27838v2a Learners Guide

US 27838 v2a
Learner’s Guide
LEGAL STUDIES
Unit Standard 27838

Version 2 | Level 1 | Credit 4
Demonstrate
understanding of
foundational concepts
of justice
Licensed to:
Western Heights High School
2018 - 2a © ATC New Zealand
www.instant.org.nz
i
US27838v2a Learner's Guide Licensed to Western Heights High School

Demonstrate understanding of foundational concepts 25092018-US27838-136998 INSTANT Education Solutions
of justice 2a © ATC New Zealand www.instant.org.nz
ii
About this
Learner’s Guide
Learning Purpose & Outcomes
In this guide you will learn about foundational concepts of justice.
Justice means fairness and rightness. It is important that court processes in New Zealand are fair
and right so that people can have confidence in the New Zealand legal system.
In this guide, the following four concepts will be looked at.
Balancing
Coercive
competing
Power
claims
Concepts
of Justice
Equity Impartiality
Throughout the guide, you will look at a number of areas of law where these concepts are applied.
It is important that you can identify how different concepts of justice are applied to individual
cases. One good way to do this is through reading reports and newspaper articles about
different court cases. A list of useful websites have been included on the following page.
A glossary containing difficult or technical words has been provided at the end of this guide.
Words in the glossary are highlighted the first time they appear in the main text.
Licensed to Western Heights High School US27838v2a Learner's Guide

25092018-US27838-136998 INSTANT Education Solutions Demonstrate understanding of foundational concepts
2a © ATC New Zealand www.instant.org.nz of justice
iii
Additional
Resources
Legislation
Abolition of Death Penalty Act 1989
Bill of Rights Act 1990
Criminal Procedure Act 1961
Crimes Act 1961
Defamation act 1992
Evidence Act 2006
(All of the above legislation is available from http://www.legislation.govt.nz)
Websites that report on actual court cases

Courts of New Zealand – http://www.courtsofnz.govt.nz/from/from/decisions/judgments
New Zealand Herald website – http://www.nzherald.co.nz
Stuff.co.nz – http://www.stuff.co.nz
The Law Report - http://www.thelawreport.co.nz/
TVNZ online – http://www.tvnz.co.nz

1
Contents
Coercive Power 2
What is coercive power? 3
Contempt of court 4
Death Penalty 8
Balancing Competing Claims 11

Name suppression 12
Defamation 16
Impartiality 20
What is Impartiality? 21
Judge and jury system 22
Equity 30
What is Equity? 31
Judicial discretion when sentencing 32
Glossary 35

2
LESSON 1:
Coercive
Power
Learning Objectives
In this lesson, you will learn about coercive power as a A space has been left
foundational concept of justice. You will look at two specific on the right of every
examples of coercive power. page for you to make
notes about what
Contempt of court you are learning.
Death Penalty

3
LESSON 1: Coercive Power
What is coercive power?
One foundational concept of justice is coercive power. Coercive

power is power that is based on:
• fear
• suppression of free will
• use of punishment or threat.
Coercive power is used to stop people doing things that oppose
justice (crimes). It is believed that if people are scared of the
consequences of committing an act then they will be less likely to
do it.
Note: If people know that they could go to jail for stealing

something, they may be less inclined to steal the item.
Types of coercive power

The following diagram highlights some specific areas of law where
coercive power is applied around the world:
Death
penalty
for serious
crimes
Car Imprisonment
crushing for or fines for
dangerous contempt
driving of court
Coercive
power
Loss of Home
licence for detention for
speeding benefit fraud

4
Contempt of court
Contempt of court is behaviour that does not comply with the authority
of the court. The following people may be charged with contempt of
court if they disrespect the court or do not follow proper process.
• Lawyers
• Jurors
• Witnesses
• The public who are watching the case
Most of contempt of court law comes from common law (law

made by the courts). Section 9 of the Crimes Act 1961 gives the
courts power to punish for contempt of court.
Here are some examples of the types of behaviour that could

result in contempt of court charges. Refer to section 365 of the
Criminal Procedure Act 2011 for a list of acts that are considered as
contempt of court.
Juror not
following
rules
Disobeying
Swearing at a
a court
judge
process
Contempt
of court
Refusing Interfering
to obey a with
judge’s orders administration
of court

5
Imprisonment and fines are used as coercive power for contempt

of court. The court uses this coercive power to ensure that people
respect court processes and the authority of the judge. As the court
deals with serious matters, it is essential that processes run smoothly
and that the judge’s decisions and actions are respected.
Read the following article about an actual event.
NATIONAL
Read more about the case

