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New Zealand Supreme Court
The Supreme Court of New Zealand is the highest court in the
land and the court of last resort in New Zealand, having
formally come into existence at the beginning of 2004, and
sitting for the first time on July 1, 2004. It controversially
replaced the right of appeal to the Judicial Committee of the
Privy Council, based in London. It was created with the passing
of the Supreme Court Act 2003, on October 15, 2003. It is no
relation to the "old" Supreme Court, which was renamed in 1980
(as the result of a Royal Commission recommendation) as the High
Court in anticipation of the creation of a court like the one
that now bears its former name. The Supreme Court sits in
Wellington. Until the Court's new $67 million home is built,
beside and to expand into the historic High Court building, the
court is housed in temporary facilities located in the High
Court in Wellington with offices located in Old Government
Buildings.The Court of Appeal of New Zealand
This court is located in Wellington, is New Zealand�s principal
intermediate appellate court. In practice, most appeals are
resolved at this intermediate appellate level, rather than in
the Supreme Court. The Court of Appeal has existed as a separate
court since 1862 but, until 1957, it was composed of Judges of
the Supreme Court (as the High Court was known then) sitting
periodically in panels. In 1957 the Court of Appeal was
reconstituted as a permanent court separate from the Supreme
Court.
The High Court of New Zealand
This court was established in 1841 and known as the Supreme
Court until 1980. The High Court has general jurisdiction and
responsibility, under the Judicature Act 1908, for the
administration of justice throughout New Zealand. Jurisdiction
extends over both criminal and civil matters, and deals with
cases at first instance or on appeal from other courts and
certain tribunals. The High Court comprises the Chief Justice of
New Zealand (who is head of the Judiciary) and up to 55 other
Judges (which includes the Judges of the Supreme Court and Court
of Appeal). Associate Judges of the High Court (formerly known
as Masters) supervise the Court's preliminary processes in most
civil proceedings, and have jurisdiction to deal with summary
judgment applications, company liquidations, bankruptcy
proceedings, and some other types of civil proceedings. The High
Court Judges and Masters are based in Auckland, Wellington and
Christchurch, but also travel on circuit to Whangarei, Hamilton,
Rotorua, Gisborne, New Plymouth, Napier, Wanganui, Palmerston
North, Nelson, Blenheim, Greymouth, Timaru, Dunedin and
Invercargill. The Court also has registries in Masterton and
Tauranga.
New Zealand District Courts
Since the mid 1840�s, New Zealand has had courts that deal with
minor criminal offences and civil claims. At various times these
courts have been known as District Local Courts and Magistrates
Courts. In 1980 the Magistrates Courts were renamed as District
Courts and their jurisdiction increased. There are currently 66
District Courts in New Zealand. Many of these have resident
Judges, and Judges visit the remaining Courts on circuit from
time to time. The District Courts Act 1947 provides for a
maximum of 120 District Court Judges. The District Courts Act
also sets the jurisdiction of the District Courts. In the civil
jurisdiction, the District Courts can determine claims involving
up to $200,000. At the lower end of the scale, some claims
involving less than $7500 are now dealt with by the Disputes
Tribunals. In the criminal jurisdiction, the District Courts
still cover minor offences, but can now also conduct trials for
some serious offences, such as rape and aggravated robbery. The
Chief District Court Judge is the senior Judge of the District
Courts.
The Environment Court of New Zealand (Te Kooti Taiao o
Aotearoa)
This court is a special court for environmental issues within
the court system of New Zealand. It mainly deals with issues
arising under the Resource Management Act.
