FAQ

You need to urgently contact a lawyer when you have been accused or charged with committing a crime. Also contact a lawyer when the Police request to question you, as it is often better to be accompanied by a lawyer. You must also urgently contact a lawyer should members of the police conduct themselves in an irregular or unlawful manner.
You also have the right to defend yourself without a lawyer, but this is not advisable.

If you have been charged with a crime, a lawyer can:

Attempt to secure your release from custody as soon as possible;
Work to get the charges against you dropped or lowered;
Interview police, interested parties, and any possible witnesses to expose any lies or exaggeration;.
Make sure no evidence was obtained against you illegally;
Attend an identity-parade to ensure the correctness thereof;
Conduct a thorough pre-trial investigation;
Employ a private investigator, ballistics expert or any other experts that may be able to help strengthen your defence;
Appear on your behalf at trial or instruct an advocate to appear on your behalf at trial;

Take all the necessary steps to make sure you face the minimum possible penalties.

Any arrested person has the right to remain silent and not to implicate himself. In most cases, it is not advisable to say anything to the police. If a statement to the police can resolve any misunderstanding or show your innocence, a lawyer should make those representations on your behalf.
It is not advisable to sign anything except your written explanation of rights normally presented to all arrested persons.
When arrested, the police are entitled to:

take your finger-prints, palm-prints or foot-prints or may cause any such prints to be taken;
arrange an identity parade- you must insist on the presence of a legal representative;
take such steps in order to ascertain whether your body has any mark, characteristic or distinguishing feature or show any condition or appearance;
take a photograph of you;
take you to a doctor to have your blood drawn.
You must provide the police with your full name, address and date of birth if asked.
Refusing to provide those details will usually result in arrest.

The best is to check with the local Police Stations. Phone them and speak to the watch house staff.

A lawyer can arrange with the investigating officer for an arrested person, charged with any offence such as those listed below, to be released on bail by the police at any time before his or her first appearance in court.
Police can set bail for most crimes such as:
Common assault
Theft (such as shoplifting)
Possession of cannabis
Drunken driving
Reckless or dangerous driving.

In some situations where the charge faced is very serious police bail is not possible.

In these situations you will be taken to the district court and be seen by the judge.

Your first option is to conduct your own defence.

This is not recommended. A person not legally trained will not know how criminal procedure works. He will not know, for example, how to cross-examine, object to inadmissible evidence tendered by the state or how to present his own evidence.

If you can’t afford the services of a lawyer, you can approach Ministry of Justice- Legal Aid for assistance.

You will be asked to explain your financial position, in what is called the ‘means test.’ In the event that you pass the ‘means test’, they will appoint a lawyer to represent you for your entire case.

In the event that a person does not qualify in terms of the ‘means test’, he/she can appeal the refusal of Legal Aid by providing reasons why the refusal will lead to “a substantial injustice.”

Lawyers appointed pursuant to legal aid will not undertake after-hour work on behalf of an accused, such as after-hour bail applications. For that you will require the services of a privately hired criminal defence lawyer.

In addition to the Right to a Lawyer, the accused has further rights. These rights are extremely important and should always be invoked. They include:

  • The Right to a Fair, Public and Speedy trial.
  • The Right to be presumed innocent unless proven guilty beyond reasonable doubt by the court.
  • The Right against Self- Incrimination. This means he is entitled to remain silent and not to provide evidence that can be used against him. An accused may, however, testify on his own behalf.
  • The Right to Confront Witnesses. An individual has the right to question and cross-examine every witness that testifies against him in trial.
  • The Right to Adduce Evidence. An accused may present his/her evidence to the court or to call forth all witnesses and evidence that could favourably determine the outcome of the case.

Every lawyer decides on how much his/her fees will be for particular types of work. It is important to come to an agreement about the fees before the lawyer starts the work. Most lawyers require a deposit prior to doing any legal work on your behalf. 
There are a number of ways lawyers structure their fees for representing you in a criminal case:

Hourly Fee:

The lawyer charges per hour, regardless of what work was done. Your lawyer must disclose to you upfront what his hourly fee is.