Juror Jailed at the following website:
A juror was sentenced to ten days in prison for refusing to take the Juror’s http://www.newshub.
oath in the District Court on Wednesday afternoon. co.nz/nznews/jail-term-
James McAllister, was selected as a juror to hear a trial at Auckland District for-juror-too-busy-for-
Court, but was stood down because he complained that was too busy at duty-2013071211
work to be on the jury.
Once selected, McAllister told the judge that he would not take the oath
because he refused to be on jury service. Lawyer for McAllister, David Jones
QC said, “It was not a question of trying to play the system or antagonising
the court – he was simply trying to be honest.”
Judge Dawson found McAllister in contempt of court for refusing to take the
oath and sit on the trial.
Judge Dawson refused to impose a fine on McAllister because it would allow
McAllister to achieve what he set out to do - go to work. Instead, McAllister
was sentenced to 10 days in prison under the Criminal Procedures Act.
McAllister was allowed out on bail after his lawyer said that he would file an
appeal in the High Court.
In this case, the judge used coercive power to emphasise the

seriousness of contempt of court. James McAllister, in the article,
did not perform his role as a juror and therefore wasted the time
of all the people involved in the court case (judge, lawyers, jury
members, registrar etc). The judge sent a clear message to all jurors
that they must perform their duties as citizens.
Links to Concept
The judge used his coercive power under section 9 of the You need to be able
to
Crimes Act 1961 to punish James McAllister for refusing to make links between
the
take the juror’s oath. The judge imposed a prison sentence concept of coerciv
e
power and example
on McAllister in order to punish him. It also had the effect of s
of contempt of cour
imposing fear onto all citizens. Citizens may now feel forced t in
order to get excellenc
e in
to complete jury duty properly. If they do not, they too may be the assessment.
given a prison sentence for contempt of court.

6
What do What do you think of the outcome of McAllister’s case?

You Think? Do you agree with it? Why? Why not?
Try it for Read the newspaper article and answer the questions
Yourself that follow.
You can read more about this situation
at the following website: http://www.
stuff.co.nz/national/crime/4559448/
NATIONAL
Man-jailed-for-swearing-at-judge
Inappropriate court behaviour
A member of the public was jailed yesterday for inappropriate behaviour in court. James Kennedy Grant
was sentenced to 28 days in jail for contempt of court after he swore at the judge.
Grant was upset at the outcome of his friend’s case. As the judge read his decision, Grant stood up in the
public gallery and yelled ‘Is that all, ****?’ to the judge.
‘Your outburst was simply arrogant, angry, rude, disrespectful defiance of the court, and that will not
be tolerated. It needs to be known ... particularly in Gisborne, where there is a specific problem,’ Judge
Adeane said before he imposed the 10-day prison sentence on Grant.
1. What act did James Kennedy Grant commit?
2. What punishment did James Kennedy Grant receive?
Continued on next page...

7
3. Explain how this example of contempt of court is linked to the concept of

coercive power.

8
Death Penalty
The death penalty is the name given when a person is sentenced

to death for committing a serious crime. It is an extreme form of
coercive power. New Zealand, like many other countries in the
world, does not use the death penalty. Although it used to be a form
of punishment in New Zealand, it was stopped in 1957 and then
abolished for good in 1989 under the Abolition of the Death Penalty
Act 1989.
Countries that implement the death penalty do so because they
believe that it deters people from committing crimes. Commentators
state that, ‘Prison time is an effective deterrent, but with some
people, more is needed. Prosecutors should have the option of
using a variety of punishments in order to minimize crime.’1
WORLD
McCarthy put to death in Texas

Kimberly McCarthy was put to death on Wednesday evening in Texas.
McCarthy, 52, was executed for the brutal murder of her 71-year-old Read more about the case
neighbour. She robbed, beat, and fatally stabbed Dorothy Booth in 1997. at the following website:
http://www.dailymail.
McCarthy was pronounced dead at 6:37pm, local time, 15 minutes after Texas
co.uk/news/
prison officials began administering a single lethal dose of pentobarbital.
article-2349330/
Her last words were, ‘This is not a loss. This is a win. You know where I’m
Texas-carries-500th-
going. I’m going home to Jesus. I love you all.’
execution-death-penalty-
Outside the prison, about 40 protesters gathered, carrying signs saying introduced-amid-protests-
‘Death Penalty: Racist and Anti-Poor,’ ‘Stop All Executions Now’ and ‘Stop accusations-racism.html
Killing to Stop Killings.’
In the article above, the death penalty has been used as coercive
power. Law makers who support the death penalty believe that
having the death penalty as a punishment for murder and other
serious crimes helps reduce crime. They believe that if people know
that they could be put to death for committing crimes, they will be
discouraged from committing them.
Other people think that people who commit serious crimes do not
think about the consequences. They believe that people who commit
these types of crimes have serious personal issues. They feel that
1 BalancedPolitics.org . (2013, July 22). Should the death penalty be banned as a form of
punishment? Retrieved from http://www.balancedpolitics.org/death_penalty.htm

