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New Zealand Legislation for Niue |
NEW
ZEALAND
THE
NIUE ACT
1966
Act
38 of 1966 - 1 January 1967
Title
1.
Short Title and
commencement
2.
Interpretation
3.
Application
PART
I
THE
EXECUTIVE GOVERNMENT OF NIUE
4-14D.
Repealed
The Public Revenues of Niue
15.
Repealed
16.
Loans to Niue Government
Account
17.
Treasurer of
Niue
18.
Revenue and
expenditure
19.
Traders' deposit
accounts
20.
Repealed
21.
Persons authorised to practise medicine or
surgery
22.
Offences
23.
Director of
Health
23A.
Medical
Services
24.
Hospitals and other institutions of public
health
25.
Compulsory transfer of lepers
Prisons and Police
26.
Establishment of
prisons
27.
Detention of persons in
custody
28.
Labour
instead of imprisonment
29.
Appointment
of officers of police and
prisons
29A.
Penal value
Education
30.
Repealed
PART
II
THE
LEGISLATIVE GOVERNMENT OF NIUE
31-47.
Repealed
48.
Publication of enactments in the
Niue
Island Gazette
Regulations
49.
Repealed
Village councils
50.
Village
Councils
51.
Village Council
bylaws
52.
Validity and disallowance of bylaws
PART
III
THE
HIGH COURT OF NIUE
Constitution of the High Court
53-61.
Repealed
62.
Registrar and Deputy Registrar of the High
Court
63.
Administrative
officers
64.
Seal of the High
Court
65.
Records of the High Court
Jurisdiction of the High Court
66.
Repealed
67.
Injunction, certiorari, mandamus and
prohibition
68.
Habeas
corpus
69.
Custody of minors
Procedure of the High Court
70.
Rules of
Court
71.
Procedure so far as not governed by rules of
Court
72.
Forms
73.
Summons to
witnesses
74.
Default of
witness
75.
Commissioners to take
evidence
76.
Evidence by affidavit sworn out of
Niue
77.
Witnesses may be ordered out of
Court
78.
Affidavits in
Niue
79.
Evidence by
affidavit
80.
Right of audience in the High
Court
81.
Costs
82.
Security for
costs
83.
Court
fees
84.
Minutes of
judgement
85.
Amendments
86.
Rehearing of civil
proceedings
87.
Rehearing of criminal proceedings
Execution of Judgment
88.
Writs of sale and
possession.
89.
Effect of writ of
possession
90.
Effect of writ of
sale
91.
Issue of writs of sale or
possession
92.
Charging
orders
93.
Stay of
execution
94.
Judgment
summons
95.
Enforcement of judgments of High Court in Supreme Court of New
Zealand
Absconding Debtors
96.
Order of arrest of absconding
debtor
96A.
Commissioner and Justices
Authority
97.
Security to be
given
98.
Enforcement of
security
99.
Arrest in actions for
penalties
100.
Enforcement of security in actions for penalties
Contempt of the High Court
101.
Contempt of Court
defined
102.
Penalty for
contempt
103.
Jurisdiction in
contempt
104.
Contempt in the face of the
Court
105.
Discharge of persons in contempt
PART
IV
THE
SUPREME COURT OF NEW ZEALAND
Jurisdiction of the Supreme Court in Niue
106.
Civil jurisdiction of Supreme Court extends to
Niue
107.
Jurisdiction under the Declaratory Judgments Act
1908
108.
Criminal jurisdiction of Supreme Court in respect of Niue
Cases Stated by the High Court or Land Court or Land Appellate Court
109.
High Court or Land Court or Land Appellate Court may state a case for the Court
of Appeal
Cases Stated by Supreme Court for Land Appellate Court
110.
Supreme Court may state case for Land Appellate Court
Appeals from the High Court
111-112.
Repealed
113.
Transmission of
record
114.
Dismissal of appeal for
non
prosecution
115.
Procedure on
appeal
116.
Repealed
117.
Powers of Court of Appeal on
appeal
118.
Evidence on
appeal
119.
Stay of
execution.
120.
Release of appellant from
custody
121.
Appeal not to be allowed for irregularities in
procedure
122.
Right of audience on
appeal
123.
Transmission of order of Court of Appeal on
appeal
124.
Repealed
125.
No certiorari, mandamus or prohibition
Enforcement in Niue of Judgments of New Zealand Courts
126.
Judgment of Supreme Court or Magistrate's Court in New Zealand may be enforced
by the High
Court
127.
Enforcement of judgments of Supreme Court by High Court by way of proceedings
for contempt
Commissioners of the Supreme Court
128.
Commissioners of the Supreme Court may be appointed in Niue
PART
V
CRIMINAL
OFFENCES
129.
Seditious offences
defined
130.
Punishment of seditious
offences
131.
Homicide
defined
132.
Killing of a
child
133.
Culpable
homicide
134.
Murder
defined
135.
Further definition of
murder
136.
Provocation
137.
Illegal arrest may be evidence of
provocation
138.
Punishment of
murder
139.
Manslaughter
140.
Punishment of
manslaughter
141.
Omissions dangerous to
life
142.
Duty to provide the necessaries of
life
143.
Duty of parent or guardian to provide
necessaries
144.
Liability of persons having charge of dangerous
things
145.
Hastening
death
146.
Indirect cause of
death
147.
Attempted
murder
148.
Conspiracy and inciting to
murder
149.
Counselling
suicide
150.
Concealment of
birth
151.
Grievous bodily
harm
152.
Actual bodily
harm
153.
Omissions resulting in bodily
harm
154.
Intentionally endangering persons an aerodromes, etc.
155. Wantonly endangering persons on or near aerodromes, etc.
156.
Indecent
assault
157.
Assault
157A.
Cruelty to a
child
158.
Resisting constable in execution of his
duty
159.
Abduction of girl under
15
160.
Abduction of
children
161.
Sexual intercourse
defined
162.
Rape
163.
Sexual intercourse or indecency with girl under
12
164.
Sexual intercourse or indecency with girl between 12 and
15
165.
Sexual intercourse with woman or girl who is an idiot or imbecile or of unsound
mind
166.
Procuring miscarriage of woman or
girl
167.
Act of woman or girl procuring her own
miscarriage
168.
Supplying means of
miscarriage
169.
Bigamy
170.
Buggery
171.
Attempted buggery and indecent assaults on
males
172.
Incest
173.
Indecent
acts
174.
Indecent
documents
175.
Brothels
176.
Gaming
houses
176A.
Powers of Parliament to permit certain gambling
activities
177.
Riot
178.
Forcible
entry
179.
Affrays
180.
Official
corruption
181.
Perjury
182.
Fabricating
evidence
183.
Conspiracy to pervert
justice
184
Breaking
prison
185.
Escape
186.
Rescue
187.
Criminal libel or
slander
188.
Definition of
theft
189.
Ineffectual defences to charge of
theft
190.
Extended definition of
theft
191.
Obtaining money or goods by false pretences to be deemed
theft
192.
Punishment of
theft
193.
Stealing
documents
194.
Receiving stolen
goods
195.
Robbery
196. Conversion or attempted conversion of motorcars, etc.
197.
Breach of
trust
198.
Menaces
199.
Witchcraft
200.
Obtaining credit by
fraud
201.
Accusation of criminal
offences
202.
Conspiracy to
defraud
203.
Obtaining execution of valuable securities by
fraud
204.
Burglary
205.
Unlawful entry of dwellinghouse,
etc.
205A.
Unlawfully entering premises for a criminal
purpose
206.
Threats to kill or do bodily
ham
207.
Forgery
208.
Extended definition of
forgery
209.
Making counterfeit
coin
210.
Lightening
coin
211.
Uttering counterfeit
coin
212.
Arson
213.
Wilful mischief to
property
214.
Provoking breach of the
peace
215.
Profane, indecent, or obscene
language
216.
Disorderly conduct in public
places
217.
Obstructing public
place
218.
Drunkenness
219.
Animal
trespass
220.
Prostitution
221.
Laying
poison
222.
Polluting
water
223.
Sale of unwholesome
provisions
224.
Insanitary
premises
225.
Wilful
trespass
226.
Cruelty to
animal
227.
Falsely trading as an incorporated
company
228.
Conspiracy
228A.
Wrongful communication, retention or copying of official
information
Attempts
229.
Attempts to commit
offences
230.
Attempt proved when offence is
charged
231.
Offence proved when attempt is charged
Parties to Offences
232.
Inciting
233.
Parties to
offences
234.
Common criminal
purpose
235.
Counselling or
procuring
236.
Accessory after the
fact
237.
Punishment of accessories
Infancy
237A.
Children under
10
237B.
Children
between 10 and 14
Defences
238.
Common law
defences
239.
Common law offences
Sentences
240.
Power to fine instead of or in addition to
imprisonment
241.
Enforcement of
fines
242.
Imprisonment in
Niue
243.
Transfer of convicted persons to New
Zealand
244.
Release of prisoners transferred to New
Zealand
244A.
Recall of offender subject to
supervision
245.
Person conditionally released from imprisonment, or portion of whose sentence is
conditionally remitted, may be
reimprisoned
246.
Cumulative sentences
PART
VI
CRIMINAL
PROCEDURE
247.
Magistrates
248.
Jurisdiction of High
Court
249.
Felonies and misdemeanours
Preliminary proceedings
250.
Arrest without
warrant
251.
Arrest on warrant of
Magistrate
251.A.
Duty of persons
arresting
252.
Committal by Magistrate for trial
Trial by the High Court
253.
Information
254.
Warrant or
Summons
255.
Warrant after issue of
summons
255A.
Arrested person may be released on bail by constable in certain
cases
256.
Prisoners brought before judge of High Court before commencement of
prosecution
257.
Remand
258.
Trial of accused in his absence
Assessors
259.
Constitution of Court on criminal
trials
260.
Judge with
assessors
261.
Judge without
assessors
262.
Judge with or without assessors as he thinks
fit
263.
Order appointing
assessors
264.
Number and qualifications of
assessors
265.
Default of
assessors
266.
Remuneration of
assessors
267.
Oath of
assessors
268.
Change of
assessors
269.
Discharge of assessors and new
trial
270.
Concurrence of
assessors
271.
Concurrence of
Judge
272.
Sentence
273.
Concurrence of assessors not necessary except for conviction
Miscellaneous Provisions
274.
Alternative and cumulative
charges
275.
Relation between information and
conviction
276.
Withdrawal of
information
277.
Drawing up of
conviction
278.
Defects of information, summons or
warrant
279.
Payment of
witnesses
280.
Court may order convicted person to come up for sentence if called
upon
281.
Conviction without sentence or discharge without
conviction
282.
Bail
283.
Stay of proceedings by
Cabinet
284.
Search
warrants
284A.
Power to enter premises to arrest offender or prevent
offence
285.
Transmission of certain warrants and orders by
telegram
286.
Pardon and remission of
sentence
287.
Compensation for loss of property
PART
VII
LAW
OF EVIDENCE
288.
Definition
289.
Discretionary power of admitting or rejecting
evidence
290.
All witness
competent
291.
Evidence of parties and their husband and
wives
292.
Evidence of accused persons and their husbands and
wives
293.
Cross-examination
as to
credit
294.
Criminating
questions
295.
Evidence of
prisoners
296.
Judicial notice of Acts,
etc.
297.
Judicial notice of seals,
etc.
298.
Power to administer
oaths
299.
Form of
oath
300.
Absence of religious
belief
301.
Affirmation may be made instead of
oath
302.
Form of
affirmation
303.
Evidence of children without
oath
304.
Necessity of oath
PART
VIII
EXTRADITION
Extradition from Niue to New Zealand or to the Cook Islands
305.
Arrest in Niue of fugitive offenders from New Zealand or the Cook
Islands
306.
Order of return to New Zealand or to the Cook
Islands
307.
Refusal of order in case of
hardship
308.
Imprisonment or release pending
return
309.
Release on security instead of
return
310.
Return to New Zealand or to the Cook Islands in
custody
311.
Cancellation of order of return
Extradition from New Zealand to Nine
312.
Arrest in New Zealand of fugitive offenders from
Niue
313.
Order of return to
Niue
314.
Judicial notice of signature to
warrant
315.
Refusal of order in case of
hardship
316.
Imprisonment or release pending
return
317.
Release on security instead of
return
318.
Return to Niue in
custody
319.
Cancellation of order of return
Application of Extradition Act to Niue
320.
Extradition Act in force in Niue
PART
IX
CROWN
SUITS
321.
Crown proceedings in
Niue
322.
Repealed
PART
X
CROWN
LAND
323-334.
Repealed
PART
XI
THE
LAND COURT OF NIUE
335-385.
Repealed
PART
XII
THE
LAND APPELLATE COURT OF NIUE
386-404.
Repealed
PART
XIII
CUSTOMARY
LAND
405-414.
Repealed
PART
XIV
PARTITION
AND EXCHANGE OF NIUEAN LAND
415-430.
Repealed
PART
XV
ALIENATION
OF NIUEAN LAND
431-460.
Repealed
PART
XVI
LAND
DEVELOPMENT
461.
Application of this
Part
462.
Cabinet of Ministers may cultivate land on behalf of
owners
463.
Disposal of revenues received by Cabinet of
Ministers
464.
Money to be paid out of or into Niue Government
Account
465.
Repealed
466.
Interference and obstruction
prohibited
467.
Repealed
PART
XVII
HOUSING
IMPROVEMENT
468-483.
Repealed
PART
XVIII
VESTING
ORDERS
484-488.
Repealed
PART
XIX
NIUEAN
SUCCESSION
489.
Wills of
Niueans
490.
Succession to deceased
Niueans
491.
Niuean land not to vest in
administrator
492-496.
Repealed
497.
Niuean land not assets for payment of
debts
498.
Estate of Niuean other than land to be assets for payment of
debts
499.
Repealed
PART
XX
TRUSTEES
FOR NIUEANS
500.
Definition of "person under
disability"
501.
Trustee
orders
502.
Matters to be set forth in trustee
orders
503.
Appointment of new
trustees
504.
Orders restricting powers of
trustees
505.
Cancellation of trustee
orders
506.
Determination of trustee
orders
507.
Trust property not to vest in
trustee
508.
Administration of property by
trustee
509.
Alienation of property by
trustee
510.
Powers of
trustee
511.
Expenditure of revenues of trust
property
512.
Enforcement of
trusts
513.
Co-trustees
must act
jointly
514.
Remuneration of trustees
PART
XXI
MARRIAGE
515.
Prohibited degrees of consanguinity or
affinity
516.
Marriages to take place before marriage
officer
517.
"Marriage officer"
defined
518.
Appointment of marriage
officers
519.
Offence
520.
Notice of
marriage
521.
Mode of
solemnization
522.
Record of
marriage
523.
Signature of
record
524.
Transmission of
record
525.
Minimum age of
marriage
526.
Marriage of
minors
527.
Offence by marriage
officer
528.
Signature of false record by party or
witness
529.
Misrepresentation as to facts to procure marriage
PART
XXII
DIVORCE
530.
Jurisdiction of High Court in
divorce
531.
Nullity of marriage and dissolution of voidable
marriage
532.
Limitation of
jurisdiction
533.
Domicile and
residence
534.
Grounds of divorce and jurisdiction of High
Court
535.
Grounds of refusal of
divorce
536.
Discretion to refuse decree in certain
cases
537.
Co-respondent
as a
party
538.
Intervention
539.
Agreement no bar to
divorce
540.
No appeal to Court of
Appeal
541.
Remarriage of divorced
persons
542.
Costs
543.
Order for maintenance of divorced
wife
544.
Order as to custody of
children
545.
Molestation of divorced wife by her
husband
546.
Jurisdiction of Supreme Court
PART
XXIII
MAINTENANCE
AND AFFILIATION
547.
Interpretation
Maintenance and Affiliation Orders
548.
Jurisdiction of High
Court
549.
Applications
550.
Jurisdiction
discretionary
551.
Affiliation
orders
552.
Evidence
553.
Maintenance order in favour of child born out of
wedlock
554.
Maintenance order against father in favour of
child
555.
Maintenance order against mother in favour of
child
556.
Maintenance order against husband in favour of
wife
557.
Maintenance order against wife in favour of
husband
558.
Maintenance order against any person in favour of father or
mother
559.
Disobedience to maintenance
order
560.
Maintenance money a
debt
561.
Order in favour of
non-residents
562.
Order against
non-residents
563.
Orders
in
absentia
564.
Repeated
applications
565.
Payments not to be made in
advance
566.
Cancellation, variation, and suspension of
orders
567.
Payment of maintenance
money
568.
Security for obedience to maintenance
orders
569.
Operation of
agreements
570.
