1
Q
What are the 2 primary purposes of diversion?
A
- 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.
2
Q
What are the 3 secondary purposes of diversion?
A
- 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
3
Q
Can you offer diversion if you have insufficient to charge?
A
• diversion is not an option if there is insufficient evidence to proceed with charge.
4
Q
What happens if defendant does not complete diversion?
A
- 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.
5
Q
When is diversion appropriate?
A
• 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.
6
Q
When is diversion not appropriate?
A
- 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
7
Q
What must diversion conditions be? (3)
A
Conditions must be Proportionate, Achievable and Appropriate to the offence.
8
Q
Can children and young persons be dealt with through the adult diversion scheme?
A
• CYP under 17 who are offenders should be dealt with under the CYPF Act 1989
9
Q
What are some aggravating factors, that may prevent offender from getting diversion
A
- 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
10
Q
Mitigating factors for diversion
A
- 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
11
Q
What is the Criminal Records Act 2004 “clean slate?”
A
• Individuals with less serious convictions who have been conviction free for (in most cases) at least seven years, to put their past behind them.
12
Q
Which drug offences are/aren’t eligible for diversion?
A
Do not consider for Class A or B, however may consider for small amount of cannabis oil (B), needles, utensils, or cultivating cannabis (C)
13
Q
Under the evidence act 2006, what is a ‘witness’?
A
EVIDENCE ACT 2006 S.4
• ‘Witness’ means a person who gives evidence and is able to be cross-examined in a proceeding .
14
Q
Define a ‘child complainant’:
A
Child complainant, in relation to any proceeding means a complainant who is a child when the proceeding commences.
15
Q
What can judge do, on his own initiative or application of either party, in terms of giving evidence (S.103 Evidence Act)?
A
• 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
16
Q
What must the JUDGE have regard to?
A
- 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.
17
Q
Who does this apply to (give evidence in alternate way)
A
- 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
18
Q
What must PROSECUTOR do, if person is giving evidence in an alternative way?
A
Must apply to court for direction on how child complainant give evidence
19
Q
Under S.105 Evidence Act, what alternative ways can evidence be given?
A
- 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).
20
Q
What does S.90 Evidence Act allow a witness to do before giving evidence
A
• 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)
21
Q
What must you advise witnesses in the courtroom?w
A
Must advise them not to talk to other witnesses about their evidence while waiting
22
Q
Under S.168 Summary Proceedings Act, when must the prosecutor file formal written statements
A
• 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.
23
Q
What is a ‘formal written statement’
A
- Purports to be signed by person making statement
* Contains statement at end “everything is true and correct…”
24
Q
If statement is made by person under 18, what must it contain
A
They must state how old they are in the statement
25
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.
26
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
27
On what grounds can apply for an oral evidence order?
Judge must be satisfied that the witness who provided the statement must be heard in order to prove there is sufficient evidence for a case or necessary in the interest of justice or
Person refused to make a formal written statement and is relevant to the charge
28
When must the application for oral evidence be made?
Application must be made no later than 14 days after the date on which the prosecutor is required to file written statements
29
Under the Bail Act 2000, everyone who is charged with an offence shall be..........
released on reasonable terms and conditions unless there is just cause for continued detention".
30
Under S.7 who is bailable by right?
charged with an offence that is not punishable by imprisonment.
or maximum punishment is less than 3 years.
31
A defendant who is bailable as of right must be released on reasonable terms and conditions unless.....
the offence is MAF/Assault child/Breach protection order.
32
Under S.8 (1) what must the Court consider before granting bail?
* Court must take into consideration whether Defendant is likely to
* Fail to appear, interfere with witnesses or evidence, offend while on bail
33
Under S.8(2) what other considerations are made?
* Nature of the offence and whether it is a grave or less serious one of its kind:
* Strength of the evidence and the probability of conviction or otherwise:
* Seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed:
* Character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:
* History of offending while on bail, or breaching court orders, including orders imposing bail conditions:
* Likely length of time before the matter comes to hearing or trial:
* Possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody:
34
Under S.10, what are specified offences?
