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Criminal Procedure Act 2011
General provisions
Conduct of proceeding
Retrial or rehearing if defendant found guilty or sentenced in his or her absence
129: Procedure if retrial or rehearing ordered

Part 1:
Preliminary provisions

3Purpose 4Overview 5Interpretation 5AInterpretation: evidence based on national security information 6Categories of offence defined 7Act subject to other enactments 7ATransitional, savings, and related provisions 8Act binds the Crown

Part 2:
Commencement of proceedings and preliminary steps

Filing a charging document

14Commencement of criminal proceedings 15Any person may commence proceeding 16Charging documents 16ASpecifying that offence charged is, or that conviction entered is for, family violence offence 17Content of charge 18Court may order further particulars 19Charge may be worded in alternative 20Charge may be representative 21Court may amend or divide alternative or representative charge 22Certain charges to disclose range of penalties and previous convictions 23Offence relating to false or misleading information in charging document 24Endorsement of consent 25Time for filing charging document 26Private prosecutions 27Power of Registrar to compile charging information

Notifying defendant of court appearance

28Summons in relation to charge may be served 29Summons following evidential breath test 30Provisions relating to summons issued under section 28 or 29 31Charging document must be filed promptly 32Decision to change charge following summons 33Summons to defendant in private prosecution 34Warrant may be issued if summons cannot be served 34AWhen warrant may be issued irrespective of whether summons has been issued or served

Court dealing with proceeding before trial or transfer for trial

35Court dealing with proceeding before trial or transfer for trial: categories 1 to 3 36Court dealing with proceeding before transfer for trial: category 4

Part 3:
Procedure before trial

Pleas

Entering plea

37Defendant may enter plea 38Right to plead to category 1 offence by notice 39Requirement for defendant to plead 40Not guilty plea for category 4 offence 41Defendant who refuses or fails to plead under section 39 or 49(3)42Defendant may change plea of not guilty 43Procedure if defendant indicates intention to plead guilty but does not do so 44Plea where charge alleges previous conviction

Special pleas

45Special pleas 46Previous conviction 47Previous acquittal 48Pardon 49Procedure for dealing with special plea

Decision regarding trial by jury for category 3 offences

50Defendant charged with category 3 offence may elect trial by jury 51Timing of election 52Judicial officer or Registrar may receive elections 53Withdrawal of election

Case management

54Adjournment for case review 55Case management discussions and case management memorandum 56Information to be provided in case management memorandum 57Case review 58Court may give directions about case management procedure 59Judge may direct case management procedure for category 1 offence

Sentence indications

60Meaning of sentence indication 61Giving sentence indication 62Further provisions relating to giving sentence indication 63Offence and penalty relating to sentence indication 64Duration of sentence indication 65Request for sentence indication not admissible in proceeding

Determination of level of trial court for category 2 and 3 offences

Determination of level of trial court for protocol offences

66Establishment of protocol 67District Court Judge may recommend level of trial court for protocol offence 68High Court Judge must determine level of trial court for protocol offences 68AHigh Court Judge may reconsider orders made under section 68 in certain circumstances 69Proceedings not invalid

Order that proceeding for category 2 or 3 offence be tried in High Court

70High Court Judge may order proceedings for category 2 or 3 offence be tried in High Court

Trial court, place of trial, transfer of proceedings to trial court, and procedure for trial

71Category 1 offences 72Category 2 offences 73Category 3 offences 74Category 4 offences 75Transfer of certain proceedings for category 2 and 3 offences to trial court 76Transfer of proceeding from trial court to new trial court 77Notice that defendant to be tried in High Court

Provisions applying only to Judge-alone procedure

78Court may order pre-trial admissibility hearing if trial to be Judge-alone trial 79Pre-trial admissibility hearing and order that evidence admissible 79APre-trial admissibility hearing: national security information 80Court may order that certain pre-trial processes under subpart 8 apply

Provisions applying only to jury trial procedure

Application of this subpart

81Application of this subpart

Filing of formal statements

82Requirements for formal statements 83False statement in formal statement deemed to be perjury 84Persons who may give evidence under assumed name or anonymously 85Prosecutor must file formal statements 86Evidential status of formal statements

