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VIII. APPENDIX D - Crimes punishable by 14 years imprisonment or more

Crimes Act 1961

Section 68 Party to murder outside New Zealand

Section 69 Party to any other crime outside New Zealand

Section 74 Punishment for treason or attempted treason

Section 92 Piracy

Section 94 Punishment of piratical acts

Section 95 Attempts to commit piracy

Section 98 Dealing in slaves

Section 100 Judicial corruption

Section 102 Corruption and bribery of Minister of the Crown

Section 115 Conspiring to bring false accusation

Section 128B Sexual violation

Section129A Inducing sexual connection by coercion

Section 132 Sexual intercourse with a girl under 12

Section 142(3)(a) Anal intercourse

Section 172 Punishment of murder

Section 173 Attempt to murder

Section 179 Aiding and abetting suicide

Section 182 Killing unborn child

Section 183 Procuring abortion by any means

Section 188 Wounding with intent

Section191 Aggravated wounding or injury

Section 198 Discharging firearm or doing dangerous act with intent

Section 198A Using any firearm against any law enforcement officer

Section 199 Acid throwing

Section 200 Poisoning with intent

Section 201 Infecting with disease

Section 203 Endangering transport

Section 208 Abduction of woman or girl

Section 209 Kidnapping

Section 235 Aggravated robbery

Section 236 Compelling execution of documents by force

Section 238 Extortion by certain threats

Section 240A Aggravated burglary

Section 294 Arson

Section 298 Wilful damage

Section 301 Wrecking

Misuse of Drugs Act 1975

Sections 6(2)(b), 6(2A)(a) Dealing with controlled drugs

Section 10(2)(a) Aiding offences against corresponding law of another country

1. Bibliography

ARTICLES

I Dennis “Rethinking Double Jeopardy” [2000] CLR 933

C Tapper “Clouded Acquittal” (2000) 117 LQR 1

Lord Bingham CG Newsam Memorial Lecture 1981 www.open.gov.uk/lcd/judical/ judgesfr.htm

CASES AND PRACTICE NOTES

Ampthill Peerage legitimacy case [1977] AC 547

Attorney-General’s Reference No 3 of 1999, House of Lords, 14 December 2000

Commissioner of Police v Ombudsman [1988] 1 NZLR 385

DDP v Humphreys [1977] 1 AC 1

Green v United States 355 US 184 (1957)

R v Benz (1989) 168 CLR 110, 112

R v Davis [1982] 1 NZLR 584

R v Degnan [2001] NZLR 280

R v Moore (17 September 1999 unreported, High Court, Palmerston North Registry, T31/99)

R v Moore (CA 399/99, 23 November 1999)

R v Moore [1999] 3 NZLR 385

R v Pora (20 September 2000, CA 225/2000)

R v Z [2000] 2 AC 483

Reg v Arp [2000] 2 LRC 119 (Supreme Court of Canada)

Sambasivan v Public Prosecutor, Federation of Malaya [1950] AC 458

REPORTS

New Zealand Law Commission Acquittal Following Perversion of the Course of Justice: A Response to

R v Moore (NZLC PP42, Wellington, 2000)

New Zealand Law Commission Criminal Prosecutions (NZLC R66, Wellington, 2000)

New Zealand Law Commission Juries in Criminal Trials (NZLC R69, Wellington, 2001)

Law Commission for England and Wales Double Jeopardy (Consultation Paper 156, The Stationery Office, London, 1999)

Law Commission for England and Wales Double Jeopardy and Prosecution Appeals (Report 267, The Stationery Office, London, March 2001, Cm 5048)

The Stephen Lawrence Inquiry – Report of an Inquiry by Sir William Macpherson of Cluny (The Stationery Office, London, 1999, Cm 4262)

STATUTES, CONVENTIONS AND COVENANTS

Crimes Act 1961

Criminal Justice Act 1985

European Convention on Human Rights, Rome, 1950

Extradition Act 1965

International Covenant on Civil and Political Rights

Misuse of Drugs Act 1975

New Zealand Bill of Rights Act 1990

Statute of the International Criminal Court, Rome, 1998

TEXTS

ML Friedland Double Jeopardy (Clarendon, Oxford, UK, 1969)

1. Endnotes

[1] Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458; R v Davis [1982] 1 NZLR 584, 589.

