Please note that the responses set out below are of a general nature and should not be relied on in the absence of specific legal advice.
How is a criminal proceeding started?
The prosecution starts a criminal proceeding by filing a “charging document” in the District Court which sets out the charge against the defendant. There is a separate charging document filed for each alleged crime or other offence. Charging documents are usually filed in the court nearest to where the offence is alleged to have occurred or where the prosecution believes the defendant can be found.
What information does the prosecution have to provide to the defendant?
The prosecution is obliged to disclose all information that it has relating to the case to the defendant unless there is good reason for withholding it. This is known as disclosure and is usually provided in two stages. The first being “initial disclosure”, followed by “full disclosure”.
The prosecution usually provides “initial disclosure” at the first court appearance. This should include copies of the charging documents, a summary of the facts relied on by the prosecution and a printout of any previous convictions.
The prosecutor must provide “full disclosure” as soon as is reasonably practicable after the defendant has pleaded not guilty. The standard information that has to be disclosed includes:
- a copy of any statement made by a prosecution witness;
- any convictions of a prosecution witness that may affect the credibility of that witness;
- any record of interview with the defendant;
- a list of all exhibits;
- any record of an interview or statement made by a person who the prosecutor does not intend to call as a witness;
- any expert reports.
How does a defendant obtain bail?
For less serious offences, the Police may grant Police bail at the police station for a defendant to attend court on a particular day. In more serious cases the defendant is taken to the District Court where it is necessary to apply to the Court for bail. If bail is opposed by the Police then a Judge will make a decision as to whether the defendant should be released on bail and, if so, may impose bail conditions on the defendant.
Bail conditions can include requiring the defendant to reside at a particular address, to report to a police station between certain hours on specified days, to remain at a residential address between certain hours, not to associate with witnesses and/or other defendants.
If the Court refuses to grant bail then the defendant will usually be kept in custody at a prison. It may be possible to apply for EM bail
A defendant can be arrested for breaching bail conditions and this can result in the Court refusing to grant bail again.
What is a case review hearing?
If a defendant pleads not guilty then the proceeding is usually adjourned to a “case review hearing”. Prior to the case review hearing defence counsel and the prosecutor need to discuss whether the charges can be resolved or whether a trial will be required.
What happens at a jury trial?
At the commencement of a jury trial the Court Registrar reads out the charge or charges to the defendant.
If the defendant pleads not guilty to one or more charges then a jury of 12 persons is selected to try the case. Each defendant is entitled to challenge up to 4 jurors “without cause” as part of the jury selection process.
Once the jury is selected then the Judge will usually make some introductory remarks following which the Crown prosecutor will make an opening statement to the jury outlining the case against the accused. Defence counsel may also make a brief opening statement.
The trial proceeds by the Crown prosecutor calling witnesses and counsel for the accused has the opportunity to cross-examine each witness. Once the Crown has called all its witnesses then the defendant has to make an “election” as to whether to give evidence and/or call a witness or witnesses in support of the defence case. There is no obligation on a defendant to give evidence or to call other witnesses. If the defendant elects to give evidence and/or call witnesses then the defendant and any witnesses can be cross-examined by the prosecutor.
Once the evidence is complete then the Crown prosecutor will make a closing address to the jury, followed by defence counsel and finally a summing up by the trial Judge. The jury will then retire to consider its verdict on each charge. The jury will indicate once it has reached verdicts and these are read out in Court in the presence of the defendant. If the verdicts are not guilty then the defendant will usually be free to leave the court. If there is one or more guilty verdicts then the Judge will usually remand the defendant to another date for sentencing either on bail or in custody.
What happens at sentencing?
The sentencing Judge receives submissions from both counsel for the prosecution and defence counsel as to the appropriate sentence. The Judge is also likely to receive a report from a probation officer which contains a recommendation as to the appropriate sentence. If there is a victim of the offending then the Judge is also likely to receive a “victim impact statement” which describes the effect that the offending has had on the victim. The Judge will take these and other matters into account before verbally advising the defendant of the penalty imposed and the reasons for it.
Criminal Proceedings – Peter Davey, Auckland Lawyer | Criminal Proceedings in Auckland