Purport and duration of maintenance
orders
571.
Order for past maintenance
Offences
572.
Leaving Niue while maintenance money in
arrears
573.
Leaving Niue after affiliation order and before birth of
child
574.
Leaving Niue with intent to disobey maintenance
order
575.
Leaving Niue while failing to maintain
wife
576.
Leaving Niue while failing to maintain
child
577.
Leaving Niue with intent to desert wife or
child
578.
Attempting to leave
Niue
579.
Evidence of intent
PART
XXIV
ADOPTION
OF CHILDREN BY NIUEANS
580-592.
Repealed
PART
XXV
ADOPTION
OF CHILDREN BY EUROPEANS AND NIUEAN SPOUSE OF EUROPEANS
593-599.
Repealed
PART
XXVI
PERSONS
OF UNSOUND MIND
Orders of Medical Custody
600.
Applications by Medical Officer to High
Court
601.
Medical certificates as to persons of unsound
mind
602.
Order of medical
custody
603.
Renewal of
order
604
Cancellation
of
order
605.
Discharge from
custody
606.
Arrest and detention of persons committed to medical
custody
607.
Treatment of person so
detained
608.
Removal from Niue to New
Zealand
609.
Conditions of
removal
610.
Method of
removal
611.
Admission to hospital of persons removed to New
Zealand
612.
Administration of estates of persons of unsound
mind
613.
No committee of estate of person of unsound
mind
614.
Warrant for arrest of persons of unsound
mind
615.
Arrest without warrant of persons of unsound
mind
615A.
Commissioner and Justices may act for Judge in certain cases
Persons of Unsound Mind Charged with Offences
616.
Insane persons not to be tried for
offences
617.
Detention of accused persons acquitted on ground of
insanity
618.
Discharge
619.
Orders of medical
custody
620.
The defence of insanity in criminal Prosecutions
PART
XXVII
[Repealed]
PART
XXVIII
ROADS
634-644.
Repealed
PART
XXIX
NIUEAN
ANTIQUITIES
645.
Interpretation
646.
Minister may acquire Niuean
antiquities
647.
Niuean antiquities to be offered for sale before
exportation
648.
Power to detain Niuean antiquities attempted to be
exported
649.
Exporting Niuean antiquities without
permission
650.
Power to remove antiquities in certain
cases
651.
Right to copy of intended to be
exported
652.
Cabinet of Ministers to decide what articles come under this
Part
653.
Repealed
PART
XXX
CUSTOMS
654.
Customs Act 1966 in force in
Niue
655.
Niue Assembly may modify Tariff or substitute new
Tariff
655A.
Power to modify tariff or substitute new
tariff
656.
Goods may be imported from New Zealand or Cook Islands free of
duty
657.
[Repealed]
658.
Actions and prosecution s in relation to Niue
PART
XXXI
THE
NIUE PUBLIC SERVICE
659.
Interpretation
660.
Appointments of
employees
661.
Exemptions
662.
State Services Act 1962 not
applicable
663,
664.
Repealed
665.
Public Service
Regulations
666.
Payment of salary and
allowances
667.
Bonds and deeds of covenant by employees or prospective
employees
668.
Concurrent
offices
669.
Employment in New Zealand Government Service and Niue Public
Service
670.
Contribution to Government Superannuation Fund by employees of the Niue Public
Service
671.
Repealed
PART
XXXII
THE
LAWS OF NIUE; GENERAL PROVISIONS
Application of the Laws of New Zealand
672.
Law of England as in the year 1840 to be in force in
Niue
673.
Jurisdiction of the High
Court
674.
Common law and equity to be administered
concurrently
675.
Statute law of New Zealand not applicable to
Niue
676.
When enactment in force in Niue, amendments and regulations to be in force
also
677.
Other enactments in force in Niue to be read subject to this
Act
678.
Criminal procedure in
Niue
679.
Acts Interpretation Act in force in
Niue
680.
Administration Act in force in
Niue
681.
Arbitration Act in force in
Niue
682.
Bills of Exchange Act in force in
Niue
683.
Carriers Act in force in
Niue
683A.
Charitable Trusts Act in force in
Niue
684.
Chattels Transfer Act in force in
Niue
684A.
Citizenship Act in force in
Niue
685.
[Repealed]
686.
Copyright Act in force in
Niue
687.
Deaths by Accidents Compensation Act in force in
Niue
688.
Demise of the Crown Act in force in
Niue
689.
Designs Act in force in
Niue
689A.
Misuse of Drugs Act in force in
Niue
690.
Incorporated Societies Act in force in
Niue
691.
Industrial and Provident Societies Act in force in
Niue
692.
Parts of Infants Act in force in
Niue
693.
Marine Insurance Act in force in
Niue
694.
Mercantile Law Act in force in
Niue
695.
Merchandise Marks Act in force in
Niue
696.
Occupiers Liability Act in force in
Niue
697.
Partnership Act in force in
Niue
698.
Patents Act in force in
Niue
699.
Post Office Act in force in
Niue
700.
Property Law Act in form in
Niue
701.
Sale of Goods Act in form in
Niue
701A.
Seal of New Zealand Act in force in
Niue
702.
Trade Marks Act in force in
Niue
703.
Trustee Act in force in
Niue
704.
Wills Act Amendment Act 1852 in force in
Niue
705.
Merchant Shipping Act (U.K.) not to apply to
Niue
706.
Limitation of actions
Miscellaneous Rules of Law
707.
Legal status of married
women
708.
Legitimacy
709.
Joint
liability
710.
Contracts of
guarantee
711.
Contracts
712.
Securities given by
Niueans
713.
Employer’s
liability
714.
Liability of owners of
dogs
715.
Distress for rent
abolished
716.
Libel and slander actionable without proof of special
damage
717.
Calendar of
Niue
718.
Time of day in
Niue
719.
Statutory references to
time
720.
Statutory
declarations
721.
Execution of documents in Niue for use in New
Zealand
722.
Taxes on Niuean
land
723.
Bankruptcy
724.
Warrants of
arrest
725.
Trespass
ab
initio
Miscellaneous Provisions
726.
Banking
727.
Sale of island products by Cabinet of Ministers on behalf of
planters
Oath of Allegiance and Judiciary Oath
728.
Certain officers to take Oath of Allegiance and Judicial Oath
PART
XXXIII
TRANSITIONAL
PROVISIONS, SAVINGS, AND CONSEQUENTIAL AMENDMENTS
729.
Cook Islands Act and amendments not to apply to
Niue
730.
The High
Court
731.
The Land
Court
732.
The Land Appellate
Court
733.
The Niue Public
Service
734.
Customs
735.
Consequential amendments
Schedules
----------------------------------------------------
An
Act to consolidate and amend certain enactments of the General Assembly relating
to the Government and laws of Niue
[7 October 1966]
1.
Short Title and commencement
-
(1) This Act may be cited as the Niue Act
1966.
(2)
Part XXX of this Act shall come into force on a date to be appointed for the
commencement thereof, by Order in
Council.
(3)
Except as provided in subsection (2) of this section, this Act shall come into
force on the 1st day of January 1967 (hereinafter
referred to as the
commencement of this Act).
Part XXX came into force on 1 January 1970; see S.R. 1969/232.
2.
Interpretation
-
In this
Act, unless the context otherwise
requires,-
["Act" means an Act of the Niue Assembly;]
"Aerodrome" and "aircraft" have the same meanings as in the Civil Aviation Act 1964;
"Attorney-General" includes the Solicitor-General;
"Comptroller of Customs" means the officer of the Niue Public Service holding the position of Comptroller of Customs; and includes his deputy lawfully acting in place of the Comptroller;
"Constable" means an officer of police of the Niue Public Service;
["The Constitution" means the Constitution of Niue, as set out in the Niuean language in the First Schedule to the Niue Constitution Act 1974 and in the English language in the Second Schedule to that Act;]
"Defence" means the defence of Niue and the defence of New Zealand;
["Director of Health" means the Director of Health of Niue appointed under section 23 of this Act;]
["Enactment" has the same meaning as in Article 82(1) of the Constitution;]
"European" means any person whatever other than a Niuean and includes a body corporate;
"External affairs" includes relations with other countries, and with international organisations, and the representation of other countries in Niue;
"High Court" means the High Court of Niue;
"Judgment" includes any judicial decree, order, or determination, whether in an action or in any other judicial proceeding, whether civil or criminal;
"Land Appellate Court" means the Land Appellate Court of Niue;
"Land Court" means the Land Court of Niue;
["Medical officer" means any person authorised, pursuant to section 21 of this Act, to engage in the practice of medicine or surgery in Niue, for fee, salary, or other remuneration or reward; and includes the Director of Health;]
["Minister" means the Minister of Foreign Affairs];
"Niuean" means a person belonging to the aboriginal race of Niue; and includes a person descended from a Niuean;
"New Zealand" means New Zealand exclusive of Niue, the Cook Islands, and [Tokelau];
["Niue Assembly" or "Assembly" means the Niue Assembly established by Article 16 of the Constitution;
["Niue Public Service" has the same meaning as in Article 82(1) of the Constitution;
"Niue Public Service Commission" or "Commission" means the Niue Public Service Commission established by Article 82(1) of the Constitution;]
"Niuean custom" means the customs and usages of Niue;
"Offence" includes all offences punishable by way of criminal proceedings under this or any other enactment;
"Order" means, in respect of the High Court or the Land Court, any order, judgment, decision, or determination of that Court;
"Ordinance" means an Ordinance of the Island Assembly;
"Prescribed" means prescribed by regulations;
["Premier" has the same meaning as in Article 82(1) of the Constitution;]
"Public place" means any road, any place of public resort open to or used by the public as of right, any wharf or jetty, any vessel at a wharf or jetty or within one mile of the shore, any church or other building where Divine service is being publicly held, any hall or room in which any public entertainment is being held, and any market place;
"Registrar", in relation to any Court, includes the Deputy Registrar;
"Regulations" means regulations made under this Act or continuing in force under this Act;
"Rules of Court" means rules or regulations governing the practice or procedure of the Court in question and made by the proper authority in that behalf;
["Secretary" means the Secretary of Foreign Affairs;]
"Valuable security" means any document which constitutes a title to or is evidence of title to any property of any kind whatsoever;
"Will" includes any testamentary instrument.
Cf. 1915, No. 40, ss. 2(1), 226(4); 1921, No. 14, s. 2; 1943, No. 4, s. 5(2), (5), (6); 1946, No. 30, s. 41; 1950, No. 92, s. 11; 1957, No. 103, ss. 89(2), 95(1); 1965, No. 1, s. 3(1)
"Act"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Alienation"; A definition of this term was repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Cabinet"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Commission" A definition of this term was repealed by s. 2(1) of the Niue Amendment Act 1974.
"The Constitution"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Crown land" and "Customary land"; Definitions of these terms were repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Director of Health"; The definition of this term was inserted by s. 18(1) of the Niue Amendment Act 1971.
"Enactment"; The definition of this term was substituted for the former definition (as substituted by s. 4(2) of the Niue Amendment Act 1971) by s. 2(1) of the Niue Amendment Act 1974.
"European land"; A definition of this term was repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Executive Committee"; A definition of this term was inserted by s. 4(1) of the Niue Amendment Act 1971 and was repealed by s. 2(1) of the Niue Amendment Act 1974.
"Island Assembly"; A definition of this term (as substituted by s. 5(1) of the Niue Amendment Act 1973) was repealed by s. 2(1) of the Niue Amendment Act 1974. (See the definition of "Niue Assembly" or "Assembly")
"Leader of Government"; A definition of this term was inserted by s, 4 (1) of the Niue Amendment Act 1971 and was repealed by s. 2(1) of the Niue Amendment Act 1974.
"Medical Office"; The definition of this term was substituted for the original definition by s. 18(2) of the Niue Amendment Act 1971.
"Minister"; The definition of this term was substituted for the former definition (as substituted by s. 8(1) of the Maori and Island Affairs Department Act 1968) by s. 2(1) of the Niue Amendment Act (No. 2) 1974.
"New Zealand"; The reference to Tokelau was substituted for a reference to the Tokelau Islands by s. 3(8) of the Tokelau Amendment Act 1976.
"Niue Assembly" or "Assembly"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Niue Public Service" and "Niue Public Service Commission"; The definitions of these terms were substituted for the definition of the term "Niue Public Service" by s. 2(1) of the Niue Amendment Act 1974.
"Niuean freehold land" and "Niuean land"; Definitions of these terms were repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Premier"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Resident Commissioner"; A definition of this term was substituted for the original definition by s. 4(2) of the Niue Amendment Act 1971 and was repealed by s. 2(1) of the Niue Amendment Act 1974.
"Secretary"; The definition of this term was substituted for the former definition (as substituted by s. 8(1) of the Maori and Island Affairs Department Act 1968) by s. 2(2)(1) the Niue Amendment Act (No. 2) 1274.
3.
Application
-
Except so
far as a contrary intention appears, this Act shall apply to Niue only and not
to New Zealand.
PART
I
THE
EXECUTIVE GOVERMENT OF NIUE
4-14D.
Repealed
by s. 2(1) of the Niue Amendment Act 1974.
The Public Revenues of Niue
15.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
16.
Loans to Niue Government Account
-
(1) The
Minister of Finance may from time to time, on such terms and conditions as he
thinks fit, pay by way of loan into [the Niue
Government Account] money required
for public purposes in
Niue
(2)
The money required by the Minister of Finance to enable him to make any such
payment by way of loan shall be paid out of money
appropriated by Parliament for
the purpose.
Cf. 1964, No. 70, s. 16
In subs. (1) the reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
17.
Treasurer of Niue
-
There shall
be appointed under the provisions of Part XXXI of this Act a Treasurer of Niue,
who shall have such functions, powers,
and duties in relation to the collection,
receipt, custody, banking, issue, expenditure, and management of the money in
[the Niue
Government Account] or in any other public fund or account as may from
time to time be prescribed by regulations or, where there
are no such
regulations or so far as the regulations do not extend, by [Act of the Niue
Assembly].
Cf. 1964, No. 70, s. 17
The reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
The reference to an Act of the Niue Assembly was substituted for a reference to an Ordinance by s. 2(2)(e) of the Niue Amendment Act 1974.
18.
Revenue and expenditure
-
(1) Except
as provided in subsection (3) of this section, or by any specific appropriation
contained in any [Act of the Niue Assembly],
all expenditure in any financial
year from [the Niue Government Account] or from any other public fund or account
shall be charged
to votes specified in an Appropriation [Act of the Niue
Assembly] and in accordance with the statement of proposed expenditure for
that
financial year as approved by [the Niue
Assembly].
(2)
Every Appropriation [Act of the Niue Assembly] shall lapse at the end of the
financial year to which it
relates.
(3)
Subject to such limits and restrictions as may from time to time be prescribed
by [Act of the Niue Assembly], [the Cabinet] may
approve the expenditure of such
sums as. . . it considers
necessary-
(a) In anticipation of provision to be made in the Appropriation [Act of the Niue Assembly] for any financial year:
Provided that the total amount issued and paid under this paragraph (a) in any financial year shall not exceed the amount of any expended balance of the vote in the Appropriation [Act of the Niue Assembly] for the preceding financial year together with an amount equal to one-fourth of that vote; or
(b) Where during the period between the passing of the Appropriation [Act of the Niue Assembly) for any financial year and the end of that year it is desirable that money should be expended in excess of or without the appropriation of [the Niue Assembly]:
Provided that the total amount of all sum issued and paid under this paragraph (b) in any financial year shall not exceed 11/2 percent of the total amount of all sums appropriated by the Appropriation [Act of the Niue Assembly] for that year.
(4) A statement of the unauthorised expenditure for any financial year shall be included in the accounts for that year laid before [the Niue Assembly].
(5)
Subject to the foregoing provisions of this section, the collection, receipt,
custody, banking, issue, expenditure, care, and
management of money credited or
to be credited to [the Niue Government Account] or to any other public fund or
account shall be in
accordance with such [Acts of the Niue Assembly] as may be
made in that behalf.
Cf. 1964, No. 70, s. 18
In subss. (1), (2), (3), and (5) the references to an Act of the Niue Assembly were substituted for references to an Ordinance by s. 2(2)(e) of the Niue Amendment Act 1974.
In subss. (1) and (5) the references to the Niue Government Account were substituted for references to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
In subss. (1), (3)(b), and (4) the references to the Niue Assembly were substituted for references to the Island Assembly by s. 2(2)(d) of the Niue Amendment Act 1974.
In subs. (3) the words "the Cabinet" were substituted for the words "the Resident Commissioner, or, where any Ordinance so provides, the Executive Committee" by s. 2(1) of the Niue Amendment Act 1974, and the words "he or" have been in consequence omitted as otiose.
