Prep prosecution Flashcards
What are the 2 primary purposes of diversion?
- Rehabilitation - to prevent re-offending & encourage them to reflect on harm done to victim.
- Reparation - payment of money, apology letter, repair damage done to property, make donation to approved charity group.
What are the 3 secondary purposes of diversion?
- Encourage offender to take responsibility for actions and show remorse
- Eliminate factors that put them at risk of reoffending
- Avoid their first conviction and give them another chance
Can you offer diversion if you have insufficient to charge?
• diversion is not an option if there is insufficient evidence to proceed with charge.
What happens if defendant does not complete diversion?
- If a charge has been laid and offender does not complete diversion, the charge can still proceed.
- If offender reoffends while on diversion, they may no longer be suitable.
When is diversion appropriate?
• Entered a guilty plea but have not been convicted
• Not entered a plea, but have acknowledged guilt and accepted full responsibility by admitting and showing remorse.
• First time offender, so they can avoid conviction
• In some cases it may be appropriate to offer diversion to persons with previous youth convictions, past convictions or previous diversion when:
1. Current offending is caused by underlying problem likely to respond to counselling.
2. Direct or indirect consequences of conviction would be out of proportion to the seriousness of the offence.
3. The offender’s previous court outcomes were over five years ago
• Summary offences or indictable offences that are triable summarily.
• Traffic offences laid as a TON, such as careless, reckless.
When is diversion not appropriate?
- Recidivist offender
- Offender who received diversion for similar offence in the past - except in exceptional circumstances
- For a contested traffic infringement - as they are not admitting guilt or responsibility.
- For a serious offence - unless circumstances and harm are at the bottom end of the scale
- For purely indictable offences
- All offences carrying a warning under the 3 strikes legislation
- EBA offences
What must diversion conditions be? (3)
Conditions must be Proportionate, Achievable and Appropriate to the offence.
Can children and young persons be dealt with through the adult diversion scheme?
• CYP under 17 who are offenders should be dealt with under the CYPF Act 1989
What are some aggravating factors, that may prevent offender from getting diversion
- Offence was calculated and deliberate
- Carried out by group
- Against a public servant
- Offender was ringleader
- Conviction likely to result in significant penalty
- Weapon or violence used
- Abused position of trust
- Victim vulnerable
- Refuses to identify cooffenders
- High prevalence of offence.
- On bail, other charges pending
- Previously received diversion for the same type of offence
- 3 strike offence
Mitigating factors for diversion
- Arrest and time in custody sufficient deterrent
- Misjudgement, coercion, vulnerable
- Remorseful
- Was ignorant to the law
- Was provoked by victim
- mental or physical illness
- genuine mistake or misunderstanding
- Conviction likely to result in nominal penalty
What is the Criminal Records Act 2004 “clean slate?”
• Individuals with less serious convictions who have been conviction free for (in most cases) at least seven years, to put their past behind them.
Which drug offences are/aren’t eligible for diversion?
Do not consider for Class A or B, however may consider for small amount of cannabis oil (B), needles, utensils, or cultivating cannabis (C)
Under the evidence act 2006, what is a ‘witness’?
EVIDENCE ACT 2006 S.4
• ‘Witness’ means a person who gives evidence and is able to be cross-examined in a proceeding .
Define a ‘child complainant’:
Child complainant, in relation to any proceeding means a complainant who is a child when the proceeding commences.
What can judge do, on his own initiative or application of either party, in terms of giving evidence (S.103 Evidence Act)?
• In any proceeding the judge may, either of application of a party or on judges own initiative, direct witness to give evidence in chief and be cross examined in the ordinary way or in an alternative way as provided by S.105
What must the JUDGE have regard to?
- Fairness in the proceeding and that there is a fair trial,
- Need to minimise stress on witness and need to promote recovery of complainant of offence.
Who does this apply to (give evidence in alternate way)
- age
- Disability, mental or physical
- Trauma (of the event).
- Linguistic or cultural barrier,
- Nature of proceeding or evidence to be given
- relationship of witness to offender,
- Absence from NZ
What must PROSECUTOR do, if person is giving evidence in an alternative way?
Must apply to court for direction on how child complainant give evidence
Under S.105 Evidence Act, what alternative ways can evidence be given?
- Witness in courtroom is unable to see defendant (Def can see witness unless judge directs otherwise in exceptional circumstances) “screening”.
- From an appropriate place outside the courtroom
- By a video record made before the hearing (in this case judge must give direction under s.103 as to manner of cross examination and re-examination of witness).
What does S.90 Evidence Act allow a witness to do before giving evidence
• S.90 Evidence Act - witness may refresh their memory from any signed statement made by them before giving evidence and entering court room. (Includes Police)
What must you advise witnesses in the courtroom?w
Must advise them not to talk to other witnesses about their evidence while waiting
Under S.168 Summary Proceedings Act, when must the prosecutor file formal written statements
• Must be filed together with exhibits referred to in the statements, no later than 42 days after:
- The date the defendant elects trial by jury
- If the information is laid indictably, the date on which the def fist appears in court in relation to that information.
What is a ‘formal written statement’
- Purports to be signed by person making statement
* Contains statement at end “everything is true and correct…”
If statement is made by person under 18, what must it contain
They must state how old they are in the statement
In regards to formal statements If person cannot read what should you do
• If person can’t read, read it to them, get them to sign it. Then attach signed statement to that statement stating person appeared to understand its contents.
Who can apply for an oral evidence order?
Either party (Defence or Prosecution) may apply to DC judge for order allowing oral examination at a committal hearing
