Legislation Flashcards
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.
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
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.
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.
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.
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.
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
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
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
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)
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.
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.
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
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.
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.