19.
Traders' deposit accounts
-
Notwithstanding anything in this Part of this Act, [the Cabinet of Ministers]
may accept money on deposit from any trader established
in
Niue.
(2)
Where [the Cabinet of Ministers] holds any money on deposit for a trader under
this section, [the Cabinet of Ministers] may disburse
the money by paying the
whole or part thereof, with the authority of the trader, in discharge of any
liability of the trader to the
Crown, and [the Cabinet of Ministers] shall not
disburse any money so held in any other
mariner.
(3)
All money which [the Cabinet of Ministers] accepts on deposit for any trader as
aforesaid, and all disbursements of that money,
shall be recorded in a special
deposit account in [the Niue Government Account], and shall not form part of the
ordinary revenue
or expenditure of [the Niue Government Account].
Cf. 1964, No. 70, s. 19
In subss. (1), (2), and (3) the references to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commission by s. 2(2)(c) of the Niue Amendment Act 1974.
In subs. (3) the references to the Niue Government Account, wherever they occur, were substituted for references to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
20.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
21.
Persons authorised to practise medicine or surgery
-
(1) No
person shall practise medicine or surgery in Niue for fee, salary, or other
remuneration or reward of any nature whatsoever,
unless-
(a) He is registered as a medical practitioner under the Medical Practitioners Act 1968; or
(b) He holds a certificate issued under the hand of the Secretary to the Medical Council of New Zealand that, in the opinion of that Council, he has attained a standard of practice in medicine and surgery equivalent to that required for registration as a medical practitioner under the Medical Practitioners Act 1968; or
(c) Being a graduate of the Fiji School of Medicine, he is an employee of the Niue Public Service under Part XXXI of this Act:
Provided
that such a graduate employee (not being a graduate employee for the time being
holding the position of Director of Health
or acting Director of Health pursuant
to an appointment made under section 23 of this Act) may practise medicine and
surgery in Niue
subject to such conditions as may be prescribed by [[Act of the
Niue Assembly]], or, if no conditions are so prescribed, subject
to the control,
direction, and supervision of the Director of Health, and not
otherwise.
(2)
Notwithstanding anything in the proviso to paragraph (c) of subsection (1) of
this
section,-
(a) If no conditions are prescribed by [[Act of the Niue Assembly]] as aforesaid and the position of Director of Health is vacant and no acting Director of Health has been appointed; or
(b) If no conditions are so prescribed and the Director of Health is absent from Niue or is otherwise incapable of performing his duties, exercising his powers, and carrying out his functions,-
any
such graduate employee may practise medicine or surgery in Niue subject to the
general control of [[the Cabinet of Ministers]],
and not otherwise.
In subss. (1) and (2)(a) the references to an Act of the Niue Assembly were substituted for references to an Ordinance by s. 2(2)(e) of the Niue Amendment Act 1974.
In subs. (2) the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
[22.
Offences
-
(1) Every
person commits an offence against this Act who, not being a medical
officer,-
(a) Directly or by implication represents or holds himself out to be a medical officer; or
(b) Engages, for or without any fee, salary, or other remuneration or reward, in the practice of medicine or surgery, or any branch of medicine or surgery, under the style or title of physician, surgeon, doctor, licentiate in medicine or surgery, bachelor of medicine, or medical practitioner, or under any name, title, addition, or description implying that he holds any degree or diploma in medicine or surgery or in any branch of medicine or surgery, or is otherwise specially qualified to practise medicine or surgery or any branch of medicine or surgery.
(2)
Every person who commits an offence against this section is
liable-
(a) On a first conviction, to a fine not exceeding $100, and, where the offence is a continuing one, to a further fine not exceeding $100 for each day on which the offence has continued;
(b) On a second or subsequent conviction, to imprisonment for a term not exceeding 2 months or to the penalties specified in paragraph (a) of this subsection.
[23.
Director of Health
-
(1) There
shall be appointed under Part XXXI of this Act a Director of Health of
Niue.
(2)
No person shall be qualified to be appointed or to hold office as Director of
Health of Niue,
unless-
(a) He is qualified to practise medicine and surgery pursuant to paragraph (a) or paragraph (b) of subsection (1) of section 21 of this Act; or
(b) Being a graduate of the Fiji School of Medicine he holds such other qualification, or has had such work experience in medicine, or has a combination of such other qualification and such work experience in medicine, as the Commission thinks fits [sic].
(3)
Any person holding office at the commencement of this section as Chief Medical
Officer of Niue shall on the commencement of this
section be deemed to have been
appointed as Director of Health of
Niue.
(4)
Whenever the position of Director of Health is vacant, or the Director of Health
is absent from Niue or is in the opinion of the
Niue Public Service Commission
unable by reason of physical or mental disability to perform the functions of
his office, the Niue
Public service Commission, may, by an instrument in writing
under [[its]] hand appoint any medical officer to be the acting Director
of
Health:
Provided
that no medical officer, other than a person qualified to be appointed as
Director of Health, shall be appointed acting Director
of Health unless, in the
opinion of the Niue Public Service Commission there is in Niue no medical
officer in the service of the
Government of New Zealand or of the Government of
Niue who is qualified and willing to occupy the position of Director of Health,
and is capable of performing the duties, exercising the powers, and carrying out
the functions of the Director of
Health.
(5)
Any appointment made, pursuant to subsection (4) of this section, of an acting
Director of Health may, by an instrument in writing
under his hand, at any time
be revoked by the Niue Public Service
Commission.
(6)
An acting Director of Health shall, during the subsistence of his appointment,
perform all the duties, exercise all the powers,
and carry out all the functions
of the Director of Health, whether conferred by this Act or any other
enactment.
(7)
The appointment of an acting Director of Health shall not, on the grounds that
the occasion for the appointment has not arisen
or has ceased, be impugned or
called into question in any proceedings in any Court or otherwise
howsoever.
(8)
The Director of Health shall, subject to the general control of the [[Cabinet of
Ministers]], be responsible, in Niue, for the
administration of all laws
relating to public health, mental health, hospitals, medical and surgical
services, and the quarantine
of persons.
In subss. (4), (5), and (8) the references to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
[Amended 2/98/1984]
[23A.
Medical services
-
(1) Without
restricting the provisions of subsection (8) of section 23 of this Act, it shall
be the duty of the Director of Health
to provide for all persons in Niue such
medical and surgical services as may be reasonable required and reasonably
practicable.
(2)
Medical and surgical treatment, aid, and attendance provided by any medical
officer employed in the Niue Public Service may, in
the case of Niueans be
gratuitous; and shall, in the case of all other persons, be subject to payment
of any reasonable and proper
fees which may, from time to time, either generally
or in any particular instance, be fixed or prescribed by [[the Cabinet of
Ministers]];
and all fees for such treatment, aid, and attendance shall be paid
into and shall form part of the public revenues of
Niue.
(3)
No liability shall be incurred by the Crown in respect of any failure or neglect
to provide any services referred to in subsection
(1) of this section or any
treatment, aid, or attendance referred to in subsection (2) of this section, or
in respect of any negligence,
wrongful act, or wrongful omission on the part of
any medical officer employed in the Niue Public Service or otherwise, in Niue,
employed or engaged by the Crown.
In subs. (2) the reference to the Cabinet of Ministers was substituted for a reference to the Executive Committee by s. 2(2)(a) of the Niue Amendment Act 1974.
24.
Hospitals and other institutions of public health
-
[[The Cabinet of Ministers]] may establish and maintain in Niue such hospitals
and other institutions as it considers necessary for
the public health, and all
institutions so established shall be under the control of the Director of
Health.]
Ss. 21 to 24 were substituted for the original ss. 21 to 24 by s. 17 of the Niue Amendment Act 1971.
In s. 24 the reference to the Cabinet of Ministers was substituted for a reference to the Executive Committee by s.2(2)(a) of the Niue Amendment Act 1974.
25.
Compulsory transfer of lepers
-
(1)Every
person who at any time is found in Niue to be suffering from leprosy may, by
warrant under the hand of [the Premier] and
the Seal of Niue, be transferred
outside Niue to an institution for the treatment of leprosy and supervision of
lepers approved by
[the Premier] and specified in the
warrant.
(2)
In pursuance of any such warrant every person named therein in that behalf may
be placed on board any ship belonging to Her Majesty
in right of New Zealand or
any ship registered in New Zealand or, with the consent of the master, any other
ship, to be taken to
the place directed in the
warrant.
(3)
Every person transferred outside Niue pursuant to this section shall be
delivered, together with the warrant of [the Premier],
to the Superintendent or
other person having charge of the institution specified in the
warrant.
(4)
No person transferred pursuant to this section shall be entitled to be returned
to Niue, except on the certificate of a medical
officer, who is either an
employee of the Niue Public Service or an officer of the aforesaid
institution.
(5)
All expenses incurred in connection with the transfer of a person who is
suffering from leprosy or with the return of any person
as aforesaid shall be a
charge on the public revenues of Niue, and shall be debited to [the Niue
Government Account].
Cf. 1964, No. 70, s. 25
In subss. (1) and (3) the word "Premier" was substituted for the words "Resident Commissioner " by s. 2(1) of the Niue Amendment Act 1974.
In subs. (5) the reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
Prisons and Police
26.
Establishment of prisons
-
[The
Cabinet of Ministers] may, by warrant under [its] hand and the Seal of Niue,
appoint as prisons such buildings or places in Niue
as [it] thinks suitable for
that purpose.
Cf. 1964, No. 70, s. 26
The reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
27.
Detention of persons in custody
-
(1) Any
person in lawful custody in Niue may be detained in any such prison, and may
from time to time be removed by order of [the
Cabinet of Ministers] or of a
judge of the High Court to any other prison in
Niue.
(2)
Any person in lawful custody in Niue may, if it is inconvenient or impracticable
immediately to take him to any prison for confinement
therein, be temporarily
detained in any other suitable place of security.
Cf. 1964, No. 70, s. 27
In subs. (1) the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
28.
Labour instead of imprisonment
-
(1) Any
person sentenced to imprisonment or committed to prison in Niue may, by order of
a judge of the High Court made either at
the time of sentence or committal or at
any time thereafter, be discharged from custody on condition that he labours on
public works
in Niue for the term or the residue of the term for which he has
been so sentenced or
committed.
(2)
Every prisoner so discharged shall perform the labour so appointed for him under
the control and subject to the direction of some
officer nominated for that
purpose by [the
Premier].
(3)
If any prisoner so discharged makes default in the due performance of the labour
so appointed for him, or is guilty of any insubordination
or other misconduct,
whether in respect of that labour or otherwise, he may be arrested without
warrant by any officer of police
or of prisons; and a judge of the High Court
may in his discretion (without the necessity of any judicial inquiry) revoke the
discharge
of that prisoner and commit him to prism for a period equal to that
for which he would have been imprisoned subsequent to the order
of discharge had
no such order been made, with such deduction (if any) as the judge thinks fit,
having regard to the seriousness
of the default, insubordination, or misconduct,
and to any labour duly performed by the prisoner in accordance with the
conditions
of his
discharge.
(4)
Where pursuant to subsection (3) of this section a prisoner is committed to
prism for a term expiring before the date on which,
if he had not been
discharged under this section, the original period of imprisonment would have
expired, then, on the expiration
of the term for which he is committed pursuant
to that subsection, the order of discharge made under subsection (1) of this
section
and the provisions of subsections (2) and (3) of this section shall
again apply to him for the residue of the term for which he was
originally
sentenced or committed.
Cf. 1964, No. 70, s. 28
In subs. (2) the word "Premier" was substituted for the words "Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
29.
Appointment of officers of police and prisons
-
There may
be appointed under the provisions of Part XXXI of this Act such officers of
police and officers of prisons as the Commission
considers
necessary.
29A
Penal
Manual
-
The Cabinet may from time to time issue in the form of a Penal Manual
instructions and directives to provide
for-
(a) the administration of sentences imposed by the Court (whether involving imprisonment or not);
(b) the management and supervision of offenders placed in the custody or under the control of the Secretary for Justice;
(c) the administration of the prison or other detention centres;
(d) such other matters as are necessary or expedient for ensuring that full effect is given to decisions of the Court in criminal cases.
[Added 21/91/1984]
Education
30.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
PART
II
THE
LEGISLATIVE GOVERNMENT OF NIUE
31-44.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
45,
46.
Repealed
by s. 10(2) of the Niue Amendment Act
1971.
47.
Repealed
by s. 2(11) of the Niue Amendment Act
1974.
48.
Publication of enactments in
Niue
Island
Gazette
-
(1) [Subject to the provisions of any Act in that behalf, all enactments (other
than Acts of the Niue Assembly), warrants, appointments,
and other instruments]
relative to the Government of Niue made or passed after the commencement of this
Act shall, unless [the Cabinet
of Ministers] otherwise directs, be published in
the English language in Niue in an official
Gazette,
to be known as the
Niue
Island
Gazette,
and issued at such times and intervals as [the Cabinet of Ministers]
directs.
(2)
[Subject to the provisions of any Act in that behalf, all regulations] in force
in Niue made after the commencement of this Act
shall, unless [the Cabinet of
Ministers] otherwise directs, also be published in the Niuean language in the
Niue
Island
Gazette or
some other official publication.
Cf. 1964, No. 70, s. 47A; 1965, No. 56, s. 5(1)
In subs. (1) the words in the first act of square brackets were substituted for the words "Subject to the provisions of any Ordinance in that behalf, Ordinances, regulations, Orders in Council, Proclamations, warrants, appointments and other instruments and Acts" by s. 2(1) of the Niue Amendment Act 1974, and the references to the Cabinet of Ministers were substituted for references to the Resident Commissioner by s. 2(2)(c) of that Act.
In subs. (2) the words in the first set of square brackets were substituted for the words "Subject to the provisions of any Ordinance in that behalf, all Ordinances and all regulations" by s. 2(1) of the Niue Amendment Act 1974, and the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of that Act.
Regulations
49.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
Village Councils
50.
Village Councils
-
Subject to
the provisions of this Part of this Act, [the Niue Assembly] may provide by [Act
of the Niue Assembly] for and in relation
to the establishment in any village in
Niue of a Village Council with such constitution, membership, functions, and
powers as may
from time to time be prescribed by [Act of the Niue
Assembly].
Cf. 1964, No. 70, s. 48A(1); 1965, No. 56, s. 5(1)
See Niue Village Council Ordinance 1967.
The reference to the Niue Assembly was substituted for a reference to the Island Assembly by s. 2(2)(d) of the Niue Amendment Act 1974, and the references to an Act of the Niue Assembly, wherever they occur, were substituted for references to an Ordinance by s. 2(2)(c) of that Act.
51.
Village Council bylaws
-
Without
limiting the generality of the powers conferred on [the Niue Assembly] by
section 50 of this Act, the powers of a Village
Council as aforesaid may include
power to make bylaws for all or any such matters as may be specified by [Act of
the Niue Assembly].
Cf. 1964, No. 70, s. 48A (2); 1965, No. 56, s. 5 (2)
The reference to the Niue Assembly was substituted for a reference to the Island Assembly by s. 2(2)(d) of the Niue Amendment Act 1974, and the reference to an Act of the Niue Assembly was substituted for a reference to an Ordinance by s. 2(2)(a) of that Act.
52.
Validity and disallowance of bylaws
-
(1) Any bylaw which is in any respect repugnant to the provisions of any [Act of
the Niue Assembly] or to any Act [of the Parliament
of New Zealand] or
regulations or law in force in Niue (whether made before or after the bylaw)
shall be read subject to the [Act
of the Niue Assembly] or Act [ of the
Parliament of New Zealand] or regulations or law, and shall to the extent of
that repugnancy
and not otherwise, be and remain absolutely void and
inoperative:
Provided
that, except to the extent to which it is inconsistent with the provisions of
any [Act of the Niue Assembly] or of any Act
[of the Parliament of New Zealand]
or regulations in force in Niue no bylaw and no provision of any bylaw shall be
deemed to be repugnant
for the purposes of this subsection solely on the ground
that it deals with a matter already dealt with by any [Act of the Niue Assembly]
or by any such Act [of the Parliament of New Zealand] or regulations or is
repugnant to the law of England as established in Niue
by section 672 of this
Act.
(2)
No bylaw made by a Village Council under this section shall become law until it
has been assented to by the Cabinet.]
Cf. 1964, No. 70, s. 48A(3), (4); 1965, No. 56, s. 5(1)
In subs. (1) the references to an Act of the Niue Assembly, wherever they occur, were substituted for references to an Ordinance by s. 2(2)(c) of the Niue Amendment Act 1974, and the words "of the Parliament of New Zealand" wherever they occur, were inserted by s. 2(1) of that Act
Subs. (2) was substituted for the original subs. (2) by s. 2(1) of the Niue Amendment Act 1974.