9
they should be put in prison so that they do not harm anyone else in
the community and so that they can get the rehabilitation that they
need. Those who are against the death penalty believe it is a brutal
punishment that goes against basic human rights.
Links to Concept
In the example, McCarthy committed a brutal murder over You need to be able
to
20 years ago. Because of this murder, she was sentenced make links between
the
to death. Lawmakers in the state of Texas must believe that concept of coerciv
e
power and example
imposing the death penalty on McCarthy a) punishes her for the s
of the death penalty
crime that she committed and b) puts fear into other citizens in
e in
(as they know that they could get the death penalty if they the assessment.
murdered someone). If McCarthy committed the murder in New
Zealand, she would not get the death penalty. This is because
New Zealand lawmakers believe that the death penalty is not
an appropriate form of coercive power. Most New Zealanders
believe that the death penalty is harsh and brutal.
Try it for Read the following blog entry and answer the questions
US: Look in your own backyard first

I think the death penalty in Texas and other states within the United States must be outlawed
immediately. The death penalty is cruel and barbaric; it is definitely not something that a liberal
democracy should have. We think that the United States is a world leader and a role model to the
world. However, they still have this barbaric law. All other liberal democracies have abolished the
death penalty. The United States keeps company with countries that have very poor human rights
standards: China, Iran, North Korea, and Yemen.
People believe that the death penalty deters people from committing crimes. However, the statistics
show that states that have the death penalty still have higher murder rates than other states. The
death penalty as a deterrent does not work!
1. InWhat
2013,act did James
President Kennedy
Obama Grant commit?
went to Senegal and told the President of Senegal that his country
should work towards making homosexuality legal (it is currently illegal there). The President of
Senegal responded by telling President Obama that his country has made the death penalty illegal,
but the United States still executes citizens. The United States is not in a superior position where
it can tell other countries what to do.
2. New
What punishment
Zealand should bedid James
sending Kennedy
a clear messageGrant
to the receive?
United States – your policy on the death
penalty is not acceptable!

10
1. What is the writer’s view of the death penalty?
2. Explain how the death penalty is linked to the concept of coercive power.
Research some real life examples to include in your answer.

11
LESSON 2:
Balancing
Competing Claims
Learning Objectives
In this lesson, you will learn about balancing competing claims as
a foundational concept of justice. You will also look at two specific
areas of law where the concept of balancing competing claims
applies.
Name suppression
Death Penalty
What is balancing competing claims?

Balancing competing claims refers to making sure that the rights of
different people involved in a court case, including the public, are
not unfairly impacted.
The judge needs to decide whether certain information can be
released in relation to the specific details of the case.
Two key areas of law where a judge needs to balance competing
claims include:
1. Name suppression
2. Defamation cases
We will look at each of these in turn.

12
LESSON 2: Balancing Competing Claims
Name suppression
The media has freedom of expression. This means that the media
has the right to report on court proceedings. Freedom of expression
helps promote one of the most fundamental elements of justice:
open and transparent courts. Allowing the media to report openly
on court cases gives citizens faith in the justice system. They know
what has happened in court cases and can see how the law has
been applied.
However, there are times when a defendant’s (or other party’s) right
to privacy outweighs the media’s right to freedom of expression. In
such cases name suppression is granted.
Name suppression means that a person’s name, address, or

occupation must not be published.
A defendant or other person involved in the case normally needs

to apply for name suppression unless name suppression is
automatically granted.
The law that governs name suppression is the Criminal Procedure
Act 2011. Name suppression is automatically granted to the
following people:
defendant
for all child
in specified
witnesses
sexual cases
(s 204)
(s 201)
Automatic
name
suppression
for all child complainant

complainants in specified
(s 204) sexual cases
(s 203)

13
Name suppression for defendants who have not been

granted automatic name suppression
It is usually NOT easy for a defendant to get permanent name
suppression if it is not automatically granted. A general concept of
justice is that it is in the public’s interest for a defendant’s name to
be published. However name suppression may be granted if it is
likely to cause extreme hardship.
Name suppression for other people connected to the case

who have not been granted automatic name suppression
It is easier for others involved in a case to get name suppression
upon application. Situations where name suppression may be
granted include:
could cast
undue suspicion
on another
person
prejudices
the causes undue
maintenance of hardship to the
Name
law or security person
suppression
in NZ will be granted if
publishing the
name...
creates a affects
real risk of another person
prejudicing a fair who has name
trial suppression
See the Criminal Procedure Act 2011, section 200-204 for more
details.

14
NATIONAL
Ex-All Black granted name suppression Read more about the case
at the following website:
An ex-All Black has been granted name suppression after pleading guilty
http://www.nzherald.co.nz/
to assaulting a child in September.
nz/news/article.cfm?c_id=
The ex-All Black was granted name suppression until his next court 1&objectid=10769780id=1
appearance, with the possibility that he may receive permanent name &objectid=10769780
suppression.
The ex-All Black was granted name suppression because of his good
standing in sporting circles and in the community.
Legal experts have criticized the judge’s approach stating that it goes
against the intention of Parliament.
The Criminal Procedure Bill, which was passed in October, makes it clear
that “wealth, reputation or public awareness” should not be factors in
gaining name suppression.
Judges need to weigh up the right of the public to know about crimes
that have been committed and the right of the defendant (or others
involved) to not suffer extreme hardship by having their names released.
Links to Concept
In the article above, an ex-All Black was charged with You need to be able
to
assaulting a child. The judge granted the ex-All Black temporary make links between
the
name suppression, with the possibility of it becoming permanent. concept of balancin
g
competing claims an
The judge probably did this because the weight of the man’s crime d
examples of name
(assault) did not match the hardship that would be suffered (family suppression in orde
r
life, career) if the public found out that he assaulted a child. Also, to get excellence in
the
the judge probably wanted to protect the victim of the crime, as assessment.
it would be unsettling for him to have his name published in the
newspapers. These two facts seem to ‘outweigh’ the public’s right
to know about the incident. Look at the diagram below:
Right of man to
Right of public not suffer
to know extreme hardsh
about the crime. ip.
Right of the victim
to not
have his name pu
blished.
Note: The fact that the defendant is famous does not necessarily
mean that they will be granted name suppression. The same
legal ‘test’ will apply. (Criminal Proceedings Act 2001, s200 (3))

