Criminal Procedure Amendment Rules 2016
2016/162
Criminal Procedure Amendment Rules 2016
Jerry Mateparae, Governor-General
Order in Council
At Wellington this 11th day of July 2016
Present:
His Excellency the Governor-General in Council
These rules are made under section 386 of the Criminal Procedure Act 2011, section 122(1) of the District Courts Act 1947, and section 51C of the Judicature Act 1908—
(a)
on the advice and with the consent of the Executive Council; and
(b)
with the concurrence of the Right Honourable the Chief Justice, the Chief District Court Judge, and at least 2 other members of the Rules Committee established under section 51B of the Judicature Act 1908 (of whom at least 1 was a Judge of the High Court and at least 1 was a District Court Judge).
Contents
Rules
1 Title
These rules are the Criminal Procedure Amendment Rules 2016.
2 Commencement
These rules come into force on 15 August 2016.
3 Principal rules
These rules amend the Criminal Procedure Rules 2012 (the principal rules).
4 Rule 2.8 amended (Who is responsible for serving document)
Replace rule 2.8(5)(c) with:
(c)
any other person approved by the court or a Registrar—
(i)
to serve documents generally in criminal proceedings; or
(ii)
to serve documents in connection with the particular proceeding or a class of proceedings that includes the particular proceeding.
5 Rule 4.8 amended (Case management memorandum)
After rule 4.8(1)(d), insert:
(da)
a summary of facts (including any dispute about the summary of facts the parties wish to raise before the court); and
6 Subpart 6 of Part 4 amended
In Part 4, after the subpart 6 heading, insert:
Note: Subpart 6 should be read in conjunction with the requirements set out in regulations 4 to 6 of the Crown Prosecution Regulations 2013. Regulation 4 specifies what a Crown prosecution is, regulation 5 specifies the time from which the Solicitor-General must assume responsibility for proceedings that are Crown prosecutions, and regulation 6 sets out the notice periods when amending, adding, or withdrawing charges. As at 1 April 2016, under regulation 6(1)(a) of the Crown Prosecution Regulations 2013, the notice period for many prosecutions expires on the date of the case review hearing.
7 New rule 4.14 inserted (Notice about protocol offence)
After rule 4.13, insert:
4.14 Notice about protocol offence
(1)
This rule applies in any proceedings that include a protocol offence.
(2)
The prosecutor must file in the court hearing the proceeding a notice that—
(a)
identifies the protocol offence and the class of the protocol offence:
(b)
states whether the proceeding must be transferred to the High Court because the defendant is charged with a stage-3 offence:
(c)
states the appropriate court for trial:
(d)
identifies any jointly charged defendant:
(e)
states whether a protocol determination has already been made against a jointly charged defendant:
(f)
states the qualifying features for an offence described in the protocol as a class 1 or class 2 protocol offence:
(g)
identifies details of any other matter the prosecutor or the defendant wishes the court to consider, including any of the matters in section 67(4)(b) of the Act.
(3)
If the defendant is represented by a lawyer, the notice filed under subclause (2) must be jointly completed by the prosecutor and the defendant’s lawyer.
(4)
The notice filed under subclause (2) must be filed no later than—
(a)
5 working days before the date of the case review hearing; or
(b)
before the date specified by the court for the filing of the notice.
(5)
In this rule, stage-3 offence has the same meaning as in section 86A of the Sentencing Act 2002.
8 Rule 5.5 amended (Filing of formal statements)
In rule 5.5(1), replace “25”
with “15”
.
9 New Part 5A inserted
After Part 5, insert:
Part 5A Sentencing
Subpart 1—Summary of facts if guilty plea entered
5A.1 Summary of facts
(1)
At the time that a defendant pleads guilty,—
(a)
the prosecutor must provide to the court and the defendant a summary of facts about the offence and the facts alleged against the defendant; and
(b)
the defendant must advise the court whether the summary of facts is accepted.
(2)
If the defendant does not accept the summary of facts,—
(a)
the defendant must identify the facts disputed; and
(b)
the defendant and the prosecutor must try to resolve the dispute.