Day Fee:

The lawyer may quote a specific fee for every time the matter is postponed, and another fee for each day of your trial or bail application, irrespective of the number of hours spend waiting at court for your case to be heard.

Global Fee:

The lawyer may give you an option of quoting you a single fee for finalizing the entire case on your behalf. This could exclude, for example, a bail application and the possible appeal process that may follow. The above will normally exclude other costs and provisional payments that your lawyer may make on your behalf. Lawyers’ fees are obviously higher, and carry a surcharge, for doing work outside of normal court hours or on weekends and public holidays.

Reducing Your Legal Costs and Expenses

If you have discussed the basis and nature of legal fees and costs with your lawyer, you have taken the necessary first step to control your legal expenses. There are, however, a few things you can do during the course of the matter to help you manage the overall fees and costs:

Get Organized. During your initial interview, bring as much information as you can and share it with your lawyer. If you have already appeared in court, make sure you know your case number and the dates of your previous and next appearances in court. Write down the questions that you want your lawyer to answer. This could help cut down the time that the lawyer will spend investigating the case and gathering information.

Be Thorough. Tell your lawyer all the facts. Do not assume that your lawyer knows them all. In order to present your case efficiently, it will help your lawyer to know as much as possible about your case.  All your information ought to be kept in confidence.

Be Efficient. Try to be as concise as possible.

You need to discuss the case with your lawyer and prepare for meetings. You are probably the primary source of information about your case. If something new happens, you should inform your lawyer. It may change the approach the lawyer takes with the case, saving you and your lawyer time and money.

Examine your Bill. Make sure that your bill does not contain costs or expenses beyond those you agreed to pay.

No. You can only be arrested if you have ignored a summons to appear in court, and as a result a warrant had been issued by a magistrate for your arrest.

You cannot be arrested simply because you have “unpaid tickets.”

A notification that was sent to you through the post is not a legally served summons. For a summons to be properly served, it will must been served upon an accused or a person over 16 years of age at his or her home or place of work.

This summons must indicate a specific court and a date on which one is to appear. Take note that a fine issued to you in person by a police officer usually already indicates the date you must appear in court, and is a legally served summons.
You are entitled to ask for a copy of the warrant of arrest or written authorisation by a magistrate or peace officer.

If the police officer making an arrest refuses or cannot provide you with a copy of the summons immediately, the arrest and subsequent detention is unlawful, even if there turns out to be a valid warrant.

The unlawfulness of the arrest and detention of the arrestee will not necessarily affect the liability of the accused for the relevant traffic offence or failure to appear in court.

When any person had been unlawfully arrested and detained, they may have a claim for compensation against the state for damages suffered.

Persons arrested by police officers should be taken immediately to a Police station or the court that issued the warrant.

Traffic officers are not allowed to lock a person up at the roadside while they carry on with their roadblock, and they may not take a person to a bank teller to draw cash to pay the “fines”.

The only purpose of an arrest is to bring a person before a court for that person to be prosecuted. It is not to be used as a method to harass or frighten members of the public for them to pay their traffic fines.

Check points are generally established to detect offences pursuant to the Land Transport Act. In particular drink Driving and driving Whilst Disqualified.

If you are the driver of a motor vehicle, then you must;
-stop if requested,
-Provide the police officer with your details if requested. (Name, address and date of birth).
-Blow into the device and provide a sample of your breath if requested.

There is no device available in New Zealand to detect driving under the influence of drugs. A doctor is required for this.

In limited situation, the police can search you or your vehicle without warrant.

These situations may include police searching for drugs or stolen property. The police however need reasonable grounds.
Eg. The vehicle may smell of cannabis or the driver looks rather wasted.

Do not consent to any search. Advise the police officer “I do not consent to this search” Ask the police officer “What is your lawful basis for searching me” and ensure that the police officer records it in his notebook.

