PJDP Benchbook - 03 Introduction to the High Court

The High Court is the Court where most people come into contact with the judicial system. The Court is divided into three divisions:

Most criminal offences start in the High Court presided over by Commissioners and Justices. However, a number of serious offences go straight to the Chief Justice or to a Judge of the High Court.

The Constitution and Rules of the High Court 1916 confer both criminal and civil jurisdiction on Commissioners and Justices.

All documents filed in or issued from the Court may be either in the English language or the language of Niue: Rule 104 RHC by virtue of s. 735(3) Niue Act.

The Constitution establishes the High Court, and the Niue Act 1966 and Rules of the High Court 1916 govern the High Court.

Other relevant legislation includes:

The High Court has 1 or more Judges, each of whom is appointed under the provisions of the Constitution.

If only one Judge is appointed, he or she shall be the Chief Justice of Niue. If more than one Judge is appointed, then one will be chosen to be Chief Justice: Article 39(2) Constitution.

The Chief Justice shall be appointed by the Governor-General, acting on the advice of Cabinet tendered by the Premier of Niue.

Other Judges shall be appointed by the Governor-General, acting on the advice of Cabinet tendered by the Chief Justice and the Minister of Justice.

Each Judge of the High Court, or any 2 or more Judges, may at any time in Niue or beyond Niue exercise all powers of the High Court unless the Constitution or other law provides otherwise: s. 37 Constitution.

A Judge of the High Court may exercise any of the jurisdiction and powers for any division of the High Court.

Except in the case of temporary Judges appointed by Cabinet for one year under Article 41 Constitution, no person who has attained the age of 68 years shall be appointed or continue to hold the office as the Chief Justice or other Judge of the High Court: Article 43 Constitution.

A Chief Justice or other Judge of the High Court cannot be removed from office except by the Governor-General, acting on the advice of Cabinet tendered by the Premier and given in accordance with a recommendation contained in a resolution of the Niue Assembly.

The only ground upon which the Chief Justice or Judge can be removed from office is:

Commissioners of the High Court may be appointed by Cabinet and hold office for as long as specified in the warrant of appointment.

The office of Commissioner may, with the approval of the Public Service Commission, be held concurrently with any other office in the Niue Public Service or any other position or employment.

However, a Commissioner who is a member of the Niue Public Service shall not be in control of the Niue Public Service Commission, in the exercise of his or her functions.

No person who is a Member of the Niue Assembly shall be appointed to or continue to hold office as a Commissioner.

The Cabinet may appoint any person of any age, who is qualified, to hold office of a Commissioner for a period as specified in his or her warrant of appointment, as long as it does not exceed one year: Article 47 Constitution.

No person who has reached the age of 68 years shall be appointed to or continue to hold office as a Commissioner: Article 46(2) Constitution.

However, nothing done by a Commissioner in the performance of his or her functions shall be deemed invalid by reason only that:

A Commissioner shall not be removed from office except by Cabinet, acting in accordance with a recommendation of the Chief Justice.

The Cabinet may appoint Justices of the Peace for Niue who hold office for a term set out in their warrant of appointment.

A Justice of the Peace shall not be removed from office except by Cabinet acting in accordance with a recommendation of the Chief Justice.

The Registrar of the High Court is appointed by the Public Service Commissioner according to Part XXXI Niue Act 1966.

The Registrar:

A Deputy Registrar of the High Court may also be appointed by the Public Service Commission according to Part XXXI Niue Act 1966.

The Deputy Registrar possesses, exercises and perform the same powers and functions and duties as the Registrar, subject to the control of the Registrar. Every reference to the Registrar of the High Court, so far as possible, applies to the Deputy Registrar: s. 62(3) Niue Act.

Under the provisions of Part XXXI Niue Act 1966, there shall be appointed such sheriffs, bailiffs, clerks, interpreters, or other administrative officers as may be necessary for the High Court: s. 63 Niue Act.

“Jurisdiction” is the power and authority to hear or determine a particular matter.

Courts may only act within their jurisdiction, as defined by law.

If a Court hears a case or makes a decision that it has no authority or power to make, then it acts outside its jurisdiction. Consequently, the decision and any orders it makes are not lawful and therefore invalid.

It is very important that the Court be satisfied that it has authority to hear the matter before it proceeds.