The Māori Land Court (Te Kooti Whenua Māori)
This is a special court in New Zealand that hears matters
relating to Māori land. The Māori Land Court was established in
1865 as the Native Land Court. In 1954, the name was changed to
the Māori Land Court. Originally the court was established to
translate customary Māori land claims into legal land titles
recognisable under English law. In 1993, the Te Ture Whenua
Maori Act expanded the court's jurisdiction to allow it to hear
cases on all matters related to Māori land. Appeals from the
Māori Land Court are heard by the Māori Appellate Court, which
consists of a panel of three judges of the Māori Land Court. The
Māori Land Court or the Māori Appellate Court may request an
opinion on a matter of law from the High Court of New Zealand;
such decisions are binding on the Māori Land Court. The court
has no centralised courthouse but sits in various cities and
towns in New Zealand as needed. The court maintains main offices
in Wellington, Whangarei, Rotorua, Hastings, Gisborne, and
Christchurch. It also has less comprehensive branch offices in
Auckland, Hamilton, Turangi, and Whanganui.
The New Zealand Human Rights Commission (Te Kāhui Tika
Tangata in Maori)
This is the national human rights institution in New Zealand. It
is a New Zealand Government agency that applies and enforces the
Human Rights Act 1993, a New Zealand statute outlawing
particular kinds of discrimination. The Commission was formed in
1977, and currently functions under the Human Rights Act 1993.
It is an independent agency funded through the Ministry of
Justice. The Office of the Race Relations Conciliator was made
part of the Commission in 2001. The Commission works to educate
New Zealanders, publish information, investigate human rights
abuses, and resolve disputes over rights and discrimination
related issues. New Zealand Judges:
Number of judges. There are 142 members of the judiciary. The
Court of Appeal is made up of seven judges. These include the
Chief Justice who is the administrative head of the judiciary,
the President of the Court of the Appeal and five remaining High
Court Judges appointed by the Governor General as judges of the
Court of Appeal. The High Court consists of 32 judges, including
the Chief Justice, although the Governor General is empowered to
appoint an additional judge or judges as illness or absence
requires. In addition, there are six Masters of the High Court
who exercise certain summary court powers. In 1993, the first
female High Court judge was officially appointed to office. The
District Court is limited by statute to 103 judges, including
the Chief District Court Judge. As of 1993, it is operating at
full staff capacity, which includes 11 women (10.7%), two Sri
Lankans (1.9%) and two Maori (1.9%). The remaining judges are
male New Zealand Europeans. * Appointment and qualifications.
Judges are professional lawyers appointed to the bench on a
permanent basis by the Governor General on the recommendation of
the government. They are drawn from the ranks of the legal
profession and, in the case of the High Court, from the senior
bar. Members of the judiciary and the legal profession are
extensively canvassed before prospective appointees are put
forward for consideration. Judicial training is limited. All
judges receive some on-going information about the types of
sentences being imposed by other courts. Shortly after their
appointment, District Court judges have an induction workshop on
all aspects of their judicial function. Apart from this, both
the District Court and High Court judiciary are largely reliant
upon periodic judicial conferences and seminars for training and
information. New Zealand Legal System.
The New Zealand court structure is based on a three-tier
hierarchy, consisting of the District Court, High Court and the
Court of Appeal. There is also an infrequently exercised right,
of final appeal to the Privy Council in London. Consistent with
New Zealand's common law heritage, criminal trials are primarily
adversarial in nature. In theory, the judge or jury is a neutral
and independent adjudicator of the facts and that adjudication
is limited only to consideration of the evidence presented by
the parties at the trial. In practice, however, the adversarial
process has been subject to significant modification. For
example, an extensive police pre-trial diversion scheme is in
operation. Also, the majority of cases that go to court often
result in guilty pleas without scrutiny of the evidence. Those
cases that do proceed to a defended hearing are often the
subject of disclosure of the evidence and pre-trial conferences
that define the issues in dispute. Moreover, in relation to
youths under the age of 17, the Children, Young Persons and
Their Families Act 1989 has instituted a radical new system
which is largely non-adversarial in nature. The vast majority of
young offenders are dealt with outside the formal court system
by way of a relatively informal justice process involving
extensive participation by the family, the community and the
victim.
New Zealand Prosecutorial and Judicial Process:
Rights of the accused. If the offense is punishable by more
than three months imprisonment and is ordered summarily, the
accused has the right to elect trial by jury. Beyond this, the
accused's ability to influence or determine the nature of the
charges or form of trial is limited. * Assistance to the
accused. There is no public defender system in New Zealand,
although there are plans to establish one on a limited basis.