The Land Transport Act provides that no person shall refuse that a specimen of blood or a specimen of breath be taken of him or her. Refusal is a statutory criminal offence, bearing a maximum sentence equal to that prescribed for the offence of driving with a blood alcohol level which is above the legal limit.
The Land Transport Act stipulates that police officers must take an arrested person to a registered medical practitioner for blood to be drawn.

Every person‘s right to unlawful search and seizure is protected by the Bill of Rights Act.
This is not an absolute right, and can be limited in some circumstances.
As a general rule, a person (this includes his house or car) may only be searched when a warrant had been issued granting a police official the authority to do so. Such a warrant may be issued by a judicial officer (such as a registrar or judge, when it has been shown under oath that good grounds exists to suspect that an illegal object will be found on a person or premises.
A police official may search a person or premises without a warrant if he is of the opinion that in any specific instance he would be able to obtain a warrant, but because of the circumstances there is not enough time to obtain one.
It is important to note that when a woman’s person is a searched, the search must be conducted by a female police officer, or if unavailable another woman requested by the police.

No. Because a search of a person’s property is an invasion of privacy, the police may in normal circumstances only act in accordance with the authorisation granted by a search warrant. A valid search warrant must be detailed with regards to:

Who may execute the warrant;
Where may be searched; (Location)
What articles may be seized.
The validity of a search warrant must be examined keeping in mind the high value placed on the subject’s right to privacy and property.
The terms of a search warrant are to be construed with reasonable strictness, and it should ordinarily be read on the terms in which it is expressed.
A police officer executing a search warrant must, after such execution, upon demand of any affected person, hand to him a copy of the warrant, and a list of any property seized.
In the event that a person is charged on the strength of evidence illegally found without a warrant or with a faulty warrant, a court has a discretion to still allow the evidence to be used if it is in the interest of justice. Normally a court will not exclude evidence merely because of a formal defect on a warrant.
It is also important to note that a search warrant may only be executed during the day, unless night execution is expressly authorised on the warrant.

A police officer, who may lawfully search any person or any premises, may use force as may be reasonably necessary to overcome any resistance, provided that he must first audibly demand entry to the premises and declare the purpose for which he seeks to enter such premises.

The force that may be used includes the breaking of any door or window of such premises.

The police officer does not have to first demand entry and give the reason therefore if he reasonably believes that an article which is the subject of the search may be destroyed or disposed of if he complies with those requirements.

A search of any person or premises must be conducted with strict regard to decency and order.

A police must perform his duty in a manner that is reasonable in the circumstances.

Where the police official is authorised by law to use force, he or she may use only the minimum force which is reasonable in the circumstances.

Arrest, by definition, constitutes a serious restriction of the individual’s freedom of movement, and can also affect his dignity and privacy. Because an accused person, before conviction, ought to be treated as far as possible as being innocent, arrest should be effected only where it is likely that a summons or written notice to appear would be ineffective.

The law must protect suspects as much as possible against unlawful arrest, while not hampering the effective investigation and prevention of crime.

Normally, the police needs a warrant to arrest a person. Listed here are some of the circumstances where an arrest may be effected without a warrant:

When a person commits or attempts to commit a crime in the police official’s presence;
Where the police official entertains a reasonable suspicion that the person he is arresting has committed one of a list of more serious offences. Amongst these offences are murder, public violence, robbery, rape, housebreaking and arson;
Any person who wilfully obstructs a police official in the execution of his duty;

When a police official is convinced the person has escaped or attempted to escape from lawful custody;
When a person found in possession of property reasonably suspected to have been stolen or acquired by dishonest means.
Where an arrest without warrant is effected by a police officer and is not permissible, the arrestee might lawfully resist or flee. Moreover, such arrest might form the basis of a civil action for damages.