PART
III
THE
HIGH COURT OF NIUE
Constitution of the High Court
53-61.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
62.
Registrar and Deputy Registrar of the High Court
-
(1) There
shall be a Registrar of the High Court, who shall be appointed under the
provisions of Part XXXI of this
Act.
(2)
The Registrar shall keep the records of the High Court, and shall perform all
such administrative duties in respect of that Court
as [the Chief justice] may
from time to time
direct.
(3)
There may also be appointed under the provisions of Part XXXI of this Act a
Deputy Registrar of the High Court, who shall, subject
to the control of the
Registrar, possess, exercise, and perform the same powers, functions, and
duties, as the Registrar; and every
reference in this Act to a Registrar of the
High Court shall, so far as applicable, extend and apply to the Deputy Registrar
accordingly.
Cf. 1915, No. 40, ss. 109, 110; 1957, No. 103, s. 95(1)
In subs. (2) the reference to the Chief Justice was substituted for a reference to the Chief Judge by s. 2(2)(g) of the Niue Amendment Act 1974.
63.
Administrative officers
-
There shall
be appointed under the provisions of Part XXXI of this Act in respect of the
High Court such sheriffs, bailiffs, clerks,
interpreters, or other
administrative officers as may be necessary.
Cf. 1915, No. 40, s. 110; 1957, No. 103, s. 95(1)
64.
Seal of the High Court
-
The High
Court shall have in the custody of each judge and Commissioner and the Registrar
a seal of the Court, in such form or forms
as [the Cabinet of Ministers]
approves, for the scaling of all orders, warrants, records, and other
instruments requiring to be sealed.
The reference to the Cabinet of Ministers was substituted for the words "Executive Committee" (as substituted by s. 11(1) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974.
65.
Records of the High Court
-
The
Registrar of the High Court shall keep proper books in which shall be entered
minutes of all proceedings in the High Court, whether
in its civil or criminal
jurisdiction.
Cf. 1915, No. 40, s. 112
Jurisdiction of the High Court
66.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
67.
Injunction, certiorari, mandamus and prohibition
-
(1) The
High Court may exercise by way of order in the ordinary course of its civil
procedure the same jurisdiction as that possessed
and exercised for the time
being by the Supreme Court of New Zealand by way or in lieu of injunction,
certiorari, mandamus and prohibition,
including the power of awarding damages in
lieu of
injunction.
(2)
No such jurisdiction by way of mandamus, certiorari, or prohibition shall be
exercised by the High Court as against the Land Court
or the Land Appellate
Court.
Cf. 1915, No. 40, s. 115; 1946, No. 30, s. 43
68.
Habeas corpus
-
The High
Court may, on the application of any person, make an order for the release of
any person from unlawful imprisonment or detention,
or for the production before
the Court of any person alleged to be unlawfully imprisoned or detained, and
every person who disobeys
any such order shall be guilty of contempt of the High
Court.
Cf. 1915, No. 40, s. 116
69.
Custody of minors
-
(1) The
High Court may, on the application of any person, from time to time make such
order as it thinks fit with respect to the custody
of any minor (being
unmarried) by any parent or guardian of that
minor.
(2)
Where the Court is satisfied that the minor has no parent or guardian fit to
have such custody, the Court may make such order
as it thinks fit for the
custody of the minor by any other
person.
(3)
The jurisdiction conferred by this section shall in all cases be exercised in
such manner as the Court deems most conducive to
the welfare of the
minor.
Cf. 1915, No. 40, s. 117
Procedure of the High Court
70.
Rules of Court
-
The
practice and procedure of the High Court, whether in its civil or criminal
jurisdiction, shall be as prescribed by enactment.]
Cf. 1915, No. 40, s. 118
This section was substituted for the original s. 70 by s. 2(1) of the Niue Amendment Act 1974.
71.
Procedure so far as not governed by rules of Court
-
Subject to
the provisions of this Act and of rules of Court, the practice and procedure of
the High Court in the exercise of its civil
and criminal jurisdiction shall be
such as the Court thinks in each case to be most consistent with natural justice
and convenience.
Cf. 1915, No. 40, s. 119
72.
Forms
-
Subject to
the provisions of this Act and to rules of Court, all statements of claim,
informations, summonses, warrants, convictions,
orders, recognisances, and other
documents required or authorised in the course of the civil or jurisdiction of
the High Court may
be in such form as the Court or the judge, Registrar, or
other officer by whom they are issued, made, or received thinks
sufficient.
Cf. 1915, No. 40, s. 120
73.
Summons
to
witnesses -
A Judge or Registrar of the High Court may in any proceedings before the Court,
whether civil or criminal, issue a summons to any
person requiring him to appear
before the Court at the time and place mentioned in the summons, there to give
evidence in those proceedings
or to produce any document to the Court in those
proceedings.
Cf. 1915, No. 40, s. 121
74.
Default of witness
-
Every
person shall be guilty of contempt of the High Court
who-
(a) Having been served with any such summons, neglects or fails without sufficient cause shown by him to appear or to produce any document which he is so required to produce; or
(b) Whether summoned to attend or not, is present in Court and, being required to give evidence or to produce any document then in his possession, refuses, without sufficient cause shown by him, to be sworn or to give evidence or to produce that document; or
(c) Having been sworn to give evidence in any proceedings, neglects or fails without sufficient cause shown by him to appear at such time as the Court directs for the purpose of giving further evidence in the proceedings.
Cf. 1915, No. 40, s. 122(1)
75.
Commissioners to take evidence
-
(1) The
High Court may, in any civil or criminal proceedings where it appears necessary
for the purposes of justice, make an order
for the examination m oath before any
officer of the Court or any other person or persons, and at any place either in
or out of Niue,
of any witness or person and may order any deposition so taken
to be filed in the Court, and may empower any party to the proceedings
to give
the deposition in evidence
therein.
(2)
Any person before whom any witness or person is to be examined in New Zealand
pursuant to an order made under subsection (1) of
this section shall, for the
purpose of examining that witness or person, have in New Zealand all the powers
of a Commission of Inquiry
under the Commissions of Inquiry Act 1908, and all
the provisions of that Act shall apply as if the examination any inquiry under
that
Act.
76.
Evidence by affidavit sworn out of Niue
-
In any
civil or criminal proceedings in the High Court an affidavit made out of Niue
may, with the leave of the High Court, be received
in evidence if made before a
solicitor of the Supreme Court of New Zealand, or in any other manner which
would make the affidavit
admissible in civil proceedings in the Supreme Court of
New Zealand under the law for the time being in force in New Zealand.
Cf. 1915, No. 40, s. 124
77.
Witnesses may be ordered out of Court
-
The High
Court may, if it thinks fit, at any time during any proceedings, whether civil
or criminal, order all witnesses other than
the witness under examination to go
and remain outside the Court until required to give evidence; and any witness
who disobeys any
such order shall be guilty of contempt of the High
Court.
Cf. 1915, No. 40, s. 125
78.
Affidavits in
Niue
-
(1) Affidavits in the High Court may be sworn in Niue
before-
(a) A Commissioner of the High Court;
(b) A Solicitor of the Supreme Court of New Zealand;
(c) The Registrar of the High Court;
(d) A Postmaster;
(e) The Comptroller of Customs;
(f) Repealed by s 2(1) of the Niue Amendment Act 1974;
(g) A Medical Officer.
(2)
The making of such affidavits shall be governed by the same rules as are in
force for the time being with respect to affidavits
in the Supreme Court of New
Zealand.
Cf. 1915, No. 40, s. 126; 1965, No. 1, s. 3(1)
As to witnesses to consent to adoptions in relation to subs. (1), see 98(2) of the Niue Amendment Act (No. 2) 1968.
79.
Evidence by affidavit
-
In any
civil proceedings in the High Court evidence may be taken either orally or by
affidavit, but in actions and other proceedings
inter
partes
affidavits shall not be admissible without the leave of the Court.
Cf. 1915. No. 40. s. 127
80.
Right of audience in the High Court
-
In any
proceedings in the High Court, whether civil or criminal any party thereto may
be represented either by a barrister or solicitor
of the Supreme Court of New
Zealand, or, with the leave of the Court, by any other agent, but any such leave
may be at any time withdrawn.
Cf. 1915, No. 40, s. 128
81.
Costs
-
In any
civil proceedings in the High Court, the Court shall have power to make such
order as it thinks just for the payment of the
costs of the proceedings by or to
any party thereto.
Cf. 1915, No. 40, s. 129
82.
Security for costs
-
(1) In any
civil proceedings and at any stage thereof, the High Court may require a
plaintiff or applicant resident out of the jurisdiction
of the High Court to
deposit any sum of money as security for costs, and may stay pending the making
that costs, it shall be disposed
of in such manner as the Court
directs.
Cf. 1915, No. 40, s. 130
83.
Court fees
-
The scale
of costs and Court fees to be paid in all civil or criminal proceedings in the
High Court shall be as prescribed by enactment.]
Cf. 1915, No. 40, s. 131
This section was substituted for the original s. 83 by s. 2(1) of the Niue Amendment Act 1974.
84.
Minutes of
judgments
-
(1) Every judgment of the High Court shall be deemed to be complete when a
minute thereof has been made in the record books of the
Court and signed by a
judge of the
Court.
(2)
When necessary, the judgment may at any time thereafter be drawn up under the
seal of the Court.
Cf. 1915, No. 40, s. 132
85.
Amendments
-
A judge of
the High Court may at any time amend any minute or judgment of the Court or
other record of the Court, in order to give
effect to the true intent of the
Court in respect thereof or truly to record the course of any
proceedings.
Cf. 1915, No. 40, s. 133
86.
Rehearing of civil proceedings
-
On
application made at any time within 14 days after the date of any judgment given
by the High Court in its civil jurisdiction, the
Court may, if it thinks fit,
rehear the matter, and may on the rehearing either affirm, reverse, or vary the
judgment:
Provided
that the Court may rehear the matter on an application made more than 14 days
after the date of the judgment, if the Court
is satisfied that the application
could not reasonably be made sooner.
Cf. 1915, No. 40, s. 134
87.
Rehearing of criminal proceedings
-
(1) Where on the hearing of any information the accused has been convicted, the
High Court may, if it thinks fit, grant a rehearing
of the information, either
as to the whole matter or only as to the sentence, upon such terms as the Court
thinks
fit.
(2)
When a rehearing has been granted, the conviction or, as the case may be, the
sentence only shall immediately cease to have
effect.
(3)
If a rehearing is granted in any case where the accused was on conviction
sentenced to a term of imprisonment that has not expired,
but the hearing is not
proceeded with immediately, the Court may, subject to the provisions of section
257 of this Act, remand the
accused in custody until the date appointed for the
rehearing.
(4)
On any rehearing the Court shall have the same powers and shall follow the same
procedure as if it were the first
hearing.
(5)
If the defendant does not appear on the date set down for the rehearing of any
information, the Court may, if it thinks fit, without
rehearing the case direct
that the original conviction or sentence, as the case may be, shall be
restored.
Execution of Judgments
88.
Writs of sale and possession
-
(1) Where by any judgment of the High Court in its civil jurisdiction any person
is ordered to pay any sum of money, the party to
whom the money is payable may
cause a writ of sale to be
issued.
(2)
Where by any judgment of the High Court any person is ordered to deliver
possession of land or chattels, the party to whom the
land or chattels are
ordered to be delivered may cause a writ of possession to be
issued.
89.
Effect of writ of possession
-
A writ of possession shall authorise the officer to whom it is addressed to
deliver to any party named in the writ possession of
any land or of any chattels
specified in the writ, and for that purpose to eject any other person from the
land, or to seize and
take possession of any such chattels.
Cf. 1915, No. 40, s. 136
90.
Effect of writ of sale
-
(1) A writ of sale shall authorise the officer to whom it is directed to seize
all the chattels (including money, cheques, bills
of exchange, and other
securities for money) of the person against whom it is issued, except wearing
apparel, bedding, tools, and
implements of trade, not exceeding in the aggregate
[$100] in
value.
(2)
All chattels so seized may, unless the judgment is sooner satisfied, together
with the costs of the execution, be sold or otherwise
converted into money by
the Registrar, and the proceeds of the sale or conversion, after payment there
of the costs of the execution,
shall be applied in satisfaction of the
judgment.
Cf. 1915, No. 40, s. 137
91.
Issue of writs of sale or
possession
- Every
writ of sale or writ of possession shall be issued by the Registrar under the
seal of the High Court, and shall be addressed
to an officer of the Court or to
a constable.
Cf. 1915, No. 40, s. 138
92.
Charging orders
-
Any
judgment of the High Court in its civil jurisdiction for the payment of any sum
of money may be enforced by a charging order made
by the Court against any real
or personal property of the person by whom the money is payable (including debts
and other money due
or accruing due to that person, but not including the
interest of a Niuean in any Niuean land). Any such charging order shall be
made
and shall have effect in manner provided by rules of Court.
Cf. 1915, No. 40, s. 139; 1950, No. 92, s. 11(3)
A definition of the term "Niuean land" in s. 2 of this Act was repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968. See ss. 2 and 102(2) of that Act.
93.
Stay of
execution-
The High Court may in any civil proceedings stay the execution of any judgment
for such term as the Court thinks fit.
Cf. 19 15, No. 40, s. 140
94.
Judgment summons
-
(1) When judgment for the payment of any debt, damages, or other sum of money
has been given by the High Court in its civil jurisdiction,
the judgment
creditor may at any time thereafter, in pursuance of the judgment, file in Court
an application for an order under this
section.
(2)
A judge or the Registrar of the Court may thereupon issue a summons (hereinafter
called a judgment summons) to the judgment debtor
to show cause why an order
should not be made against him for the payment of the amount of the
judgment.
(3)
On the hearing of the application, the Court may, if it thinks fit, make an
order that the judgment debtor do pay to the judgment
creditor the amount of the
judgment debt forthwith, or at such time or by such instalments from time to
time, as the Court thinks
fit.
(4)
Except where the judgment debtor fails to appear in Court in pursuance of the
judgment summons, no such order shall be made, unless
the Court is satisfied
either-
(a) That the judgment debtor is of sufficient ability to pay the judgment debt in accordance with the terms of the order; or
(b) That the liability in respect of which judgment was given against him was incurred by fraud; or
(c) That before or after the date of the judgment the judgment debtor has made away with any property for the purpose of evading payment of the liability.
(5)
If any judgment debtor disobeys any order made against him under this section,
he shall be guilty of contempt of the High
Court.
(6)
Nothing in this section shall exclude any other lawful method of executing any
such judgment.
Cf. 1915, No. 40, s. 141
95.
Enforcement of judgments of High Court in Supreme Court of New Zealand
-
(1) Any person in whose favour any judgment whereby any sum of money is made
payable has been obtained in civil proceedings in the
High Court may cause a
memorial thereof, authenticated by the seal of the High Court, to be filed in
any office of the Supreme Court
of New
Zealand.
(2)
Judicial notice may be taken by the Supreme Court of the seal of the High Court
so affixed to any such
memorial.
(3)
Every such memorial shall set forth the names and additions of the parties to
the proceedings in which the judgment was given,
the form or nature of the
proceedings, the date on which the judgment was given, and the amount payable
thereunder.
(4)
Every such memorial being so filed shall thenceforth be a record of the
judgment, and execution may issue thereon with the leave
of the Supreme Court,
in the same manner as if the like judgment had been given by the Supreme Court,
subject, however, to such terms
and conditions as the Supreme Court may think
fit to
impose.
(5)
Leave to issue execution may be given by the Supreme Court on the application of
the party by whom the memorial was filed, and
either
ex
parte or on
notice to the party against whom execution is to be issued, as the Supreme Court
thinks
fit.
(6)
Such leave shall not be granted, unless the Supreme Court is satisfied, by
affidavit or
otherwise,-
(a) That the person against whom execution is to be issued was resident or present in Niue at the commencements of the proceedings in which the judgment was given; or
(b) That the cause of action in the proceedings or some material part of that cause of action arose in Niue.
(7)
Every such affidavit shall, if made in Niue, be sworn before a judge of the High
Court or a Commissioner of the Supreme Court.
Cf. 1915, No. 40, s. 142
Absconding Debtors
96.
Order of arrest of absconding debtor
-
Where in
any action in the High Court for the recovery of any debt, damages, or other sum
of money the plaintiff proves to the satisfaction
of the Court, at any time
before final judgment, that he has a good cause of action against the defendant
to the amount of [$20]
or upwards, and that there is probable cause for
believing that the defendant is about to leave Niue unless he is apprehended,
and
that his absence from Niue will materially prejudice the plaintiff in the
prosecution of his action, the Court may order the defendant
to be arrested and
imprisoned for a period not exceeding 3 months unless and until he sooner gives
security to the satisfaction of
the Court that he will not leave Niue without
the leave of the Court.
