Explore the criminal justice system

Car crash kills two, driver aged 20 is charged

This is the story of how New Zealand's criminal justice system works – from the District Court to the High Court and the Court of Appeal. It all starts when 20-year-old Oliver Fender runs a red light, crashing his car and killing two people. We start with the night of the crash, and the lead up to him being charged by the Police with several crimes.

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The night of the crime

The traffic light was red ...

It's midnight. Oliver, his girlfriend, Lisa, and Kim (her best friend) are heading into town after cruising round the neighbourhood catching up with friends.

Oliver hasn't had anything to drink, but he smoked a joint at a mate's place.

As they approach the traffic lights, they turn red. The car in front goes through the red light and so does Oliver. A van is coming the other way, and it can't stop in time. It crashes into them.

Lisa is killed instantly. Oliver's wrecked car spins and bounces off the crash barrier into the path of another car. Its driver isn't wearing a seatbelt. He dies when he is thrown from the vehicle.

Kim is knocked out and badly injured.

Oliver breaks his leg and receives cuts and bruises.

The police and ambulance arrive quickly

While paramedics treat the injured, a police sergeant takes control of the scene for the police and gives officers key roles. One officer goes with Oliver in the ambulance to hospital.

This isn't Oliver's first crime

Oliver has a history of traffic offences; speeding, running red lights, refusing to hand over his keys, careless driving, and dangerous driving. In the past, he has been sentenced to community work and disqualified from driving for six months. He's only had his licence for three years, but he's already been disqualified for 12 months during that time.

At the hospital, the police officer decides not to question Oliver, but he arranges for Oliver to give a blood sample to see if there is any alcohol is in his system.

Gathering evidence

Back at the scene of the crash, the police's Serious Crash Unit (SCU) arrives quickly. The road is closed and the SCU unit begins to gather evidence and tries to piece together what happened. They talk to the driver of the van, who received only minor injuries but was badly shaken. Detectives from the Criminal Investigation Bureau (CIB) visit the scene briefly, but they aren't needed.

Oliver is arrested

Late the following day, Oliver goes home from hospital.

The Officer in Charge (OIC) has already talked briefly with the police legal section and the Crown Solicitor's office about what charges should be laid – that is, what crimes Oliver will be charged with. The Crown Solicitor's office decides whether cases brought by the police will proceed to the criminal court. Its lawyers represent the police in serious cases.

The OIC of the case visits Oliver at home, arrests him and charges him with manslaughter (killing without intent), and reckless driving causing injury. Police now call Oliver the "alleged offender".

Innocent until proven guilty – Oliver's rights

Oliver is seen as innocent until proven guilty.

Under the Bill of Rights Act 1990, if you are charged with a crime, you have the right to be presumed innocent until proven guilty in a court of law. "The presumption of innocence" is a basic right under New Zealand's criminal justice system.

The OIC informs Oliver of his rights and responsibilities under the Bill of Rights, including:

  • his right to not say anything (make a statement) – although if he decides to, anything he says may be used as evidence against him
  • his right to talk with a lawyer as soon as possible and in private. If he doesn't have a lawyer, he can ask to see the list of lawyers he can consult for free under the Police Detention Legal Assistance (PDLA) scheme. Oliver must be able to talk freely with his lawyer, without the police listening to the conversation.

The police interview

Oliver is taken to an interview room in the police station, and police officers ask him about the accident. This is a chance for Oliver to explain his actions and/or deny he did them.

He has several choices about the interview. He can:

  • agree to be formally interviewed on or off video, with a lawyer present (either his own lawyer or a lawyer from the Police Detention Legal Assistance scheme)
  • agree to be formally interviewed on or off video without a lawyer present
  • refuse to say anything
  • talk to a lawyer privately by phone, and then choose one of the options above.

Deciding the criminal charges

While this is happening, the police are gathering more evidence for the case.

At the end of the interview process, they will decide whether there is enough evidence to charge Oliver.