The mere fact that a person’s rights were not brought to his attention, does not automatically result in the dismissal of the charges. If the fact that an accused does not know his rights renders his trial unfair or negatively impacts on the administration of justice, he can be acquitted at trial.
Here follows some examples where courts have ruled a trial to be unfair:
Where a suspect was not informed of his right to remain silent and not to incriminate himself, and he points out to the police where he hid stolen goods, he may be acquitted at trial because he has a right not to incriminate himself.

Where an accused was not informed of his right to legal representation and right to apply for legal aid, and was subsequently convicted after conducting his own defence

In criminal law, mens rea – the Latin term for “guilty mind” – is usually one of the necessary elements of a crime the state needs to prove to secure a conviction.
The test of criminal liability is usually expressed in the Latin phrase actus non facit reum nisi mens sit rea, which means that “the act does not make a person guilty unless the mind is also guilty”. The concept is often also simply expressed as “Fault”.
The state must prove, amongst other things, the unlawful conduct of the accused accompanied by some level of mens rea to secure a conviction.
Criminal law does not usually apply to a person who has acted with the absence of mental fault; this is a general rule.

There are different types of mens rea, organised into two categories:
Intention (dolus)

An accused is at fault where he intentionally commits unlawful conduct knowing it to be unlawful.
It does not matter whether it was his direct intention. Even if his main objective was something else, while he knew that the unlawful consequence would follow, he possesses the necessary intention.
It is also enough where the accused foresees the possibility of the unlawful consequence, but still recklessly continues with his conduct.
What is required is a purposefully chosen course of action. It has to do with the accused’s state of mind.

Negligence (culpa)

Simply put, when a person does not act like the reasonable person would have in the same circumstances, he was negligent.
The test can be summarised as follows:
Would the reasonable person, in the same circumstances as the accused, have foreseen the reasonable possibility of the occurrence of the consequence?

Would the reasonable person have taken steps to guard against that possibility?

Did the accused fail to take steps to guard against it?

If all the above questions were answered yes, the accused was negligent.
Which one of these (intention or negligence) needs to be proved by the state, depends on the specific crime.
Murder is a crime of intention, where culpable homicide is a crime of negligence.
Let’s say, for example, a person is the driver of a car which collides with a pedestrian, thereby killing the pedestrian. If the court finds that the accused intended to kill the pedestrian, the accused would be convicted of murder.
If, on the other hand, the court finds that the accused wasn’t paying enough attention to the road and the reasonable person would have avoided the collision (thereby being negligent), he would be convicted of culpable homicide.
The sentence for culpable homicide would be considerably lighter than that imposed for murder.

Theft

A person commits theft if he unlawfully and intentionally takes property from the owner or lawful possessor with the intention to permanently deprive that person of his rights thereto.
Examples:
X walks into his neighbour’s garden and, without his permission, takes the neighbour’s lawnmower with the intention of never returning it. (If his intention was to return the lawnmower at some stage, it is not theft.)

X enters a shop, puts a chocolate in his pocket and walks out without paying.

Robbery

Robbery consists of theft of property by intentionally using violence or threats of violence to force the owner or lawful possessor into submission. Robbery is sometimes referred to as “theft by violence”

Examples:
X approaches someone on the street, threatens the person with a firearm or physically assaults him to make him hand over his valuables, and runs off with his wallet.

Aggravated Robbery.

Robbery becomes Aggravated Robbery if the offending is committed with two or more people, of if there is only one offender, being armed with a weapon.

Fraud

Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.
When an accused makes a representation about the existence of a fact, which in reality does not exist, and thereby causes or could potentially cause the person to act in a way that is prejudicial to himself, fraud has been committed.

The misrepresentation can be a positive act or an omission. It is very important that the fact or facts on which the misrepresentation is based, must be ascertainable at the moment when the representation is made.

Examples
X completes and signs another person’s cheque without his permission, and presents it for payment.

X buys clothing on credit, but never intends to repay the account. Where a person buys on credit, he makes an implied representation that he is willing to pay, that he intends to pay in the future and that he will have enough money to

Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, must as soon as possible be brought to a police station and released on police bail, as soon thereafter as reasonably possible, he must be informed of his right to apply for bail.

