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THE NEW ZEALAND LEGAL SYSTEMUnit Standard 21109

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The New Zealand Legal System

Introduction

This study guide is designed to prepare you for assessment against NZQA unit standard 21109 Demonstrate knowledge of staff interaction with the Legal System. This Unit Standard is a compulsory requirement of the National Certificate in Security Level 3 and 4.

It is knowledge based module and can be achieved by completing the two distance learning modules mentioned below.

The Unit Standard is made up of two parts;

Part 1 – The New Zealand Legal System

Part 1 – The New Zealand Police: Powers, Responsibilities and Procedures

This module is Part 1 – The New Zealand Legal System.

Trainer/Assessor

Your trainer and assessor will issue you this module and give a time frame for it to be completed by.

If you have any questions you can contact your assessor at any time. Once you have completed this module your assessor will discuss this it with you to ensure your knowledge is sufficient to pass assessment.

Recommended Study Technique

1. Browse or read through this workbook to get the general idea of what it is about.

2. Study each section3. Complete the Assessment form at the end of this module and hand the

entire workbook to your assessor for marking.4. The completed workbook will be returned to you for your records.

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The New Zealand Legal System

Our legal system in New Zealand is modeled on the English system which developed over many centuries.

In New Zealand we have a constitution which is a series of important documents upon which our political and legal system is based. Key documents that form the constitution include The Constitution Act 1986, The New Zealand Bill of Rights Act 1990 and The Treaty of Waitangi.

The legal system is also shaped by things that are distinctively New Zealand such as the Treaty of Waitangi. Our Accident Compensation Commission (ACC) system adopted in 1974 abolished suing for personal injury caused by another person’s negligence.

There are some institutions that play an important part in our legal system.

Parliament Ministry of Justice Courts

Parliament

Parliament is part of our Government. It specializes on the legislative (law making) system. Laws are decided on by parliament and once they have been signed off must be followed by all New Zealanders and anybody living or visiting our country.

The Ministry of Justice

The Ministry of Justice (MoJ) administers legislation (laws). It provides buildings for courts to operate out of, it pays the judges and manages the legal aid system, it also works with other agencies such as the New Zealand Police, Department of Corrections and the Ministry of Social Development. Its goal is to make a ‘safe and just society for New Zealand’.

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Courts

Courts have been set up in New Zealand to settle disputes. Some courts settle disputes between two people, other courts settle criminal matters between the government and a person. The New Zealand court system is based on some important principals;

Independence – the decisions made by the courts are not influenced by anybody else such as the government, police or lawyers.

Openness – courts are normally open to the public. The media are also allowed to be there and sometimes they even video court hearings which we see on television.

Structure of the court system

We have four general courts which make up our court system. They are District Court, The High Court, The Court of Appeal and The Supreme Court.

The District court is the general or lowest court with the Supreme Court being the highest court in our country.

There are also a number of special courts such as the Family court, The Youth Court, The Employment Court, The Environment Court and The Maori Land Court and The Coroners Court.

District Courts

The District Courts Act 1947 gives these courts authority in New Zealand. All cities and many towns in New Zealand have a District Court. These courts, 63 in total, generally deal with minor criminal offences.

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They can also conduct trials for some serious offences such as rape and aggravated robbery.

They are also able to deal with civil matters with claims up to $200,000. Civil claims of under $7,500.00 are heard in a Disputes Tribunal.

The High Court

Judges in this court deal with more serious cases such as robbery, rape and murder. Often the case is decided on by a jury.

The court can also deal with an appeal from the District Court or Youth Court; example: when the person convicted believes they were wrongfully convicted.

Like the District Court, this court can also hear civil cases, especially appeals.

Decisions made by the High Court are binding on the District Court which must agree with the High Court judge.

The Court of Appeal

This court is the second highest court in New Zealand and run by three or five judges depending on how important the case is.

The judges deal with appeals from the High Court and sometimes appeals from serious criminal cases from the District Court.

The court is located in Wellington but can, at times sit in Auckland or Christchurch.

The Supreme Court

The Supreme Court is located in Wellington and was set up in New Zealand under the Supreme Court Act 2003.