There is, however, an offenders' legal aid scheme under which
defendants who cannot afford to pay for private legal
representation are assigned a lawyer from a roster to represent
them. Lawyers on the roster work in private practice, with their
fees in legal aid cases being paid by the government according
to a scale fixed by regulation.
Preparatory procedures for bringing a suspect to trial.
Suspects are generally brought to trial as a result of police
investigation, followed by arrest and charge or by the issue of
a summons or minor offense notice. In arrest cases, all initial
prosecution decisions are made by the arresting officer. Those
decisions are then reviewed, although only rarely modified or
reversed, by a "line supervisor" and by the Police Prosecutions
Section. Where the summons or minor offense notice procedure is
being used, the police officer in charge of the case prepares a
report for his or her line supervisor with a recommendation as
to charge. The supervisor then endorses the recommendation or
modifies it as he or she deems appropriate. Files containing
recommendations in favor of prosecution are then sent to the
Police Prosecutions Section for final decision. Police
prosecutors rarely reverse a recommendation in favor of
prosecution if they are satisfied that the recommended charge
can be proved. In respect of charges laid on indictment, there
is a preliminary hearing to determine whether there is a prima
facie case justifying a trial. That preliminary hearing is held
before Justices of the Peace or, in the case of a more serious
charge, a District Court Judge. * Official who conducts
prosecution. In summary cases, and at the preliminary hearing of
charges laid on indictment, prosecutions are generally conducted
by police officers who are assigned to Prosecution Sections for
about two years. Some of them stay for an extended period or on
a semi-permanent basis. Police prosecutors do not receive any
additional legal training but they do attend in- service
training courses on aspects of prosecution work, which are run
by officers from the Police Legal Section. Prosecutions on
indictment, whether in the District Court or the High Court, are
undertaken primarily by local Crown counsel or by a member of
the firm to which the Crown counsel belongs. Crown counsel also
appear for the prosecution at the preliminary hearing in
homicide cases, and in a few summary trials involving complex
legal issues, serious offenses against police and prison
officers and cases which raise or are likely to raise
allegations of serious police misconduct. Crown counsel are
usually senior local practitioners who are warranted to
undertake prosecutions on behalf of the Crown. In the main
centers, however, there are also panels of lawyers in private
practice who, under delegation from Crown counsel, act on
occasion for the prosecution. In most cases, Crown counsel have
little contact with the case prior to the preliminary hearing or
trial. The police have the responsibility to decide on the
charges, to prepare the file, and to brief the witnesses. *
Alternatives to trial. Occasionally, the prosecution may agree
to reduce charges or to modify the summary of facts in exchange
for a guilty plea, or to drop certain charges in exchange for a
guilty plea on others. However, concessions of this sort tend to
be minor and limited to matters which the prosecution believes
will make little or no material difference to the eventual
sentence. Hence significant formal plea bargaining as a means of
resolving cases is not common. The main alternative to the
formal criminal justice process is the police pre-trial
diversion scheme, which has been in operation since 1989. This
involves a decision by the Police Prosecutions Section that the
offender should be diverted on particular conditions, which may
include an apology to the victim, reparation, a donation to
charity, community work and sometimes referral for counseling.
This decision is made on the recommendation of the officer in
charge of the case after charges have been made. Provided that
these conditions are met, the charges are then withdrawn. The
bulk of diversion cases involve shoplifting, cannabis
possession, theft as a servant and other theft. However, a
number of offenders prosecuted for minor assault and willful
damage also receive diversion. The proportion of prosecuted
cases receiving diversion varies significantly from one area to
another. Apart from the formal diversion scheme, some offenders
who are perceived by the police to be mentally disordered will
be transferred into the mental health system prior to
prosecution and detained as a voluntary or committed patient.
There is no information on the extent to which this occurs. *
Proportion of prosecuted cases going to trial. The substantial
majority of criminal cases are resolved by way of a guilty plea.
