Convicted or Guilty why was section 3 Crimes act 1961 repealed and what replaces it .
Grace Haden made this Official Information request to Minister of Justice
Minister of Justice did not have the information requested.
From: Grace Haden
Dear Minister of Justice,
As of 1 July 2013 the definition of convicted has been removed from our statute books
Until that time the definition was found under section 3 Crimes act which read that 3. Meaning of “convicted on indictment’‘—For the purposes of this Act, a person shall be deemed to be convicted on indictment if—(a) He pleads guilty on indictment; (b) He is found guilty on indictment 0r(c) He is committed to the Supreme Court for sentence under section 44 or section [153A or section] 168 of the Summary Proceedings Act 1957; or(d) After having been committed to the Supreme Court for trial, he pleads guilty under section 321 of this Act.
The incident with Mr Banks has placed the spot light on the definition of convicted and it appears that the only definition which we had in our statute books has been removed and not replaced
I believe it is common practice to interpret the meaning of words from Statute or their common usage and therefore current legislation and dictionary meanings still point to the words being synonymous.
I give by way of example
Criminal Procedure Act 2011 section 147
4) Without limiting subsection (1), the court may dismiss a charge if—
• (c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
If a jury can convict it has to mean that convict and guilty are one and the same and means that a conviction is not just in the realm of the judge.
By way of OIA please provide all documents and /or links to any documents e.g. submissions, which were considered in the removal of the definition of convicted from our legislation and the reasoning behind that decision.
Also
Please provide documents and /or legal precedents relied upon to redefine the word "Convicted" and documents outlining the prescribed procedure for the court so as to be able to find someone guilty on indictment but not so that they are convicted ( aside from any application for discharge without conviction )
Further
Please provide evidence of the definition now relied upon for the word Convicted and any discussion as to why convicted and Guilty do not mean one and the same thing in New Zealand when internationally they are deemed to be synonymous in legal dictionaries.
I request this under urgency due to the current political implications.
Yours faithfully,
Grace Haden
From: J Collins (MIN)
Minister of Justice
Please see the attached in regard to your request.
Kin regards
Ashleigh Muir
Ministerial Secretary|Office of the Hon Judith Collins MP
Minister of Justice|Minister for ACC|Minister for Ethnic Affairs | MP for Papakura
Tel: +64 4 817 6806 | Fax: +64 4 817 6506 | www.judithcollins.co.nz | Parliament Buildings | Private Bag 18041 Wellington 6160
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From: J Collins (MIN)
Minister of Justice
Good afternoon
Please see the attached in regard to your request.
Kind regards
Ministerial Secretary|Office of the Hon Judith Collins MP
Minister of Justice|Minister for ACC|Minister for Ethnic Affairs | MP for Papakura
Tel: +64 4 817 6806 | Fax: +64 4 817 6506 | www.judithcollins.co.nz | Parliament Buildings | Private Bag 18041 Wellington 6160
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From: Grace Haden
Dear J Collins (MIN),
Thank you for your response
It still leaves the dilemma of the definition of guilty and convicted and this matter should be clarified in law
In reading your response and the legislation we have two meanings for convict and it may be an issue that the the law needs to be amended to read found guilty for references to a jury e.g. it makes no sense that a judge can find a person guilty but not convict but that a jury can convict .
Please provide by way of OIA any discussion papers , policy documents which explore and now out line the procedure for finding a person guilty and subsequent conviction by a judge and the conviction of a person by the jury
Yours sincerely,
Grace Haden
From: J Collins (MIN)
Minister of Justice
Good afternoon
Please see the attached in regard to your request.
Office of the Hon Judith Collins MP
Minister of Justice|Minister for ACC|Minister for Ethnic Affairs | MP for Papakura
Tel: +64 4 817 6806 | Fax: +64 4 817 6506 | www.judithcollins.co.nz | Parliament Buildings | Private Bag 18041 Wellington 6160
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From: Harmes, Kelby
Dear Ms Haden
I refer to your email dated 23 June 2014 to the Minister of Justice
requesting, under the Official Information Act 1982 (OIA), the following
information:
“… any discussion papers, policy documents which explore and now out line
the procedure for finding a person guilty and subsequent conviction by a
judge and the conviction of a person by the jury.”