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This court is run by up to six judges who decide on very important matters of criminal and civil law. The court has the final say in any court proceeding. The court will only consider the case if it believes that it is in the best interest of justice in New Zealand. It does not sit very often.

Before we had a Supreme Court defendants had to make their claims to the Privy Council which is located in London England.

The Family Court

Family Courts work close with District Courts. They deal with family issues such as adoption, family violence, care and protection of children as well as divorce and separation issues.

The Youth Court

Youth Courts deal with criminal matters for those aged 14 to 16 years old. The courts are run by judges that have special training in dealing with these youths. The courts are not open to the public.

The Employment Court

This court deals with employment disputes between employers and employees. It can also deal with strike issues.

The Environment Court

The Environment Court is set up under the Resource Management Act 1991.

There are three Environmental Court districts in New Zealand.

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This courts listens to issues that affect the environment such as pollution, plans to build more houses, or protecting parts of the environment such as forests and lakes.

The Maori Land Court

The Maori Land Court (Te Kooti Whenua Maori) hears cases relating to Maori land or land which is in dispute. It can also hear matters relating to Maori fishing rights.

There are seven Maori Land Court districts in New Zealand.

The hearings are often conducted in te reo Maori.

The court also works closely with the Waitangi Tribunal which investigates and makes recommendations on issues related to the Treaty of Waitangi.

The Coroners Court

The Coroner is appointed under the Coroners Act 2006. The Coroners Court investigates the cause of death where the death appears to have been;

Violent or unnatural Without known cause A suicide As a result of a medical operation While under anaesthetic While in custody (example; prison or police cells)

Disputes Tribunals

The MoJ operates a wide range of tribunals including the Disputes Tribunal, Tenancy Tribunal and the Human Rights Review Tribunal.

These tribunals are responsible for hearing disputes that can be dealt with without the need for a court hearing.

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Court Proceedings

Who is involved in a court proceeding?

There are a number of people involved in a court hearing. Each one is very important to the proceedings and their location in the court is normally always the same pace. Here is a list of the people that can be involved in a hearing and what they do.

The Judge

Effectively the judge is in charge of the court. They sit at the front of the court, normally on a raised platform so they can see everything that is going on. The judge listens to all the evidence and if there is no jury decides on whether the person (known as the defendant or the accused) is guilty or not guilty.

The judge must also ensure that any evidence given to the court by the police or defence is admissible. There are a number of rules around the admissibility of evidence that the judge must take into account when making decisions.

The judge always decides on the penalty to be imposed on the defendant or accused.

During the entire hearing the judge also ensures that the correct legal process is carried out.

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The Prosecutor

The prosecutor is normally a police officer who is trained to manage the presentation of evidence against the defendant. They are normally at the rank of sergeant or senior sergeant, but at times can be a constable.

In a high court hearing the prosecutor is a lawyer and is called ‘Crown Counsel’.

The prosecutors job is to prepare and manage the prosecution of the defendant or accused. They ask questions to any witness and present exhibits to the court.

Prosecutors represent the people of New Zealand and the law of the land.

The Defence Lawyer

This person is a qualified lawyer and is often called the ‘ Defence Counsel’.

They manage the defence of the defendant and have an understanding of the law and how evidence is produced in court. If the defendant pleads guilty they can also tell the judge why the crime was committed and try and get the defendant a smaller fine or term of imprisonment.

Some defence lawyers become experts in one particular area of the law. For example defending drinking and driving charges or murder charges.

The Defendant or Accused

This is the person charged with having committed the crime or offence.

In the District court they are called the ‘defendant’. In the High court they are called the ‘accused’.

They can give evidence like any other witness but do not have to if they don’t want to.

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The Witnesses

Witnesses are people who have seen or heard something that may help the judge or jury decide on the guilt or innocence of the defendant.

Witnesses can be there for either the police or the defence counsel. They are normally summonsed to appear in court on a particular day. A witness may be able to claim some contribution towards their expenses for attending court.

Jury

A selection of twelve adults chosen to listen to the evidence and decide whether a person is guilty or innocent.

