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Crimes Act 1961

Matters of justification or excuse - Sentence or process

28: Sentence or process without jurisdiction

You could also call this:

"Protection for following orders you believe are lawful"

Illustration for Crimes Act 1961

If you are an officer, prison manager, or person executing a sentence, process, or warrant, you will be protected from criminal responsibility if you act in good faith. You must believe that the sentence or process was given by a court that has the power to do so. The person who gave the sentence or issued the process must have been acting as if they had the authority to do so, even if they did not actually have that authority. You are still protected even if the appointment or commission that gave them authority did not exist, had expired, or they were not the right person to act. This means you will not get in trouble for following what you thought was a proper order, as long as you were trying to do the right thing and the person giving the order seemed to have the power to give it.

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This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM328238.

Topics:
Crime and justice > Criminal lawCrime and justice > Courts and legal help
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27: Execution of erroneous sentence or process, or

"You must follow a court order, even if it's wrong or the court didn't have the power to make it."

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29: Irregular warrant or process, or

"Protection if you follow a faulty police warrant or court order in good faith"

Part 3Matters of justification or excuse
Sentence or process

28Sentence or process without jurisdiction

  1. Every officer, prison manager, or person executing any sentence, process, or warrant, and every person lawfully assisting him or her, shall be protected from criminal responsibility if—

  2. he or she acts in good faith under the belief that the sentence or process was that of a court having jurisdiction, or, as the case may be, that the warrant was that of a court, Justice, Community Magistrate, or other person having authority to issue warrants; and
    1. it is proved that the person passing the sentence or issuing the process acted as such a court under colour of having some appointment or commission lawfully authorising him or her to act as such a court, or, as the case may require, that the person issuing the warrant acted as a Justice, Community Magistrate, or other person having authority to do so.

      1. This section shall apply notwithstanding that, in fact,—

      2. any such appointment or commission as aforesaid did not exist or had expired; or
        1. the court or the person passing the sentence or issuing the process was not the court or the person authorised by the appointment or commission to act; or
          1. the person issuing the warrant was not duly authorised to issue it.

            Compare
            • 1908 No 32 s 48
            Notes
            • Section 28(1): amended, on , by section 206 of the Corrections Act 2004 (2004 No 50).
            • Section 28(1)(a): amended, on , by section 3(a) of the Crimes Amendment Act (No 2) 1998 (1998 No 79).
            • Section 28(1)(b): amended, on , by section 3(b) of the Crimes Amendment Act (No 2) 1998 (1998 No 79).