In this case, there is. Oliver is formally charged with specific offences - two charges of manslaughter and one charge of reckless driving causing injury. He is again cautioned - reminded - that anything he says will be taken down in writing and may later be used as evidence against him.

Oliver is "processed"

He is led away to the cell area, where, as the "prisoner", he is "processed". Oliver is searched, and details like his name, age, and date of birth are recorded on a charge sheet.

Oliver is fingerprinted, photographed, and (because of the seriousness of the case) placed in a police cell by himself to wait for his court appearance the next day.

While this is happening, the police tell Victim Support about the incident.

Victim Support website (external link)

They will make contact with and offer to help the victims and their families deal with the emotional and physical impacts of the crash.

A police investigation team continues to gather evidence. They check the vehicles for exhibits (pieces of evidence) and talk to the victims and witnesses, and to Oliver's friends and family. All of the information they gather goes into the case file.

What else could happen to an alleged offender?

There are 4 different categories of offences and the way in which offenders will be processed depends on the category of offence that they are charged with. These categories are determined by the maximum sentence which can be imposed. The category of the offence also determines what type of trial will occur and where the trial will be held:

  • A category 1 offence is an offence that is punishable by a fine only, for example, careless driving. These offences will be heard in the District Court by a judicial officer (rather than a jury).
  • A category 2 offence is an offence punishable by a maximum term of imprisonment of less than two years (or not punishable by a term of imprisonment but with a community-based sentence as a maximum penalty). These offences may be heard in either the District Court or High Court by a judicial officer (rather than a jury).
  • A category 3 offence is an offence punishable by imprisonment for life or a maximum term of imprisonment of two or more years unless listed in Schedule 1 to the Criminal Procedure Act 2011. These offences may be heard in either the District Court or High Court by a judge alone or a judge and a jury.
  • A category 4 offence is an offence listed in Schedule 1 to the Criminal Procedure Act 2011. These are the most serious offences, for example, murder or manslaughter.

Oliver is charged with manslaughter, a category 4 offence. Although these things didn't happen to him when he was processed, other category 4 offenders might:

  • have their clothes taken for evidence to link them to the crime. They would be given a pair of police-issue white overalls to wear.
  • have a DNA sample taken.
  • be checked to see whether they have been taking drugs or drinking alcohol.
  • be checked for signs of depression or being suicidal so they can be watched and managed properly. If they were on drugs or had mental health problems, a Critical Assessment Team (CAT) from the local District Health Board may be called in.

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Oliver gets a lawyer

The next day, the day of his first appearance in court, Oliver talks to a duty lawyer, sometimes called a 'duty solicitor'. This is a lawyer who is based at the court and provides free legal help. The duty lawyer explains the charges – what the police claim Oliver has done.

The duty lawyer also applies for Oliver's bail in court. This means that Oliver will be free to leave the court until his next court appearance. Oliver will have to follow certain conditions decided by the court, like living at a particular address, reporting to the Police every day and not being allowed to drive.

The duty lawyer advises Oliver to apply for legal aid because Oliver earns little money and the offence is so serious. He also helps him complete the application form. Depending on their financial situation, an offender may have to pay towards their legal aid or have to pay it back at a later date.

The local Legal Aid office writes back to Oliver within 24 hours of getting the application. The letter says that Oliver will get legal aid.

Oliver’s first court appearance

At the first District Court hearing Oliver's details, and those of the victims' families, are given to the court victims' adviser. The victims' adviser makes sure the victims or their families know about the progress of a case. This includes court hearing dates, any bail conditions, and whether the offender is in custody – in prison or the police cells. Because Oliver is charged with two category 4 charges, the highest category charge, he will be remanded (ordered back) to the High Court for his next appearance – the next date in court.

During this first court hearing, Oliver can enter a plea at any time. If Oliver pleads guilty, the Police presents a summary of facts, which describes what they believe happened in the night of the crime. Because Oliver’s offence is so serious Oliver will be remanded to the High Court for sentencing.

