Criminal Offences

Sources of NZ criminal law

The Crimes Act 1961 contains most serious offences and the general principles of criminal liability. The Summary Offences Act 1981 covers a range of less serious offences. The Criminal Procedure Act 2011 sets out how criminal cases are brought, categorised and tried. The Sentencing Act 2002 sets out the principles a judge must apply when sentencing someone.

Standard of proof

In a criminal trial the prosecution must prove every element of the offence beyond reasonable doubt. This is a much higher standard than the civil 'balance of probabilities' used in non-criminal cases. The defendant does not have to prove their innocence.

The court hierarchy

Most criminal cases start in the District Court. Serious offences (e.g. murder, manslaughter, very high-end drug offences) are heard in the High Court. Appeals from those courts go to the Court of Appeal. The Supreme Court of New Zealand, in Wellington, has been the highest court since the Supreme Court Act 2003 took effect in 2004; before that the final court of appeal was the Judicial Committee of the Privy Council in London.

Rights when arrested or detained

Section 23 of the Bill of Rights Act 1990 sets out core rights: the right to be informed at the time of arrest of the reason; the right to consult and instruct a lawyer without delay, and to be informed of that right; the right to remain silent. These rights apply whether you are an NZ citizen, a permanent resident, or a visitor.

Rights when charged with an offence

Section 24 of the Bill of Rights Act lists the rights of a person charged: to be informed promptly and in detail of the charge; to consult and instruct a lawyer; to adequate time and facilities to prepare a defence; and the right to a trial by jury where the maximum penalty is 2 or more years' imprisonment. Section 25 adds the right to a fair trial in public, to be tried without undue delay, and the presumption of innocence.

Age of criminal responsibility

Section 21 of the Crimes Act 1961 says no person under 10 can be convicted of an offence. Between 10 and 13, additional protections apply: section 22 of the Crimes Act sets a presumption that a child of that age did not know the act was wrong, which the prosecution must rebut, and the Oranga Tamariki Act 1989 limits what charges can be brought against children in that age band. Young people (under 18 in most contexts) are dealt with under a separate youth justice system.

"The accused has to prove they are innocent."

No. The accused is presumed innocent. The prosecution carries the burden of proving guilt beyond reasonable doubt.

"The highest court is the Privy Council in London."

Not since 2004. The Supreme Court Act 2003 (now part of the Senior Courts Act 2016) established the Supreme Court of New Zealand as the highest court, ending appeals to the Privy Council.

"Every accused person gets a jury trial."

No. The right to elect trial by jury applies when the maximum penalty for the offence is 2 or more years' imprisonment. Lower-level offences are usually decided by a judge alone.

"The right to silence means police can't ask you any questions."

The police can ask. The right is that you do not have to answer, and your refusal to answer cannot itself be used as evidence of guilt. You should still be polite and identify yourself when required.

"Children can't be charged with anything until they are 18."

No. The minimum age of criminal responsibility is 10. Children between 10 and 13 have extra legal protections, but they can be charged with serious offences. Young people up to 18 are generally dealt with under the youth justice system rather than adult courts.

"Beyond reasonable doubt means 100% certain."

No. It means there is no reasonable doubt left after considering the evidence — a very high standard, but not impossible mathematical certainty.