* section 128B (sexual violation):]
* section 167 (murder):
* section 168 (murder):
* section 171 (manslaughter):
* section 173 (attempt to murder):
* section 188 (wounding with intent):
* section 189 (injuring with intent):
* section 191 (aggravated wounding or injury):
* section 198A (using any firearm against law enforcement officer, etc):
* section 198B (commission of crime with firearm):
* section 234 (robbery):
* section 235 (aggravated robbery).
35
Who does S.10 of the bail act apply to (specified offences)
* Applies to defendant of or over 17
| * Who is charged with a specified offence and who has 1 or more previous convictions for a specified offence
36
Who can grant bail to a person charged with a specified offence?
Only a High Court Judge or a District Court Judge.
37
In relation to S.10 bail act, what must the defendant satisfy the judge, in order to receive bail?
Defendant must satisfy the Judge on the balance of probabilities that he will not, while on bail or at large, commit any offence involving violence against, or danger to the safety of, any other person.
38
Under S.11, what other restriction exists in relation to specified offences? Who does this apply to?
* No defendant of or over 17 years who is found guilty of, or pleads guilty to, a specified offence
* and who has 1 or more previous convictions for a specified offence (whether those convictions were for the same specified offence or for different specified offences)
* may, while waiting to be sentenced or otherwise dealt with for the first-mentioned specified offence, be granted bail or allowed to go at large.
39
What restrictions to bail does section 12 provide? Who does this apply to?
If defendant is of or over 17 years and
• (a) penalty carries a maximum sentence of 3 or more years' imprisonment; and
• at the time of the offence was remanded at large or on bail awaiting trial for another offence that carries a maximum sentence of 3 or more years' imprisonment; and
• at any time previously received a sentence of imprisonment OR
(b)
• The defendant is of or over 17 years and—
• is charged with an offence that carries a maximum sentence of 3 or more years' imprisonment; and
• has previously received 14 or more sentences of imprisonment and
• has previously been convicted of an offence that was committed while the defendant was remanded at large or on bail and that carries a maximum sentence of 3 or more years.
40
Under S.12 The onus is on.......................as to whether bail is/not granted.
Under section 12, the onus is on Defendant to prove to judge that bail should be granted.
41
What does section 15 say with regard to 17-20 year olds?
* (There is a presumption bail will be granted unless 10, 12 or 16 of Bail Act applies)
* Can only be detained in prison if "no other course is desirable, having consideration to all the circumstances".
* In this case, seek guidance from an experienced youth aid officer.
* Youth records are not convictions that count toward 'specified offences'.
42
Under section 16 who can grant bail for a drug dealing offence?
* In any case, by order of a High Court Judge; or
| * If the defendant does not have any previous conviction for a drug dealing offence, by order of a District Court Judge.
43
What section is the power to grant police bail?
POWER TO GRANT POLICE BAIL
S.21(1)
Any Police employee may, if he or she considers it prudent to do so bail a person who—
• is charged with an offence for which that person may be proceeded against summarily; and
• has been arrested without warrant; and
• cannot practicably be brought immediately before a court.
44
When should offenders be bailed to appear if given police bail
* Must be bailed no later than 7 days from the date of the bond, the person bailed attend personally before a court.
* Bail is restricted if Def is K9'd under S.50 Domestic violence Act (breach protection order).
45
Who can Police NOT grant bail to?
Police Cannot Grant Bail when:
• Def charged with specified offence and has a previous conviction for specified offence (S.10)
• Restrictions apply under S.12
• Defendant is charged with drug dealing offence
• Charged with purely indictable offence
• Arrested on a warrant
46
When a BOB occurs can police arrest without warrant? Enter private premises to make arrest?
• May be arrested without warrant in certain circumstances
No power without warrant to enter private property to make arrest
• No power to enter property to make bail check
• (BOB is not an offence punishable by imprisonment)
• A warrant under S.36 permits entry to any premises where there are RG for believing the defendant is on the premises
47
What pol form is an Op to Bail?