Oliver pleads not guilty, so he will face a High Court trial by jury. A jury is a group of twelve people who sit through a trial, listen to the evidence, and decide whether someone is guilty or not of committing a crime. The prosecutor at the first appearance will have been a Police Prosecutor. However, subsequent appearances will be prosecuted by a Crown Solicitor because of the serious nature of his charge.

For more information about juries, visit jury service

Oliver on bail

Oliver is granted bail – he does not have to stay in prison while he waits for his trial. The police agree to this because Oliver does not have a passport, so he's not a "flight risk". His bail is granted on these strict conditions. He must:

  • live at his parents' address
  • report to the police every day
  • not drive
  • not have any contact with any of the police witnesses.

What happens to Oliver between appearances?

Oliver will be either

  • remanded at large, which means he will be free to go until his next appearance;
  • remanded on bail, which means he is released on conditions (such as having to live at a particular place, having no contact with the victim, or having to report to the Police while on bail);
  • remanded in custody, which means he is held in prison until your next court date.

Oliver is bailed and is told the date when he will appear in court. (If he fails to appear in court on that date, a warrant will be issued for his arrest.) The judge warns Oliver that if he breaches (breaks) any of the bail conditions, he will be put prison until his next court appearance.

Oliver breaches bail

Two days later, Oliver is caught driving, and the police arrest him for breaching the conditions of his bail. He appears before a different judge, but the note on the file is clear. Oliver is remanded in custody (put in prison) until his next court appearance: the case review hearing. Because he is now a prisoner, he is under the care of the Department of Corrections.

Case management discussions

Before the next hearing, Oliver’s lawyer will discuss his case with the Crown Solicitor. As part of this discussion they will complete a case management memorandum. This memorandum will inform the court of the direction the case will be taking. Information that will be included in this case management memorandum is:

  • Whether Oliver would like to change his plea to guilty;
  • Whether Oliver would like to apply for a sentence indication (a statement by the court telling Oliver what type of sentence he would likely receive with a guilty plea); or
  • If Oliver is continuing to defend the charge (plead not guilty) and wants to go straight to trial.

The case management memorandum is filed with the Court five days before the case review hearing to help the court prepare for the next steps.

Case review hearing

Oliver may need to appear at a case review hearing. At this hearing the case management memorandum will be discussed. If Oliver was to change his plea to guilty then a date for his sentencing would be scheduled.

Oliver could apply for a sentence indication. This is a statement by the court telling Oliver what type of sentence he would likely receive with a guilty plea to his charge. During this process his counsel will put forward any personal details about Oliver’s life or the night of the crime to assist the court with the indication.

Through his counsel Oliver advises that does not wish to change his plea or apply for a sentencing indication, but that he wishes to continue to trial. Oliver’s case is adjourned (put on hold) until trial call over. He reapplies for bail until his trial date. The judge grants him bail but reminds Oliver that he must not breach his bail conditions unless he wants to be taken into custody again.

Trial call-over memo

A trial callover memo must be completed by Oliver’s counsel as well as the Crown Solicitor who is responsible for prosecuting his case. This memo will provide information to the court that will assist with scheduling the jury trial such as:

  • number of witnesses
  • estimated duration of the jury trial
  • availability of counsel and crown prosecutor
  • any pre-trial decisions that need to be made prior to the jury trial.

Call-over

A call-over is when the judge and the lawyers for both sides discuss any pre-trial issues and schedule the jury trial dates. Examples of pre-trial issues include: a witness may need to give video evidence as they will be overseas at the time of the trial. Or the defence counsel might make a case for some evidence to be excluded. A second call-over may be needed to give enough time to deal with all pre-trial issues.

Prosecution and defence prepare

Oliver's lawyer prepares his defence by talking with Oliver and any defence witnesses who will be called to appear in court. The Crown counsel arranges for witnesses to give evidence at the trial.

Witnesses are also shown around the court and have court procedures explained to them so they know what to expect.