Cf. 1915, No. 40, s. 143
96A.
Commissioner and Justices authority
-
Any power conferred by this Act on the Court to make an order under Section 96
of this Act may be exercised by a Commissioner of
the High Court or any two
Justices of the Peace if at the time when the power is exercised there is not
present in Niue a Judge who
is able to exercise it.
[Added 2/59/1980]
97.
Security to be
given-
The security to be so given shall, as the Court directs, be either the payment
into Court of a sum not exceeding the amount claimed
in the action or a bond
executed by the defendant with one or 2 sureties in favour of Her Majesty in the
like amount.
Cf. 1915, No. 40, s. 144
98.
Enforcement of security
-
If after such security has been given the defendant leaves Niue without the
leave of the Court, all money so paid into Court or recovered
in pursuance of
the bond shall become available as the Court directs for the satisfaction of any
sum recovered in the action.
Cf. 1915, No. 40, s. 145
99.
Arrest in actions for penalties
-
Where the action is for a penalty at the suit of the Crown, it shall not be
necessary to prove that the absence of the defendant
as aforesaid will
materially prejudice the Crown in the prosecution of the action, and the
security to be given shall be security
that any sum recovered against the
defendant in the action will be paid or that the defendant will be rendered to
prison.
Cf. 1915, No. 40, s. 146.
100.
Enforcement of security in actions for penalties
-
If, after such security has been given, any sum recovered in the action remains
unpaid and the defendant is not rendered to prison
as aforesaid, all money so
paid into Court or recovered in pursuance of the bond shall become available as
the Court directs for
the satisfaction of the sum recovered in the
action.
Cf. 1915, No. 40, s. 147
Contempt of the High Court
101.
Contempt of Court defined
-
Every person is guilty of contempt of the High Court
who-
(a) Disobeys any judgment or order of that Court, or of any Judge thereof, otherwise than by making default in the payment of a sum of money (other than a penalty) or compensation payable under the judgment or order; or
(b) Uses any abusive, insulting, offensive, or threatening words or behaviour in the presence or hearing of the Court; or
(c) Assaults, resists, or obstructs, or incites any other person to assault, resist, or obstruct, any constable or officer of the Court in serving any process of the Court, or executing any warrant of the Court or of a Judge thereof, or executing any judgment or order of the Court or of a Judge thereof; or
(d) By any words or behaviour obstructs in any manner the proper and orderly administration of justice in the Court; or
(e) Does any other thing which elsewhere in this Act or in any other Act is declared to be a contempt of the High Court; or
(f) Aids, abets, counsels, procures, or incites any other person to commit contempt of the High Court.
Cf. 19 15, No. 40, s. 148
102.
Penalty for contempt -
Every
person who commits contempt of the High Court is liable to imprisonment for a
term not exceeding 6 months or a fine not exceeding
[$100].
Cf. 19 15, No. 40, s. 149
103.
Jurisdiction in contempt -
The offence
of contempt of the High Court shall be punishable by the High Court
either-
(a) In the ordinary course of the criminal jurisdiction of that Court; or
(b) In accordance with the provisions of section 104 of this Act.
Cf. 1915, No. 40, s. 150
104.
Contempt in the face of the
Court
- (1) If
the contempt is committed in the presence or hearing of the Court, any Judge
then and there sitting in Court may, without order
or warrant, direct any
constable, officer of the Court, or other person to arrest the person so guilty
of contempt and to bring him
before the
court.
(2)
The Court may thereupon, after giving the person so arrested a reasonable
opportunity of being heard in his defence, either commit
him to prison for a
term not exceeding 6 months or order him to pay a fine not exceeding
[$100].
Cf. 1915, No. 40, s.151
105.
Discharge of persons in contempt
-
A person imprisoned for contempt, or for default in payment of a fine imposed
upon him for contempt, may be at any time discharged;
and any fine so imposed
may be at any time remitted in whole or in part, either by order of the Court or
by warrant under the hand
of [the Cabinet of Ministers].
The reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
PART
IV
THE
SUPREME COURT OF NEW ZEALAND
Jurisdiction of the Supreme Court in Niue
106.
Civil jurisdiction of Supreme Court extends to Niue
-
(1) Notwithstanding anything in this Act, the civil jurisdiction of the Supreme
Court of New Zealand shall extend to Niue, and may
be exercised in New Zealand
in respect of Niue in the same manner in all respects as if Niue were for all
purposes part of New
Zealand.
(2)
Any action or other civil proceedings in the Supreme Court which relate in any
manner to Niue and which might have been instituted
in the High Court of Niue
may, on the application of any party thereto, be stayed by the Supreme Court in
its discretion, on such
terms as the Court thinks fit, if in the opinion of that
Court, having regard to the interest of all parties thereto, the action
or other
proceedings could more conveniently be instituted in the High
Court.
(3)
No writ of summons or other originating civil process m the Supreme Court shall
be served in Niue without the leave of a judge
of that Court, and the order by
which leave is granted may determine the time within and the place at which a
defendant is to file
his statement of defence, and the sitting of the Court at
which the action is to be heard, or may give such other directions with
respect
to the procedure on the writ or process as may be appropriate to the
case.
Cf. 1915, No. 40, s. 153
See Tangata [1979] 2NZLR 182
107.
Jurisdiction under the Declaratory Judgments Act 1908 -
The
jurisdiction conferred upon the Supreme Court by the Declaratory Judgments Act
1908 shall extend to declaratory judgments or orders
relating to the laws of
Niue in the same manner in all respects as to declaratory judgments or orders
relating to the laws of New
Zealand.
Cf. 1915, No. 40, s. 154
108.
Criminal jurisdiction of Supreme Court in respect of Niue
-
(1) Notwithstanding anything in this Act, the criminal jurisdiction of the
Supreme Court of New Zealand shall extend to acts done
or omitted in Niue which,
if done or omitted in New Zealand, would be indictable offences, and may be
exercised in New Zealand in
respect of such offences accordingly in the same
manner as if they were indictable offences committed in New
Zealand.
(2)
Except in the case of an offence in respect of which, pursuant to the Crimes Act
1961, the Supreme Court has jurisdiction notwithstanding
that the offence was
committed outside New Zealand, the jurisdiction conferred by subsection (1) of
this section shall be exercised
only over persons found in New
Zealand.
(3)
In respect of any offence which is within the jurisdiction of the Supreme Court
under this section the like preliminary proceedings
before justices of the Peace
or a Stipendiary Magistrate may be taken in New Zealand as in the case of
indictable offences committed
in New
Zealand.
(4)
The punishment to be imposed by the Supreme Court for any such offence (not
being an offence in respect of which, pursuant to
the Crimes Act 1961, the
Supreme Court has jurisdiction as aforesaid) shall be that which is provided for
that offence by the laws
of
Niue.
(5)
No prosecution in New Zealand for an offence committed in Niue (not being an
offence in respect of which, pursuant to the Crimes
Act 1961, the Supreme Court
has jurisdiction as aforesaid) shall be commenced without the leave of the
Attorney-General.
Cf. 1915, No. 40, s. 155
Cases Stated by the High Court or Land Court or Land Appellate Court
109.
High Court or Land Court or Land Appellate Court may state a case for the Court
of Appeal
-
(1) The High Court or the Land Appellate Court, or, with the sanction of [the
Chief Justice], the Land Court, may in any proceedings
pending before it,
whether civil or criminal, either on the application of any party or of its own
motion, state a case on any question
of law for determination by the [Court of
Appeal] of New
Zealand.
(2)
The determination by the [Court of Appeal] of any case so stated shall be
binding on the High Court, the Land Appellate Court,
or the Land Court, as the
case may
be.
(3)
Repealed by s. 2(1) of the Niue Amendment Act
1974.
(4)
Every case so stated shall be under the seal of the High Court, the Land
Appellate Court, or the Land Court, as the case may be,
and shall be filed by
the Registrar in the office of the [Court of
Appeal].
(5)
The Registrar of the [Court of Appeal] shall thereupon set down the case for
hearing at some convenient sitting of the [Court
of
Appeal].
(6)
The determination of the [Court of Appeal] shall be embodied in an order, and a
duplicate of that order under the seal of the
Court shall be transmitted by the
Registrar of that Court to the Registrar of the High Court or of the Land
Appellate Court or of
the Land Court, as the case may
be.
(7)
In and by that order the [Court of Appeal] may fix and award the costs of the
argument and determination of the special case,
and the High Court, the Land
Appellate Court, or the Land Court, as the case may be, shall by judgment or
order give effect to the
order so made by the [Court of
Appeal].
(8)
The [Court of Appeal] may send back for amendment any case so stated by the High
Court, the Land Appellate Court, or the Land
Court.
In subs. (1) the reference to the Chief Justice was substituted for a reference to the Chief Judge by s. 2(2)(g) of the Niue Amendment Act 1974.
In subss. (1), (2), (5), (6), (7), and (8) the words "Court of Appeal" wherever they occur, were substituted for the words "Supreme Court," and in subs. (4) the words "Court of Appeal" were substituted for the words "Supreme Court at Auckland", by s. 2(1) of the Niue Amendment Act 1974.
Cases Stated by Supreme Court for Land Appellate Court
110.
Supreme Court may state case for Land Appellate Court
-
(1) If any
question of fact or of Niuean custom or usage relating to the interests of
Niuean in any land or in any personal property
arises in the Supreme Court of
New Zealand, it shall be competent for that Court to cause a case to be stated
and to refer it to
the Land Appellate
Court.
(2)
The Land Appellate Court shall forthwith proceed to determine the case so
referred to it, and shall transmit a certificate of
its opinion thereon to the
Supreme
Court.
(3)
The Supreme Court may refer back any question so determined to the Land
Appellate Court for further
consideration.
(4)
The opinion of the Land Appellate Court on any case so stated by the Supreme
Court may, if the Supreme Court thinks fit, be accepted
as an authoritative
determination of, the question so referred.
Cf. 1946, No. 30, s. 39; 1950, No. 92, s. 11(3)
Appeals from the High Court
111,
112.
Repealed by s. 2(1) of the Niue Amendment Act
1974.
113.
Transmission of record
-
[Where an appeal is made to the Court of Appeal of New Zealand, pursuant to
Article 51 of the Constitution, against a final judgment
of the High Court,] a
copy of the record of the proceedings in which the judgment appealed against was
given, (including the reasons
for the judgment, and, where necessary, a
statement of the facts or of the evidence) shall be prepared by the appellant
and transmitted
by the Registrar of the High Court under the seal of that Court
to the Registrar of the [Court of Appeal].
Cf. 1915, No. 40, s. 159.
The words in the first act of square brackets were substituted for the words "On the scaling of the order granting leave to appeal" and the words "Court of Appeal" were substituted for the words "Supreme court of New Zealand at Auckland", by s. 2(1) of the Niue Amendment Act 1974.
114.
Dismissal of appeal for
non-prosecution
-
If the appellant does not prosecute his appeal with due diligence, the
respondent may apply either to the High Court or to the [Court
of Appeal] for an
order dismissing the appeal for non-prosecution; and, if such an order is made
by either Court, the costs of the
appeal and the security entered into by the
appellant shall be dealt with in such manner as that Court may
direct.
Cf. 1915, No. 40, s. 160
The words "Court of Appeal" were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
115.
Procedure on appeal
-
The procedure on the hearing of any such appeal and in all matters incidental to
any such appeal, whether in the High Court or in
[the Court of Appeal shall,
subject to this Act, be determined by the rules of the High Court or the Court
of Appeal, as the case
may be,] and in default of such regulations, or so far as
they, do not extend, shall be determined in such manner as the Court thinks
fit.
Cf. 1915, No. 40, s. 161; 1965, No. 1, s. 3(1)
The words in square brackets were substituted for the words “the Supreme Court shall, subject to this Act” be determined by regulations made under this Act s.2(1) of the Niue Amendment Act 1974
116.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
117.
Powers of Court of Appeal on Appeal
-
(1) On any appeal from the High Court, the [Court of Appeal may affirm, reverse,
or vary the judgment appealed from, or may order
a new trial, or may make any
such order with respect to the appeal as the [Court of Appeal] thinks fit, and
may award such costs
as it thinks fit to or against any party to the
appeal.
(2)
Without limiting the general powers conferred by subsection (1) of this section,
the [Court of Appeal] on any appeal against sentence,
if it thinks that a
different sentence should have been passed, shall quash the sentence passed and
pass such other sentence warranted
by law (whether more or less severe) in
substitution therefore as the Court thinks ought to have been passed, and in any
other case
shall dismiss the appeal.
Cf. 1915, No. 40, s. 163; 1956, No. 27, s. 5; 1965, No. 1, s. 3(1)
In subss. (1) and (2) the words "Court of Appeal", wherever they occur were substituted for the words "Supreme Court " by s. 2(1) of the Niue Amendment Act 1974.
118.
Evidence on
appeal-Every
such appeal shall, so far as it relates to any question of fact, be determined
by the [Court of Appeal] by reference to the
evidence heard at the trial as
certified to the [Court of Appeal] under the seal of the High Court, and no
further evidence shall,
without the leave of the [Court of Appeal], be heard or
admitted.
Cf. 1915, No. 40, s. 164.
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
119.
Stay of execution
-
An appeal
to the [Court of Appeal] of New Zealand shall not operate as a stay of
execution, unless the High Court or the [Court of
Appeal] otherwise
orders.
Cf. 1915, No. 40, s. 165; 1956, No. 27, s. 6; 1963, No. 132, s. 8(2)(a)
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
120.
Release of appellant from custody
-
(1) [When
an appeal is made to the Court of Appeal of New Zealand from any conviction in
the High Court], the High Court may, if it
thinks fit, release the appellant
from custody on bail pending the determination of the
appeal.
(2)
Any person so released on bail may be at any time, and for any reason which the
High Court thinks sufficient, arrested by warrant
and committed to prison, there
to undergo his
sentence.
(3)
Any period during which an appellant has been so at large on bail shall not be
computed as part of the term of imprisonment to
which he has been
sentenced.
Cf. 1915, No. 40, s. 166
In subs. (1) the words in square brackets were substituted for the words "When leave to appeal to the Supreme Court of New Zealand from any conviction is granted by the High Court" by s. 2(1) of the Niue Amendment Act 1974.
121.
Appeal not to be allowed for irregularities in procedure
-
No judgment of the High Court shall, on appeal to the [Court of Appeal] of New
Zealand, be set aside on the ground of any error or
irregularity in the
proceedings of the High Court, or on the ground of any defect of form or
substance in the judgment, unless the
[Court of Appeal] is of opinion that the
proceedings of the High Court were not in conformity with natural justice or
that a substantial
miscarriage of justice has taken place.
Cf. 1915, No. 40, s. 167
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
122.
Right of audience on appeal
-
On every case stated for the [Court of Appeal] of New Zealand, and in every
appeal to that Court, the parties may either appear in
person or be represented
by a barrister of the Supreme Court, or may submit their arguments to the [Court
of Appeal] in writing.
Cf. 19 15, No. 40, s. 168
The words "Court of Appeal", wherever they appear, were substituted for the words "Supreme Court by s. 2(1) of the Niue Amendment Act 1974.
123.
Transmission of order of Court of Appeal on appeal
-
The determination of the [Court of Appeal] on any appeal from the High Court
shall be transmitted to the Registrar of the High Court
by the Registrar of the
[Court of Appeal] under the seal of that Court, and judgment shall thereupon be
entered in the High Court
in conformity with that determination, or such other
proceedings by way of a new trial or otherwise shall be taken in the High Court
as are required by the determination.
Cf. 1915, No. 40, s. 169
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court by s. 2(1) of the Niue Amendment Act 1974.
124.
Repealed
by s. 2(1) of the Niue Amendment Act
1974.
125.
No certiorari, mandamus, or prohibition
-
The Supreme Court shall not exercise control over any Court in Niue (whether in
respect of want of jurisdiction or otherwise) by
way of certiorari, mandamus, or
prohibition, or in any other manner....
The words "save by way of appeal in accordance with the provisions of this Act in that behalf" were omitted by s. 2(1) of the Niue Amendment Act 1974.
Enforcement in Niue of Judgments of New Zealand Courts
126.
Judgments of Supreme Court or Magistrate's Court in New Zealand may be enforced
by the High Court
-
(1) Any person in whose favour any judgment whereby any sum of money is c
payable has been obtained in the Supreme Court of New Zealand
or in a
Magistrate's Court in New Zealand in civil proceedings may cause a memorial
thereof, authenticated by the seal of the Supreme
Court or of the Magistrate's
Court, as the case may be, to be filed in the High
Court.