On 27 June, the Minister of Justice transferred your request to the
Ministry of Justice under section 14(b)(i) of the OIA.
In her letter responding to your previous OIA request, the Minister of
Justice reproduced section 114 of the Criminal Procedure Act. For ease of
reference I reproduce that section again here:
114 Procedure after defendant pleads or is found guilty
(1) If a defendant pleads guilty or is found guilty, the court may
convict or deal with the defendant in any other manner authorised by law
and—
(a) adjourn the proceeding; or
(b) sentence or otherwise deal with the defendant immediately.
(emphasis added)
Section 114 applies both to Judge-alone and jury trials. It makes clear
that, if a defendant is found guilty (whether by a Judge in a Judge-alone
trial, or by a jury in a jury trial) it is for the court to convict the
defendant or deal with him or her in any other manner authorised by law.
Section 5 of the Criminal Procedure Act defines “court” to mean:
a court presided over by a judicial officer with authority to exercise the
court's jurisdiction in relation to the matter
The combined effect of these provisions is that, after a finding of guilt
(whether by a Judge or a jury), it is for the Judge presiding over the
court, and not the jury, to convict the defendant or otherwise deal with
him or her in accordance with the law.
The procedure by which a person is found guilty is governed by the
Criminal Procedure Act 2011, the Criminal Procedure Rules 2012 and by
decisions of the court.
The Criminal Procedure Act and Criminal Procedure Rules are publicly
available on the following website: [1]www.legislation.govt.nz. Material
providing further information about criminal procedure in New Zealand is
also publicly available. For example, Adams on Criminal Law, a leading
New Zealand text, is available in a number of libraries, including the
National Library of New Zealand. Information is also available on the
following page of the Ministry of Justice's website:
[2]http://www.justice.govt.nz/services/info...
Accordingly, to the extent that your request for information is not
answered by this email, it is refused under section 18(d) of the Official
Information Act 1982.
You have the right under section 28(3) of the Official Information Act to
complain to the Ombudsman about the decision in relation to the
information you seek.
Yours sincerely
Kelby Harmes
[3]Description: Kelby Harmes
http://justice.govt.nz/courts/shared/jus...
Policy Manager |
Criminal Law
[4]www.justice.govt.nz
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From: Grace Haden
Dear Harmes, Kelby,
Thank you for your response , it would appear that the amendments of the legislation has left a disconnect in the meaning of guilty and convicted .
in reading other sections of legislation it states that a jury can convict therefore how can a jury convict if a judge can only find people guilty and then convict?
what procedure is set down to differentiate between finding guilty and convicting.
where is the definition of convict and why is it different to the dictionary meaning of being found guilty ?
Yours sincerely,
Grace Haden
From: Harmes, Kelby
Dear Ms Haden
I refer to your email of 4 July 2014.
"Convict" and related words have different meanings in different statutory
provisions. Their meaning in particular provisions is ascertained from
the text of the provision and in the light of its purpose (see section 5
of the Interpretation Act 1999).
For example, it is clear from the words of section 114 of the Criminal
Procedure Act and section 11 of the Sentencing Act that the words
"convict" and "conviction" in those sections are not synonymous with a
defendant pleading or being found guilty. This is clear because both
sections refer separately to the defendant pleading or being found guilty
on the one hand, and being convicted on the other. The words "convict"
and "conviction" in these sections refer to the formal order made by the
court convicting a defendant of an offence, following the defendant
pleading or being found guilty.
In other provisions (for example, section 85(4) of the Criminal Procedure
Act) "convict" refers to the returning of a guilty verdict by a jury.
Yours sincerely
Kelby Harmes
[1]Description: Kelby Harmes
http://justice.govt.nz/courts/shared/jus...