Oliver's past – inadmissible evidence

Oliver's lawyer objects to some of the evidence the Crown wants to call at the trial. One of Oliver's friends will give evidence of being in a car with Oliver driving and being quite afraid, particularly about how Oliver handled traffic lights. He will also talk about several times when Oliver deliberately drove through red lights. This evidence is very bad for Oliver. His lawyer wants a judge to declare this evidence "inadmissible" on the grounds that Oliver's earlier actions are not relevant to this case.

This evidence may go against Oliver because it may convince the jury and judge that Oliver often broke traffic laws and took risks. This evidence will help the prosecution prove its case against Oliver.

Oliver's lawyer applies to exclude the evidence as inadmissible. A pre-trial hearing is held for a judge to hear arguments and make a decision. The judge decides that the evidence is inadmissible.

This is a serious setback to the Crown's hopes of convicting Oliver for manslaughter, so they decide to appeal the decision to the Court of Appeal.

See a chart of New Zealand's court system [PDF, 923 KB]

High Court appeal for inadmissible evidence is lost

The Court of Appeal sets a date for the appeal to be heard by three judges.

The High Court prepares a file and sends it to the Court of Appeal. The defence and prosecution counsel prepare their arguments.

The Crown has to convince the three Court of Appeal Judges that the High Court Judge was wrong. The Judges hear the arguments and "reserve their decision". That means that they will think about it and give their decision at a later date.

A week later, the Court of Appeal Judges release their decision. They think the High Court Judge was wrong to declare the evidence inadmissible. The Crown is allowed to use that evidence in the High Court trial.

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The High Court trial

On the day of the trial, Oliver is brought into the High Court from prison and is held in the court cells until his appearance. At 10.am he is brought up to the courtroom.

A jury of twelve has been chosen from a pool of about sixty people who have been called to do jury service.

Once the jury has been chosen, the list of witnesses for the prosecution is read out loud. If one of the jurors knows a witness, they must let the judge know. The judge will decide whether or not they can still be a juror based on how well they know the witness.

For more information about juries, see jury service.

The Crown and defence counsel (lawyers for the police and for the defendant, Oliver) can each object to up to four of the potential jurors. Counsel can "challenge" potential jurors who they think may be biased towards the people in the trial.

The judge explains to the jury why Oliver is on trial. The jury then selects one juror who will speak on behalf of the jury (a foreperson).

The trial will take five days (but this could be much longer, depending on the situation). The Crown outlines its case and introduces the witnesses. The trial starts with the prosecution and then the defence making their case. They question the accused and witnesses (Crown), cross-examine the accused and witnesses (Defence) and re-examine the accused and witnesses (Crown), and show exhibits (evidence).

Once all the evidence is presented, the judge sums up (gives an unbiased summary of the case) and the jury decides if Oliver is guilty or not guilty.

Guilty verdict

Oliver is brought back into the courtroom, and the foreperson delivers the verdict – the decision of the jury. They find Oliver guilty on all charges. The Crown (the lawyer for the Police) argues that, as a convicted offender, Oliver should be remanded in custody – held in prison – to await sentencing. The court agrees. (Sentencing is announcing the penalty for Oliver's crime.)

The judge asks a probation officer to assess Oliver and prepare a report (called a PAC - Provisional Advice to Court - report), to help the judge decide on Oliver's sentence. The probation officer works for the Department of Corrections, supervising offenders like Oliver before and after they go to prison.

The police prepare victim impact statements, which must be less than 28 days old at the time of sentencing. In these statements, the victims describe the physical and emotional effects of the crime, as well as any loss of property. The defence lawyer also gets a chance to prepare a plea for Oliver "in mitigation", which aims to reduce his sentence.

Oliver is sentenced

Three weeks later, Oliver reappears before the trial judge and counsel for sentencing.

Oliver can address (talk to) the court through his counsel or directly if the judge permits. Both the Crown and the defence can make oral (spoken) submissions if they haven't already made written submissions.

