The generic name in New Zealand for an act or omission for which anyone can be punished is offence. Offences are classified as summary offences, which the prosecution can bring to trial only in the Magistrate's Court, and indictable offences or crimes, which may be prosecuted on indictment in the Supreme Court before a jury of 12. Where, however, the maximum punishment for a summary offence exceeds three months' imprisonment (as it does in a few cases), the person charged can elect to be tried by a jury in the Supreme Court. The distinction between felonies and misdemeanours does not exist in New Zealand.
Before 1840, Europeans in New Zealand were subject to no effective criminal law, either among themselves or in their dealings with the Maoris. It was indeed the evils proceeding from this state of anarchy that largely led to the establishment of British sovereignty. On becoming a British colony, New Zealand acquired the general criminal law of England as it existed on 14 January 1840. This law was liberal in spirit, complicated in procedure, and chaotic in form. I. D. Campbell points out in New Zealand, the Development of its Laws and Constitution that the opportunity to simplify and rationalise the criminal law from the beginning was not taken, although in the field of property law a like chance was firmly grasped. It is perhaps significant that Martin and Swainson were conveyancers with no experience on the criminal side. During the early decades of the colony, changes in the criminal law came mainly from the adoption of various United Kingdom statutes. In 1883, however, following a report by Mr Justice Johnston and the then Solicitor-General, W. S. Reid, a Bill codifying the criminal law was introduced. It was based on a draft code prepared in England by the famous jurist Sir James Fitzjames Stephen and revised there by a commission in 1879. The Bill passed the Legislative Council but was held up in the Lower House. The same fate befell several subsequent Bills, but in 1893 the decisive and wholly successful step of codification was taken.
The present code is contained in the Crimes Act 1961. There are no common law offences in New Zealand, and no one can be punished except for the breach of some enactment. Many common law defences are also codified, but those not covered are preserved. The Crimes Act defines a large number of crimes and prescribes the penalties for them, but some crimes and all summary offences are created by other statutes. The rules in the code, however, relating to jurisdiction, matters of justification or excuse, parties, powers of arrest, and the granting of bail apply to all offences.
New Zealand criminal law has few unique features, its substance following the parent law of England and, more closely, that of other Commonwealth countries whose law is codified, such as in Canada. The definitions of crimes tend to be at once more precise and more comprehensive than those in English law, and thereby reduce the scope for technical defences, notably in the sphere of crimes against property. Larceny and embezzlement are included in a comprehensive definition of theft, and the crime of burglary now covers housebreaking and all other types of breaking and entering.
Generally, criminal liability requires not only the doing of a prohibited act but also either an intention to do the harm proscribed or recklessness whether it ensues. In other words, there must be a guilty mind (mens rea) as well as an unlawful act. There are, however, many exceptions to this in New Zealand, especially in the case of regulatory offences. Moreover, some crimes, notably manslaughter, are based on negligence. This country differs from most others in that the test of criminal negligence is, in many cases, the same as that for civil negligence – failure to observe the standard of care of a reasonable man – and even a slight degree of negligence can give rise to criminal liability.
The minimum age of criminal responsibility is 10 years, having been raised from seven by the 1961 code. A child between 10 and 14 is criminally responsible if he knew that what he did was wrong or contrary to law.
Under the criminal code, an accused pleading insanity must show that, by reason of natural imbecility or disease of the mind, he was incapable of understanding the nature and quality of his act or of knowing that it was morally wrong by accepted standards. This is substantially the formula laid down by the McNaughten rules in England in 1843. It is a test of legal responsibility and not of medical sanity, and although the rules have been criticised by many psychiatrists, they have the merit in their New Zealand form of relating responsibility to capacity to form a moral judgment. They are, however, unhappily expressed and make no allowance for incapacity to act on a moral judgment. In practice, however, anyone clearly insane in the medical sense is almost invariably acquitted. Diminished responsibility is not a defence under New Zealand law. In cases other than murder, where there is a mandatory sentence of life imprisonment, diminished responsibility can find reflection in the sentence imposed, since this is at the sentencing authority's discretion within the legal maximum.
Even in 1893 there was opposition to the severity of some of the maximum penalties in the code. One object of the 1961 revision was to bring penalties for particular crimes into better relation with one another and with the gravity of the evil prohibited. Apart from the death penalty for treason, and life imprisonment for piracy, murder and manslaughter, the heaviest sentence that can be imposed is 14 years' imprisonment. Under the Criminal Justice Act 1954, however, a Judge may impose preventive detention for an indefinite period (virtually a life sentence) for a second conviction of a sexual offence against a child, or of rape.
Criminal proceedings begin with the filing of an information in a Magistrate's Court. The person charged comes before that Court either on a summons or on arrest. If the case may go on to the Supreme Court, there is a preliminary hearing before a Magistrate or two Justices, who discharge the accused if a prima facie case has not been established against him. Otherwise he is committed for trial at the next sessions of the Supreme Court in the district, unless he pleads guilty, in which event he is committed to the Supreme Court for sentence. An indictment may be presented for any crime disclosed by the depositions, and if the Judge considers there is a case to go to the jury the accused stands his trial.
The lower Courts have a wide jurisdiction in indictable cases. Since 1952 Magistrates have had power to deal summarily with almost all crimes against property, and all but the most serious of other crimes, such as murder, manslaughter, rape, aggravated robbery, and perjury. There are three qualifications. The prosecution may take any such case to the Supreme Court if it chooses, which it usually will in difficult or very serious cases. The Magistrate may himself decline to deal summarily with the case. Finally, the accused must consent to be dealt with summarily. Magistrates trying indictable cases may impose up to three years' imprisonment for each offence, or the maximum prescribed for the offence, whichever is the less.
Anyone convicted of any offence in a Magistrate's Court may appeal to the Supreme Court against conviction or sentence. A person found guilty in the Supreme Court may appeal to the Court of Appeal against conviction or sentence, and there is a right to appeal against a sentence of the Supreme Court following a plea of guilty in the lower Court. Except on a point of law, the prosecution cannot appeal against an acquittal or against a sentence it considers too lenient.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.
- Garrow s Criminal Law in New Zealand, Spence, W. S. (4th ed. 1962)
- New Zealand, the Development of its Laws and Constitution, (ed.) Robson, J. L. (1954).