Before the trial

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Oliver gets a lawyer

The next day, the day of his first appearance in court, Oliver talks to a duty lawyer, sometimes called a 'duty solicitor'. This is a lawyer who is based at the court and provides free legal help. The duty lawyer explains the charges – what the police claim Oliver has done.

The duty lawyer also applies for Oliver's bail in court. This means that Oliver will be free to leave the court until his next court appearance. Oliver will have to follow certain conditions decided by the court, like living at a particular address, reporting to the Police every day and not being allowed to drive.

The duty lawyer advises Oliver to apply for legal aid because Oliver earns little money and the offence is so serious. He also helps him complete the application form. Depending on their financial situation, an offender may have to pay towards their legal aid or have to pay it back at a later date.

The local Legal Aid office writes back to Oliver within 24 hours of getting the application. The letter says that Oliver will get legal aid.

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Oliver’s first court appearance

At the first District Court hearing Oliver's details, and those of the victims' families, are given to the court victims' adviser. The victims' adviser makes sure the victims or their families know about the progress of a case. This includes court hearing dates, any bail conditions, and whether the offender is in custody – in prison or the police cells. Because Oliver is charged with two category 4 charges, the highest category charge, he will be remanded (ordered back) to the High Court for his next appearance – the next date in court.

During this first court hearing, Oliver can enter a plea at any time. If Oliver pleads guilty, the Police presents a summary of facts, which describes what they believe happened in the night of the crime. Because Oliver’s offence is so serious Oliver will be remanded to the High Court for sentencing.

Oliver pleads not guilty, so he will face a High Court trial by jury. A jury is a group of twelve people who sit through a trial, listen to the evidence, and decide whether someone is guilty or not of committing a crime. The prosecutor at the first appearance will have been a Police Prosecutor. However, subsequent appearances will be prosecuted by a Crown Solicitor because of the serious nature of his charge.

For more information about juries, visit jury service

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Oliver on bail

Oliver is granted bail – he does not have to stay in prison while he waits for his trial. The police agree to this because Oliver does not have a passport, so he's not a "flight risk". His bail is granted on these strict conditions. He must:

  • live at his parents' address
  • report to the police every day
  • not drive
  • not have any contact with any of the police witnesses.

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What happens to Oliver between appearances?

Oliver will be either

  • remanded at large, which means he will be free to go until his next appearance;
  • remanded on bail, which means he is released on conditions (such as having to live at a particular place, having no contact with the victim, or having to report to the Police while on bail);
  • remanded in custody, which means he is held in prison until your next court date.

Oliver is bailed and is told the date when he will appear in court. (If he fails to appear in court on that date, a warrant will be issued for his arrest.) The judge warns Oliver that if he breaches (breaks) any of the bail conditions, he will be put prison until his next court appearance.

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Oliver breaches bail

Two days later, Oliver is caught driving, and the police arrest him for breaching the conditions of his bail. He appears before a different judge, but the note on the file is clear. Oliver is remanded in custody (put in prison) until his next court appearance: the case review hearing. Because he is now a prisoner, he is under the care of the Department of Corrections.

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Case management discussions

Before the next hearing, Oliver’s lawyer will discuss his case with the Crown Solicitor. As part of this discussion they will complete a case management memorandum. This memorandum will inform the court of the direction the case will be taking. Information that will be included in this case management memorandum is:

  • Whether Oliver would like to change his plea to guilty;
  • Whether Oliver would like to apply for a sentence indication (a statement by the court telling Oliver what type of sentence he would likely receive with a guilty plea); or
  • If Oliver is continuing to defend the charge (plead not guilty) and wants to go straight to trial.

The case management memorandum is filed with the Court five days before the case review hearing to help the court prepare for the next steps.

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Case review hearing

Oliver may need to appear at a case review hearing. At this hearing the case management memorandum will be discussed. If Oliver was to change his plea to guilty then a date for his sentencing would be scheduled.

Oliver could apply for a sentence indication. This is a statement by the court telling Oliver what type of sentence he would likely receive with a guilty plea to his charge. During this process his counsel will put forward any personal details about Oliver’s life or the night of the crime to assist the court with the indication.

Through his counsel Oliver advises that does not wish to change his plea or apply for a sentencing indication, but that he wishes to continue to trial. Oliver’s case is adjourned (put on hold) until trial call over. He reapplies for bail until his trial date. The judge grants him bail but reminds Oliver that he must not breach his bail conditions unless he wants to be taken into custody again.

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Trial call-over memo

A trial callover memo must be completed by Oliver’s counsel as well as the Crown Solicitor who is responsible for prosecuting his case. This memo will provide information to the court that will assist with scheduling the jury trial such as:

  • number of witnesses
  • estimated duration of the jury trial
  • availability of counsel and crown prosecutor
  • any pre-trial decisions that need to be made prior to the jury trial.

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A call-over is when the judge and the lawyers for both sides discuss any pre-trial issues and schedule the jury trial dates. Examples of pre-trial issues include: a witness may need to give video evidence as they will be overseas at the time of the trial. Or the defence counsel might make a case for some evidence to be excluded. A second call-over may be needed to give enough time to deal with all pre-trial issues.

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Prosecution and defence prepare

Oliver's lawyer prepares his defence by talking with Oliver and any defence witnesses who will be called to appear in court. The Crown counsel arranges for witnesses to give evidence at the trial.

Witnesses are also shown around the court and have court procedures explained to them so they know what to expect.

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Oliver's past – inadmissible evidence

Oliver's lawyer objects to some of the evidence the Crown wants to call at the trial. One of Oliver's friends will give evidence of being in a car with Oliver driving and being quite afraid, particularly about how Oliver handled traffic lights. He will also talk about several times when Oliver deliberately drove through red lights. This evidence is very bad for Oliver. His lawyer wants a judge to declare this evidence "inadmissible" on the grounds that Oliver's earlier actions are not relevant to this case.

This evidence may go against Oliver because it may convince the jury and judge that Oliver often broke traffic laws and took risks. This evidence will help the prosecution prove its case against Oliver.

Oliver's lawyer applies to exclude the evidence as inadmissible. A pre-trial hearing is held for a judge to hear arguments and make a decision. The judge decides that the evidence is inadmissible.

This is a serious setback to the Crown's hopes of convicting Oliver for manslaughter, so they decide to appeal the decision to the Court of Appeal.

See a chart of New Zealand's court system [PDF, 1.1 MB]

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High Court appeal for inadmissible evidence is lost

The Court of Appeal sets a date for the appeal to be heard by three judges.

The High Court prepares a file and sends it to the Court of Appeal. The defence and prosecution counsel prepare their arguments.

The Crown has to convince the three Court of Appeal Judges that the High Court Judge was wrong. The Judges hear the arguments and "reserve their decision". That means that they will think about it and give their decision at a later date.

A week later, the Court of Appeal Judges release their decision. They think the High Court Judge was wrong to declare the evidence inadmissible. The Crown is allowed to use that evidence in the High Court trial.

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