15
Try it for Read the following article about an actual event. Answer
Yourself the questions that follow.
NATIONAL
Parents guilty of child neglect

The Wellington District Court today found a 22-year-old mother and 25-year-old-father guilty of child neglect.
The Court heard that the parents had neglected to look after their four infant children. They all had a range of
health problems, and one had to be hospitalised due to infected lesions. Drug utensils and alcohol was found
in the house but there was very little suitable food for the children, and very little furniture.
The children were put into Child, Youth, and Family care.
Judge Thomas stated, ‘You clearly have a substantial amount of work to undertake before they can be returned
to you. It is a very sad case for small children who love their parents and who have been removed from them.’
Judge Thomas gave both permanent name suppression to protect the identities of the four children.
1. What happened in the case?
2. Why were the parents granted name suppression?
3. Explain how this example of name suppression is linked to the concept of

balancing competing claims.

16
Defamation
Defamation is when one person makes a false statement about

another person that harms the person’s reputation.
Defamation is covered by the Defamation Act 1992.
How does defamation relate to balancing

competing claims?
Freedom of expression is a fundamental civil liberty in New Zealand.
This means that people have a right to express themselves freely.
However, there are limitations to this right. A person cannot make
statements that harm another person’s reputation if the statements
are untrue.
When deciding whether defamation has occurred, a judge needs to
ask:
• Was the statement made publicly?

• Was the statement untrue?
• Was the statement presented as fact (and not just opinion)?
• Did the statement affect the person’s reputation?
us
vers
A person’s right to A person’s right to not have

freedom of expression comments made about them
and freedom of speech. that negatively affects their
reputation.

17
NATIONAL
Mitchell sues over sexual comment

A defamation case was held last week in Invercargill in which it will be
decided whether comments to Bluff Community Board chairwoman, Jan
Mitchell, are defamation or not.
Mitchell is suing Bluff resident John Edminstin for defamation after he
called her a ‘’lying ****’’ at a board meeting in October, 2011.
Edminstin does not deny saying the words, however he says they were Read more about the case
made in private, and therefore do not constitute defamation. at the following website:
Edminston, who claims to be ‘a bit deaf’ said he used the words because he https://www.odt.
was frustrated with Mitchell. He believes she lied to him about the rezoning co.nz/news/national/
issue that was being discussed. chairwoman-sues-over-
slut-comment
Although the comments are clearly offensive, it is the courts role to decide
whether the comments constitute defamation under New Zealand law.
In this article above, a community representative is suing a member

of the public for defamation. There are two competing claims. A
judge will need to balance these claims and make a decision based
on the evidence that is presented to him/her.
Links to Concept
In this case, there are two competing claims. Edminston You need to be able
to
claims that what he said was said in private. Mitchell claims that make links between
the
this statement is defamatory to her. Look at the diagram below balancing competin
g
claims and example
to see the two competing claims. s of
defamation in orde
r in
Right of Edminston to Right of Mitchell to e in
the assessment.
share his frustrations not have offensive
about a situation or comments made publicly
person. about her.
It was found that Edminston was guilty of defamation. He

was ordered to pay $40,000 + costs to Mitchell. The judge Read more about the
stated that the report about the meeting published in the results of the case at the
Southland Times, which included the remark, would have led following website:
to some readers forming an adverse view about Mrs Mitchell’s https://www.odt.co.nz/
reputation. Defamation was therefore established in this regions/southland/
situation. The rights of Mitchell to not have offensive comments fisherman-pay-damages-
defamation
made about her outweighed the rights of Edminston to share
his opinion.

18
Defamation claims - why bother?

It seems that whenever I read the newspaper, a celebrity or politician is suing someone for
defamation. I think defamation law suits are a waste of time.
Defamation, by definition, is ‘a false accusation of an offence or a malicious misrepresentation
of someone’s words or actions.’ An accusation is either true or it isn’t. A person who has a false
accusation made against them shouldn’t have to be involved in a court process to prove their
innocence. They should make a public statement with the truth and then trust the pubic to believe
them. They don’t need to fight or argue with the person - that just makes it look like they are guilty
of something.
I know that if someone said something about me that was untrue, I would tell my version of events
and then forget about it. I don’t want to waste my time arguing with people who want to cause
trouble.
1. What does the writer of the letter think about the defamation law?
2. Explain how defamation is linked to the concept of balancing competing claims.