Some charges such as murder must be heard by a jury.

The decision by a jury must be unanimous, they must all agree that the evidence proves that the defendant or accused is guilty beyond a reasonable doubt.

If the jury cannot come to a unanimous conclusion then it is known as a hung jury. Often the case must then go to a re-trial and start from the beginning again.

When jury members have to listen to a long and sometimes emotionally disturbing court case the judge can rule that they do not ever have to sit on a jury again.

Court Officials

The Court Clerk, Registrar, Court Attendant assist in the running of the court and the recording of evidence, carrying messages, swearing in of witnesses and assisting jurors.

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Stenographers (also known as court reporters) are use to record the evidence by typing all the spoken evidence during a court case.

Court officials are also able to record evidence by using electronic recording devices.

Court Security Officer

This security officer provides security to the court officials, witnesses etc. They usually stay near the defendant during a court hearing. Sometimes this person is a prison officer or a police officer.

Media

Freedom of the media is an important part of our system of government.

Reporter are allowed into the court room and are allowed to record information and report to radios and other news channels.

Judges are able to make suppression orders which prevent the media from releasing information such as names etc.

Public

The public are also allowed into a court room and may watch the entire hearing.

However if the court case is very sensitive (typically around children or sexual charges) the judge may close the court to the public. A judge can also have a member of the public removed for disorderly or abusive behavior.

Others

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From time to time there are other people in the courts. They may include victim support, witness support, the police officer in charge of the case, Probation officers, interpreter etc.

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TYPICAL COURT ROOM LAYOUT

Dock

Entrance

Clerk of the Court

Judge

Security

Prosecution

Defence

Media

Jury

Public Area Public Area

Court Process and Procedure

Court process and procedure is extremely important as it ensures that an open and fair hearing or trial is conducted.

The system is a set of rules which must be adhered to by everyone involved. The judge makes sure that this is done. It is a system which all those that participate in a hearing or trial understand and can plan for.

Court process is the series of court hearing that occur as soon as the person is arrested and continues until they have been found not guilty or sentenced when found guilty.

Initial hearing

The defendant appears in court as soon as possible after being charged and pleads guilty or ‘not guilty’ to the charge. If he pleads guilty he is either sentenced there and then or in serious cases another hearing may occur. If he pleads not guilty then he is remanded to a defended hearing or a trial.

Status hearing

Status hearings are meetings between the judge, prosecution, defendant and the defence counsel where certain aspects of the case are discussed. A discussion here may save a lot of time later in a defended hearing.

Defended hearing or Trial.

This is the time when the defendant and his Defence Counsel defend the case. Prosecutors also present all their evidence to the judge/jury.

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Witness

District court hearings are called ‘Defended Hearings’ while a trial or High court hearing is known as a ‘Trial’.

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Sentence Freedom

Status Hearing

NOTGUILTYGUILTY

Defended Hearing or Trial by Jury

GUILTY NOTGUILTY

Initial Hearing

Enters Plea

Court Procedure

Court procedure is what happens during the actual hearing in the court room. It is governed by a number of rules and statutes that the members of the court must abide by. Failure to comply with these rules may result in a mistrial.

Procedures vary between each hearing. They are normally very formal but during a status hearing may be informal at times.

The following steps are based on a defended hearing case before a Judge and Jury.

1. Charge read out

The charge is read out to the defendant who can change his plea to guilty if he so desires. If he changes to guilty the defended hearing is not carried on with.

2. Prosecution

The Prosecution presents their evidence by questioning all their witnesses and showing the court their exhibits - photos, clothing etc. (This is called the Evidence in Chief)

The Defense Counsel may put questions to the prosecutions’ witnesses. (This is known as cross examination).

The Prosecution can now finish off by asking any questions from matters that arose during the Defense Counsels cross examination (Re Examination).

The judge may ask the witness any question in order to clarify any matter.

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3. Defence Counsel

The Defence Counsel presents their own evidence to the court. They question their own witnesses and show the court any of their own exhibits. (Evidence in Chief)

The prosecutor is entitled to put questions to these witnesses (Cross examination).