(2)
Judicial notice may be taken by the High Court of the seal of the Supreme Court
or Magistrate's Court so affixed to any such
memorial.
(3)
Every such memorial shall set forth the names and additions of the parties to
the proceedings in which the judgment was given,
the form or nature of the
proceedings, the date on which the judgment was given, and the amount payable
thereunder.
(4)
Every such memorial being so filed shall thenceforth be a record of the
judgment, and execution may issue thereon with the leave
of the High Court in
the same manner as if the like judgment had been given by the High Court,
subject to such terms and conditions
as the High Court may think fit to
impose.
(5)
Leave to issue such execution may be given by the High Court on the application
of the party by whom the memorial was filed, and
either
ex
parte or on
notice to the party against whom execution is to be issued, as the High Court
thinks fit.
Cf. 1915, No. 40, s. 173
127.
Enforcement of judgments of Supreme Court by High Court by way of proceedings
for contempt
-
(1) When by any judgment of the Supreme Court of New Zealand any person has been
ordered to do or abstain from doing any act in Niue
other than the payment of
money, the Supreme Court may then or at any time thereafter direct a memorial of
the judgment under the
seal of the Court to be filed in the High
Court.
(2)
On the filing of such a memorial, any disobedience to the judgment, whether
before or after the filing of the memorial, shall
be deemed to be a contempt of
the High Court.
Cf. 1915, No. 40, s. 174
Commissioners of the Supreme Court
128.
Commissioners of the Supreme Court may be appointed in Niue
-
Sections 47 to 49 of the Judicature Act 1908 (relating to Commissioners to
administer oaths) shall in New Zealand be construed and
operate as if Niue were
a place beyond the jurisdiction of the Supreme Court within the meaning of
section 47 aforesaid, and Commissioners
in Niue may be appointed by a judge of
the Supreme Court accordingly.
Cf. 1915, No. 40, s. 175
PART
V
CRIMINAL
OFFENCES
129.
Seditious offences defined
-
(1) A seditious intention is an intention to excite disaffection against Her
Majesty, or against the Parliament or Government of
New Zealand, or against the
Government of Niue, or to excite such hostility or ill will between different
classes of the inhabitants
of Niue as may be injurious to the public welfare, or
to incite encourage, or procure lawlessness, violence, or disorder in. Niue,
or
to procure otherwise than by lawful means the alteration of any matter affecting
the laws, Government, or constitution of
Niue:
Provided
that no one shall be deemed to have a seditious intention only because he
intends in good faith
-
(a) To show that Her Majesty has been misled or mistaken in her measures; or
(b) To point out errors or defects in the Parliament or Government of New Zealand or in the Government of Niue; or to incite the inhabitants of Niue to attempt to procure by lawful means the alteration of any matter affecting the laws, government, or constitution of Niue; or
(c) To point out, with a view to their removal, matters producing or having a tendency to produce hostility or ill will between different classes of the inhabitants of Niue.
(2)
Seditious words are words expressive of a seditious
intention.
(3)
A seditious libel is a libel expressive of a seditious
intention.
(4)
A seditious conspiracy is an agreement between 2 or more persons to carry into
execution a seditious intention.
Cf. 1915, No. 40, s. 177A(1)-(5); 1950, No. 92, s. 12
130.
Punishment of seditious offences
-
Every person is liable to imprisonment for a term not exceeding 2 years who
speaks any seditious words, or publishes a seditious
libel, or is a party to a
seditious conspiracy.
Cf. 1915, No. 40, s. 177A(5); 1950, No. 92, s. 12
131.
Homicide defined
-
Homicide is the killing of a human being by another, directly or indirectly, by
any means whatsoever.
Cf. 1915, No. 15, s. 178; 1957, No. 103, s. 87
132.
Killing of a child
-
(1) A child becomes a human being within the meaning of this Act when it has
completely proceeded in a living state from the body
of its mother, whether it
has breathed or not, whether it has an independent circulation or not and
whether the navel string is severed
or
not.
(2)
The killing of such a child is homicide if it dies in consequence of injuries
received before, during, or after birth.
Cf. 1915, No. 40, s. 179; 1957, No. 103, s. 87
133.
Culpable homicide
-
(1) Homicide may be either culpable or not
culpable.
(2)
Homicide is culpable when it consists in the killing of any person
-
(a) By an unlawful act; or
(b) By an omission without lawful excuse to perform or observe any legal duty; or
(c) By both combined; or
(d) By causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or
(e) By wilfully frightening that person, if he is a child under the age of 16 years or is sick or infirm.
(3)
Culpable homicide is either murder or
manslaughter.
(4)
Homicide that is not culpable is not an offence.
Cf. 1915, No. 40, s. 180; 1957, No. 103, s. 87
134.
Murder defined
-
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed;
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not;
(c) If the offender mean to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed;
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person though he may have desired that his object should be effected without hurting anyone.
Cf. 1915, No. 40, s. 180A; 1957, No. 103, s. 87
See s. 135(2)(a) of this Act
135.
Further definition of murder
-
(1) Culpable homicide is also murder in each of the following cases, whether the
offender means or does not mean death to ensue,
or knows or does not know that
death is likely to ensue:
(a) If he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or the flight of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any other offence whatsoever, and death ensues from such injury;
(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof;
(c) If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of the breath.
(2)
The offences referred to in subsection (1) of this section are those within the
meaning of the following provisions of this Act,
namely:
-
(a) Section 134 (murder);
(b) Section 158 (resisting a constable in the execution of his duty or any person acting in aid of any constable;
(c) Section 159 (abduction of girl under 15);
(d) Section 162 (rape);
(e) Sections 184 to 186 (escape or rescue from prison or lawful custody);
(f) Section 195 (robbery);
(g) Section 204 (burglary);
(h) Section 212 (arson).
Cf. 1915, No. 40, s. 180B; 1957, No. 103, s. 87
136.
Provocation-
(1) Culpable homicide that would otherwise be murder may be reduced to
manslaughter if the person who caused the death did so under
provocation.
(2)
Anything done or said may be provocation if -
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the person charged, of the power of self-control; and
(b) It did in fact deprive the person charged of the power of self-control and thereby induced him to commit the act of homicide.
(3)
Whether there is any evidence of provocation is a question of
law.
(4)
Whether, if there is evidence of provocation, the provocation was sufficient as
aforesaid, and whether it did in fact deprive
the person charged of the power of
self-control
and thereby induced him to commit the act of homicide, are questions of
fact.
(5)
No one shall be held to give provocation to another by lawfully exercising any
power conferred by law, or by doing anything which
the person charged incited
him to do in order to provide the person charged with an excuse for killing or
doing bodily harm to any
person.
(6)
This section shall apply in any case where the provocation was given by the
person killed, and also in any case where the person
charged, under provocation
given by one person, by accident or mistake killed another
person.
(7)
The fact that by virtue of this section one party to a homicide has not been or
is not liable to be convicted of murder shall
not affect the question whether
the homicide amounted to murder in the case of any other party to it.
Cf. 1915, No. 40, s. 180c; 1957, No. 103, s. 87
137.
Illegal arrest may be evidence of provocation
-
An arrest shall not necessarily reduce the offence from murder to manslaughter
because the arrest was illegal; but if the illegality
was known to the person
charged it may be evidence of provocation.
Cf. 1915, No. 40, s. 180D; 1957, No. 103, s. 87
138.
Punishment of murder
-
Every one who commits murder shall upon conviction thereof be sentenced to
imprisonment for life.
Cf. 1915, No. 140, s. 180E; 1962, No. 40, s. 3
139.
Manslaughter
- Culpable
homicide not amounting to murder is manslaughter.
Cf. 1915, No. 40, s. 180F; 1957, No. 103, s. 87
140.
Punishment of manslaughter
-
Every one who commits is liable to imprisonment for a term not exceeding 14
years.
Cf. 1915, No. 40, s. 18OG; 1957, No. 103, s. 87.
141.
Omissions dangerous to life
-
Every one who undertakes, whether by a legally binding contract or otherwise, to
do any act the omission of which is or may be dangerous
to life is under a legal
duty to do that act, and is criminally responsible for the consequences of
omitting without lawful excuse
to discharge that duty.
Cf. 1915, 1 No. 40, s. 181
142.
Duty to provide the necessaries of life
-
(1) Every one who has charge of any other person unable, by reason of detention,
age, sickness, insanity, or any other cause, to
withdraw himself from such
charge, and unable to provide himself with the necessaries of life, is (whether
such charge is undertaken
by him under any contract or is imposed upon him by
law or by reason of his unlawful act or otherwise howsoever) under a legal duty
to supply that person with the necessaries of life, and is criminally
responsible for omitting without lawful excuse to perform such
duty if the death
of that person is caused, or if his life is endangered or his health permanently
injured, by such
omission.
(2)
Every one is liable to imprisonment for a term not exceeding 7 years who,
without lawful excuse, neglects the duty specified in
this section so that the
life of the person under his charge is endangered or his health permanently
injured by such neglect.
Cf. 1915, No. 40, s. 182
143.
Duty of parent or guardian to provide
necessaries-
(1) Every one who as a parent or person in place of a parent is under a legal
duty to provide necessaries for any child under the
age of 16 years, being a
child in his actual custody, is criminally responsible for omitting without
lawful excuse to do so, whether
the child is helpless or not, if the death of
the child is caused, or. if his life is endangered or his health permanently
injured,
by such
omission.
(2)
Every one is liable to imprisonment for a term not exceeding 7 years who,
without lawful excuse, neglects the duty specified in
this section so that the
life of the child is endangered or his health permanently injured by such
neglect.
Cf. 19157 No. 40, s. 182
144.
Liability of persons having charge of dangerous things
-
Every one who has in his charge or under his control anything whatever, whether
animate or inanimate, or who erects, makes, or maintains
anything whatever,
which in the absence of precaution or care may endanger human life is under a
legal duty to take reasonable precautions
against and to use reasonable care to
avoid such danger, and is criminally responsible for the consequences of
omitting without lawful
excuse to perform that duty.
Cf. 1915, No. 40, s. 183
145.
Hastening death
-
Every one who hastens the death of any person from any disease or disorder from
which he is deemed to have caused the death of that
person
146.
Indirect cause of death
-
Every one whose act or omission results in the death of any person shall be
deemed to have caused his death, although the immediate
cause of death is the
act or omission of some other person or some other independent intervening
event.
Cf. 19 15, No. 40, s. 185
147.
Attempted murder
-
Every one who attempts to commit murder is liable to imprisonment for a term not
exceeding 14 years.
Cf. 1915, No. 40, s. 186; 1962, No. 40, s. 4(b)
148.
Conspiracy and inciting to murder
-
Every one is liable to imprisonment for a term not exceeding 10 years, who
-
(a) Conspires with any person to murder any person; or
(b) Incites any person to commit murder.
Cf. 1915, No. 40, s. 187
149.
Counselling suicide
-
Every one is liable to imprisonment for a term not exceeding 14 years who
counsels or procures any person to commit suicide, if that
person actually
commits suicide in consequence, or who aids or abets any person in the
commission of suicide.
Cf. 1915, No. 40, s. 189; 1962, No. 40, s. 4(c)
150.
Concealment of birth
-
Every one is liable to imprisonment for a term not exceeding 2 years who
disposes of the dead body of any child in any manner with
intent to conceal the
fact that its mother was delivered of it, whether the child died before, or
during, or after birth.
Cf. 1915, No. 40, s. 190
151.
Grievous bodily harm
-
Every one is liable to imprisonment for a term not exceeding 7 years who
wilfully and without lawful justification causes grievous
bodily harm to any
person.
Cf. 1915, No. 40, s. 191
As to an offence under this section being a ground of divorce in Tokelau, see the Tokelau Divorce Regulations 1975 S.R. 1975/262/4 (3)(e)).
152.
Actual bodily harm
-
Every one is liable to imprisonment for a term not exceeding 2 years who
wilfully and without lawful justification causes actual
bodily harm to any
person.
Cf. 1915, No. 40, s. 192
153.
Omissions resulting in bodily harm
-
Every one is liable to imprisonment for a term not exceeding 2 years who by any
act or omission causes bodily harm to any person
under such circumstances that,
if death had been caused, he would have been guilty of manslaughter.
Cf. 1915, No. 40, s. 193
154.
Intentionally endangering persons on aerodromes,
etc.
-
Every one is liable to imprisonment for a term not exceeding 14 years who, with
intent to injure or endanger the safety of any person
on any aerodrome or in any
aircraft-
(a) Places an upon or across any aerodrome; or
(b) Does any act likely to interfere with, injure, endanger, or obstructs any aircraft; or
(c) Shoots or throws anything at any person in any aircraft or at, into, or upon, or causes anything to come in contact with, any aircraft; or
(d) Does anything whatever to any part of any aerodrome or to any machinery or signal belonging to or near to any aerodrome or to any aircraft on, or about to land on or take off from, any aerodrome; or
(e) Deals in any way with any signal or light m or near to any aerodrome, or makes or shows any false signal or light or makes any sign whatever m or near to any aerodrome; or
(f) Wilfully omits to do any act which it is his duty to do.
Cf. 1915, No. 40, s. 193A; 1957, No. 103, s. 89(1)
155.
Wantonly endangering persons on or near aerodromes,
etc.
-
Every one is liable to imprisonment for a term not exceeding 2 years who
unlawfully and wilfully, in a manner likely to injure or
endanger the safety of
any person on any aerodrome or in any aircraft,
-
(a) By any act, omission, or neglect endangers or obstructs any aircraft; or
(b) Does any act likely to interfere with or to cause injury to any aircraft; or
(c) Shoots or throws anything at any person in any aircraft or at, into, or upon, or causes anything to come in contact with, any aircraft; or
(d) Does anything whatever to any part of any aerodrome or to any machinery or signal belonging to or near to any aerodrome or to any aircraft on, or about to land on or take off from, any aerodrome; or
(e) Deals in any way with any signal or light on or near to any aerodrome, or makes or shows any false signal or light or makes any sign whatever on or near to any aerodrome; or
(f) By any culpable neglect of duty endangers the safety of any person conveyed in any aircraft.
Cf. 1915, No. 40, s. 193B; 1957, No. 103, s. 89(1)
156.
Indecent assault
-
Every one who indecently assaults any woman or girl is liable to imprisonment
for a term not exceeding 5 years.
Cf. 1915, No. 40, s. 194
157.
Assault
-
Every one who commits an assault on any person is liable to imprisonment for a
term not exceeding one
year.
157A.
Cruelty to a child
- Every one
is liable to imprisonment for a term not exceeding 5 years who, having the
custody, control, or charge of a child under
the age of 16 years, wilfully
illtreats or wilfully neglects the child, or wilfully permits the child to be
illtreated or neglected,
in a manner likely to cause the child unnecessary
suffering, actual bodily harm, injury to health, or mental disorder, or to incur
any other unnecessary physical or mental disability.]
This section was inserted by s. 21 of the Niue Amendment Act 1971. See s. 135(2)(b) of this Act.
158.
Resisting constable in execution of his duty
-
Every one is liable to for a term not exceeding 6 months or to a fine not
exceeding [$40] who resists or assaults or wilfully obstructs,
or incites or
encourages any person to resist or assault or obstruct, any constable in the
execution of his duty, or any person acting
in aid of any constable.
Cf. 1921, No. 14, s. 4
159.
Abduction of girl under 15
-
(1) Every one is liable to imprisonment for a term not exceeding 2 years who,
without the consent of the father or mother or other
person having lawful charge
of an unmarried girl under the age of 15 years, or without other lawful
authority (the proof whereof
shall lie on him), takes that girl or causes her to
be taken out of the possession of her father or mother or such other person as
aforesaid.
(2)
It shall be no defence in a prosecution for an offence against this section that
the girl was taken with her own consent, or at
her own suggestion, or that the
offender believed the girl to be of or over the age of 15
years.
(3)
No proceedings for an offence against this section shall be taken in the event
of the subsequent intermarriage of the offender
and the girl in respect of whom
the offence has been committed.
Cf. 1921, No. 14, s. 5
See s. 135(2)(c) of this Act
160.
Abduction of children
-
(1) Every one is liable to imprisonment for a term not exceeding 2 years who,
with intent to deprive any parent or guardian or other
person having the lawful
charge of any child under the age of 14 years of the possession of that child,
unlawfully-
(a) Takes or entices away or detains the child; or
(b) Receives the child knowing it to have been so dealt with.
(2)
Nothing in this section shall extend to any one who gets possession of any child
claiming in good faith a right to the possession
of the child.