If police bail is not possible, then, the arrested person must be brought before the district court within 48 hours after arrest.

If the period of 48 hours expires outside ordinary court hours or on a day the court does not sit, the arrested person must be brought before the district court not later than the end of the next court day.
Although an arrested person may not be detained for more than forty-eight hours, the police are not obliged to detain him for the full 48 hours.
A detainee is entitled to, even before the expiration of the 48 hour period, arrange a first court appearance in order to bring a bail application.
The police, being part of the state machinery, are obliged to assist in making it possible for a court to hear such an application

The criminal procedure is a body of rules and prescribed procedures which governs the enforcement of the country’s laws in prosecuting criminals in criminal courts. It regulates, amongst other things, arrest, bail, the trial, sentencing and procedures of appeal.
Criminal Procedure in New Zealand law is largely contained in the Criminal Procedure Act .

The Bill of Rights Act is also an important source of criminal procedure, and entrenches every accused person’s right to a fair trial.

11

The Criminal Records (Clean Slate) Act came into force on the ( insert date here).

The legislation allows for certain convictions to be removed from your record after a period of 7 years. They will still be use for any further court apperances.

This is a complex area of law as you can see from the chart above.

In the first instances an application to the district court needs to be made. This can be done by
e mail. The ministry will send you a copy of yoyr previous convictions pursuant to the Clean Slate Act. If there are convictions listed that you think should not be there, then call us.

In criminal cases one can appeal against either the conviction or the sentence or both.
The Criminal Procedure Act prescribes that this application must be brought within 28 days of the finalisation of the case.

Self-defence.

A person who is the victim of an unlawful attack upon his person or property may resort to force to repel the attack. Any harm inflicted upon an aggressor in such circumstances is not unlawful. The defence can only succeed if the
court finds that the action taken was reasonable in the circumstances.
Requirements:
The attack must have already started or must be imminent;

The attack must be unlawful. Private defence will succeed against lawful arrest or justifiable punishment;

A person may only protect life and limb, property, personal freedom, dignity and sexual integrity;

The act of defence must have been necessary to avert the attack;

It must be directed at the attacker;

The act of defence must be reasonable in the circumstances. It would probably be unreasonable to shoot someone who pulls your hair.

Necessity

This defence arises when a person is confronted with a choice between suffering an injustice and breaking the law. It is regularly used to justify actions in emergencies.
One would, for instance, be able to rely on necessity against a charge of speeding when driving a person requiring urgent medical care to hospital.

Requirements:

The threat must have already started or must be imminent;

A legal interest(not mere financial) must be endangered;

The threat must not be caused by the accused ;

It must be necessary for the accused to avert the danger in the particular way. One cannot rely on this defence if the threat could have been averted in a less intrusive way;

The action must have been reasonable in the circumstances.

The accused must do no more harm than what is necessary to protect the interest. There must be proportionality. One cannot, for example, destroy someone else’s car in order to save your own bicycle.

Alibi

An alibi defence is simply the denial of the allegation that it was the accused who committed the crime. This is achieved by calling a witness who states that the accused was somewhere else at the time the crime was committed.

Impossibility

This defence is relevant where it is impossible for the accused to comply with a positive duty placed upon him by law. One may be able to use this defence when you cannot timeously submit your tax return because a disgruntled employee destroyed all your financial records.
Requirements:
There must be a positive obligation upon the accused imposed by law;

It is physically impossible for any person to comply in the accused’s circumstances, not merely very difficult or burdensome;

The impossibility may not be the accused’s fault.

Superior Orders

This defence usually arises in the context of obedience to military or police commands.
Requirements:
The orders must come from a person lawfully placed in authority over the subordinate;

The subordinate must be under;

a duty to obey the order;

He must have done no more than what was required to carry out the order;

The defence is only available when the orders were not manifestly and obviously unlawful. A soldier or policeman can never carry out an order to rape.

