Criminal Law - Sem 1 2022

Question 1

Definition of Crime

Answer 1

The Crimes Act 1961 does not have a definition for the word crime (in fact they use the word ‘offence’ everywhere except the title)

Question 2

What makes conduct criminal?

Answer 2

Nullum crimen sine lege, nullum poena sine lege - there is no crime without law, there is no punishment without law (people can only be charged and punished based on written legislation, so that it is accessible)

Question 3

Why does Parliament chose criminal sanctions?

Answer 3

Principled and unprincipled reasons

Question 4

Principled reasons for parliament choosing criminal sanctions

Answer 4

• Royal prerogative - the royal right to make laws that protect those who can’t protect themselves (this right is passed to Parliament from the GG from the Monarch)
• Emil Durkheim’s social contract theory - the theory that we have to take into account other peoples with our behaviour by imposing crimes that protect others (if a law isn’t enforced with punishment, it gives the idea it is something society doesn’t care about - crime and punishment reaffirm that society cares)

Question 5

Substantive differences between criminal and civil proceedings

Answer 5

• Criminal proceedings usually have a broader societal impact - there is a need to have punishment for certain actions to show to society that they aren’t okay
• Show to society that there is a right and wrong decision that can be made with our free will, and that the wrong one can be punishable

Question 6

Procedural differences between criminal and civil proceedings

Answer 6

• Criminal trials are public, with the state proceedings against individuals. Civil trials are private, with one private individual proceeding against another (this is because is represents that criminal trials are on wider societal issues)
• Criminal trials do not have the option of plea bargaining/settling in New Zealand, civil trials do
• The state in criminal trial exacts penalties as punishment for an action to show that the behaviour is wrong, which goes further than civil which is merely to put the person back in their previous position

Question 7

Definition of Offence

Answer 7

A violation or beach of a law, custom or rule, including a public wrong or crime

Question 8

Definition of Charge

Answer 8

A criminal accusation against any person

Question 9

Definition of a Charging Document

Answer 9

The paper on which is entered the charge intended to be brought before a District Court Judge

Question 10

Definition of an Accused person

Answer 10

A person formally charged with conduct in respect of which a penalty may be imposed

Question 11

Definition of a Defendant

Answer 11

A person charged with an offence. A person is charged when the enforcement officer formally advises them of the intention to commence a prosecution and the particulars of the proposed charge

Question 12

Definition of an Appellant and Respondent

Answer 12

An appeal as a complaint to a superior court of an injustice or error committed by an inferior court. The party complaining is styled the appellant and the other party the respondent

Question 13

Definition of a Summary Offence

Answer 13

Less serious offences that can dealt with in a summary or immediate way by a judicial officer. Summary offences are mainly set out in the Summary Offences Act 1981

Question 14

Definition of an Indictment

Answer 14

A written accusation that a person has committed a certain crime or indictable offence. The term indictable offence has been abolished by the Criminal Procedures Act 2011.

Question 15

Definition of Indictable Offence

Answer 15

The name formally given to more serious offences, mainly set out in the Crimes Act 1961, which can or must be tried by a more formal process than by summary process.

Question 16

Burden/onus of proof stages

Answer 16

1. The prosecution has the burden of bringing evidence which prima facie proves the elements of the offence (legal burden/onus) (Wilmington v DPP, s 25 NZBORA innocent until proven guilty)
2. The defence has then has the burden to introduce sufficient evidence that a defence is in play to rebut the presumption that no defences exist (evidential burden)
3. If the evidential burden is satisfied by the defence, the prosecution has the legal burden to disprove the elements of the defence

Question 17

Standard of proof

Answer 17

Element must be satisfied “beyond a reasonable doubt” (R v Harbour) - if you have any doubts that are beyond reasonable (eg. not just minor doubts) you cannot convict

Question 18

What the defence can do in the liability hearing

Answer 18

• Raise doubts about evidence introduced by the prosecution to argue the element is not met
• Or introduce further evidence which raises doubts as to whether the element is not met

Question 19

The New Zealand criminal law system today?

Answer 19

A Western, mono-cultural system, although things are slowly adapting to include more tikanga

Question 20

Timeline of New Zealand Crime Legislation

Answer 20

1858 - English Laws Act (laws of England as of 1840 became laws of New Zealand - England bringing there criminal law to New Zealand
1893 Criminal Code Act (the first sign of change in New Zealand, adopting the British Stephen’s Code)
1908 Crimes Act (the first New Zealand written crimes legislation)
1961 Crimes Act (current New Zealand legislation)

Question 21

s9 Crimes Act 1961

Answer 21

Criminal offences are not punishable in New Zealand unless they are under New Zealand Acts (not British Acts and not common law)

Question 22

s10A Crimes Act 1961

Answer 22

Presumption against retroactive legislation

Question 23

R v Mason

Answer 23

Confirms that New Zealand’s criminal system is mono-cultural (and that if the Court agreed to Mason’s request for the hearing with a tikanga system, practical question would be raised)

Question 24

Influences of Tikanga on criminal law

Answer 24

• Alcohol and Drug Treatment Court (a route after conviction but before sentencing to offer rehabilitation, moves away from Western court structures and includes Tikanga values, looking at the root of the problem to prevent re offending)
• Matariki Court (cultural rehabilitation to connect the offender to their culture, make them feel more apart of society, and reduce re offending)
• DC Te Ao Marama Approach - incorporating tikanga, plain language, finding the cause of the offending, use of cultural speakers - to find more appropriate sentences
• Peter Ellis decision - that his appeal would continue even after his death because of tikanga; the reputation of ancestors is even more important to protect
• Projects to change the LLB programme to include more tikanga and te ao Māori, so that graduating students are more equipped for the changing, adapting system