Trial callover memoranda

87Trial callover memoranda to be filed in trial court 88Information to be provided in trial callover memoranda 89Unrepresented defendants at trial callover hearing

Application for oral evidence order

90Application for oral evidence order 91Application for leave to question identity of undercover Police officer or intelligence witness to be determined by High Court

Oral evidence orders

92Making oral evidence order 93Further consideration if application for oral evidence order for complainant in case of sexual nature 94Withdrawal of charge if oral evidence order made for examination of undercover Police officer or intelligence witness

Procedure for taking oral evidence

95By whom oral evidence of witness to be taken 96Restriction on who may take oral evidence of complainant in case of sexual nature 97Persons who may be present if oral evidence taken from complainant in case of sexual nature 98Application of subpart 5 of Part 3 of Evidence Act 2006 99Oral evidence must be recorded 100Proceeding may be continued despite witness's failure to appear or give evidence

Pre-trial orders as to admissibility of evidence: jury trial procedure

101Pre-trial order relating to admissibility of evidence: jury trial 101ANational security information: pre-trial hearing and order

Trial before Judge alone may be ordered

102Judge may order Judge-alone trial in cases likely to be long and complex 103Judge may order Judge-alone trial in cases involving intimidation of juror or jurors 104Procedure for trial ordered under section 102 or 103

Part 4:
Trial

Provisions applying to Judge-alone trials

105Conduct of Judge-alone trial 106Decision of court

Provisions applying to jury trials

Conduct of jury trial

107Conduct of jury trial

Charge alleging previous conviction

108Procedure if charge alleges previous conviction

Discretion to keep jury together

109Discretion to keep jury together

Part of murder charge proved

110Part of murder charge proved

Provisions applying to both Judge-alone and jury trials

Alibi

111Alibi

Dismissal of charge in certain cases

112Court must dismiss charge in certain cases

Witnesses

113Adjourning trial for witness

Evidence based on national security information

113ANational security information: admissibility hearing in course of trial

Part 5:
General provisions

Conduct of proceeding

Defendants who plead guilty or are found guilty

114Procedure after defendant pleads or is found guilty 115Plea of guilty may be withdrawn by leave of court 116Effect of sentence indication

Presence of defendant at hearings

117Defendant generally may be present at all hearings 118Hearings at which defendant must be present

Powers of court when defendant does not appear

119Non-attendance of defendant charged with offence in category 1 120Non-attendance of defendant charged with offence in category 2, 3, or 4: before plea is entered 121Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing 122Non-attendance of defendant at trial for offence in category 2, 3, or 4 123Sentencing for offence in category 2, 3, or 4 not to proceed in absence of defendant 124Procedure when hearing proceeds in absence of defendant

Retrial or rehearing if defendant found guilty or sentenced in his or her absence

125Retrial if defendant found guilty in his or her absence 126Rehearing if defendant sentenced for category 1 offence in his or her absence 127Registrar may deal with applications in relation to category 1 offences 128Effect of application for retrial or rehearing on rights of appeal 129Procedure if retrial or rehearing ordered 130Dealing with defendant pending retrial or rehearing

Powers of court when prosecutor does not appear

131Powers of court when prosecutor does not appear

Powers of court when neither party appears

132Powers of court when neither party appears

Amendment of charge

133Amendment of charge 134Procedure if charge amended before trial 135Procedure if charge amended after order made under section 68 or 70 136Procedure if charge amended during trial 136AProcedure if charge added during trial

Proceedings conducted together

137Proceedings against parties to offences, accessories, and receivers 138Trial of different charges together 139Procedure if charges to be heard together 140Procedure if charges to be heard together include new charges

Further provisions relating to charges

141Conviction where alternative allegations proved in Judge-alone trial 142Dealing with charge that fails to disclose range of penalties and previous convictions when required 143Included offences 144Conviction of parties 145Conviction of charge containing allegation of previous conviction

Withdrawal and dismissal of charges

146Withdrawal of charge generally 146AWithdrawal of charge due to risk to national security interests 147Dismissal of charge generally 147ADismissal of charge when information withheld due to risk to national security interests 148Prosecutor must notify court if defendant completes programme of diversion