[2] [2000] 2 AC 483.

[3] [2001] 1 NZLR 280.

[4] Discussed by Colin Tapper in "Clouded Acquittal" (2000) 117 LQR 1 and including Reg v Arp [2000] 2 LRC 119 (Supreme Court of Canada).

[5] Report 267, The Stationery Office, March 2001, Cm 5048.

[6] The Stephen Lawrence Inquiry _ Report of an Inquiry by Sir William Macpherson of Cluny (The Stationery Office, 1999, Cm 4262).

[7] And the proposed crime of reckless killing, if introduced into law.

[8] NZLC R66, Wellington, 2000, at para 198.

[9] 20 December 2000, CA 225/2000.

[10] NZLC PP 42 Acquittal Following Perversion of the Course of Justice: A Response to R v Moore (Wellington, 2000).

[11] Law Commission for England and Wales, Double Jeopardy (Consultation Paper 156, The Stationery Office, London, 1999).

[12] Assume part of the scenario proposed by Ian Dennis in "Rethinking Double Jeopardy" [2000] CLR 933, 945

Consider this: V is married to D who is violent and jealous. V has an affair with W. D finds out about the affair. Subsequently someone shoots at V and W, killing W and injuring V. There is eyewitness evidence identifying D as the gunman but at D's trial the eyewitness becomes confused and uncertain under cross-examination. D is acquitted of the murder of W and the attempted murder of V. The day after the acquittal D sends V an email message telling her that he was the gunman and that she had better come back and live with him.

The penalty for threatening to kill (Crimes Act 1961 s 306) is seven years imprisonment.

[13] In R v Moore [1999] 3 NZLR 385 there are reported both a High Court ruling, at a second trial, rejecting an application for severance of proceedings against an alleged party to the same murder from Mr Moore's charge of conspiracy to pervert the course of justice, and also the Court of Appeal's judgment allowing Mr Moore's appeal from a subsequent conviction and granting him severance. His conspiracy conviction and second appeal _ against sentence _ followed.

[14] R v Moore (17 September 1999) unreported, High Court, Palmerston North Registry, T31/99, 3_5, Doogue J.

[15] R v Moore (23 November 1999), unreported, Court of Appeal, CA 399/99, 5.

[16] One-third of seven years: Criminal Justice Act 1985 s 89(3).

[17] Criminal Justice Act 1985 ss 80(1)(a), 89(1), 89(2).

[18] Para 6 below.

[19] "Once the case is in the appellate hierarchy there is no logical reason why the matter should not be determined _ assuming that the point involved is of sufficient importance to warrant the attention of the Court _ by the very highest tribunal. There can be no surprise or unfairness; the accused simply takes the appellate structure as he finds it."

ML Friedland Double Jeopardy (Clarendon, Oxford, UK, 1969), 293 cited with approval by Mason CJ in R v Benz (1989) 168 CLR 110, 112.

[20] Above n 11, para 3.12.

[21] The concept of fundamental defect is seen in Article 4 of Protocol 7, 4.XI.1950 as amended by Protocol 11, 1.XI.1998 to the European Convention on Human Rights (1950), to which a number of signatories to the ICCPR (although not New Zealand) are parties. The Convention provides by Article 4:

(1)No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

(2)The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

[22] Green v United States 355 US 184 (1957), 187_189, per Black J.

[23] The principle was classically stated by Lord Wilberforce in the Ampthill Peerage legitimacy case [1977] AC 547, 568_9 as one:

... of great importance. There can hardly be anything of greater concern to a person than his status ...  : denial of it, or doubts as to it, may affect his reputation, his standing in the world, his admission into a vocation, or a profession, or into social organisations, his succession to property, ... . It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question. How otherwise could a man's life be planned? ... This principle of finality of determination in the matter of legitimacy is, of course, but one strand in a more general fabric. English law, and it is safe to say, all comparable legal systems place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle ... is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.

[24] Above n 11.

[25] See Friedland, Double Jeopardy, above n 19.

[26] In the year to October 2000, 13.1 per cent of High Court jury trials and 7.8 per cent of District Court jury trials (an overall average of 8.7 per cent) resulted in hung juries (unpublished figures provided by the Department for Courts). See NZLC R69 Juries in Criminal Trials (Wellington, 2001), para 417.