19

20
LESSON 3:
Impartiality
Learning Objectives
In this lesson, you will learn about impartiality as a foundational
concept of justice. You will also look at two specific areas of law
where the concept of impartiality is applied.
Judge and jury system
Inadmissibility of evidence of prior convictions

21
LESSON 3: Impartiality
What is Impartiality?
Impartiality means looking at both sides of an issue equally. It

highlights that decisions should be made based on objective criteria
(facts) rather than on bias or prejudice.
Try it for Have the persons acted impartially in the following

Yourself situations?
A jury member comes to the conclusion that the defendant must have
committed the crime because he is covered in tattoos.
A judge hears facts from the defendant and the prosecution. She then
comes to a decision based on the law.
A jury member listens to the arguments and then comes to their honest
decision based on the arguments that were provided.
A judge lets a defendant off without conviction because he (the judge)

does not personally agree with the law.
A juror stops listening to the lawyers because he has already made up

his mind about the case.
Impartiality is a very important concept of justice. Without

impartiality, the court system would not be fair and people would
not get just outcomes. This would cause people to lose faith in the
justice system and in the government as a whole.

22
Judge and jury system
Both the judge and the jury must be impartial when analysing and
making decisions about the cases that they hear. They cannot
favour one side over the other.
The following diagram highlights some of the things that judges
must/must not do in order to remain impartial:
Cannot
indicate their
judicial decision
before the case
ends
Cannot give
legal advice Must not criticise
outside the laws
courtroom Judge’s
impartiality
Must
not socialise Must treat
all lawyers,
with lawyers who
clients, and
are connected to
witnesses with
cases they are respect
hearing
Lord Denning (a famous judge from the United Kingdom) stated:

“Justice must be rooted in confidence: and confidence is
destroyed when right-minded people go away thinking ‘The
judge was biased.’”2
2 Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1968] EWCA Civ 5, [1969] 1 Q.B. 577,
Court of Appeal (England and Wales).

23
The jury acts as a ‘community conscience’ in deciding criminal cases.

The correct use of this community conscience relies on two factors:
• A jury that is representative of the whole community (not just one
section of it) AND
• A jury that is impartial
The following diagram highlights what a jury must/must not do to
remain impartial:
Must apply the

law to the facts
of the case
Must
Must not not judge
research the a defendant
defendant’s past based on their
Jury appearance
impartiality
Must
be willing to Must not
discuss the case communicate
with jurors in a with non-jurors
non-baised about the case
way
“The jury, because of its nature, acts as the community

conscience in deciding community cases. However, this
function is dependent on juries representing all members of
the community, and deliberating in an impartial and democratic
manner.”3
3 The Law Commission, (1998). Juries in criminal trials: Part one. Retrieved from website: http://
www.lawcom.govt.nz/sites/default/files/publications/1998/07/Publication_76_156_PP32.pdf

24
Evidence of defendant’s past crimes

shared with jurors
A juror who researched the defendant’s history on the internet, has been
jailed for contempt of court.
Theodora Dallas has been dismissed from the jury and charged with
contempt of court for using the internet to research the history of the
defendant who is charged with assault. She told other jury members that
the defendant had previously been accused of rape. Read more about the case
at the following website:
Lord Judge said Dallas had “deliberately disobeyed” the trial judge’s
instructions not to search the internet and added: “The damage to the http://www.bbc.co.uk/
administration of justice is obvious.” news/uk-england-beds-
bucks-herts-16676871
Dallas stated that she did not intend for the jury to lose their impartiality. “I
had no intention at all to prejudice the jury in any way. I had no intention to
disobey what the judge said.”
As the article highlights, it is essential that a juror remains impartial

throughout the entire process. It is wrong for a juror to find any
information about the defendant outside the court as this may affect
the juror’s impartiality.
Links to Concept You need to be able

In this case Dallas was dismissed for researching the history to
make links between
the
of a defendant. One of the key responsibilities of a juror is the concept of impartiali
ty
requirement to remain impartial. Information from outside the and examples of th
e
court room cannot be used to influence the decision of the jury. judge and jury syst
em in
As Dallas discovered outside information about the defendant, order to get excellenc
e in
the assessment.
she was no longer able to remain impartial.

25
The media is a jury’s worst enemy

The news is with us everywhere: on the TV as we eat our dinners, on the newspapers that we
read during morning tea, on our smartphones that we check every hour, and on the radio as we
drive to work. It is impossible for us to escape current events reporting. I don’t normally have a
problem with this - however, I do when it comes to the media reporting on crimes before they
have been heard in court. I can name so many cases where the media has already decided that a
person is guilty and have reported in a way that is detrimental to that person’s trial.
Just think of the infamous David Bain case, where Bain was charged with the murder of his
family. At the time, the media went to great lengths to describe Bain as a dark and sinister
character - they reported as if there was no doubt that he committed the crimes. With such
widespread reporting, it is obvious that members of the jury were influenced by this. How could
they not be? I am sure that the media’s consistently biased reporting will continue to have a
negative impact on future cases.
The media needs to report impartially so that our juries can remain impartial. Anything less is a
serious miscarriage of justice.
1. According to the writer of letter, why is the media the jury’s worst enemy?