Attempts

149Attempt proved when offence is charged 150Offence proved when attempt is charged

Retrial of previously acquitted person

151Order for retrial may be granted if acquittal tainted 152Meaning of terms used in sections 153 and 154 153Consent of Solicitor-General required in certain circumstances for exercise of powers in relation to acquitted person 154Order for retrial may be granted by Court of Appeal if new and compelling evidence discovered 155Orders to safeguard fairness of retrial 156Effect of order for retrial

Transfer of proceedings to court at different place

157Transfer of proceedings to court at different place or different sitting 158Attendance of witness at substitute court

Obtaining attendance of witnesses

159Issue of summons to witness 160Summons to witness to non-party disclosure hearing 161Issue of warrant to obtain attendance of witness

Provisions relating to warrants to arrest defendant or witness

162To whom warrant to be directed and power of person executing warrant to enter premises 163Withdrawal of warrant

Dealing with witness arrested under warrant

164Dealing with witness arrested under warrant

Dealing with witnesses at the court

165Witness refusing to give evidence may be imprisoned 166Witnesses at hearing

Adjournments and bail

167Power to adjourn 168Dealing with defendant on adjournment 168ANo-contact conditions if family violence offence defendant remanded in custody 168BProvisions about compliance with no-contact conditions 169Order for detention of defendant in hospital or secure facility 170Defendant in custody may be brought up before expiry of period of adjournment

Special provisions applying to defendants under the age of 20 pending hearing or sentence

171Defendants under 16 must not be imprisoned pending hearing or sentence 172Defendants aged 16 must not be imprisoned pending hearing or sentence except in certain circumstances 173Remand of defendant under 17 in residence or care 174Remand of defendant under 18 years for assessment report 175Remand of defendants aged 17 to 20 years

Stay of proceedings

176Stay of proceedings

Retrial or rehearing

177Court may order retrial or rehearing as to sentence in certain cases 178Procedure if retrial or rehearing ordered 179Dealing with defendant pending retrial or rehearing

Correction of erroneous sentence

180Court may correct erroneous sentence 181Application of chief executive of Department of Corrections to correct erroneous sentence 182Procedure if court corrects erroneous sentence

Transfer to wrong court

183Transfer to wrong court

Permanent court record

184Permanent court record

Solicitor-General's responsibility for oversight and conduct of certain prosecutions

185Solicitor-General responsible for general oversight of public prosecutions 186Attorney-General's responsibility and powers not affected 187Assumption of responsibility for Crown prosecutions by Solicitor-General 188Duty of Crown prosecutor to comply with Solicitor-General's directions 189Crown prosecution notice must be filed 190Power of Solicitor-General or Crown prosecutor to amend charge 191Power of Solicitor-General or Crown prosecutor to add new charges 192Power of Solicitor-General or Crown prosecutor to withdraw charge 192APower of Solicitor-General or Crown prosecutor to join charge or charges 193Independence of Solicitor-General and Crown prosecutors

Public access and restrictions on reporting

Terms used in this subpart

194Interpretation 195Context in which publication prohibited

Court proceedings generally open to public

196Court proceedings generally open to public

Power to clear court

197Power to clear court 198Exception for members of media 198AHearing may be conducted by audiovisual link or audio link 199Court must be cleared when complainant gives evidence in cases of sexual nature 199AACourt may be cleared when victim impact statement read or otherwise presented to court in cases of sexual nature

Automatic suppression of previous convictions

199AAutomatic suppression of details of previous convictions 199BFurther provisions relating to automatic suppression

Automatic suppression of sexual case complainant’s or propensity witness’s evidence that is video recorded before trial

199BAAutomatic suppression of sexual case complainant’s or propensity witness’s evidence that is video recorded before trial

Temporary suppression of trial-related information

199CCourt may temporarily suppress trial-related information 199DFurther provisions relating to temporary suppression of trial-related information

Suppression of names

200Court may suppress identity of defendant 201Automatic suppression of identity of defendant in specified sexual cases 202Court may suppress identity of witnesses, victims, and connected persons 203Automatic suppression of identity of complainant in specified sexual cases 204Automatic suppression of identity of child complainants and witnesses