Excluding cases which are diverted by the police, over 75% of
cases result in a guilty plea.
Pre-trial incarceration conditions. The police have no general power to
hold a person in custody for questioning prior to arrest and
charge. Once arrested, a suspect must be brought before a court
"as soon as possible." In large urban areas, the person will
usually be brought before the court a day or two following
arrest. The time lag may be considerably longer in rural areas
(Crimes Act of 1961, Section 316(5)).
New Zealand Bail Procedure. After a defendant appears in court,
the court must decide whether he or she is to be held in
custody. There are some restrictions upon the grant of bail in
serious violent and drug cases. There are also some minor
offenses for which defendants must generally be remanded at
large or on bail. Apart from this, the vast majority of
defendants charged with imprisonable offenses can be remanded at
large, be released on bail, or be put in custody at the
discretion of the court.
Police in New Zealand
The New Zealand police are a civil force administered
nationally under the command of a single Commissioner of Police
and entirely independent of the military structure. For
operational purposes, they are divided into six regions, each
under the control of an Assistant Commissioner. Below the rank
of Assistant Commissioner, there are four ranks in the chain of
command - superintendent, inspector, senior sergeant and
constable. Legally, the authority of a police officer is derived
from the common law office of constable and is thus original
rather than delegated. In accordance with that original
authority, the police oath which is contained in the Police Act
of 1958 simply requires the police to preserve the peace, to
prevent offenses against the peace, and to discharge their
duties in these respects impartially and according to law. In
addition to that general authority, police officers have a
number of specific powers provided by statute, and they are
accountable to the Commissioner of Police and the courts for the
exercise of those powers. By virtue of Regulation 7 of the
Police Regulations of 1959, the Commissioner of Police is
responsible to the Minister of Police for "the general
administration and control of the police". The Commissioner of
Police is required to ensure that all police officers "discharge
their duties to the government and the public satisfactorily and
efficiently". While there is some dispute about what is meant by
"general administration and control", the generally accepted
convention, based on the original rather than delegated
authority of the office of constable, is that the Commissioner
is not subject to political direction or control in relation to
operational or law enforcement matters, including operational
policy. The Minister is able to have some influence over law
enforcement priorities and other operational policies through
the budgetary process, but that influence is at a fairly general
and indirect level. Aside from the police, there are several
other agencies responsible for law enforcement. These are
generally administered on a national basis under the control of
a Minister of the Crown and include the enforcement activities
of Customs, Social Welfare and Inland Revenue Departments, the
Ministry of Agriculture and Fisheries, and the Serious Fraud
Office.
New Zealand Police Training and Qualifications. Although the
police prefer applicants for the job to have some formal school
qualifications, they will accept applicants with no such
qualifications provided that they pass the police entrance
examination, which consists of a mental ability test and an
English comprehension test. After passing exams and before being
accepted as a full constable, recruits must undergo a full time,
live-in, six month training course at the national Police
College. This college is operated by the police themselves. Most
of the instruction is provided by sworn police officers.
Specialty components of the course are taught by relevant
experts. After graduation, an 18 month probationary period
begins, during which 21 in-service training modules must be
passed. If the modules are passed, the probationary constable
receives a permanent appointment as a fully qualified constable
at the end of two years, otherwise, he or she is discharged.