Cf. 1915, No. 40, s. 214
161.
Sexual intercourse defined
-
For the purposes of this Part of this Act, sexual intercourse is complete upon
penetration; and there shall be no presumption of
law that any person is by
reason of his age incapable of such
intercourse.
162.
Rape
-
(1) Rape is the act of a male person having sexual intercourse with a woman or
girl-
(a) Without her consent; or
(b) With consent extorted by threats or fear of bodily harm; or
(c) With consent obtained by personating her husband; or
(d) With consent obtained by false and fraudulent representations as to the nature and quality of the act.
(2)
Every one who commits rape is liable to imprisonment for a term not exceeding 14
years.
(3)
Every one is liable to imprisonment for a term not exceeding 10 years who
attempts to commit rape or who assaults any person with
intent to commit
rape.
(4)
Notwithstanding anything in subsection (1) of this section, no man shall be
convicted of rape of attempting to rape or assaulting
with intent to commit rape
in respect of his wife, unless at the time of the intercourse or
attempt-
(a) There was in force in respect of the marriage a decree nisi of divorce or a decree of nullity granted in New Zealand, and the parties had not, since the making of the decree, resumed cohabitation as man and wife with the free consent of the wife; or
(b) There was in force in respect of the marriage a decree of judicial separation granted in New Zealand or a separation order granted in Niue or in New Zealand or in the Cook Islands.
Cf. 1915, No. 40, s. 196; 1962, No. 40, s. 4(d)
See s. 135(2) (d) of this Act
In its application to Tokelau, subs. (4)(b) was modified by the addition of the words "or in Tokelau” by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
163.
Sexual intercourse or indecency with girl under 12
- (1) Every
one is liable to imprisonment for a term not exceeding 10 years
who-
(a) Has sexual intercourse with any girl under the age of 12 years; or
(b) Attempts to have sexual intercourse with a girl under the age of 12 years; or
(c) Indecently assaults any girl under the age of 12 years; or
(d) Being a male, does any indecent act with or upon any girl under the age of 12 years; or
(e) Being a male, induces or permits any girl under the age of 12 years to do any indecent act with or upon him.
(2)
It is no defence to a charge under this section that the girl consented, or that
the person charged believed that she was of or
over the age of 12
years.
(3)
The girl shall not be charged as a party to an offence committed upon or with
her against this section.
Cf. 1915, No. 40, s. 197
164.
Sexual intercourse or indecency with girl between 12 and 15
- (1) Every
one is liable to imprisonment for a term not exceeding 3 years
who-
(a) Has or attempts to have sexual intercourse with any girl of or over the age of 12 years and under the age of 15 years, not being his wife; or
(b) Indecently assaults any such girl; or
(c) Being a male, does any indecent act with or upon any such girl; or
(d) Being a male, induces or permits any such girl to do any indecent act with or upon him.
(2)
It is no defence to a charge under this section that the girl consented, or that
the person charged believed that the girl was
of or over the age of 15
years.
(3)
The girl shall not be charged as a party to an offence committed upon or with
her against this section.
Cf. 1915, No. 40, s. 198
165.
Sexual intercourse with woman or girl who h an idiot or imbecile or of unsound
mind
-
Every one is liable to imprisonment for a term not exceeding 2 years who has or
attempts to have sexual intercourse with any woman
or girl who is an idiot or an
imbecile or of unsound mind, if he knows or has good reason, to believe that she
is an idiot or an
imbecile or of unsound mind.
Cf. 19 15, No.. 40, s. 199
166.
Procuring miscarriage of woman or girl
-
Every one is liable to imprisonment for a term not exceeding 2 years who, with
intent to procure the miscarriage of any woman or
girl, unlawfully administers
to or causes to be taken by her any poison or any drug or other noxious thing,
or unlawfully uses any
instrument or other means whatsoever with the like
intent.
Cf. 1915, No. 40, s. 202
167.
Act of woman or girl procuring her own miscarriage
-
Every woman or girl is liable to imprisonment for a term not exceeding one year
who, whether with child or not, unlawfully administers
to herself or permits to
be administered to her any poison or any drug or other noxious thing, or
unlawfully uses on herself or permits
to be used on her any instrument or other
means whatsoever, with intent to procure miscarriage
Cf. 1915, No. 40, s. 203
168.
Supplying means of miscarriage
-
Every one is liable to imprisonment for a term not exceeding 2 years who
unlawfully supplies or procures any poison or any drug or
other noxious thing,
or any instrument or thing whatsoever, knowing that it is intended to be
unlawfully used with intent to procure
the miscarriage of any woman or
girl.
Cf. 1915, No. 40, s. 204
169.
Bigamy
-
(1) Every one who commits bigamy is liable to imprisonment for a tern not
exceeding 5
years.
(2)
Bigamy
is-
(a) The act of a person who being married goes through a valid form of marriage with any other person; or
(b) The act of a person who goes through a valid form of marriage with any person whom he or she knows to be married.
(3)
The fact that the parties would, if unmarried, have been incompetent to contract
marriage is not a defence upon a prosecution
for
bigamy.
(4)
Every form marriage shall for the purposes of this section be deemed valid,
notwithstanding any act or default of the person charged
with bigamy, if it is
otherwise a valid form.
Cf. 1915, No. 40, s. 205
170.
Buggery
-
(1) Every one is liable to imprisonment for 10 years who commits buggery either
with a human being or with any other living
creature.
(2)
This offence is complete upon penetration.
Cf. 1915, No. 40, s. 206
171.
Attempted buggery and indecent assaults on males
-
(1) Every one is liable to imprisonment for 5 years
who-
(a) Attempts to commit buggery; or
(b) Assaults any person with intent to commit buggery; or
(c) Being a male, indecently assaults any other male person.
(2)
It is no defence to a charge of indecent assault on a male person of any age
that he consented to the act of indecency.
Cf. 1915, No. 40, s. 207
172.
Incest
-
Incest means sexual intercourse
between-
(a) Parent and child; or
(b) Brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or
(c) Grandparent and grandchild, whether the relationship is traced through lawful wedlock or not,
where
the person charged knows of the relationship between the
parties.
(2)
Every one of or over the age of 15 years who commits incest is liable to
imprisonment for a term not exceeding 7 years.
Cf. 1915, No. 40, s. 208; 1963, No. 132, s. 4
173.
Indecent acts
-
(1) Every one is liable to imprisonment for a term not exceeding 6 months who
wilfully does any indecent act in any public place
or within the view of any
person being in any public
place.
(2)
It is a defence to a charge under subsection (1) of this section if the person
charged proves that he had reasonable grounds for
believing that he would not be
observed.
(3)
Every one is liable to imprisonment for a term not exceeding 6 months who with
intent to insult or offend any person does any
indecent act in any
place.
Cf. 1915, No. 40, s. 209
174.
Indecent documents
-
Every one is liable to imprisonment for a term not exceeding 6 months who,
knowingly and without lawful justification or
excuse,-
(a) Sells, exposes for sale, or otherwise distributes to the public any obscene or indecent book, picture, photograph, document, film, video-tape or other object tending to corrupt morals; or
(b) Publicly exhibits any obscene or indecent show tending to corrupt morals. [Amended 5/91/1984]
Cf. 1915, No. 40, s. 210
175.
Brothels
-
(1) Every one who keeps a brothel is liable to imprisonment for a term not
exceeding 6
months.
(2)
A brothel is a house, room, or place of any kind whatever kept or used for
purposes of
prostitution.
(3)
Any one who acts as a person having the management, care, or control of a
brothel shall be deemed to be a keeper thereof, whether
he is in fact a keeper
thereof or
not.
(4)
The owner or occupier of any house, room, or place who knowingly to be used as a
brothel shall be deemed to be a keeper thereof,
whether he is in fact a keeper
thereof or not.
Cf. 1915, No. 40, s. 211
176.
Gaming houses
-
(1) Every one who keeps a gaming house is liable to imprisonment for a term not
exceeding 6
months.
(2)
A, gaming house is a house, room, or, place of any kind whatever kept or used as
a place of resort for
gambling.
(3)
"Gambling" means playing for money or other valuable thing at any game of
chance, or playing for excessive stakes or otherwise
to the injury of public
morals at any game of mixed chance and skill; and includes any form of unlawful
gaming.
(4)
Any one who acts as a person having the management, care, or control of a gaming
house shall be deemed to be a keeper thereof,
whether he is in fact a keeper
thereof or
not.
(5)
The owner or occupier of any house, room, or place who knowingly permits it to
be used as a gaming house shall be deemed to be
a keeper thereof, whether he is
in fact a keeper thereof or not.
Cf. 1915, No. 40, s. 212
176A.
Powers of Cabinet to permit certain gambling activities
-
Notwithstanding section 176 of the principal Act, Cabinet may by order permit
certain gambling activities to be carried out in Niue,
within certain guidelines
as Cabinet may make in such Order.
[Added 2/134/1989]
177.
Riot
-
(1) Every one who takes part in a riot is liable to imprisonment for a term not
exceeding 2
years.
(2)
A riot is an assembly of 3 or more persons who, with intent to carry out any
common purpose, disturb the peace tumultuously.
Cf. 1915, No. 40, S. 215
178.
Forcible entry
-
Every one is liable to imprisonment for a term not exceeding 6 months who, by
force or threats of force, enters on land then in the
actual and peaceable
possession of another for the purpose of taking posses ion thereof, whether he
who so enters is entitled to
the possession thereof or not.
Cf. 1915, No. 40, s. 216
179.
Affrays
-
(1) Every one who, without lawful justification or excuse, takes part in an
affray is liable to imprisonment for a term not exceeding
one
year.
(2)
An affray is the act of fighting in a public highway or in any other public
place.
180.
Official corruption
-
Every one commits the offence of official corruption and is liable to
imprisonment for a term not exceeding 5 years
who-
(a) Being the holder of any office, whether judicial or otherwise, in the service of Her Majesty, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person any bribe-that is to say, any money or valuable consideration whatever on account of anything done or omitted or to be afterwards done or omitted by him in his official capacity; or
(b) Corruptly gives or offers to any person holding any office or to any other person any such bribe as aforesaid m account of any such act or omission;
Cf. 1915, No. 40, s. 218
(c) Whether within Niue or elsewhere, corruptly uses any information acquired by him it his official capacity, to obtain directly or indirectly, an advantage or a pecuniary gain for himself or any other person.
[Amended 4/91/1984]
181.
Perjury
-
(1) Perjury is an assertion as to a matter of fact, opinion, belief, or
knowledge made by a witness in a judicial proceeding as part
of his evidence
upon oath or affirmation, whether his evidence is given in open Court or by
affidavit or otherwise, that assertion
being known to the witness to be
false.
(2)
Every proceeding is judicial within the meaning of this section which is held
before any Court, or before any judicial officer
or other person having power to
take evidence m oath or
affirmation.
(3)
Every one is liable to imprisonment for a term not exceeding 5 years who commits
perjury.
Cf. 1915, No. 40, s. 219
182.
Fabricating evidence
-
Every one is liable to imprisonment for a term not exceeding 3 years who, with
intent to mislead any Court of justice or any judicial
officer in the exercise
of his functions as such, fabricates evidence by any means other than
perjury
Cf. 1915, No. 40, s. 220
183.
Conspiracy to pervert justice
-
Every one is liable to imprisonment for a term not exceeding 3 years who
conspires or attempts to obstruct, prevent, pervert, or
defeat the course of
justice in any cause or matter, civil or criminal.
Cf. 1915, No. 40, s. 221
184.
Breaking prison
-
Every one is liable to imprisonment for a term not exceeding 5 years who by
force breaks any prison with intent to set at liberty
himself or any other
person confined therein.
Cf. 1915, No. 40, s. 222 See s. 135(2)(e) of this Act.
185.
Escape
-
Every one is liable to imprisonment for a term, not exceeding 2 years who, being
in lawful custody, whether in a prison or elsewhere,
escapes
therefrom
Cf. 1915, No. 40, s. 223
See s. 135(2)(e) of this Act.
186.
Rescue
-
Every one is liable to imprisonment for a term not exceeding 2 years who rescues
any person from lawful custody, whether in a prison
or elsewhere, or who assists
any person to escape from such custody.
Cf. 1915, No. 40, s. 224
See s. 135(2)(e) of this Act.
187.
Criminal libel or slander
-
(1) A criminal libel is matter published, without lawful justification or
excuse, either designed to insult any person or likely
to injure his reputation
him to, hatred, contempt, or ridicule or likely to injure in his profession,
office, business, trade, or
occupation, whether such matter is expressed by
words, or printed, or legibly marked on any substance, or by any object
signifying
such matter otherwise than by words, and whether expressed directly
or by insinuation or
irony.
(2)
Publishing a criminal libel
is-
(a) Exhibiting it in public; or
(b) Causing it to be read or seen, or showing or delivering it, or causing it to be shown or, delivered, with a view to its being read or seen, by any person other than the person defamed.
(3)
Every one is guilty of criminal slander who, without lawful justification or
excuse, uses any words that are likely to injure
the reputation of any other
person by exposing him to hatred, contempt, or ridicule, or likely to injure him
in his profession, office,
business, trade, or occupation, if the words
are-
(a) Spoken, or reproduced from a recording, within the hearing of more than 12 persons at a meeting to which the public are invited or have access, or within the hearing of more than 12 persons in any place to which the public have or are permitted to have access; or
(b) Broadcast by means of radio.
(4)
Every one who publishes a criminal libel or is guilty of criminal slander is
liable to imprisonment for a term not exceeding 6
months.
(5)
In a prosecution under this section the burden of proof shall be determined by
the same rules as in an action for damages for
defamation.
(6)
In a prosecution under this section it shall be no defence that the libel or
slander is true unless the publication thereof was
for the public
benefit.
Cf. 1915, No. 40, s. 225
188.
Definition of theft
-
(1) Theft
or stealing is the act of fraudulently or dishonestly taking, or converting to
the use of any person, or misappropriating
or disposing of, or dealing in any
other manner with, anything capable of being stolen, with intent to defraud or
injure any person
having any property or interest in that
thing.
(2)
Every animate or inanimate thing whatever which is the property of any person,
and is movable, is capable of being
stolen.
(3)
Every thing whatever which is the property of any person and is capable of being
made movable is capable of being stolen as soon
as it becomes movable, although
it is made movable in order to steal it.
Cf. 1915, No. 40, s. 227
189.
Ineffectual defences to charge of theft
-
Without in any way limiting the generality of the foregoing definition of theft,
a person shall be deemed guilty of theft notwithstanding
the
fact-
(a) That at the time of the theft he was in lawful possession of the property stolen; or
(b) That he had himself a lawful interest in the property stolen whether as a partner, co-owner, bailee, bailor, mortgagee, mortgagor, or otherwise howsoever; or
(c) That he was a trustee of the property stolen; or
(d) That the property stolen was vested in him as an executor or administrator.
Cf. 1915. No. 40, s. 228
190.
Extended definition of theft
-
Without in any way limiting the generality of the foregoing definition of theft,
every person shall be deemed guilty of theft who
holds, receives, or obtain any
money, valuable security, or other thing whatsoever capable of being stolen,
subject to any obligation
(whether arising from an express or implied trust, or
from an express or implied contract, or from any other source whatsoever) to
deal with the money, valuable security, or thing in any manner, and who
fraudulently or dishonestly deals with it in any other manner
or fails to deal
with it in accordance with that obligation.
Cf. 1915, No. 40, s. 229
191.
Obtaining money or goods by false pretences to be deemed theft
-
Every one who by means of any fraud or false pretence dishonestly obtains for
himself or for any other person (whether directly or
through the medium of any
contract procured by the fraud or false pretence) anything capable of being
stolen is guilty of stealing
the thing so obtained, and shall be liable
accordingly.
Cf. 1915, No. 40, s. 230
192.
Punishment of theft
-
(1) Every one who commits theft is
liable-
(a) To imprisonment for a term not exceeding 3 months if the value of the property stolen does not exceed [$4];
(b) To imprisonment for a term not exceeding one year if the value of the property stolen exceeds [$4] but does not exceed [$100];
(c) To imprisonment for a term not exceeding 5 years if the value of the property stolen exceeds [$100].
(2)
In computing for the purposes of this section the value of the property stolen,
where several thefts are charged in the same information
against the same
person, the aggregate value of all such property shall be computed, and the
sentence shall be determined accordingly,
and cumulative sentences in respect of
the several thefts so charged shall not be
imposed.
(3)
For the purposes of this section a valuable security shall be deemed to be of
the same value as the property to which it relates.
Cf. 1915, No. 40, s. 226(1)-(3)
193.
