Criminal and Traffic Offences

Detailed instructions from the client are fundamental. Taking full instructions on the simplest plea should rarely take less than half an hour. The same applies to bail applications. If there is no time to take proper instructions at the first interview, a second appointment with the client should ...

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Sometimes a client will contact a lawyer from the police station having either just been arrested and exercised their right to make a phone call in the presence of a police officer, or having attended voluntarily to be questioned.

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Criminal matters should always be the subject of a formal engagement and the client entering into a costs agreement. Many practitioners charge a flat fee for pleas of guilty. This does not mean that a formal retainer and costs agreement is not required. The first or second conference with the ...

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Bail can be granted by police after the initial arrest or by the court, either when the accused first appears or at any later stage during the proceedings. Rights, obligations, and the basis for any bail application are contained in the Bail Act 2000.

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Detailed instructions are required on a bail application. It is critical to be able to answer questions from the bench as to the client’s:

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When attending court for a bail application, the lawyer should take the following steps:

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Attend to the client If bail is refused, the lawyer will speak to the client in custody, discuss the application and the court’s comments, get instructions, and give advice as to the merits of a review. They will advise what steps can and should be taken next, both procedurally and substantively, ...

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When a defendant pleads guilty or is found guilty, the onus falls on them to satisfy the court why bail should be granted pending sentencing: s 13 of the Bail Act 2000. The court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of ...

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The critical documents are the summons, if there is one, the charging document which gives the basic details of the alleged offences, and the summary of facts, which contains a brief description of the alleged offending behaviour. There will also be a list of any previous convictions. The ...

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A full written statement needs to be obtained, along with formal proof of evidence from the client about the facts and circumstances of the charge. This document is not for the court or prosecution. It is only for the lawyer’s file and for counsel, if applicable. The proof of evidence protects the ...

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The lawyer should establish and maintain a good rapport with defence witnesses whenever possible. They can be crucial to the client’s case, and an important part of the lawyer’s job is to prepare the witnesses and keep them happy and compliant. It should be made as easy as possible for a witness to ...

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If the matter is at a District Court with which the lawyer is not familiar, or where they have not appeared for some time, basic preparations can save time and trouble on the day. It is sensible for both the lawyer and their client to determine exactly where the court is, the best way to get there, ...

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Under the Criminal Procedure Act 2011 all charges fall into 4 categories:

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There are specific procedures and time frames under the Criminal Procedure Rules 2012, but they are all, in practice, subject to the availability of the court. There is a backlog of cases and there are generally too many set down to strictly adhere to the timeframes. Rule 1.7(1) allows the ...

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Commencement The client will be brought before the court to answer a summons or a warrant, in either case supported by a charging document.

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At the first court appearance, the defendant will be given the initial disclosure comprising the charging document, the summary of facts, and a list of any previous convictions. Together, this constitutes the initial disclosure as set out in s 12 of the Criminal Disclosure Act 2008. At the ...

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If the defendant has no previous convictions and is facing charges that are relatively minor, it is appropriate to seek a remand without plea at the first appearance and ask the prosecutor to have the matter considered for the police Adult Diversion Scheme, known simply as Diversion. According to ...

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If the defendant had not entered any plea at the first appearance, the court may require the defendant to plead to the charge at the second appearance if the court is satisfied that the defendant was given initial disclosure at the first appearance: s 39 of the Criminal Procedure Act 2011. ...

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Before the case review hearing, defence counsel and the prosecutor need to have a case management meeting, and jointly complete a case management meeting memorandum containing the information required under s 56 of the Criminal Procedure Act 2011. This document must be filed at court no later ...

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At some courts, there may be the opportunity for the client to become involved in an intervention program through the Specialist Criminal Courts. These are designed to deal with certain cases in a more rehabilitation-focused way. They include:

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Although protection orders are issued in the Family Court, breaching a protection order becomes a criminal matter and is dealt with in the District Court. Breaches of protection orders in the domestic violence context are often coupled with other criminal charges, for example, assault on a person ...

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An early plea of guilty is a very important mitigating factor. The rationale behind an early guilty plea discount is that it does away with the need for witnesses to come to court and saves the court’s time and resources. The maximum discount available for an early guilty plea is 25%, according to ...

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Section 27 allows an offender to request that the court hear anyone called by the offender to speak on the offender’s personal, family, whanau, community, and cultural background, and how that background may have related to the commission of the offence. While the section provides for oral ...

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If the client wishes to rely on their good character, testimonials should be handed up. The client should be advised about the potential benefit of obtaining references and given the Court Reference Information Sheet to read and pass on to their referees.

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A willingness to make compensation, pay reparation, or otherwise make amends to a victim of an offence is an indication of the client’s contrition and remorse, and a factor to be taken into account by the court under s 10 of the Sentencing Act 2002. The lawyer can address this with the client ...