(3)
If the dispute is resolved, the prosecutor must advise the court of the resolution and of any agreed amendment to the summary of facts as soon as practicable.
(4)
If the dispute is not resolved within 10 working days after the guilty plea is entered, the prosecutor and the defendant must notify the court of that fact and seek an indication in accordance with section 24(2) of the Sentencing Act 2002.
5A.2 Application for leave to amend summary of facts
(1)
This rule applies if the Solicitor-General, in accordance with any regulations made under section 387(1)(a) to (c) of the Act, assumes responsibility for a Crown prosecution after the defendant pleads guilty.
(2)
If the Solicitor-General or other Crown prosecutor wishes to add material matters of aggravation to the summary of facts, he or she may, by application in writing, seek the leave of the court to amend the summary of facts provided under rule 5A.1.
(3)
If the court grants leave under subclause (2), rule 5A.1 applies to the amended summary of facts as if it were the summary of facts first provided under that rule.
(4)
An application for leave under subclause (2) must be made within 15 working days after the guilty plea is entered.
Subpart 2—Sentencing memoranda
5A.3 Application of this subpart
This subpart applies to sentencing hearings—
(a)
in the High Court:
(b)
in the District Court, if the Crown has assumed or is to assume responsibility for the proceeding prior to sentencing in accordance with any regulations made under section 387(1)(a) to (c) of the Act:
(c)
in any other criminal proceedings, if the Judge directs that sentencing memoranda be filed.
5A.4 Filing of sentencing memoranda
(1)
The prosecutor must file a sentencing memorandum in accordance with rule 5A.5(1) no later than 5 working days before the date of the sentencing hearing.
(2)
The defendant must file a sentencing memorandum in accordance with rule 5A.5(2) no later than 3 working days before the date of the sentencing hearing.
5A.5 Sentencing memoranda
(1)
A sentencing memorandum filed by the prosecutor must contain the following information (to the extent applicable):
(a)
the purposes and principles of sentencing of particular relevance to the proceeding:
(b)
the appropriate starting point, including a copy of any decision relied on that is not a guideline judgment:
(c)
any aggravating factors, both in relation to the offending itself and factors personal to the defendant:
(d)
any mitigating factors, both in relation to the offending itself and factors personal to the defendant, including what reduction should be made for any guilty plea:
(e)
the appropriateness of imposing a sentence or order of reparation, with supporting reasons, if the court is lawfully entitled to impose a sentence or order of reparation under Part 2 of the Sentencing Act 2002:
(f)
the appropriateness of a sentence requiring electronic monitoring, with supporting reasons:
(g)
whether a sentence of preventive detention or a minimum period of imprisonment is sought:
(h)
whether any supplementary orders, such as protection orders, are sought:
(i)
the sentence imposed on any co-defendant, including sentencing notes if available:
(j)
any other relevant matter.
(2)
A sentencing memorandum filed by the defendant must (to the extent applicable)—
(a)
identify any information contained in the sentencing memorandum filed by the prosecutor that is disputed:
(b)
contain the following information:
(i)
information that the defendant relies on that is in dispute under paragraph (a):
(ii)
the appropriate starting point, including a copy of any decision relied on that is not a guideline judgment or another judgment referred to in the prosecutor’s sentencing memorandum:
(iii)
any mitigating factors, both in relation to the offending itself and factors personal to the defendant, including what reduction should be made for any guilty plea:
(iv)
the appropriateness of imposing a sentence or order of reparation, with supporting reasons, if the court is lawfully entitled to impose a sentence or order of reparation under Part 2 of the Sentencing Act 2002:
(v)
the appropriateness of a sentence requiring electronic monitoring, with supporting reasons:
(vi)
whether the defendant wants the Judge to take account of any restorative justice process or other matter listed in section 10 of the Sentencing Act 2002:
(vii)
any other relevant matter.
Subpart 3—Sentencing hearing
5A.6 Sentencing hearing
(1)
Unless the court directs otherwise,—
(a)
the order of submissions is that the prosecutor goes first, followed by the defendant:
(b)
there is no right of reply, except with the leave of the Judge:
(c)
the summary of facts is taken as read.