Policy Manager |
Criminal Law
[2]www.justice.govt.nz
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From: Grace Haden
Dear Harmes, Kelby,
thank you for this clarification but the conflict that still exists is that prior to 30 June 2013 a definition existed for the word convicted.. being found guilty on indictment .
Internationally the definition of guilty and convicted are synonymous , please provide any discussion papers or any reasons considered as to why Guilty and convicted now have separate meanings and what is the official definition of the word "convicted now as it appears that it no longer means to be found guilty .
Yours sincerely,
Grace Haden
From: Harmes, Kelby
Dear Ms Haden
I refer to your email of 8 July 2014.
You have asked for the following information under the Official
Information Act 1982:
"any discussion papers or any reasons considered as to why Guilty and
convicted now have separate meanings and what is the official
definition of the word "convicted now as it appears that it no longer
means to be found guilty ."
The Ministry of Justice does not hold the information you seek, because
there has been no substantive change to the law of New Zealand.
For example, prior to the coming into force of the Criminal Procedure Act
2011, section 67(2) of the Summary Proceedings Act 1957 provided as
follows:
"If [a defendant] pleads guilty, the Court may convict him or deal with
him in any other manner authorised by law."
Similar provision was made in sections 321(6), 356(4) and 371(5) of the
Crimes Act 1961 prior to the coming into force of the Criminal Procedure
Act 2011.
You have the right under section 28(3) of the Official Information Act to
complain to the Ombudsman about the decision in relation to the
information you seek
Yours sincerely
Kelby Harmes
[1]Description: Kelby Harmes
http://justice.govt.nz/courts/shared/jus...
Policy Manager |
Criminal Law
[2]www.justice.govt.nz
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From: Grace Haden
Dear Harmes, Kelby,
thank you for your response
no one of those sections refers to " convict " they refer to the pleading of guilt by a party
Once a person has entered a plea of guilty or has been found guilty by a judge or jury they are convicted.
A judge can then decide what to do with the sentence which includes consideration to a discharge without conviction .
A judge apparently has the ability to enter an conviction or not by section 11 sentencing act but we have a real dogs breakfast as to the meaning of he word Convict.
perhaps the matter could be resolved with a definition that states convict means to have a conviction recorded by the court.
In that case the reference to a jury convicting has to be amended as a jury does not have the ability or power to convict , they can only find a person guilty or not , or have no finding.
the section which needs to be amended is Criminal Procedure Act 2011 section 147
4) Without limiting subsection (1), the court may dismiss a charge
if—
• (c) in relation to a charge to be tried, or being tried, by a
jury, the Judge is satisfied that, as a matter of law, a properly
directed jury could not reasonably convict the defendant.
I hope that you agree that at the moment the definition of convict is ambiguous especially since the dictionary meaning is
1.
declare (someone) to be guilty of a criminal offence by the verdict of a jury or the decision of a judge in a court of law.
Yours sincerely,
Grace Haden
From: Grace Haden
Dear Harmes, Kelby,
I wrote to you on the 12 th July with regards to the ambiguity of the words convict and Guilty
I have nto had a response could you please advise if there is going to be any action to define the word convict and also answer my question as to why the crimes act definition has been removed from statute. _ what documentation what discussions caused it to be removed or did it happen by magic ?
Yours sincerely,
Grace Haden
From: Harmes, Kelby
Dear Ms Haden
I refer to your email dated 3 August 2014.
There are no plans to amend the Crimes Act 1961 to define the word
"convict". We are not aware of any cases that demonstrate that there is
legal uncertainty as to the meaning of the word in the different
provisions in which it is used. The New Zealand courts find guilty,
convict and sentence defendants in reliance on those provisions on a daily
basis.
You have asked what documentation or discussions exist regarding the
repeal of section 3 of the Crimes Act 1961. I am not able to add anything
useful to the information already provided to you in the Minister's
response to your original Official Information Act request, my response to
your subsequent request for information and my later correspondence with
you.
Yours sincerely
Kelby Harmes
[1]Description: Kelby Harmes
http://justice.govt.nz/courts/shared/jus...
Policy Manager |
Criminal Law
[2]www.justice.govt.nz
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