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1

Bail Act

Consideration of just cause for continued detention

The court must take into account whether there is a risk that the defendant:

S8(1) Bail Act 2000

(a) whether there is a risk that -
(I). The defendant may fail to appear in court
(ii). The Defendant may interfere with witnesses or evidence or,
(iii) the Defendant may offend while on bail; and
(b) any matter that would make it unjust to detain the defendant.

2

Bail Act

Consideration of just cause for continued detention

Factors relating to just cause for continued detention:

S8(2) Bail Act 2000

- Nature and seriousness of offence
- Seriousness and severity of punishment
- Strength of evidence and probability of conviction

- Character and conduct of the offender
- History of offending on bail or breaching orders
- Likely length of time before trial

- Any other matter that is relevant

3

Bail Act

Of note

(4) When considering an application for bail, the court must take into account any views of a victim of an offence of a kind referred to in section 29 of the Victims’ Rights Act 2002, or of a parent or legal guardian of a victim of that kind, conveyed in accordance with section 30 of that Act.

(4A) When considering an application for bail, the court must not take into account the fact that the defendant has provided, or may provide, information relating to the investigation or prosecution of any offence, including any offence committed or alleged to have been committed by the defendant.

(4B) However, despite subsection (4A), the court may take into account the cooperation by the defendant with authorities in the investigation or prosecution of any offence if that cooperation is relevant to the court’s assessment of the risk that the defendant will fail to appear in court, interfere with witnesses or evidence, or offend while on bail.

4

Bail Act

In deciding, in relation to a defendant charged with an offence against section 49 of the Domestic Violence Act 1995, whether or not to grant bail to the defendant or allow the defendant to go at large, the court’s paramount consideration is:

Bail Act 2000 S8(5)

The need to protect the victim of the alleged offence.

5

Oranga Tamariki Act

Warrant to remove child or young person

S40 Oranga Tamariki Act 1989

May obtain warrant if reasonable grounds to believe that the child or young person is—
(a) suffering, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation, or serious harm; or
(b) so seriously disturbed as to be likely—
(i) to act in a manner harmful to the child or young person or any other person; or
(ii) to cause serious damage to property,—

Of note

May enter and search, by force if necessary, either—
(i) remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive; or
(ii) where the child or young person is in a hospital, direct the medical superintendent of that hospital to keep that child or young person in that hospital.

6

Oranga Tamariki Act

Search without warrant

S42 Oranga Tamariki Act 1989

Police have RGTB it is critically necessary to remove the child to prevent injury or death. May enter without warrant.

Of note

(a) enter and search, by force if necessary,
(b) remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive.

7

Oranga Tamariki Act

Arrest of child or young person without warrant

S214 Oranga Tamariki Act 1989

WEEP

Only arrest child or young person if satisfied on reasonable grounds for the purpose of:

preventing interference with Witnesses
Ensure appearance at court
prevent loss or destruction of Evidence
Prevent further offending

Of note

Does not apply for 14 year and above offences

8

Oranga Tamariki Act

Child or young person to be informed of rights before questioned by enforcement officer

When a CYP must be given rights:

S215/216/217 Oranga Tamariki Act 1989

SADBAD

- Where there are reasonable grounds to SUSPECT CYP committed offence

- On ARRESTING CYP

- DURING question, officer forms RGTS CYP has committed an offence

- BEFORE questioning CYP to obtain admission

- When a CYP ASKS about their rights - only rights inquired about need to be explained

- During questioning officer DECIDES to charge CYP

1 hour timeframe

9

Oranga Tamariki Act

When explaining rights to CYP, explanations should be given........

S218 Oranga Tamariki Act 1989

Explanations to be given in manner and language appropriate to age and level of understanding of child or young person

10

Oranga Tamariki Act

Who can be Nominated Persons

S222(1) Oranga Tamariki Act 1989

(1) Persons who may be nominated:

a) A parent or guardian of the child or young person
b) An adult member of the family, whanau, or family group of the child or young person;
c) Any other adult selected by the child or young person
d) if the child or young person refuses or fails to nominate any person, an enforcement officer can nominate a person (not an enforcement officer)

11

Oranga Tamariki Act

When can an enforcement officer refuse nominated person:

S222(2) Oranga Tamariki Act 1989

An enforcement officer believes on reasonable grounds that any person nominated by a child or young person if:

a) would attempt or likely to attempt to pervert course of justice

b) cannot with reasonable diligence be located, or will not be available within a period of time.

12

Criminal Disclosure Act

Form of Disclosure

S10(4) Criminal Disclosure Act 2008

Disclosure may be supplied in whatever form, including electronically, that the person disclosing the information holds it in at the time of the request, provided this will be readily accessible to the defendant.