Suppression of evidence and submissions

205Court may suppress evidence and submissions

Powers of Registrar

206Power of Registrar to make and renew interim suppression orders

General provisions relating to suppression orders

207Court must give reasons 208Duration of suppression order and right of review 209Publication by or at request of Police, etc 210Standing of members of media

Offences relating to breach of suppression provisions and orders

211Offences and penalties

Part 6:
Appeals

General matters

212Interpretation 213Leave to appeal 214Duty to determine appeal subject to sections 337 and 338

Appeals against pre-trial decisions

First appeals

215Right of appeal by prosecutor or defendant against certain pre-trial evidential decisions in Judge-alone case 216Refusal to give leave to appeal under section 215 217Right of appeal by prosecutor or defendant against pre-trial decisions in jury trial case 218Right of appeal by defendant only against pre-trial decisions in jury trial case 219First appeal courts 220How to commence first appeal 221First appeal court to determine appeal 222Trial court may allow trial to proceed

Further appeals

223Right of appeal against determination of first appeal court 224Second appeal courts 225How to commence second appeal 226Second appeal court to determine appeal 227High Court's determination of second appeal final 228Further appeal from determination of second appeal by Court of Appeal

Appeals against conviction

First appeals

229Right of appeal against conviction 230First appeal courts 231How to commence first appeal 232First appeal court to determine appeal 233Orders, etc, on successful first appeal 234Conviction and sentence for different offence may be substituted 235Acquittal on account of insanity 236Confirmation or substitution of sentence for another offence

Further appeals

237Right of appeal against determination of first appeal court 238Second appeal courts 239How to commence second appeal 240Second appeal court to determine appeal 241Orders, etc, on successful second appeal 242High Court's determination of second appeal final 243Further appeal from determination of second appeal by Court of Appeal

Appeals against sentence

First appeals

244Convicted person's right of appeal against sentence 245Right of appeal against sentence not affected by sentence indication 246Prosecutor's right of appeal 247First appeal courts 248How to commence first appeal 249Appeal by prosecutor treated as abandoned if not heard before sentence completed 250First appeal court to determine appeal 251Orders, etc, on successful first appeal 252Defendant may not withdraw guilty plea after sentence imposed on appeal

Further appeals

253Right of appeal against determination of first appeal court 254Second appeal courts 255How to commence second appeal 256Second appeal court to determine appeal 257Orders, etc, on successful second appeal 258High Court's determination of second appeal final 259Further appeal from determination of Court of Appeal

Appeals against finding of or sentence for contempt of court

First appeals

260Right of appeal against finding of or sentence for contempt of court 261First appeal courts 262How to commence first appeal 263First appeal court to determine appeal

Further appeals

264Right of appeal against determination of first appeal court 265Second appeal courts 266How to commence second appeal 267Second appeal court to determine appeal 268High Court's determination of second appeal final 269Further appeal from determination of Court of Appeal

Appeals against decisions on costs orders

First appeals

270Interpretation 271Right of appeal to first appeal court against decision about costs order 272First appeal courts 273How to commence first appeal 274First appeal court to determine appeal 275Appeal not to suspend trial

Further appeals

276Right of appeal against determination of first appeal court 277Second appeal courts 278How to commence second appeal 279Second appeal court to determine appeal 280High Court's determination of second appeal final 281Further appeal from determination of Court of Appeal

Appeals against suppression orders

First appeals

282Interpretation 283Right of appeal against decision on suppression order 284First appeal courts 285How to commence first appeal 286Interim suppression order pending determination of first appeal 287First appeal court to determine appeal 288Trial court may allow trial to proceed

Further appeals

289Right of appeal against determination of first appeal court 290Second appeal courts 291How to commence second appeal 292Interim suppression order pending determination of second appeal 293Second appeal court to determine appeal 294Determination of High Court final 295Further appeal from determination of Court of Appeal

Appeals on question of law

First appeals

296Right of appeal 297First appeal courts 298How to commence first appeal 299Power of first appeal court to amend question stated 300First appeal court to determine appeal 301Deferral or adjournment of trial if notice of application for leave to appeal filed 302How determination of appeal affects outcome of trial