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The community magistrate or judge may require a pre-sentence report, also called a Provision of Advice to Courts (PAC) report. These are provided for under s 26 of the Sentencing Act 2002. This will include information about the client, the offending behaviour, and the appropriate sentencing ...

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An important issue relevant to sentencing, particularly for drug and alcohol offences, is the client’s prospects of rehabilitation. Section 7(1)(h) of the Sentencing Act 2002 states that one of the purposes of sentencing is to assist in the offender’s rehabilitation and reintegration. ...

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Sentencing is always based on the charge document, summary of facts and the list of any previous convictions. These are handed up to the court on a guilty plea being entered. It is critically important that the summary of facts is agreed between the parties before the guilty plea is entered. If ...

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If the defendant pleads not guilty and elects a jury trial and the matter is not resolved at the Crown Case Review Hearing, it is adjourned for a jury trial callover no later than 40 working days after the Crown Case Review Hearing: r 4.3 of the Criminal Procedure Rules 2012. If a police ...

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Charge negotiations with the prosecution can be entered into if:

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Once the matter is listed for a judge-alone trial, the lawyer will need to consider the evidence required to support the client’s case and attend to interviewing witnesses and issuing summons. The initial review of the matter and the formulation of the case theory should have identified the ...

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A full written statement needs to be obtained, along with formal proof of evidence from the client about the facts and circumstances of the charge. This document is not for the court or prosecution. It is only for the lawyer’s file and for counsel, if applicable. The proof of evidence protects the ...

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A summons to a witness is issued by the court at the request of the prosecution or defence under s 159 of the Criminal Procedure Act 2011. Requests can be emailed to the court: witness.summons@justice.govt.nz. The summons needs to be served personally on the witness.

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The lawyer should establish and maintain a good rapport with defence witnesses whenever possible. They can be crucial to the client’s case, and an important part of the lawyer’s job is to prepare the witnesses and keep them happy and compliant. It should be made as easy as possible for a witness to ...

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It is always a good idea to speak to the prosecutor before the trial starts. The lawyer can phone them from about 8 am or see them just before court to find out if all the prosecution witnesses are available and if they are ready to proceed. There may be some last-minute plea negotiation ...

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The prosecution case normally commences with an application seeking an order excluding all witnesses, meaning that they leave the courtroom until they are called to give evidence. It is standard practice for the police officer in charge to be exempt and permitted to remain, even if they are not the ...

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At the end of the prosecution evidence, a submission can be made that the defendant has no case to answer: s 147(4)(b) of the Criminal Procedure Act 2011. This is a question of law and requires the judge to consider whether all elements of the offence have been made out on the evidence. It may ...

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After the close of the Crown case and any no case to answer submissions, the defence can then call evidence. If the client is giving evidence, they should be called first. If not, they must wait outside while other witnesses give evidence, or there could be a submission by the prosecution that the ...

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At the close of the defence case the parties each make submissions on the law. The prosecutor submits first and then the defence. If the judge allows, the parties may make submissions on the facts and the evidence: s 105(4) of the Criminal Procedure Act 2011. The judge will then either make ...

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The Costs in Criminal Cases Act 1967 governs any costs applications in the criminal jurisdiction. Costs applications in criminal cases are very difficult and rarely pursued.

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The hierarchy of sentences and orders are set out in s 10A. From the least restrictive to the most restrictive they are:

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Sentences are reduced for early pleas of guilty. See Discounts on sentence for early pleas of guilty. There are various mitigating factors listed in s 9(2) of the Sentencing Act 2002 which can reduce the severity of a sentence, at the sentencing court’s discretion. The court must consider:

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Section 8(g) requires the court to impose the least restrictive sentencing outcome that is appropriate in the circumstances. Section 16 requires the court to:

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Community detention Community detention works in a very similar way to home detention in the sense that it requires a residential address to which the offender is bound to while wearing an electronic monitoring bracelet. However, community detention applies only to night-time curfews, whereas home ...

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Procedures for appeals are outlined in Part 6 of the Criminal Procedure Act 2011. A first appeal is of right. If the decision being appealed against was made by the justices of the peace or a community magistrate, the first appeal is heard by a District Court Judge.

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A second or subsequent appeal is available to the High Court under s 238, but only with leave. A Notice of Application for Leave to Appeal, form MOJ9016, must be filed within 20 working days of the sentence for the conviction being appealed against.

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An application for bail pending an appeal can be made to the same court that convicted or sentenced the client. The onus is on the client to show cause why bail should be granted. The court must be satisfied on the balance of probabilities that it would be in the interest of justice in the ...

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The lawyer’s role and retainer do not end when submissions on sentence are completed, nor when sentence is passed. It is important to explain the outcome to the client – most lay people can sit in court and listen to a judicial officer give a short ex tempore decision on sentence and then go ...

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