Of note

Consideration must be given to whether a defendant has 'ready' access to a computer with which to access electronic disclosure documents, particularly if remanded in prison.

13

Criminal Disclosure Act

Full Disclosure

The prosecutor must disclose to the defendant full disclosure as soon as is reasonably practicable after a defendant has pleaded not guilty.

The information referred to is:

S13 Criminal Disclosure Act 2008

(1) The information referred to is:

- any relevant information, including, without limitation, standard information.
- a list of any relevant information that the prosecutor refuses, and reasons for doing so.

(2) Standard information includes
- Witness statement
- Witness brief of evidence
- Reports from any expert witnesses
- List of exhibits

14

Evidence Act

Relevance

Fundamental principle that relevant evidence admissible

S7 Evidence Act 2006

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Of note

Whereas irrelevant facts will always be inadmissible, relevant facts are not always admissible. For facts to be received in evidence, they must be both relevant and admissible.

15

Evidence Act

General Exclusion Provision

(Section 8 Test)

S8 Evidence Act 2006

It is to the first type of unfairness that the general exclusion provision in S8 is directed:

(Section 8 Test)
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

Of note

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

16

Evidence Act

Previous Consistent Statement Rule

S35 Evidence Act 2006

(1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3) A previous statement of a witness that is consistent with the witness's evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.

17

Evidence Act

Evidence of sexual experience of complainants in sexual cases

S44 Evidence Act 2006

(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

Of note

Judge can only give permission if satisfied it is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.

18

Evidence Act

Admissibility of visual identification evidence

Formal requirements for obtaining visual identification evidence:

S45 Evidence Act 2006

- It is observed as soon as practicable after the alleged offence

- The suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect; and

- No indication is given to the person making the identification as to who among the persons in the procedure is the suspect; and

- The person making the identification is informed that the suspect may or may not be among the persons in the procedure;

- A written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

- A pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

- Complies with any further requirements provided for in regulations made under section 201.

19

Evidence Act

Privacy as to Witnesses Precise Address

S87 Evidence Act 2006

(1) In any proceeding, the precise particulars of a witness's address (for example, details of the street and number) may not, without the permission of the Judge, be—

(a) the subject of any question to a witness or included in any evidence given; or

(b) included in any statement or remark made by a witness, lawyer, officer of the court, or any other person.

Of note

Judge can only give permission if satisfied it is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.

20

Evidence Act

Restriction on Disclosure of Complainants Occupation in Sexual Cases

S88 Evidence Act 2006

(1) In a sexual case, except with the permission of the Judge,—

(a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant's occupation; and

(b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant's occupation.

Of note

Judge can only give permission if satisfied it is of sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of justice.

21

Evidence Act

Corroboration

S121 Evidence Act 2006

(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).

Of note

(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to—
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.

22

Victims Rights Act

Specified offence defined

In this Act, a specified offence is:

S29 Victims Rights Act 2002

- an offence of a sexual nature
- an offence of serious assault
- an offence that has resulted in serious injury to a person, in the death of a person, or in a person becoming incapable
- an offence of another kind, and that has led to the victim having ongoing fears, on reasonable grounds,—
(i) for his or her physical safety or security; or
(ii) for the physical safety or security of 1 or more members of his or her immediate family.

23

Victims Rights Act

Victim’s views about release on bail of accused or offender

The prosecutor must:

S30 Victims Rights Act 2002

- Make all reasonable efforts to ascertain the victims vies on bail
- Inform the court of these views

24

Victims Rights Act

Giving information to victims

S31 Victims Rights Act 2002

Police to give victims of specified offences information about right to ask for notice and to appoint representative

25

Victims Rights Act

Police to give Secretary information about victims of specified offences:

S32 Victims Rights Act 2002

- The name of
(i) the victim; and
(ii) the victim’s representative (if any); and

- The address of
(i) the victim; or
(ii) the victim’s representative.

26

Oranga Tamariki Act

Child or young person to be informed of rights before questioned by enforcement officer

Every enforcement officer shall, before questioning any child or young person whom there are reasonable grounds to suspect of having committed an offence, or before asking any child or young person any question intended to obtain an admission of an offence,

explain to that child or young person—

S215 Oranga Tamariki Act 1989

- that they may be arrested if, by refusing to give their name and address, so they cannot be served with a summons; and

- that they are not obliged to accompany you to any place for the purpose of being questioned, and that if they consent to do so, they may withdraw that consent at any time; and

- that they are under no obligation to make or give any statement; and that if the child or young person consents to make or give a statement, the child or young person may withdraw that consent at any time; and

- that any statement made or given may be used in evidence in any proceedings; and

- that they are entitled to consult with, and make or give any statement in the presence of, a lawyer and/or nominated person.