New Zealand Law Society - New criminal offences from 3 December

New criminal offences from 3 December

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New measures aimed at improving the framework for family violence came into effect on Monday, 3 December 2018, including three new criminal offences.

Legislation which was the result of the Family and Whānau Violence Legislation Bill comes into force in two stages.

The first phase, on 3 December, strengthens the criminal law by adding three new offences, making victim safety the primary consideration in bail decisions, and making it easier for complainants to give evidence by video recording. These are implemented by changes to the Crimes Act 1961, the Evidence Act 2006 and the Bail Act 2000.

Phase two begins on 1 July 2019 as the Family Violence Act 2017. It strengthens family law by:

  • Extending Police Safety Orders and increasing support for the bound person.
  • Improving access to Protection Orders, Property Orders and Safety Programmes.
  • Modernising the definition of family violence.
  • Providing principles to guide decision-making.
  • Removing legal barriers to information sharing between agencies.
  • Protecting victims from offenders on remand.

The original bill was introduced in March 2017 and divided into two bills during the committee stages - the Family Violence Bill (in force from 1 July 2019) and the Family Violence (Amendments) Bill (in force from 1 July 2019 with the exception of the measures which come into force on 3 December 2018).

New offences from 3 December 2018

The new offences criminalise behaviours and practices that are common but have not been able to be prosecuted as family violence.

Strangulation - section 189A Crimes Act

The new section 189A in the Crimes Act introduces the offence of strangulation.

The offence is defined as "...who intentionally or recklessly impedes another person's normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:
(a) blocking that other persons' nose, mouth, or both;
(b) applying pressure on, or to, that other person's throat, neck, or both."

The new offence recognises that attempts to stop a person from breathing by strangulation or suffocation is a significant risk factor for future violence and lethality. It carries a maximum penalty of seven years' imprisonment.

Assault on a person in a family relationship - section 194A Crimes Act

The new section 194A in the Crimes Act introduces this offence, which sits alongside the existing offences of male assaults female and assault on a child. It reflects the diverse nature of family violence offending.

The offence applies to anyone who "(a) assaults another person; and, (b) is, or has been, in a family relationship with that person."

The offence carries a maximum penalty of two years' imprisonment.

"Family relationship" is defined through an amendment to section 3 to have the same meaning as what is now section 12 of Part 1 of the Family Violence Act 2017.

Coerced marriage or civil union - section 207A Crimes Act

The new section 207A in the Crimes Act criminalises the act of coercing another person to enter a marriage or civil union regardless of whether the marriage occurs in New Zealand or overseas.

The offence applies to anyone who "with intent to cause another person to enter into a marriage or civil union, uses coercion (for example, intimidation, threats, or violence) against that other person."

The offence carries a maximum penalty of five years' imprisonment. It applies even if the marriage or civil union is not governed by New Zealand law, is an arrangement or relationship (even if not legally binding) in the form of a marriage or civil union, is not solemnised or otherwise completed, or if solemnised or otherwise completed would be, void or not legally binding (for example, for lack of consent, absence of formality, or non-compliance with a legal requirement).

A coerced marriage is not the same as an arranged marriage where both parties consent to the arrangement.

Video evidence changes from 3 December 2018

New provisions which have been added to the Evidence Act 2006 make it easier for victims of family violence to give evidence via a video recording made before the hearing.

The new sections 106A and 106B require that the video recording is made by a Police employee no later than two weeks after the alleged family violence incident. The major change is that previously complainants had to argue to have evidence heard via video. Under the new legislation the complainant has an entitlement to give evidence by a video record made before the hearing and the defendant has to argue against it. To oppose the giving of video evidence in chief, a defendant must apply no later than when a case management memorandum (for a Judge-alone trial) or a trial callover memorandum (for a jury trial) is filed under the Criminal Procedure Act 2011.

Changes to Bail provisions from 3 December 2018

A number of changes to the Bail Act 2000 have been made to prioritise the safety of the victim and family when a decision on whether or not to grant bail is made, and on what conditions, for a defendant charged with a family violence offence.

An amendment to section 8 makes the need to protect the victim of an alleged offence and anyone in a family relationship with the victim the court's primary consideration in any bail decision for a defendant charged with a family violence offence.

A new section 22 and section 30AAA allow the imposition of conditions in any decision on bail for a defendant charged with a family violence offence. The conditions may be anything the court registrar, judicial officer or Police employee considers reasonably necessary to protect the victim and any person residing or in a family relationship with the victim.

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