26
2. Explain how defamation is linked to the concept of balancing competing claims.

Inadmissibility of evidence of prior convictions

It is important that the jury only comes to a verdict about a crime based
on the facts of the crime in relation to the law. It is not appropriate for
the jury to know about all of the past crimes of a defendant unless they
are directly related to the case and do not cause the jury to unfairly
judge the defendant (or lose their impartiality).
Evidence Act 2006

The Evidence Act 2006 highlights the types of evidence that
can be admitted in court trials in relation to the past convictions
of the defendant.
In general, under section 49 of the Act, evidence of a previous
conviction is admissible, unless another provision excludes this.
The provisions that exclude this right are vast. For example,
under section 43 and section 8, past convictions cannot be
used as evidence if it has an unfairly prejudicial effect on the
defendant. It is the judge’s duty to decide whether the evidence
would have this effect or not.

27
Sections 37 and 38 further restrict the right to use past

convictions as evidence. These sections highlight that the
previous convictions of a defendant must be ‘substantially
helpful’ in assisting the jury, make a decision about the
defendant’s character.
Also, evidence of previous convictions can only be used if the
defendant himself/herself has provided positive evidence about
their own character. A judge’s permission is still needed for the
prosecution to provide this evidence in court.
NATIONAL
MacDonald’s previous convictions not

made known
Information about the previous convictions of Ewan MacDonald were not
made known to the jury who were required to decide whether MacDonald
was guilty of the murder of his brother-in-law, Scott Guy.
Justice Simon France said the reason three charges against MacDonald
were suppressed was in order to ensure a fair trial.
There was concern that the charges would unfairly prejudice the murder
trial. In addition, the charges were not directly related to the case.
Garth McVicar from the Sensible Sentencing Trust said that this
information should have been released to the jury. ‘Nothing is prejudicial
about the truth and that is where I believe our justice system has gone Read more about the case
way off track. I think our judges are partly responsible, because we have at the following website:
allowed suppression orders to happen and we have allowed a criminal- http://www.newshub.
centred, offender-friendly legal process where it is all about the offender.’ co.nz/nznews/ewen-
The jury was not given information about MacDonald slaughtering 19 macdonald-a-catalyst-for-
calves with a hammer, and setting fire to a building on a farm. law-change-2012080217
MacDonald was found not guilty of the murder of Scott Guy.
In this case, all the past convictions of a defendant were not shared
with the jury so that the jury would only base their decisions on the
facts of the case.

28

During MacDonald’s trial these past convictions were not to
make links between
the
released to the jury because the judge thought that the jury concept of impartiali
ty
would be influenced by the information, giving it more weight and examples of
than it deserved. inadmissibility of
evidence of prior
We can see that this is not a clear-cut area of law. Many convictions in orde
r to
commentators thought that the judge should have allowed get excellence in the
MacDonald’s previous convictions to be known, as they showed assessment.
what kind of person he is. This is an area of the law where the
judge has to consider all elements before the decision to release
information is made. The main aim is that the jury judges a case
on the law and facts of the case; not on the past actions of the
defendant (unless they are directly related to the case).
Inadmissibility of Evidence
Should evidence of a defendant’s past convictions be provided for a jury or not? Does the jury
have the right to know about the offences that a defendant has committed in the past?
On one hand, a defendant’s past crimes are directly related to their current offence. If they have
committed a crime in the past, then it makes it more likely that they have committed the offence
that they have been charged with. For example, if John has been convicted of over twenty thefts,
then it shows that he has a tendency to commit theft. Shouldn’t the jury have the right to know
about this? This knowledge would clearly help the jury see that John has been involved in crimes
in the past, and that (if all the other evidence adds up) it is likely that he committed the crime in
this case too. As the famous saying goes, ‘where there is smoke, there is fire’.
However, knowledge of past convictions can make a jury prejudge people. If a jury knows that a
person has committed crimes in the past, the jury may automatically think the defendant committed
the crime they are charged with without looking at the facts of the case. The jury may automatically
label that person as a ‘distasteful character’ and think he or she is guilty without taking the evidence
and law into account. Juries must remember that people can change for the better. Just because they
did something in the past, doesn’t necessarily mean that they will do it again.

29
1. Explain how inadmissibility of past convictions is linked to the concept of

impartiality. Research some real life examples to include in your answer.
Additional example
In the New Zealand Herald article, ‘New charges for alleged
celebrity conman’ the defendant fought his extradition to New
Zealand because he believed he would not receive a fair trial.
This is because the defendant was being charged for conning
New Zealand celebrities, including Jonah Lomu. He was
Read more about the
worried that because Lomu was so widely known and loved, case at the following
some of the jury members would let these feelings influence website: http://www.
their decisions regarding the defendant’s guilt. In 2001, the stuff.co.nz/national/
Law Commission stated that ‘the primary function of a jury in crime/5692258/New-
a criminal trial is to reach a verdict of guilty or not guilty based charges-for-alleged-
on the application of law to its impartial findings of fact.’9 In this celebrity-conman
case, the jury may not be impartial and therefore they may not
be able to perform their duty correctly.

