Crim process

Core tension in criminal procedure?

Effective law enforcement v individual rights (NZBORA ss 21–27) | Stages: investigation → arrest and charge → trial → sentencing.

Eyewitness ID – s 45 Evidence Act two pathways?

(1) Formal procedure followed OR good reason not to → admissible unless D proves unreliable on balance of probabilities (2) No formal procedure AND no good reason → inadmissible unless prosecution proves BRD the ID is reliable.

Formal ID procedure safeguards?

As soon as practicable | suspect compared with at least 7 similar-looking people | no hints | witness told suspect may not be present | sworn certified pictorial record to judge and defendant, not jury.

Good reasons for not holding a formal ID procedure?

Suspect refuses and no true likeness | appearance too distinctive | appearance changed substantially | ID not reasonably expected to be disputed | ID shortly after the offence during initial investigation | ID after a chance meeting.

s 126 Evidence Act – judicial warning?

Where a jury case depends wholly or substantially on visual/voice ID, judge must warn of the special need for caution – a mistaken witness may be convincing and multiple witnesses may all be mistaken.

Test for a 'search' (Hamed v R)?

Police activity invades a reasonable expectation of privacy: (1) subjective expectation of privacy? (2) objectively reasonable to society? | NZBORA s 21 protects against unreasonable search or seizure.

Warrant preference rule – s 6 Search and Surveillance Act?

Default: obtain a warrant – (1) reasonable grounds to SUSPECT an imprisonable offence has been/is being/will be committed (2) reasonable grounds to BELIEVE evidential material will be found at the place (higher).

Warrantless search powers?

(1) Drugs – s 20 SSA (warrant impracticable, drugs present, immediate search to stop evidence destroyed) (2) incidental to lawful arrest (phone needs grounds to believe evidence) (3) free, informed consent (4) plain view while exercising a lawful power (5) other – preventing offences, risk to life, arms | Reported to Commissioner; unlawful evidence may be excluded (not automatic).

Arrest – definition and statutory rules?

Restrains liberty to bring someone before a court (no contact needed) | NZBORA s 22 – no arbitrary arrest; s 23(2) – charged promptly or released | Crimes Act s 315 – warrantless arrest for disturbing the peace or imprisonable offence, or good cause to suspect (objective) | s 39 – necessary force.

Police caution (Practice Note 2007) – when + content?

When police have sufficient evidence to charge OR want to question in custody | Right to silence; right to consult a lawyer without delay and in private (free legal assistance scheme); anything said recorded and may be evidence | Not suggest answering compulsory; repeat on arrest.

Challenging statements – Evidence Act grounds?

Unreliability (s 28) – prosecution proves on balance of probabilities circumstances unlikely to affect reliability | Oppression (s 29) – prove BRD oppression didn't influence | Improperly obtained (s 30) | Address false confessions (Teina Pora).

s 30 Evidence Act – improperly obtained evidence?

(1) Judge decides on balance of probabilities whether improperly obtained (breach/unfairness) (2) balances whether exclusion proportionate, considering an effective and credible justice system – if proportionate, exclusion mandatory | Factors: right breached, deliberateness/bad faith, quality, seriousness, alternatives, danger, urgency.

Prosecution Guidelines – two tests for charging?

(1) Evidential – sufficient evidence to prove BRD (admissibility, credibility, reliability, defences) (2) Public interest – does it require prosecution? (seriousness, culpability, suspect's circumstances, victim) | Sufficient evidence alone doesn't compel prosecution.

Charge selection, plea arrangements, diversion?

Charges reflect seriousness and give a basis for sentence | Pleas: charges reduced for guilty plea – must serve justice; never inflate charges | Diversion: needs evidential test met, discretionary, refusal reviewable; Te Pae Oranga.

Bail – NZBORA s 24(b) and Bail Act s 7?

Entitled to release on reasonable terms unless just cause for detention (Stack v Boyle) | Bail as of right (s 7): non-imprisonable or max < 3 years (excl ss 194, 194A assaults).

Bail Act s 8(1) and s 8(2)?

s 8(1) mandatory: risk of failing to appear; interfering with witnesses/evidence; offending on bail; any matter making detention unjust | s 8(2) may consider: seriousness, strength of evidence, likely sentence, prior bail breaches, delay, defence preparation | ss 10, 12 – reversed onus for repeat/on-bail offending.

Criminal Disclosure Act s 8?

Prosecution must disclose all 'relevant information' – anything that 'tends to support or rebut, or has a material bearing on, the case' incl material helping the defence; ongoing | Withholding on specified grounds (informers, safety) can be challenged | Risks: Alan Hall (miscarriage), Bublitz (delay).

Evidence Act s 7, s 8, ss 40/43?

s 7 relevance – tends to prove/disprove something material | s 8 – exclude where probative value outweighed by unfair prejudice or needless prolongation | Propensity (ss 40, 43) – prosecution propensity evidence admissible only if probative value outweighs unfair prejudice; no 'bad person = guilty'.

Mode of trial – rules?

Adversarial | D can elect jury for offences with max ≥ 2 years (NZBORA s 24(e)); murder/manslaughter must be jury | Prosecution may seek judge-alone for long complex cases (max < 14 yrs) or juror intimidation | Jury of 12, no reasons, 11:1 majority possible.

Burden and standard of proof?

Burden on prosecution (limited reverse onuses); presumption of innocence (NZBORA s 25(c)) | BRD – fact-finder must be sure; probable not enough; absolute certainty unnecessary (Wanhalla).

Trial stages + key sections?

Openings (s 107 CPA) → examination-in-chief (open questions) → cross-examination (put conflicting version – s 92 Evidence Act) → re-examination (new matters need leave – s 97) → closings (Crown first, defence last) → summing up / question trail.

Appeals – s 232 CPA?

Unreasonable verdict or miscarriage of justice (real risk outcome affected OR unfair trial/nullity) | Criminal Cases Review Commission | new science (Ellis) | compensation discretionary.

Sentencing Act ss 7, 8, 9?

s 7 purposes (accountability, reparation, denunciation, deterrence, protection, rehabilitation – unranked) | s 8 principles (gravity, culpability, consistency, least restrictive outcome) | s 9 aggravating/mitigating factors (voluntary intoxication NOT mitigating).

Sentencing method?

Step 1: starting point on offending only | Step 2: offender factors – guilty plea up to 25%, youth 10–30%, uplifts | Stand back – just overall (Moses) | Totality for multiple offences.

s 10A hierarchy + s 106?

Least → most restrictive: discharge/come up for sentence; fine and reparation; community work/supervision; intensive supervision/community detention; home detention; imprisonment | s 106 discharge without conviction = acquittal.

Home detention, parole, murder sentences?

Home detention: end sentence ≤ 2 yrs (discretionary) | Parole: < 2 yrs release at half; ≥ 2 yrs eligible at one-third | Murder: life unless manifestly unjust, min 10 yrs non-parole; aggravated 17 yrs; s 86 minimum terms.