The police may attend sentencing to:

  • deal with any prosecution-related issues
  • support witnesses who are there to see justice being done
  • inform people interested in the case about the outcome
  • see the case come to a conclusion.

Family members of the victims killed in the crash have decided to appear before the court and read out their victim impact statements.

The judge sentences Oliver to a three-year sentence, which means he will go to prison. He is also disqualified from driving or having a driver's licence for five years. The judge signs a warrant giving the prison the authority to hold Oliver for the three-year term.

This is the end of the court's involvement with Oliver, unless he successfully appeals the sentence. He could do this by formally asking the Court of Appeal to reconsider his case.

Oliver goes to prison

The Department of Corrections decides which prison Oliver will go to, after considering things like any special drug programmes he may need to attend, or whether he needs to be near his family. Oliver is taken to a minimum/medium security prison run by the Prisons Service.

When he gets to prison, officials assess his risk of reoffending (committing another crime), the reasons behind his committing the crime, and his willingness to change. The in-depth assessment also looks at his educational, health and other needs, and his security risks.

Based on this assessment, Corrections staff write a sentence plan that focuses on giving Oliver a chance to break the cycle of reoffending.

When Oliver leaves prison, he'll face the challenge of returning to normal life. His sentence plan may aim to help with this by including topics like budgeting, getting a job and handling relationships.

The plan aims to give the best kind of help for Oliver's needs. Because Oliver smoked a joint before the crash happened it also includes an alcohol and drug rehabilitation programme. Generally, the longer a person is in prison, the more access they have to rehabilitation programmes.

Oliver is released on parole

Oliver qualifies for parole after serving one-third of his sentence – one year. Parole means Oliver is released from prison but has to follow conditions set by the New Zealand Parole Board. Oliver will have to follow these conditions for the remaining two years of his sentence.

The parole eligibility date (PED) is set out in the Parole Act 2002. For offenders with sentences of more than two years, the PED is one-third of their sentence. (This does not include offenders who have life sentences or are on preventive detention.) There is no guarantee that Oliver will be released from prison on his PED but he has the right to go before the Parole Board. The Parole Board will consider reports from prison officers and other Corrections staff, perhaps the police, and his victims. It will also hear from Oliver about his progress since his he went to prison, including his behaviour as a prisoner.

Parole aims to encourage offenders to participate in rehabilitation programmes that target the cause of their offending. Parole also gives the community a way of controlling the release of an offender back into society. Offenders are supervised by probation officers after their release.  The probation officers make sure offenders follow the conditions of their parole.

The safety of the community is the first priority the Parole Board considers when deciding whether to release an offender on parole. The board considers the risk of Oliver reoffending and how serious that reoffending might be.

In fact, it is unusual for an offender like Oliver to be paroled at his first hearing. If he stays in prison, the Board must, by law, consider him again at least once every 12 months. If he is not paroled, Oliver will be released three months before the end of his sentence – the sentence end date (SED). Even then, the Parole Board can set release conditions that stay in force until six months after his SED.

Oliver is released from prison

The Parole Board hearing agrees that Oliver can be released from prison. The Community Probation Service will supervise him. It is run by the Department of Corrections.

He must report to his probation officer within 72 hours of his release. The probation officer checks his progress in meeting his release conditions, but he is not under 24 hour supervision. The conditions set down as part of his parole cover:

  • where he lives and works
  • who he meets with
  • his use of alcohol and drugs
  • his attending a community-based drug rehabilitation programme.

Once on parole, Oliver can't choose to return to prison. But if he breaches his parole conditions or commits another offence that would be punishable by a prison sentence, he can be recalled by the Parole Board to resume his prison sentence.

Oliver's future

Oliver leaves prison and returns to the community, after he has completed his prison term. Oliver's future is up to him. He has to choose whether his life is free from crime. If he reoffends – commits a crime again – and the police catch him, he will once again face the criminal justice system.

Explore the civil justice system through the case of Mei Hsu, who thinks someone stole her idea.

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