30
LESSON 4:
Equity
Learning Objectives
In this lesson, you will learn about equity as a foundational concept
of justice. You will also look at one area of law where the concept of
equity is important:
Judicial discretion at sentencing

31
LESSON 4: Equity
What is Equity?
Equity literally means, ‘the quality of being fair and impartial.’ The
aim of equity is to act as a supplement where the law (statutes,
common law) would create an overly harsh result.
Equity allows the courts to use their discretion and apply justice in
accordance with the key concepts of justice.
There are a number of general ethical statements that apply to equity.
These are known as the ‘Maxims of Equity.’ Most of these statements
are difficult to understand and require explanations and examples to
understand. Here are explanations for four different maxims:
Equity delights in equality

Where two people have an equal right to something, the
property will be divided equally.
One who seeks equity must do equity

For one person to receive an equitable outcome, they must be
willing to offer equitable outcomes themselves.
Equity will not suffer a wrong to be without a remedy

When parties are seeking equitable outcomes, the party who
has been wronged is in a stronger position.
He who comes to equity must come with clean hands

If a party asks for help in relation to the actions of someone
else, but they have acted wrongly themselves, the party may
not receive the help they seek.
The use of equity has been reduced due to the development of

legislation and procedural rules in New Zealand. However, equitable
concepts are still used in a range of areas, including:
• Judicial discretion when sentencing
• In civil claims, such as relationship property division

32
LESSON 4: Equity
Judicial discretion
when sentencing
Judges have discretionary powers when deciding on sentences
for criminals. Discretion means the ‘the freedom to decide what a
particular outcome should be.’
Look at the following section from the Crimes Act 1961:
154 Abandoning child under 6

• Everyone is liable to imprisonment for a term not exceeding
7 years who unlawfully abandons or exposes any child
under the age of 6 years.
As you can see, a person who abandons a child under 6 years of

age is liable for imprisonment for a term not exceeding 7 years. The
law says, ‘not exceeding’. This means that the judge may not give
the person a term longer than 7 years. However, the judge is able to
use his/her discretion to give a term that is shorter than 7 years. The
judge does not necessarily have to impose a term that is exactly 7
years long.
The reason that judges have discretion is to allow for an equitable
outcome. Although two people may have committed the same
crime, the facts of the case may mean that it is not fair to give both
people exactly the same sentence.
For example: In one case, a mother abandoned her child

because she was suffering from depression and unable to cope
with the situation. This was completely out of character.
In another case, a mother abandoned her child to party and
become intoxicated with her friends.
Although both of the women committed the same crime, the
judge may be more willing to give the first mother a lesser
sentence than the second mother. The judge may also ensure
that she gets proper mental-health care. This is because the
intention of each mother was different in each case. It would
not be equitable to give both mothers the same sentence.

33
LESSON 4: Equity
Read the following article about an actual event:
NATIONAL
Drink drivers being let off in record

numbers
A high number of drink drivers before our courts are not being convicted,
official statistics released by the Ministry of Justice show today.
Figures released show that over 239 drink drivers have been let off without
conviction since 2007.
Auckland lawyer Stuart Blake stated that ‘In order to ascertain whether an
individual has an appropriate case to be considered by the court, I consider
the gravity of the offending in comparison to what the consequences will
be if convicted. The courts rightly place a very high threshold on granting a Read more about the
discharge ... In this regard the potential consequences have to be real and situation at the following
appreciable, not just speculative.” website:
http://www.nzherald.co.nz/
People have been let off drink driving convictions for a range of different nz/news/article.cfm?c_
reasons. For example, one man required ‘extensive and unimpeded d=1&objectid=10871360
international travel’ as part of the business he runs. A drink driving
conviction would restrict his ability to travel this way.
Judges have a lot of discretion as to whether they will impose fines, jail,
community work, or suspension of a licence for excess breath/blood
alcohol charges. In the article above, it was highlighted that a number
of drink drivers are being let off ‘without conviction.’ A judge can use
his/her discretion as long as it is within the confines of the law.

The concept of equity is key to judicial discretion when to
make links between
the
sentencing. A judge has to apply key maxims of equity to each concept of equity an
d
sentencing decision that he and she makes. For example, in examples of judges
the cases of drink driving above, the judge has to decide on a discretion when
sentence that appropriately fits the actions of the drink driver. It sentencing in order
to
get excellence in the
would not be equitable for a judge to give a sentence to a drink
assessment.
driver that is too harsh. The judge has to balance the law and the
specific actions of the drink driver in relation to equity in order to
come up with a suitable sentence.