Consent

In some circumstances, a victim to what is normally a crime, may consent to such an act, thereby excusing the accused from liability.
An obvious example is where an accused is charged with rape, consent by the victim is a defence (provided, the victim is of consenting age, i.e. 16 years old).
Requirements:
The consent is recognised by law. A boxer can consent to an opponent assaulting him, even to the point of dying.

The defence may also applicable where a doctor cuts the skin of a patient while performing an operation (and strictly speaking assaults the patient).

In such circumstances a doctor may rely on the patient’s prior consent. It is interesting to note that New Zealand law does not recognise a victim’s consent to be killed in an act of euthanasia;

The consent must be informed and voluntary;

The person must be capable of giving the consent. The person must be at least 7 years old, not suffer from mental defect or intoxication.

De Minimus Non Curat Lex

The de minimus rule simply means “the law does not concern itself with trivial matters”.
Clearly this defence is not applicable to more serious offences. A court has, for example, acquitted a person who stole a worthless piece of paper. It is also conceivable that a slap on the back would not be seen as assault.
Negotorium Gestio

This occurs where person voluntarily performs an act in the interest of another with the intention of benefitting that other, but without his knowledge or consent. If, for instance, person sees his neighbour’s house burning, he may break the door of the house down in order to save some of the neighbour’s property.

It is quite clear that those convicted of crimes must be dealt with in such a way as to keep public order. There must always be a balance achieved between the interests of the criminal on the one hand, and the interests of the community on the other. The different purposes (or theories) of punishment include the following:

Retribution:

This is the oldest punishment theory. According to it, the commission of the crime disturbs the balance in the legal order of society and when the offender is punished, balance is restored.

Prevention:

The purpose of the Prevention Theory in punishment is to prevent crimes being committed. Examples of this theory are life imprisonment, declaration as a habitual criminal, declaration as a dangerous criminal, the deportation of alien citizens to their land of birth and the forfeiture of drivers’ licences.

Deterrence:

According to this theory society is in general deterred by the threat of possible imprisonment.

This theory rests on the viewpoint that people choose a trouble-free, rather than a troublesome life and weigh up the advantages and disadvantages associated with every course of action against one another before acting.

Rehabilation:

According to this theory the purpose of punishment is to reform the offender so that he may become a normal law-abiding citizen and once again take his place in society. Emphasis is placed on the person and his personal circumstances.

In deciding on an appropriate sentence, our courts make use of the so-called Zinn-triad of factors, which are weighed up against each other.
These three factors will be discussed below.

The Personal Circumstances of the Accused

It has been said that the sentence must not only fit the crime, but also the criminal.

It is always important to consider the accused’s age, education, previous convictions, domestic circumstances (including dependants) and employment.

The fact that an accused shows remorse for his crime (like pleading guilty or co-operating
with the police) is in most cases a strong mitigating factor.

Someone who, for example, is a young first offender, and is the sole breadwinner for a large family will likely receive a lesser sentence than a person who has many previous convictions and does not contribute to society.

The Nature of the Crime

It is elementary that the more serious the crime, the greater the sentence should be. The “seriousness” of a crime is judged by the outlook of the community. For this reason Parliament expressed its views by prescribing certain minimum sentences which should normally be imposed for certain serious crimes.
Factors like whether the accused was provoked, the absence of serious injuries to the victim, small value of stolen goods, or a good motive (like euthanasia) may serve to lessen the sentence imposed on accused.
Where the crime was committed against vulnerable persons such as women, children or the elderly, such a fact often acts as an aggravating circumstance. So too, where a crime was pre-meditated or particularly brutal.

The Interests of the Community

It is self apparent that the interests of the community should be protected by the imposition of appropriate sentences.
The feelings and requirements of the community, the protection of society against the accused and other potential offenders must be considered, as well as the maintenance of peace within the community needs to be taken into account.