The Defense counsel can now finish off by asking any questions from matters that arose during the cross examination (Re Examination).

The judge may ask the witness any question in order to clarify any matter. The defendant chooses whether they want to give evidence. They do not

have to.

4. Summing Up

The prosecution and the Defense Counsel now summarise their cases to the Judge or Jury. The Prosecutor goes first followed by the Defence Counsel.

Once they sit down they have finished presenting their case. The Judge sums up the evidence and can make rulings on law. He also

directs the Jury on points of law if there is a Jury present. The Judge and/or Jury retire to consider the evidence and decide on guilt.

5. The Verdict

The verdict is the decision that is made at the end of the case, after all the evidence has been presented as to whether the defendant is guilty or not.

The Judge or Jury give their verdict ‘Guilty’ or ‘Not Guilty’ The Judge alone decides on the penalty

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6. Sentencing

Sentencing is when the judge decides what punishment the defendant will get once they plead guilty or are found guilty after a defended hearing.

The aim of sentencing is to;

Make the defendant accountable for their actions Provide for reparation for harm against victims or the community To deter the defendant from reoffending To protect the community from the defendant Assist in rehabilitating the defendant

Sentences can include one or more of the following categories which are listed in the Sentencing Act 2002;

Discharge without conviction Conviction and discharge Order to come up for sentence if called upon (also called a suspended

sentence) Payment of a fine or reparation Community work or supervision Home detention up to 12 months (Includes electronic monitoring) Imprisonment

When sentencing, a judge can take into account;

The seriousness of the crime committed If weapons were used Actual injury or threatened violence If the offence occurred when on bail Previous convictions

As well as;

The age, character, remorse and mental capacity and of the defendant

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Giving Evidence in Court

Security officers can be required to give evidence in a court hearing. This will happen because of the nature of security work and the things that a security officer has seen or done while working.

The evidence to be given might be as simple as the time that a premise was found burgled or as complex as describing the suspicious actions of shop thief.

The police will discuss the evidence that is needed to be covered by the security officer. Only evidence relating to this case need to be given during the hearing.

Security officers who need to give evidence at a criminal hearing should be given time to prepare their evidence and discuss the evidence with the police officer in charge. A court case is an important event and therefore a high level of professionalism is expected by the police and the judge.

Before going to court

Prepare mentally Go over the evidence Take all evidence required Wear your best uniform or clothes Allow plenty of time to get to court; don’t be rushed If it’s the first time in court speak to someone who has experience Check the date, time, location, parking, floor and court room number

When at court

Check in with the police officer in charge Find out the order of witnesses and approximate time frame Wait in the witness room or outside the court room Don’t discuss the case with other witnesses

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Don’t talk with the defendant or anyone in the defence Don’t talk to reporters

When in the court room

Walk confidently to the witness box Stand confidently, arms to your front, side or back – sometimes the court

allows you to sit Try and relax Expect to get sworn in Check location of the judge, prosecutor, defendant and defence counsel Look to the prosecutor and wait for questions Listen to the questions carefully Be positive when answering questions Ask questions to be repeated if you are not sure Look at the person who asks you any question Answer all questions to the judge Face the judge when speaking to him or her Call the judge ‘your Honour’, use the police officers rank ‘Sergeant’ and use

the title ‘Mr’ or ‘Sir’ or ‘Ma’am’ when speaking to the defense counsel Speak clearly and confidently Don’t use jargon or security codes etc Be professional Don’t make fun or joke Keep to the point; Don’t just keep on talking; allow the prosecutor to ask

you questions and guide you through your evidence Be honest and accurate; if you don’t know something - say so Be impartial especially when being cross examined by Defense Counsel Don’t argue with Defense Counsel

Credibility

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The judge and others in the court need to believe that you are a credible witness. If they don’t believe you then the entire case may be in jeopardy.

Your credibility as a witness starts from the day you obtain the evidence. Each time you attend a crime scene, observe an offender or apprehend a criminal you should anticipate that the matter may end up in court many months in the future.

Your incident report, run sheet, notebook or other form of evidence should be of the highest standard on each and every occasion.