34
LESSON 4: Equity
Try it for Read the article based on an actual event and answer
Yourself the questions that follow.
NATIONAL
Judge had no option other than to allow bail

The Marceau family believe the decision by Judge David McNaughton to release Akshay Chand on bail
last October was one of the key factors that resulted in Christie Marceau’s death.
Releasing Chand allowed him to carry out his plan to murder Marceau.
But a legal expert says the judge made a careful and considered decision and ‘had no other option’ other
than to release the 18-year-old.
‘I assume the judge considered there was no ‘just cause’ to continue
the defendant’s custodial detention. ...it is a judicial decision Read more about the case
involving the exercise of judicial discretion. In some cases bail must at the following website:
be given, in others it is the judge’s call,’ said law expert, professor http://www.nzherald.co.nz/
Warren Brookbanks. nz/news/article.cfm?c_
In this case the judge had limited discretion. Although he could id=1&objectid=10841473
decide the bail terms, he was not able to refuse bail to Chand.
1. Briefly explain the facts of the case. You may read more about the case at the
following website: https://en.wikipedia.org/wiki/Murder_of_Christie_Marceau
2. Why did the judge allow bail in this case? Explain?

35
Glossary
abolish to formally put an end to a certain system or practice

accusation a claim that someone has done something wrong or illegal
assault physical attack, or threat of physical attack
balancing making sure that the rights of different people in a court case, including
competing claims the public, are not unfairly impacted
civil liberty freedom of action and speech
coercive power authority that is dependent on fear, suppression of free will, and/or use of
punishment or threat for its existence
common law common law judge made (judicial) law
complainant the person who brings a case against another and a court of law
contempt of court disobedience or disrespect towards judge and/or a court of law
custodial requiring imprisonment
defamation damaging the good reputation of someone
defendant and individual accused in a court of law
discretion the freedom to decide what should be done in a particular situation
equity the quality of being fair and impartial
extreme hardship a condition that is very difficult to endure
inadmissibility evidence that is not allowed in a court of law
judicial relating to a court or judge
juror a member of the jury/person taking an oath
justice fair behaviour or treatment
legislation law
liberal democracy a democratic system of government and which individual rights and
freedoms are officially recognised and protected
maxim short statement or rule of conduct
name suppression occurs when the courts determine that a person's name and details
cannot be made public
outlawed to ban or make illegal
rehabilitation restoring someone to health or a normal life through training and therapy
statute a written law

36

37

38

39

21 Ruakura Rd, Hamilton East,
Hamilton 3216
Phone: 0800 864 863
E-mail: instant@atc.org.nz
www.instant.org.nz
© ATC New Zealand


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US 27838 v2a

Unit Standard 27838

US27838v2a Learner's Guide Licensed to Western Heights High School

Licensed to Western Heights High School US27838v2a Learner's Guide

Websites that report on actual court cases

US27838v2a Learner's Guide Licensed to Western Heights High School

Balancing Competing Claims 11

Licensed to Western Heights High School US27838v2a Learner's Guide

US27838v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Coercive Power

What is coercive power?

One foundational concept of justice is coercive power. Coercive

Note: If people know that they could go to jail for stealing

Types of coercive power

Licensed to Western Heights High School US27838v2a Learner's Guide

LESSON 1: Coercive Power

Most of contempt of court law comes from common law (law

Here are some examples of the types of behaviour that could

US27838v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Coercive Power

Imprisonment and fines are used as coercive power for contempt

Read more about the case

In this case, the judge used coercive power to emphasise the

Licensed to Western Heights High School US27838v2a Learner's Guide

LESSON 1: Coercive Power

What do What do you think of the outcome of McAllister’s case?

1. What act did James Kennedy Grant commit?

2. What punishment did James Kennedy Grant receive?

Continued on next page...

US27838v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Coercive Power

3. Explain how this example of contempt of court is linked to the concept of

Licensed to Western Heights High School US27838v2a Learner's Guide

LESSON 1: Coercive Power

The death penalty is the name given when a person is sentenced

McCarthy put to death in Texas

US27838v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Coercive Power

US: Look in your own backyard first

Continued on next page...

Licensed to Western Heights High School US27838v2a Learner's Guide

LESSON 1: Coercive Power

1. What is the writer’s view of the death penalty?

US27838v2a Learner's Guide Licensed to Western Heights High School

What is balancing competing claims?

Licensed to Western Heights High School US27838v2a Learner's Guide

LESSON 2: Balancing Competing Claims

Name suppression means that a person’s name, address, or

A defendant or other person involved in the case normally needs

for all child complainant

US27838v2a Learner's Guide Licensed to Western Heights High School

LESSON 2: Balancing Competing Claims

Name suppression for defendants who have not been

Name suppression for other people connected to the case

Licensed to Western Heights High School US27838v2a Learner's Guide

LESSON 2: Balancing Competing Claims

Read the following article about an actual event.

US27838v2a Learner's Guide Licensed to Western Heights High School

LESSON 2: Balancing Competing Claims

Parents guilty of child neglect

1. What happened in the case?

2. Why were the parents granted name suppression?

3. Explain how this example of name suppression is linked to the concept of