(2)
A direction under subclause (1) may be given on the court’s own motion or on the application of the prosecutor or the defendant.
Subpart 4—Assistance to authorities
5A.7 Assistance to authorities
(1)
Where the defendant wants assistance given by him or her to the Police or other authorities to be taken into account on a confidential basis at sentencing, the prosecutor and the defendant must prepare a joint memorandum for consideration by the Judge.
(2)
The memorandum must be placed in a sealed envelope and provided to the court by the defendant no later than 3 working days before the sentencing hearing.
(3)
The confidential information must not be referred to in open court by the prosecutor or the defendant.
5A.8 Assistance to authorities known only to prosecutor
(1)
Despite rule 5A.7, if the confidential information is not known to the lawyer for the defendant, the prosecutor must prepare a memorandum for consideration by the Judge, including submissions on whether that information should be disclosed to any other person.
(2)
The memorandum must be placed in a sealed envelope and provided to the court by the prosecutor no later than 5 working days before the sentencing hearing.
10 Rule 8.3 amended (How to give notice of appeal or apply for leave to appeal)
Replace rule 8.3(1) and (2) with:
(1)
A party appeals by filing a notice of appeal in—
(a)
the registry of the appeal court that is nearest to the registry of the court in which the charging document was filed under section 14(1) of the Act; or
(b)
if the proceedings were transferred to another court or a different registry of the same court under section 75, 76, 157, or another provision of the Act, the registry of the appeal court that is nearest to the registry of the court to which the proceedings were transferred.
(2)
If leave is required for an appeal, a party must file a notice of application for leave to appeal instead of a notice of appeal, in accordance with subclause (1)(a) and (b).
Rachel Hayward,
for Clerk of the Executive Council.
Explanatory note
This note is not part of the rules, but is intended to indicate their general effect.
These rules, which come into force on 15 August 2016, insert a new Part 5A into the Criminal Procedure Rules 2012 (the principal rules).
New Part 5A sets out procedures for sentencing. It replaces the present practice note relating to sentencing practice. Briefly summarised, the new rules in that Part have the following effect:
new rules 5A.1 and 5A.2 require the prosecutor to provide the defendant with a copy of the summary of facts at the time a guilty plea is entered and set out a process for resolving any dispute about the contents of the summary of facts. They also set out a process where the Crown can seek to amend the summary of facts to add aggravating factors:
new rules 5A.3 to 5A.5 provide for the filing and service of sentencing memoranda by the prosecutor and defendant in sentencing hearings for more serious offences and describe the matters that the prosecution and defence memoranda must each address:
new rule 5A.6 sets out the order of presentation of submissions at a sentencing hearing and provides that the summary of facts is taken as read:
new rules 5A.7 and 5A.8 deal with assistance to the authorities:
new rule 5A.7 sets out the procedure to be adopted where a defendant wants assistance that he or she has given to the Police or other authorities to be taken into account on sentencing:
new rule 5A.8 sets out the process to be adopted where confidential information to be taken into account is not known by the lawyer for the defendant.
These rules also make a number of other changes to the principal rules as follows:
rule 2.8(5) of the principal rules is amended to clarify that process servers can be granted a general approval to serve documents rather than requiring approval from a court or Registrar on each occasion when documents are required to be served:
rule 4.8 of the principal rules is amended to require a summary of facts to be included with case management memoranda:
new rule 4.14 is inserted to require a prosecutor to give the court notice of certain details relating to a protocol offence:
subpart 6 of Part 4, which deals with Crown notices under the Criminal Procedure Act 2011, is amended to include a note drawing the reader’s attention to the need to read the subpart together with the requirements set out in the Crown Prosecution Regulations 2013 and describing the effect of those regulations:
rule 5.5 of the principal rules is amended to alter the period during which a prosecutor must file the formal statements required by section 85 of the Criminal Procedure Act 2011 from 25 working days to 15 working days before the trial callover date:
rule 8.3 of the principal rules is amended to clarify where a notice of appeal must be filed.
Date of notification in Gazette: 14 July 2016.
These rules are administered by the Ministry of Justice.