[27] See Dennis, above n 12, 941_2.

[28] The following provisions are reproduced in full in appendix C to this Report.

[29] Above n 1. Further examples may be the decisions overruled and reversed in Attorney-General's Reference No 3 of 1999, House of Lords, 14 December 2000.

[30] Above n 2.

[31] Above n 3.

[32] Including and following R v Davis, above n 1.

[33] Above n 1, 479.

[34] Above n 2, 503_504, per Lord Hutton.

[35] Above n 24, paras 6.19_6.20.

[36] DPP v Humphreys [1977] 1 AC 1.

[37] Above n 36, 40_41, per Lord Hailsham.

[38] See para 45 below.

[39] See para 11 above.

[40] Appendix C.

[41] In proposing an exception to the double jeopardy rule on grounds of, inter alia, new evidence, the Law Commission for England and Wales recommended a test of whether the sentence upon retrial would be likely to exceed three years. Dennis, above n 12, rejects that approach as impracticable, unfair, and too uncertain and states:

There are several alternatives. One would be to extend the exception to all offences punishable with imprisonment, irrespective of the actual penalty which is likely on a retrial. This would go much too far, taking in many of the cases where the Law Commission believes that public opinion would tolerate the occasional wrongful acquittal. A narrower rule would restrict the exception to indictable offences only. This would certainly include the most serious offences, but also a number of others for which it is not clear that an exception is needed. An editorial in the Review suggested that a better proposal would be to restrict the exception to a list of offences punishable with the most severe penalty, namely life imprisonment. The list would thus include such offences as murder, rape, arson, robbery and wounding with intent to do grievous bodily harm. These are the offences from which victims may justifiably demand the greatest degree of protection, and which figure most often in discussion about the merits of a new exception. People should not "get away with murder" is a cliché, but it also provides a valuable criterion of seriousness in this context. The Home Affairs Committee has adopted the life sentence criterion as part of its recommendations in support of a new exception.

We agree with Dennis's views.

[42] Cited by Lord Bingham CJ in his 1998 Newsam Memorial Lecture "The Mandatory Life Sentence for Murder", 13 March 1998, (www.open.gov.uk/lcd/judicial/ judgesfr.htm, last accessed 18 March 2001).

[43] See n 11, paras 47_8.

[44] See para 46 below.

[45] These proposals draw on the form of the United Kingdom Tainted Acquittal legislation enacted by the Criminal Procedure and Investigations Act 1996, described in the Double Jeopardy consultation paper of the Law Commission for England and Wales (see n 11 above, at paras 2.15_2.19) as follows:

The Criminal Procedure and Investigations Act 1996 provided for the first time a procedure by which a person could be retried for an offence of which he or she had already been acquitted, if the acquittal was "tainted". This procedure is available where:

(a) a person has been acquitted of an offence, and

(b) a person has been convicted of an administration of justice offence involving interference with an intimidation of a juror or a witness (or potential witness) in any proceedings which led to the acquittal.

If these conditions are met, and it appears to the court before which the person was convicted that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted, and that it would not be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which he or she was acquitted and the court certifies that this is so, an application may be made to the High Court for an order quashing the acquittal.

The High Court may then make an order under section 54(3) of the Act quashing the acquittal, but only if:

(1) it appears to the High Court likely that, but for the interference or intimidation, the acquitted person would not have been acquitted;

(2) it does not appear to the court that, because of lapse of time or for any other reason, it would be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which he or she was acquitted;

(3) it appears to the court that the acquitted person has been given a reasonable opportunity to make written representations to the court; and

(4) it appears to the court that the conviction for the administration of justice offence will stand.

Where the High Court quashes the acquittal under section 54(3), new proceedings may be taken against the acquitted person for the offence of which he or she was acquitted.

The requirement of despatch is a specific appreciation of the principles stated in s 25(b) of the New Zealand Bill of Rights Act 1990, that:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) The right to a fair and public hearing by an independent and impartial court:

(b) The right to be tried without undue delay:

[46] For example Crimes Act 1961 s 187A (aa); Misuse of Drugs Act 1975 s 10(1); Extradition Act 1965 s 6.

[47] Commissioner of Police v Ombudsman [1988] 1 NZLR 385.