The Courts in Niue derive their jurisdiction or authority from the following Statutes:

The Sovereign in Council Constitution Act 1974

The Court of Appeal Constitution Act 1974, Niue Act 1966

The High Court Constitution Act 1974, Niue Act 1966, Rules of the High Court 1916

A crime is the commission of an act that is forbidden by Statute or the omission of an act that is required by Statute.

There are different categories of crime, and the category of crime determines which Court has jurisdiction to hear and determine the matter.

Criminal prosecutions are generally brought by the State, as represented by the Public Prosecutor, against a person who is alleged to have committed an offence.

Part V of the Niue Act 1966 sets out those acts or omissions that are crimes in Niue.

Other legislation also establishes criminal offences. For example:

Civil matters covers disputes between individuals, and between individuals and the State, that are not criminal matters.

The amount claimed in a civil matter is what determines which level of Court may hear the matter.

A Commissioner possesses and may exercise such functions of a Judge of the High Court, whether judicial or administrative, as may be prescribed by Act, except those vested exclusively by the Chief Justice: Article 48 Constitution.

All references in any enactment to a Judge of the High Court shall be read as applying to applying to a Commissioner within the limits of the jurisdiction given to him or her: Article 48 Constitution.

Any two Justices of the Peace, acting together, possess and exercise any of the functions that are conferred by law on Commissioners of the High Court. Therefore, Article 48 Constitution, which refers to jurisdiction of Commissioners, shall also be read as referring to the jurisdiction of two Justices sitting together, except where the Justice is a member of the Niue Assembly or is 68 or older: Article 51 Constitution.

Although the Constitution and the Rules of the High Court 1916 (as amended) provide for 1 Commissioner or 2 Justices to sit alone to hear criminal and civil matters, it has been the practice in Niue that most of the criminal and civil matters are heard by one Commissioner and two Justices sitting together.

The main enactment which sets out the specific jurisdiction of Commissioners is the Rules of the High Court 1916 (RHC).

One Commissioner has the jurisdiction to hear any criminal matter:

The main enactment which sets out the specific jurisdiction of Justices is the Rules of the High Court 1916 (RHC).

Two Justices of the Peace have the jurisdiction to hear any criminal matter:

One Commissioner and two Justices of the Peace sitting together have the jurisdiction mentioned above, as well as jurisdiction to enter a conviction and impose sentence in criminal proceedings for charges where:

The sentence imposed will not have any effect unless and until it has been confirmed or varied by the Chief Justice in accordance with Rule 84B RHC: Rule 84A RHC.

Regardless of the maximum fine or term of imprisonment provided by law for an offence, a Commissioner has the power to impose only:

Regardless of the maximum fine or term of imprisonment provided by law for an offence, two Justices have the power to impose only:

Additionally, a Commissioner and two Justices sitting together may sentence up to 10 years imprisonment if the defendant has entered a guilty plea. The sentence will be confirmed or varied by the Chief Justice in accordance with Rule 84B RHC: Rule 84A RHC.

The following tables show the offences under the Niue Act and the Niue Transport Act. They do not, however, provide a complete list of all criminal matters which may come before you under other Acts. You must always check whether you have jurisdiction to hear a criminal matter.

This table lists the name and section of major offences set out in the Niue Act, and provides the maximum sentence that may be imposed and which Court has jurisdiction to hear the offence and pass sentence.

Use this table as a quick reference guide to determine if you have jurisdiction to hear a particular offence.

Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Sedition	s. 129	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83 and Sch. 6 RHC
Murder	s. 133-138	Guilty or Not Guilty	Life Imprisonment	Judge	Judge imposes sentence	Art. 38 Constitution
Manslaughter	s. 139	Guilty or Not Guilty	14 years	Judge	Judge imposes sentence	Art. 38 Constitution
Duty to provide necessaries of life	s. 142	Guilty	7 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Duty to provide necessaries of life	s. 142	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Duty of parent or guardian to provide necessaries of life	s. 143	Guilty	7 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Duty of Parent or Guardian to provide Necessaries of life	s. 143	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Attempted Murder	s. 147	Guilty or Not Guilty	14 years	Judge	Judge imposes sentence	Art. 38 Constitution
Conspiracy and inciting murder	s. 148	Guilty	10 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Conspiracy and inciting murder	s. 148	Not Guilty	10 years	Judge	Judge imposes sentence	Art. 38 Constitution
Counselling Suicide	s. 149	Guilty or Not Guilty	14 years	Judge	Judge imposes sentence	Art. 38 Constitution
Concealment of Birth	s. 150	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of up to 1 year	Rule 83(d) and Sch. 6 RHC
Grievous Bodily Harm	s. 151	Guilty	7 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Grievous Bodily Harm	s. 151	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Actual Bodily Harm	s. 152	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence up to 1 year	Rule 83(d) and Sch. 6 RHC
Omissions resulting in Bodily Harm	s. 153	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence up to 1 year	Rule 83(d) and Sch. 6 RHC
Intentionally endangering persons on aerodromes	s. 154	Guilty or Not Guilty	14 years	Judge	Judge imposes sentence	Art. 38 Constitution

Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Wantonly endanger persons on/near aerodromes	s. 155	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence up to 1 year	Rule 83(d) and Sch. 6 RHC
Indecent Assault	s. 156	Guilty	5 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Indecent Assault	s. 156	Not Guilty	5 years	Judge	Judge imposes sentence	Art. 38 Constitution
Assault	s. 157	Guilty or Not Guilty	1 year	1 Commissioner or 2 Justices	Impose sentence	Rule 83(d) and Sch. 6 RHC
Cruelty to a Child	s. 157A	Guilty	5 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Cruelty to a Child	s. 157A	Not Guilty	5 years	Judge	Judge imposes sentence	Art. 38 Constitution
Resisting Constable in execution of his/her duty	s. 158	Guilty or Not Guilty	6 months or $40 fine	1 Commissioner or 2 Justices	Impose sentence	Rule 2(3) Amendment No. 5 RHC
Abduction of girl under 15	s. 159	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 2(3) Amendment No. 5 RHC
Abduction of children	s. 160	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC
Rape	s. 162	Guilty or Not Guilty	14 years	Judge	Judge imposes sentence	Art. 38 Constitution
Sexual Intercourse/ indecency with girl under 12	s. 163	Guilty	10 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Sexual Intercourse/ indecency with girl under 12	s. 163	Not Guilty	10 years	Judge	Judge Imposes Sentence	Art. 38 Constitution

Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Sexual Intercourse/ indecency with girl between 12 and 15	s. 164	Guilty or Not Guilty	3 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 2(3) Amendment No. 5 RHC
Sexual Intercourse with woman of unsound mind, imbecile or idiot	s. 165	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 2(3) Amendment No. 5 RHC
Procuring Miscarriage of woman or girl	s. 166	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC
Woman or girl procuring her own miscarriage	s. 167	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC
Supplying means of miscarriage	s. 168	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC
Bigamy	s. 169	Guilty	5 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Bigamy	s. 169	Not Guilty	5 years	Judge	Judge imposes sentence	Art. 38 Constitution
Buggery	s. 170	Guilty	10 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Buggery	s. 170	Not Guilty	10 years	Judge	Judge imposes sentence	Art. 38 Constitution
Attempted Buggery and indecent assaults on males	s. 171	Guilty	5 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Attempted Buggery and indecent assaults on males	s. 171	Not Guilty	5 years	Judge	Judge imposes Sentence	Art. 38 Constitution

Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Incest	s. 172	Guilty	7years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Incest	s. 172	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Indecent Acts	s. 173	Guilty or Not Guilty	6 months	1 Commissioner or 2 Justices	Commissioner or 2 Justices impose sentence	Rule 83(d) and Sch. 6 RHC
Indecent Documents	s. 174	Guilty or Not Guilty	6 months	1 Commissioner or 2 Justices	Commissioner or 2 Justices impose sentence	Rule 83(d) and Sch. 6 RHC
Brothels	s. 175	Guilty or Not Guilty	6 months	1 Commissioner or 2 Justices	Commissioner or 2 Justices impose sentence	Rule 83(d) and Sch. 6 RHC
Gaming Houses	s. 176	Guilty or Not Guilty	6 months	1 Commissioner or 2 Justices	Commissioner or 2 Justices impose sentence	Rule 83(d) and Sch. 6 RHC
Riot	s. 177	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC
Forcible Entry	s. 178	Guilty or Not Guilty	6 months	1 Commissioner or 2 Justices	Commissioner or 2 Justices impose sentence	Rule 83(d) and Sch. 6 RHC
Affrays	s. 179	Guilty or Not Guilty	1 year	1 Commissioner or 2 Justices	Commissioner or 2 Justices impose sentence	Rule 83(d) and Sch. 6 RHC
Judicial Corruption in judicial capacity	s. 180A(1)	Guilty or Not Guilty	14 years	Judge	Judge imposes sentence	Art. 38 Constitution
Judicial Corruption in official capacity	s. 180A(2)	Guilty	7 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Judicial Corruption in official capacity	s. 180A(2)	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution

Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Bribery of Judicial Officer in Judicial Capacity	s. 180B(1)	Guilty	7 years	1 Commissioner and 2 Justices	Requires confirmation by Chief Justice	Rule 84A RHC
Bribery of Judicial Officer in Judicial Capacity	s. 180B(1)	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Bribery of Judicial Officer in Official Capacity	s. 180B(2)	Guilty	5 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Bribery of Judicial Officer in Official Capacity	s. 180B(2)	Not Guilty	5 years	Judge	Judge imposes sentence	Art. 38 Constitution
Minister of Crown accepts bribe or is found corrupt	s. 180C(1)	Guilty or Not Guilty	14 years	Judge. Prosecutor requires leave of a judge to prosecute.	Judge imposes sentence	Art. 38 Constitution
Person gives corruptly gives bribe to any person to influence Minister of Crown	s. 180C(2)	Guilty	7 years	1 Commissioner and 2 Justices. Prosecutor requires leave of Commissioner to prosecute.	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Person gives corruptly gives bribe to any person to influence Minister of Crown	s. 180C(2)	Not Guilty	7 years	Judge. Prosecutor Requires leave of Judge to prosecute.	Judge imposes sentence	Art. 38 Constitution
Member of L. Assembly accepts bribe	s. 180D(1)	Guilty	7 years	1 Commissioner and 2 Justices. Prosecutor requires leave of Commissioner to prosecute.	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Member of L. Assembly accepts bribe	s. 180D(1)	Not Guilty	7 years	Judge. Prosecutor requires leave of judge to prosecute.	Judge imposes sentence	Art. 38 Constitution

Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Person offers bribe to member of L. Assembly	s. 180D(2)	Guilty or Not Guilty	3 years	1 Commissioner or 2 Justices. Prosecutor requires leave of Commissioner to prosecute.	Can only impose sentence of 1 year	Rule 2(3) Amendment No. 5 RHC
Law enforcement officer accepts bribe	s. 180E(1)	Guilty	7 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Law enforcement officer accepts bribe	s. 180E(1)	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Person offers bribe to law enforcement officer	s. 180E(2)	Guilty or Not Guilty	3 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 2(3) Amendment No. 5 RHC
Official accepts bribe	s. 180F(1)	Guilty	7 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Official Accepts Bribe	s. 180F(1)	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Person bribes official to influence act or omission	s. 180F(2)	Guilty or Not Guilty	3 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 2(3) Amendment No. 5 RHC
Corrupt use of information by official	s. 180G	Guilty	7 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Corrupt use of information by official	s. 180G	Not Guilty	7 years	Judge	Judge imposes sentence	Art. 38 Constitution
Perjury	s. 181	Guilty	5 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Perjury	s. 181	Not Guilty	5 years	Judge	Judge imposes sentence	Art. 38 Constitution

Offence	Section of NA	Plea	Maximum Penalty	Jurisdiction	Sentence	Establishment of jurisdiction
Fabricating evidence	s. 182	Guilty or Not Guilty	3 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC
Conspiracy to pervert justice	s. 183	Guilty or Not Guilty	3 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC
Breaking Prison	s. 184	Guilty	5 years	1 Commissioner and 2 Justices	Can impose max sentence but requires confirmation of Chief Justice	Rule 84A RHC
Breaking Prison	s. 184	Not Guilty	5 years	Judge	Judge imposes sentence	Art. 38 Constitution
Escape	s. 185	Guilty or Not Guilty	2 years	1 Commissioner or 2 Justices	Can only impose sentence of 1 year	Rule 83(d) and Sch. 6 RHC

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PJDP Benchbook - 03 Introduction to the High Court