OP TO BAIL FORM - POL128
48
What is visual identification evidence?
an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
(b) an account (whether oral or in writing) of an assertion of the kind described in paragraph(a)
49
If formal procedure for visual identification is followed, defendant must prove what?
S.45 places burden of proof on defendant, he must prove that the evidence was unreliable
50
If a formal visual identification procedure not followed, prosecution must prove what?
it must prove that the circumstances in which the identification was made have produced a reliable identification.
51
When should formal identification procedure be undertaken?
Procedure is to be undertaken asap after the alleged offence is reported to an officer of an enforcement agency.
52
What are the guidelines for a formal identification procedure?
* Done as soon as practicable after the alleged offence is reported
* Person to be identified is compared to no fewer than 7 other persons who are similar in appearance and
* No indication is given as to who among the persons in the procedure is the person to be identified; and
* Person is informed that the person to be identified may or may not be among the persons in the procedure; and
* That is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing;
53
What are good reasons for not following a formal identification procedure
* Suspect refuses to take part in procedure.
* The singular appearance of the person to be identified
* Substantial change in the appearance of the person to be identified
* No officer involved could reasonably anticipate that identification would be an issue
* ID of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer's initial investigation:
* Identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and suspect
54
When voice identification is used, what must the prosecution prove?
The prosecution must prove on the balance of probabilities that the circumstances giving rise to the identification were reliable.
55
When must mandatory disclosure be made by?
Deadline asap but no later than 21 days from commencement of proceedings.
56
When does obligation for REQUESTED ADDITONAL disclosure commence?
* after a not guilty plea has been entered, trial by jury has been elected or first appearance on indictable charges
* Deadline is preferably 14 days before next substantive hearing.
57
When does obligation for FULL disclosure commence?
* Starts after a not guilty plea for an offence (proceeded against summarily) is entered- deadline is 14 days before next substantive hearing.
* After trial by jury is elected or first appearance on indictably laid charges - deadline is as soon as reasonably practicable.
58
When do 'proceedings commence'?
"Commencement of Proceedings" means when summons is served or when defendant first appears in court following their arrest.
59
What is meant be the term 'prosecutor'?
Prosecutor" is any police staff responsible for a file
60
What is meant by the term "relevance"
Relevance" - Info or an exhibit is 'relevant' if it tends to support or rebut, or has a material bearing on the case against the Defendant.
61
S.14(2) allows prosecutor to withhold information when?
Not relevant
The request appears frivolous or vexatious
It may be withheld under S.15 - 18
• S.15 - not in control or possession of the information;
• S.16 - disclosure of the information is hlikely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences or disclosure of the information is likely to endanger the safety of any person
• S.17 - it may lead to the identification or address of witness
• S.18 - it would disclose a trade secret or prejudice commercial position
62
What does S.344C say about identification witnesses?
* Enables defendant to request info on a witness who has id'd him.
* This is an exception to the rule that witnesses details are withheld
* May request the name, address, any statements or identikit pictures the witness has made
63
When must a witnesses previous convictions be disclosed?
* Must be disclosed if relevant to the credibility of the witness
* Convictions generally disclosed are perjury, attempting to pervert, assault or violence or dishonesty.
* The Clean state Act doesn't count and any historic relevant offences must be disclosed.
64
S.16 of the victims rights act restricts the disclosure of a persons address unless it is contained in...........
S.16 Victim's Rights Act 2002 restricts disclosure of victims precise address, unless the address is contained in a charge (S.16A)
65
What may be the result of failing to disclose?
could see evidence excluded, case being dismissed, a retrial ordered.
66
What are the guidelines around inspection of exhibits?
Police must allow inspection of exhibits when
• defence asks police to allow inspection
• The exhibits are specified on the list of exhibits
• Place may place conditions on this to ensure safety and integrity of exh.
• May refuse inspection if the exh is being used for ongoing enforcement purposes and inspection would prejudice law enforcement.
• Notify defence of how and when inspection will take place
• Copy and disclose any exh that can be easily reproduced - like photos.
• Police can refuse or restrict access in certain cases and defence not entitled as of right to test it - e.g. a blood stained shirt.
CIK
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