Further appeals

303Right of appeal against determination of first appeal court 304Second appeal courts 305How to commence second appeal 306Second appeal court to determine appeal 307Orders, etc, on successful second appeal 308High Court's determination of second appeal final 309Further appeal from determination of Court of Appeal 310Relationship to other appeals

Appeals against order under section 106(3) of Sentencing Act 2002

311Right of appeal

Appeals relating to peace bond decisions

312Right of appeal

Solicitor-General's references

313Solicitor-General may refer certain questions to Court of Appeal 314Procedure for references under section 313 315Rights of appeal to Supreme Court 316Procedure for appeals under section 315 317Solicitor-General may refer question to Supreme Court 318Procedure for references under section 317 319Power of Court of Appeal or Supreme Court to amend question referred

Further provisions

Procedure for determining jurisdiction where appeals lie to different appeal courts

320Meaning of related right of appeal 321Related appeals that are to be heard by Court of Appeal

Solicitor-General

322Duty of Solicitor-General

Registrar of appeal court to arrange appeal

323Duties of Registrar 324Custody of exhibits, etc

Rights of representation and attendance at hearing of appeal or application for leave to appeal

325Right of representation at hearing 326Right of attendance at hearing

How applications to be heard

327Hearings in Court of Appeal 328Hearings in District Court or High Court

How appeals to be heard

329Hearings in Court of Appeal or Supreme Court 330Hearings in District Court or High Court

Hearings on papers

331Provisions about hearing on papers

Powers exercisable by 1 or 2 appellate Judges

332Powers exercisable by Judge of Supreme Court 333Powers exercisable by Judges of Court of Appeal

Powers of appeal court to receive evidence, etc

334Power to receive and hear evidence 335Special powers of appeal courts in appeal involving conviction, sentence, or contempt 336Powers of appeal courts

Abandonment

337Abandonment of appeal by appellant 338Power of appeal court to dismiss appeal for non-compliance with procedural orders 339Appeal against dismissal under section 338

Judgment of appeal court

340Reasons to accompany judgment or be given later 341Delivery of judgment by District Court, High Court, or Court of Appeal 342Judgment to be provided to parties

How appeal affects decisions under appeal

343General effect of appeal on sentence 344Issue of committal order for detention of convicted person 345How appeal affects community-based sentences 346Registrar to notify resumption of sentence 347Reporting requirement where sentence resumed after unsuccessful or abandoned appeal 348How appeal affects non-association orders 348AHow appeal affects registration orders 349Fine recovery not to be enforced pending contempt appeal 350Successful appellant entitled to return of amount paid under sentence 351Detention following appeal 352Revesting and restitution of property on conviction

Part 7:
Provisions concerning jurisdiction of District Court

Jurisdiction of District Court presided over by District Court Judge

353Jurisdiction of District Court Judges

Jurisdiction of District Court in relation to jury trials

354Jurisdiction of District Court in relation to jury trials

Jurisdiction of District Court presided over by 1 or more Justices

355Jurisdiction of Justices

Jurisdiction of District Court presided over by 1 or more Community Magistrates

356Jurisdiction of Community Magistrates 357Jurisdiction of Community Magistrates to impose sentence in respect of certain category 1 and 2 offences 358Power to impose penalties provided for in Land Transport Act 1998 359Ancillary powers under subpart 3 of Part 5, Costs in Criminal Cases Act 1967, Sentencing Act 2002, and Land Transport Act 1998 360Power of Community Magistrates to decline jurisdiction 361Jurisdiction of Justices and Community Magistrates to take pleas 362Jurisdiction of Justices and Community Magistrates to make and renew interim suppression orders 362AJurisdiction of Justices and Community Magistrates relating to amendment or withdrawal of charges

Transfer to District Court presided over by District Court Judge

363Power to transfer matter to District Court presided over by District Court Judge

Part 8:
Miscellaneous and transitional provisions

Costs orders and contempt

364Costs orders 365Contempt of court

Conservation of the peace

366Application for order for bond to keep the peace 367Making of order for bond 368Form of, and entering into, bond 369Making of order for bond where person charged with offence 370Refusal to enter into bond 371Persons imprisoned in default of finding sureties may be released on death of person for whose protection order made 372Forfeiture of bond