As the case gets closer you should be in touch with the police officer in charge of the case. It is ok for you to call them and let them know you are available and keen to assist.

Your professionalism, appearance, timeliness and positive attitude will help assure the prosecutor and police officer in charge of the case that you are ready and able to be a credible witness.

How you present yourself when giving evidence will assure the judge that your evidence is accurate and you have been honest with what you have remembered from many months before.

The judge doesn’t expect your evidence to be perfect; we all forget some things. Just do your best – that is often all that is needed.

The law states that evidence given by some people is not credible. This includes;

A mentally disordered person A person who is under the influence of drugs or alcohol People who are seriously ill

Evidence

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The New Zealand Police define evidence as

‘Information given personally or drawn from a document or exhibit, which tends to prove or disprove a fact.’

Evidence can be;

1. Direct Evidence – The testimony of a witness in court describing what they saw.

2. Documentary Evidence – Documents produced in court for the judge to see.

3. Real Evidence – Material objects produced in court such as the camera that was stolen.

4. Circumstantial Evidence – Facts from which other facts may be inferred. An example of this is if someone’s fingerprints are found in a building – it can be inferred that the person was inside the building at some time.

At times a witness may be required to present physical evidence in the court. This may be in the form of photographs, documents or other forms of evidence such as a site log book. Normally the police will already have the evidence and will just ask you to present it to the court.

Excluded Evidence

Hearsay evidence is telling the judge what someone else told you that they saw or heard.

Opinion evidence, character evidence and hearsay evidence are generally inadmissible in a court hearing.

Notebooks

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A witness may have written information down and this information is relevant to the court case. In the case of a security officer this should have been written in a personal notebook.

The police should already have a photocopy or this evidence or have the evidence itself.

A witness may refer to notes made at the time of the event as long as they have the judge’s permission. The police prosecutor normally seeks that permission on behalf of the witness.

The prosecutor, defence counsel and the judge are entitled to view those notes. The notes must also comply with evidential standards. The standards are high for notebooks and log books. The credibility of the evidence can be reduced if;

There are missing pages or words are erased or blanked out There is no time or date It is not obvious that the notes were made by the witness

Notebooks should also be free of personal notes (i.e. shopping lists), coffee stains, scribbling or any other non work related notation. A rubber band also helps keep the page open at the proper place.

Further reference: Check out these sites if you want more information.

www.parliament.govt.nz www.justice.govt.nzwww.courtsofnz.govt.nzwww.courts.govt.nzwww.treatyofwaitangi.govt.nz

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Assessment: The New Zealand Legal System: Unit Standard 21109

Name:…………………………………………………………………………………………

1. Identifying people in court - Match the following pairs

Judge=_______ A

A lawyer who defends the defendant

Prosecutor=_______ B

Tell the judge what they saw , heard or did

Defence Counsel=_______ C

In charge of the court, decides on guilt and penalty

Witnesses=_______ D

12 adults who decide guilty or not guilty

Jury=_______ E

Presents the police evidence

Clerk of the Court & Court Registrar =_______ F

The person charged with the crime

Defendant/Accused=_______ G

Court officials who help run the court and record the evidence

Media=_______ H

Protect people in court

Court Security=_______ I

Reporters from newspapers, radio or tv

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Answer the following questions.

2. What is court procedure?……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………...

3. Why is court procedure important?……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………...

4. Police prosecute in the District court while lawyers known as Crown Counsel prosecute in the High court. True/False

5. The District Court generally hears minor criminal cases and the High Court deals with more serious cases such as robbery, rape and murder. True/False

6. When giving evidence in court as a witness what are 6 important things you need to consider when giving evidence in court;

1. 2.

3. 4.

5. 6.

7. Give 4 general rules about notes and presenting notebooks in court?

1. 2.

3. 4.

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8. Give one example for each of the following personal factors that may influence the credibility and reliability of witness.

Personal Factor How can it affect credibility of a witness?

Timeliness [being on time or not to court]

Appearance [how they look]

Clarity [how clear they speak]

Conciseness [Do they get straight to the point or not?]

Accuracy

Care

Demonstrated attitude

Body language

Expertise relevant to the proceedings

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