, or particular categories or classes of offence, are Crown prosecutions for the purposes of subpart 2 of Part 5:

(b)

prescribing, for the purpose of section 187(1), the time or stage in a proceeding at which the Solicitor-General must assume responsibility for a Crown prosecution, and regulations under this paragraph may prescribe different times or stages for the assumption of that responsibility in different classes of proceeding:

(c)

prescribing periods for the purposes of sections 190, 191, and 192:

(d)

prescribing, for the purposes of sections 73 and 74, different or alternative places of trial from those specified in sections 73(4) and 74(4):

(e)

prescribing the court fees to be paid in respect of any proceedings or any processes to which this Act applies:

(f)

prescribing the fees, travelling allowances, and expenses payable to interpreters and to persons giving evidence in proceedings to which this Act applies:

(g)

prescribing the solicitors’ fees payable by parties in proceedings to which this Act applies:

(h)

providing for information about proceedings under this Act to be transferred between courts, where that information is relevant to proceedings under the Domestic Violence Act 1995, the Harassment Act 1997, or the Victims’ Orders Against Violent Offenders Act 2014, including (without limitation) provision for such information to be transferred between—

(i)

different courts; or

(ii)

different divisions of the same court; or

(iii)

courts exercising civil jurisdiction and courts exercising criminal jurisdiction; or

(iv)

courts exercising original jurisdiction and courts exercising appellate jurisdiction:

(i)

amending Schedule 1 by adding offences to, or removing offences from, that schedule:

(j)

prescribing transitional arrangements for the trial and sentencing of persons charged with offences that are added to or removed from Schedule 1:

(k)

prescribing offences for the purposes of section 356(1):

(l)

providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

(2)

Regulations made under subsection (1)(e) or (f) may—

(a)

prescribe different fees in respect of different classes of prosecutor or defendant or categories of offence, or on any other differential basis:

(b)

prescribe different fees in respect of a matter depending on whether electronic or other means are used in a particular circumstance.

(3)

[Repealed]

(4)

[Repealed]

(5)

Regulations made under subsection (1)(k) must not be made without the concurrence of the Chief Justice and the Chief District Court Judge.

See secondary legislation made under this Act (if published on this website)

Compare: 1957 No 87 s 212

Section 387(1)(d): amended, on 1 July 2013, by section 24 of the Criminal Procedure Amendment Act 2013 (2013 No 25).

Section 387(1)(h): amended, on 30 December 2014, by section 29(2) of the Victims’ Orders Against Violent Offenders Act 2014 (2014 No 45).

Section 387(3): repealed, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

Section 387(4): repealed, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

387A Regulations under section 387(1)(i) or (j) are confirmable instruments

The explanatory note of regulations made under section 387(1)(i) or (j) must indicate that—

(a)

they are a confirmable instrument under section 47B of the Legislation Act 2012; and

(b)

they are revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and

(c)

the stated time is the applicable deadline under section 47C(1)(a) or (b) of that Act.

Section 387A: inserted, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

Subpart 4—Transitional and savings provisions

Transitional provisions regarding sentence indications

388 Application of provisions regarding sentence indications to existing proceedings

The provisions specified in section 2(1)(b) apply to any proceeding commenced before the commencement of those provisions if the trial, or summary hearing at which the charge will be determined, has not begun.

389 Transitional provision regarding terminology in relation to sentence indication provisions

(1)

This section applies if an Order in Council is made under

List of access keys

Criminal Procedure Act 2011

Criminal Procedure Act 2011

Note

Contents

1 Title

2 Commencement

(a)

(b)

(c)

(d)

(e)

Part 1 Preliminary provisions

3 Purpose

(a)

(b)

4 Overview

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(l)

(m)

(n)

(o)

(p)

(q)

(r)

(s)

(t)

(u)

(i)

(ii)

(v)

(w)

(i)

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

(viii)

(x)

(y)

(z)

(za)

5 Interpretation

(a)

(b)

(a)

(b)

(a)

(b)

(c)

(a)

(b)

(i)

(ii)

(iii)

(iv)

(v)

(vi)

(a)

(b)

(a)

(b)

(a)

(b)

(c)

(a)

(b)

(c)