Miscellaneous provisions

373Registrar who is also constable 374Witnesses' expenses 375Conviction not to be recorded for infringement offences 376Person sentenced, etc, deemed to be convicted 377Restitution of property 378Who may take affidavit 379Proceedings not to be questioned for want of form 380Proceedings not invalid because defendant should have been dealt with in Youth Court 380ATransfer of proceedings commenced in Youth Court back to Youth Court in certain circumstances 381Payment of fees, fines, etc 382Payment and recovery of fees 383Enforcement of fines 384Enforcement of fines imposed or varied by appeal court 385Application of section 168 during epidemic 385AJudge or Registrar may waive certain fees

Rules and regulations

386Rules 387Regulations 387ARegulations under section 387(1)(i) or (j) are confirmable instruments

Transitional and savings provisions

Transitional provisions regarding sentence indications

388Application of provisions regarding sentence indications to existing proceedings 389Transitional provision regarding terminology in relation to sentence indication provisions

Transitional provisions regarding public access and restrictions on reporting

390Transitional provision regarding terminology in relation to public access and restrictions on reporting 391Application of amendments made by section 393 392Transitional provision regarding appeals by members of media 393Consequential amendments relating to public access and restriction on reporting provisions

Transitional and savings provisions in relation to provisions brought into force under section 2(2) or 2(3)

394Meaning of commencement date 395Cities, boroughs, and other places appointed for District Courts under District Courts Act 1947 396Savings provision in relation to warrants held under section 28B of District Courts Act 1947 397Proceedings commenced before commencement date 398Proceedings commenced after commencement date 399Absconding defendants 400When defendants or proceedings to be heard together under same procedural law 401No proceeding invalid if wrongly conducted in accordance with old law 402Transitional provision regarding withdrawal of warrants to arrest 403Transitional provision regarding dealing with witness arrested under warrant 403ATransitional provision regarding effect of appeal on sentence of home detention 404Transitional provision regarding correction of erroneous sentence 404AAccess to court documents 405Limitation periods 406Retrial following acquittal in summary proceedings 406ASavings

Other transitional matters

407Transitional provision relating to abandonment of appeals to Court of Appeal 408Regulations providing for transitional matters 409Regulations making consequential amendments 410Expiry of sections 408 and 409

Temporary provisions in respect of COVID-19

410AApplication of temporary provisions in Schedule 1AB

Part 9:
Amendments to other enactments

Criminal Justice Act 1985

411Criminal Justice Act 1985 repealed

Criminal Justice Regulations 1985

412Criminal Justice Regulations 1985 revoked

Amendments to other enactments

413Amendments to other enactments

Schedule 1AA:
Transitional, savings, and related provisions

Schedule 1AB:
Temporary provisions in respect of COVID-19

Schedule 1:
Category 4 offences

Schedule 2:
Consequential amendments relating to public access and restrictions on reporting provisions

Schedule 3:
Amendments to other enactments

Criminal Procedure Act 2011

General provisions - Conduct of proceeding - Retrial or rehearing if defendant found guilty or sentenced in his or her absence

129: Procedure if retrial or rehearing ordered

You could also call this:

"What to do if a judge orders a new trial or hearing"

Illustration for Criminal Procedure Act 2011

If a judge orders a retrial or rehearing under section 125 or 126, you need to follow the rules in section 178, but you might need to adjust them slightly to fit your situation. This means you will do things a bit differently, but mostly you will follow the same steps as you would normally. You can find more information about this in the links to section 125, section 126, and section 178.

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This page was last updated on 29 June 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3865753.

Topics:

Crime and justice > Courts and legal help

128: Effect of application for retrial or rehearing on rights of appeal, or

"What happens to your right to appeal if you ask for a retrial or rehearing?"

130: Dealing with defendant pending retrial or rehearing, or

"What happens to you while waiting for a new trial or hearing"

Part 5General provisions
Conduct of proceeding: Retrial or rehearing if defendant found guilty or sentenced in his or her absence

129Procedure if retrial or rehearing ordered

If a retrial or rehearing is ordered under section 125 or 126, section 178 applies with any necessary modifications.