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Criminal Procedure Act 2011

Procedure before trial - Provisions applying only to Judge-alone procedure

78: Court may order pre-trial admissibility hearing if trial to be Judge-alone trial

You could also call this:

"The court can decide if evidence is allowed before a Judge-alone trial starts."

Illustration for Criminal Procedure Act 2011

If you are going to a Judge-alone trial, you or the prosecutor can ask the court to decide if some evidence can be used. This is called a pre-trial admissibility hearing. You can ask for this hearing if you think the other side will challenge the evidence.

You need to ask for the hearing by the time set by the court rules. The court will decide if you can have the hearing. They might say yes if it is better to deal with the issue before the trial, or if the evidence is very important.

The court can also say yes if a witness is very vulnerable and needs protection. If the trial is in the District Court and the evidence was obtained under a High Court order, the court might also say yes. In some cases, the court can make the hearing happen in the High Court.

The court can set conditions for the hearing and make orders as allowed under section 80. If the hearing is about national security information, you must tell the Solicitor-General and have the hearing in the High Court. A specified category 3 offence is one that can result in a long prison sentence, such as life or at least 7 years.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3360141.

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Crime and justice > Courts and legal helpCrime and justice > Criminal law
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Part 3Procedure before trial
Provisions applying only to Judge-alone procedure

78Court may order pre-trial admissibility hearing if trial to be Judge-alone trial

  1. This section applies if—

  2. the prosecutor or the defendant wishes to adduce any particular evidence at a Judge-alone trial; and
    1. he or she believes that the admissibility of that evidence may be challenged.

      1. The prosecutor or the defendant may apply to the court for a hearing (a pre-trial admissibility hearing) for the purposes of obtaining a pre-trial order to the effect that the evidence is admissible.

      2. Subsection (2B) applies if—

      3. the Judge-alone trial is for—
        1. a category 4 offence; or
          1. a specified category 3 offence; or
            1. one of the following offences and the High Court grants leave for the application to be made:
              1. a category 3 offence that is not a specified category 3 offence:
                1. an offence against section 48 of the Health and Safety at Work Act 2015; and
              2. either party asserts that the evidence is evidence based on national security information.

                1. If this subsection applies,—

                2. the party must notify the Solicitor-General that it intends to make the application under subsection (2); and
                  1. the application under subsection (2) must be made to the High Court.

                    1. An application under subsection (2) must be made by the time prescribed by rules of court.

                    2. The court may grant a pre-trial admissibility hearing if—

                    3. the court is satisfied that it is more convenient to deal with the issues before the trial and—
                      1. the evidence raises a complex admissibility issue and the decision about whether it is admissible is likely to make a substantial difference to the overall conduct of the proceeding; or
                        1. the outcome of the pre-trial admissibility hearing may obviate the need for a trial; or
                        2. the court is satisfied that the complainant or witness is particularly vulnerable and resolving the admissibility issue is in the interests of justice; or
                          1. the trial is to be in the District Court and the evidence has been obtained under an order made, or warrant issued, by the High Court; or
                            1. the application is an application to which subsection (2A) applies.

                              1. The court may grant a pre-trial admissibility hearing on any terms and subject to any conditions that the court thinks fit, and may make any order permitted under section 80.

                              2. If a pre-trial admissibility hearing is granted on the ground in subsection (4)(c) or (d), that pre-trial hearing must be in the High Court.

                              3. In this section, specified category 3 offence means a category 3 offence that—

                              4. is punishable by imprisonment for life or by imprisonment for 7 years or more; or
                                1. if committed by a body corporate, is punishable only by a fine, but that, if committed by an individual, would be punishable by imprisonment for life or by imprisonment for 7 years or more.

                                  Notes
                                  • Section 78(2A): inserted, on , by section 15(1) of the Security Information in Proceedings (Repeals and Amendments) Act 2022 (2022 No 72).
                                  • Section 78(2B): inserted, on , by section 15(1) of the Security Information in Proceedings (Repeals and Amendments) Act 2022 (2022 No 72).
                                  • Section 78(4): replaced, on , by section 15(2) of the Security Information in Proceedings (Repeals and Amendments) Act 2022 (2022 No 72).
                                  • Section 78(6): amended, on , by section 15(3) of the Security Information in Proceedings (Repeals and Amendments) Act 2022 (2022 No 72).
                                  • Section 78(7): inserted, on , by section 15(4) of the Security Information in Proceedings (Repeals and Amendments) Act 2022 (2022 No 72).