Stop/apprehend a suspect. Police have limited powers to stop
and search persons and vehicles, notably for drugs, offensive
weapons or firearms, and to stop vehicles or set up road blocks
to arrest a person who is unlawfully at large or who has
committed an offense which carries a prison sentence. * Decision
to arrest. When a suspect is found at the crime scene or is
detected in the course of subsequent investigations, or where
the police detect an offense in progress, the attending officer
must decide whether to take formal action. The officer has
several options. The officer can opt for an informal disposition
or clearance as no offense. If the offense has not been
recorded, the offender can be dealt with informally without the
need to generate any formal procedure. If the offense is minor
and an offender is located it can be cleared by a warning or a
formal caution. There are no departmental guidelines or rules
that the officer must follow in deciding whether to administer a
warning. Overall warnings and formal cautions make up a little
under 20% of total clearances, although there is considerable
variation between individual districts. However, the most common
response to an offense where a suspect is detected is
prosecution. Although only 19% of recorded offenses result in
prosecution, nearly half (49%) of cleared offenses do so. There
are four methods of initiating a prosecution. First, the
prosecution process can be initiated by arresting and charging
the suspect, occurring in the majority of cases. Although police
may obtain a warrant to make an arrest, this action is taken
infrequently. The vast majority of arrests occur without a
warrant. Police have a general power to arrest persons without a
warrant if there is good cause to suspect them of having
committed a breach of the peace, an offense carrying a prison
sentence, or a specific offense that is non-incarcerative, but
for which the power of arrest is appropriate. Instead of arrest,
suspects may be summoned to appear in court on a designated date
to answer the charge. Also, where an arrest is made, the
arrested person can be released following arrest and issued with
a summons instead. The Minor Offense Notice is the legislatively
preferred procedure for offenses where the maximum penalty does
not exceed a $500 fine and involves the offender being sent a
notice of the offense through the mail and having the
opportunity of paying a standard fine administratively as an
alternative to prosecution. Its use is largely confined to
traffic offenses and liquor offenses. * Search and seizure. The
police may obtain a warrant to search premises where there are
reasonable grounds for believing that evidence of an
imprisonable offense is located. In relation to some warrants
such as those obtained under the Misuse of Drugs Act 1975, this
extends to the search of persons found on the premises. In
addition, the police have more limited powers to enter premises
without a warrant to search for drugs or firearms or to prevent
the commission of an offense which is likely to cause serious
and immediate injury to person or property. In relation to
suspects in custody, the police are permitted to search their
person by force, if necessary. * Confessions. Where a confession
or incriminating statement has been obtained in breach of the
New Zealand Bill of Rights Act of 1990, there is a prima facie
exclusionary remedy. Under this Act, inter alia, everyone has
the right not to be arbitrarily arrested or detained, and if
arrested or detained, is to be informed of the right to silence
and the right to consult and instruct a lawyer without delay. At
the discretion of the trial judge, any confession or
incriminating evidence that has been obtained unfairly may be
excluded from the official body of evidence.
Complaints against the police are generally investigated
internally. An independent Police Complaints Authority also
exists to intervene and deal with complaints. The Authority is
able to receive complaints of police misconduct or neglect of
duty and of any practices, policies or procedures affecting
complainants. It also has a limited own motion power of
investigation in cases of death or serious bodily harm. The
Authority can investigate the complaint itself, oversee the
police investigation, take no action or wait for the police
report on the matter. In addition, it can review completed
investigations and direct the police to reopen any investigation
or to consider any proposals it might make for action on a
complaint.
New Zealand Extradition and Treaties:
Extradition. The extradition of offenders to and from New
Zealand is governed by two separate statutes. Extradition to and
from the majority of Commonwealth nations is provided for under
the United Kingdom Fugitive Offenders Act of 1881, as amended by
the New Zealand Fugitive Offenders Act of 1976. Regarding
non-Commonwealth countries, extradition is permitted under the
Extradition Act 1965 only where a treaty has been concluded
between New Zealand and the relevant country. Treaties have been
concluded with Albania, Argentina, Belgium, Bolivia, Chile,
Columbia, Cuba, Czechoslovakia, Ecuador, El Salvador, Finland,
France, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland,
Iraq, Italy, Liberia, Luxembourg, Mexico, Monaco, Netherlands,
Nicaragua, Panama, Paraguay, Peru, Poland, Portugal, Romania,
San Marino, Spain, Switzerland, Thailand, the United States, and
Uruguay.
Exchange and transfer of prisoners. Under the Niue Act of
1966 and the Cook Islands Amendment Act of 1966 there are
special provisions for the transfer of convicted persons to
serve sentences of imprisonment in New Zealand. There are no
other provisions which relate to the exchange or transfer of
prisoners to or from other nations.
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