The law in New Zealand is divided into two broad parts – criminal law and civil law.
Criminal law involves a contest in the courts between prosecutors and criminal defendants – those accused of offences. New Zealand was something of a pioneer in criminal law. It adopted a criminal code in 1893, and since then for a person’s behaviour to amount to a criminal offence that offence has to be contained in statute passed by Parliament. The offence cannot be manufactured by the judges using the methods of the common law.
‘A little parliament’
In 1956 Patrick Devlin, a renowned English judge, stated ‘Each jury is a little parliament’.1 He considered that trial by jury was more than just an instrument of justice; it was important in preserving freedom and resisting tyranny.
Trial by jury
Under the Criminal Procedure Act 2011, from 2013 people who have been charged with serious offences (those punishable with more than two years imprisonment) are entitled to a trial by jury. Previously people who faced the possibility of three months or more in prison could opt for trial by jury. A jury consists of 12 people selected from randomly chosen members of the public who come to court when summoned to do jury service.
Trial by jury goes back many hundreds of years in England, from where New Zealand acquired it. For a person to have his or her guilt or innocence decided not by an official of the state but by 12 members of the public puts a buffer between the state and the citizen, and increases public trust in the fairness of the system. It also provides on-going participation by the public in the administration of the criminal justice system.
The death penalty
New Zealand had the death penalty for murder up until 1961, when it was abolished in a free vote in Parliament. The death penalty for treason was abolished in 1989.
Civil disputes are contests over business or other matters between individual people or companies. They can take their disputes to the courts and have them dealt with there. Contracts, commercial law, revenue law and property law make up vast amounts of New Zealand legal doctrine. Civil cases are decided by a judge alone, sitting without a jury, except in defamation cases.
Alternative resolution methods
In the 2000s many civil disputes are dealt with by alternative dispute resolution techniques – negotiation, mediation and arbitration. Small disputes are dealt with informally and cheaply by tribunals presided over by referees.
Rights of appeal
There are extensive rights of appeal available in both criminal and civil cases. Final-level appeals can be taken to the Supreme Court by leave of that court. Whether the Supreme Court will hear an appeal is based on whether the case raises a matter of general or public importance, or a substantial miscarriage of justice, or involves a matter of general commercial significance.