Stealing documents
-
(1) Every one who destroys, cancels, conceals, or obliterates in whole or in
part any document for any fraudulent or dishonest purpose
is guilty of having
stolen that document, and is liable to imprisonment for a term not exceeding 3
years.
(2)
Every one who in this or any other manner steals a testamentary instrument is
liable to imprisonment for a term not exceeding
10
years.
194.
Receiving stolen goods
-
Every one who receives any stolen property knowing it to have been stolen is
guilty of having stolen the property; and is liable
accordingly.
195.
Robbery
-
(1) Robbery is theft accompanied by violence or threats of violence to any
person or property, used to extort the property stolen
or to prevent or overcome
resistance to its being
stolen.
(2)
Every one who commits robbery is liable to imprisonment for a term not exceeding
10
years.
(3)
Every one who assaults any person with intent to rob him is liable to
imprisonment for a term not exceeding 5 years.
Cf. 1915, No. 40, s. 233
See s. 135(2)(f) of this Act
196.
Conversion or attempted conversion of motorcars,
etc.
-
(1) Every one is liable to imprisonment for a term not exceeding 5 years who,
unlawfully and without colour of right, but not so
as to be guilty of theft,
takes or converts to his use or to the use of any other person any of the
following things, namely:
(a) Any motorcar, or any vehicle of any description;
(b) Any ship;
(c) Any aircraft;
(d) Any part of any motorcar, vehicle, ship, or aircraft;
(e) Any horse, mare, or gelding.
(2)
Every one is liable to imprisonment for a term not exceeding one year
who-
(a) Has in his possession by night any instrument, being an instrument capable of being used for taking or converting any of the things mentioned in paragraphs (a) to (d) of subsection (1) of this section, in circumstances that, prima facie, show an intention to use it for the taking or converting of any such thing as aforesaid;
(b) Has in his possession by day any such instrument as aforesaid with intent to take or convert any such thing as aforesaid.
(3)
It is a defence to a charge under paragraph (a) of subsection (2) of this
section if the person charged proves that he had lawful
excuse for having the
instrument in his
possession.
197.
Breach of trust
-
(1) Every trustee who with intent to defraud, and in violation of his trust,
converts anything of which he is a trustee to any use
not authorised by the
trust is guilty of criminal breach of trust, and is liable to imprisonment for a
term not exceeding 5
years.
(2)
For the purposes of this section an executor or administrator shall be deemed to
be a trustee of the property subject to his
administration.
(3)
Nothing in this section shall be so construed as in any manner to limit the
foregoing definition of the offence of theft, and
if any act of a trustee is
both theft and a criminal breach of trust he may be convicted of either of those
offences.
Cf. 1915, No. 40, s. 234
198.
Menaces
-
Every one is liable to imprisonment for a term not exceeding 2 years who with
menaces demands from any person, either for himself
or for any other person,
anything capable of being stolen, with intent to steal
it.
199.
Witchcraft
-
Every one is liable to imprisonment for a term not exceeding 6 months who
pretends to exercise or use any kind of witchcraft, sorcery,
enchantment, or
conjuration, or undertakes to tell fortunes.
Cf. 1915, No. 40, s. 236
200.
Obtaining credit by fraud
-
Even one is liable to imprisonment for a term not exceeding 6 months who in any
debt or liability obtains credit by means of any
fraud.
Cf. 1915, No. 40, s. 237
201.
Accusation of criminal offences
-
Every one is liable to imprisonment for a term not exceeding 5 years
who,-
(a) With intent to extort or gain anything from any person, accuses or threatens to accuse either that person or any other person of any criminal offence, whether the person accused or threatened with accusation is guilty of that offence or not; or
(b) With such intent as aforesaid, threatens that any person shall be so accused by any person; or
(c) Causes any person to receive a document containing any such accusation or threat, knowing the contents thereof.
Cf. 1915, No. 40, s. 238
202.
Conspiracy to defraud
-
Every one is liable to imprisonment for a term not exceeding 3 years who
conspires with any other person by deceit or falsehood or
other fraudulent means
to defraud the public or any person ascertained or unascertained.
Cf. 1915, No. 40, s. 239
203.
Obtaining execution of valuable securities by fraud
-
Every one is liable to imprisonment for a term not exceeding 3 years who by any
false pretence causes or induces any person to execute,
make, accept, endorse,
or destroy the whole or any part of any valuable security.
Cf. 1915, No. 40, s. 240
204.
Burglary
-
(1) Every one is guilty of burglary and is liable to imprisonment for a term not
exceeding 5 years who by day or
night-
(a) Breaks and enters any building or ship with intent to commit a crime therein; or
(b) Breaks out of any building or ship either after committing a crime therein or after having entered with intent to commit a crime therein.
(2)
For the purposes of this
section-
"To break", in relation to any building or ship, means to break any part, internal or external, of the building or ship, or to open by any means whatsoever any door, window, or other thing intended to cover openings to the building or ship or to give passage from one part of it to another;
"Building" means any building, erection, or structure of any description, whether permanent or temporary; and includes a tent or a caravan; and also includes any enclosed yard or any closed cave or tunnel.
205.
Unlawful entry of dwellinghouse,
etc.
-
(1) Every one is liable to imprisonment for a term not exceeding 5 years who
unlawfully enters or is in any dwellinghouse by night
with intent to commit a
criminal offence therein, or who is found by night in any dwellinghouse without
lawful justification for
his presence
there.
(2)
Every one is liable to for a term not exceeding 3 months or to a fine not
exceeding [$20] who without lawful excuse (the proof
of which excuse shall be on
him), but in circumstances that do not disclose the commission of or an
intention to commit any other
offence is found at any time in any dwellinghouse,
or in any enclosed yard, garden, or area or in or on board any vessel of any
kind
or any
aircraft.
(3)
For the purpose of this
section-
"Dwellinghouse" means-
(a) Any building, hut, tent, caravan, or other structure or erection, whether permanent or temporary, which is used or intended to be used in whole or in part for human habitation or occupation; or
(b) Any building, public or private, which is used or intended to be used in whole or in part for the purpose of education or the reception or lodging of any person for medical treatment or recuperation or entertainment or any other purpose;
"Night" means the time commencing on the expiration of the first half hour after sunset and concluding at the beginning of the last hour before sunrise.
Cf. 1915, No. 40, s. 241A; 1957, No. 103, s. 90(1)
[205A.
Unlawfully entering premises for a criminal purpose
-
Every one is liable to imprisonment for a term not exceeding 4 years who
unlawfully enters or is in any building, ship, or aircraft
with intent to commit
therein any criminal offence mentioned in this Part of this Act.]
This section was inserted by s. 22 of the Niue Amendment Act 1971.
206.
Threats to kill or do bodily harm
-
Every one is liable to imprisonment for a tern not exceeding 5 years who sends
or causes to be received, knowing the contents thereof,
any letter or writing
containing threats to kill or do bodily harm to any person, or who orally makes
a threat to kill or do bodily
harm to any person.
Cf. 1915, No. 40, s. 241B; 1948, No. 25, s. 2
207.
Forgery
-
(1) Forgery is the making of a false document with intent to defraud or deceive
any person, whether ascertained or
unascertained.
(2)
Every one who commits forgery is liable to imprisonment for a term not exceeding
5
years.
(3)
In this section the term "false document" means a
document-
(a) Of which the whole or any material part purports to be made by any Person who did not make it or authorise its making; or
(b) Of which the whole or any material part purports to be made on behalf of any person who did not
authorise its making; or
(c) In which, though it purports to be made by the person who did in fact make it or authorise its making, or purports to be made on behalf of the person who did in fact authorise its making, the time or place of its making, where either is material, or any number or distinguishing mark identifying the document, where either is material, is falsely stated; or
(d) Of which the whole or some material part purports to be made by a fictitious or deceased person or purports to be made on behalf of any such person; or
(e) Which is made in the name of an existing person either by him or by his authority, with the intention that it should pass as being made by some person, real or fictitious, other than the person who makes or authorises it.
(4)
For the purposes of this section, the expression "making a false document"
includes making any material alteration in a genuine
document, whether by
addition, insertion, obliteration, erasure, removal, or
otherwise.
(5)
Forgery is complete as soon as the document is made with such knowledge and
intent as aforesaid, although the offender may not
have intended that any
particular person should use or act upon it as genuine, or should be induced by
the belief that it is genuine
to do or refrain from doing
anything.
(6)
Forgery is complete although the false document may be incomplete, or may not
purport to be such a document as would be valid
in law, if it be so made and is
such as to indicate that it was intended to be acted on as genuine.
Cf. 1915, No. 40, s. 242
208.
Extended definition of forgery
-
Every one who procures the execution of any document by any person by falsely
pretending that its contents are different from what
they really are is guilty
of forging that document, and is liable accordingly.
Cf. 1915, No. 40, s. 243
209.
Making counterfeit coin
-
Every one is liable to imprisonment for a term not exceeding 7 years who makes
or begins to make counterfeit coin of New Zealand
or of any other country, or
who has in his possession any dies or other instruments or materials intended to
be used in the making
of such counterfeit coin.
Cf. 1915, No. 40, s. 244
210.
Lightening coin
-
Every one is liable to imprisonment for a term not exceeding 2 years who
diminishes or lightens any coin, whether of New Zealand
or of any other country,
with intent that when so dealt with it shall pass as current coin either in Niue
or New Zealand or elsewhere.
Cf. 1915, No. 40, s. 245
211.
Uttering counterfeit coin
-
Every one who fraudulently utters any counterfeit coin is liable to imprisonment
for a term not exceeding 6 months
Cf. 1915, No. 40, s. 246
212.
Arson
-
(1) Arson is the offence of wilfully, and without lawful justification and
without bone file claim of right, setting fire to any
building ship, crop,
chattel, or other thing whatsoever, whether attached to the soil or
not.
(2)
Where the act, done results in the destruction of or any damage to anything in
which the, person accused has an interest, whether
total or partial, the
existence of that interest shall not prevent his act being an offence if it is
done with intent to defraud
or to cause loss to any other person. For the
purposes of this subsection, where any property is subject to any mortgage or
charge,
each of the parties to the mortgage or charge shall be deemed to have a
partial interest in that
property.
(3)
Every one who commits the offence of arson is liable to imprisonment for a term
not exceeding 5 years.
Cf. 1915, No. 40, s. 247
See s. 135(2)(h) of this Act
213.
Wilful mischief to property
-
(1) Every one is guilty of an offence who wilfully and without lawful
justification and without bona fide claim of right destroys
or damages any
property, whether movable or
immovable.
(2)
Where the act done results in the destruction of or any damage to anything in
which the person accused has an interest, whether
total or partial, the
existence of that interest shall not prevent his act being an offence if it is
done with intent to defraud
or to cause loss to any other person. For the
purposes of this subsection, where any property is subject to any mortgage or
charge,
each of the parties to the mortgage or charge shall be deemed to have a
partial interest in that
property.
(3)
Every person who commits an offence against this section is liable to
imprisonment for a term not exceeding 3 years
if
the
damage done or intended to be done by him amounts to [$20] or more, and to
imprisonment for a term not exceeding 6 months in any
other case.
Cf. 1915, No. 40, s. 248
214.
Provoking breach of the peace
-
Every one is liable to a fine not exceeding [$101 who uses any threatening,
abusive, or insulting words or behaviour in any public
place with intent to
provoke a breach of the peace or whereby a breach of the peace may be
occasioned.
Cf. 1915, No. 40, s. 249
As to arrest without warrant under this section. see s. 250(2)(d) of this Act.
215.
Profane, indecent, or obscene language
-
Every one is liable to imprisonment for a term not exceeding 3 months or to a
fine not exceeding [$40] who uses any profane, indecent,
or obscene language in
any public place or within the hearing of any person in a public
place.
Cf. 1921, No. 14, s. 6
216.
Disorderly conduct in public places
-
Every one is liable to a fine not exceeding [$10] who is guilty of any
disorderly conduct in any public place to the annoyance of
persons there
present.
Cf. 1915, No. 40, s. 250
As to arrest without warrant under this section 250 (2)(d) of this Act
217.
Obstructing public place
-
Every one is liable to a fine not exceeding [$10] who without lawful
justification obstructs any public place, or creates any source
of danger
therein, or otherwise commits any public nuisance therein.
Cf. 1915, No. 40, s. 253
218.
Drunkenness
-
Every one is liable to imprisonment for a term not exceeding one month or to a
fine not exceeding [$20] who is found drunk in any
public place.
Cf. 1915, No. 40, s. 254
219.
Animal trespass
-
Every one is liable to a fine not exceeding [$10] who permits any horse, sheep,
pig, goat, or cattle to wander or be at large in
any public place or to trespass
upon any land.
Cf. 1915, No. 40, s. 252
220.
Prostitution
-
Any prostitute is liable to imprisonment for a term not exceeding one month or
to a fine not exceeding [$10] who loiters and importunes
any person in any
public place for the purpose of prostitution.
Cf. 1915, No. 40, s. 255
221.
Laying poison
-
Every one is liable to a fine not exceeding [$10] who without lawful
justification places any poison in any place so as to be a source
of danger to
human beings or to animals.
Cf. 1915, No. 40, s. 256
222.
Polluting water
-
Every one is liable to imprisonment for a term not exceeding 6 months or to a
fine not exceeding [$100] who throws any offensive
matter into or otherwise
pollutes any watercourse, well, cistern, or other place from which the supply of
water for the use of the
inhabitants is obtained.
Cf. 1915, No. 40, s. 257
223.
Sale of unwholesome provisions
-
Every one is liable to imprisonment for a term not exceeding one month or to a
fine not exceeding [$40] who sells, or exposes for
sale, or has in his
possession with intent to sell, any food or drink which he knows, or might by
the exercise of reasonable care
have known, to be unwholesome.
Cf. 1915, No. 40, s. 258
224.
Insanitary premises
-
Every one is liable to a fine not exceeding [$20] who permits any premises in
his occupation or belonging to him to be in an insanitary
or offensive condition
to the danger or annoyance of the public or of his neighbours.
Cf. 1915, No. 40, s. 259
225.
Wilful trespass
-
Every one is liable to a fine not exceeding [$10] who wilfully trespasses on
land in the occupation of any other
person.
226.
Cruelty to animals
-
Every one is liable to imprisonment for a term not exceeding one month or to a
fine not exceeding [$20] who cruelly beats overdrives,
overloads, abuses,
tortures, or otherwise ill treats any animal or who, being the owner or having
the charge of any animal, omits
to supply it. with proper and sufficient food,
water, or
shelter.
(2)
In this section the term "animal" means any beast or bird of any species
whatever.
227.
Falsely trading as an incorporated company
-
(1) Every one is liable to a fine not exceeding [$200] who uses in connection
with his trade or business any name, sign, device,
or other representation
indicating or calculated to lead other persons to believe contrary to the fact
that the trade or business
is that of an incorporated
company.
(2)
In any prosecution for an offence against this section the burden of proving
that the incorporated company exists and that the
trade or business so carried m
is the trade or business of that company shall be upon the accused.
Cf. 1915, No. 40, s. 262
228.
Conspiracy
-
Every one who conspires with any other person to commit any offence punishable
by imprisonment is liable to imprisonment for a term
not exceeding half the
longest term to which a person committing the said offence may be
sentenced.
Wrongful communication, retention or copying of official information
228A
Every
one is liable to imprisonment for a term not exceeding 3 years who
-
(a) Knowingly or recklessly, and with knowledge that he is acting without proper authority, communicates any official information to any other person, or uses directly or indirectly any official information for any purpose whatsoever where such disclosure or use is contrary to the interests of Niue;
(b) Knowingly or recklessly, and with knowledge that he is acting without proper authority, retains or copies official Information, or permits any other person to retain or copy such official information;
(c) Knowingly fails to comply with any directions issued by a lawful authority for the return of any official information, including copies thereof, which is in his possession or under his control.
(2)
In this section the term "official information" means any information held by
-
(i) A Department or agency of government;
(ii) Minister of the Crown in his official capacity; or
(iii). An officer or employee of any department or agency of government in his capacity as such an of officer or employee or in his capacity as a statutory officer; or
(iv) An independent contractor engaged by any department or Minister of the Crown or agency of government in his capacity as such contractor;
(v) Any committee or advisory body established for the purpose of assisting or advising or performing functions connected with any department or Minister of the Crown or agency of government.
[Added 3/97/1984]
Attempts
229.
Attempts to commit offences
-
(1) Every one who, having an intent to commit an offence, does or omits an act
for the purpose of accomplishing his object, is guilty
of an attempt to commit
the offence intended, whether in the circumstances it was possible to commit the
offence or
not.
(2)
The question whether an act done or omitted with intent to commit an offence is
or is not only preparation for the commission
of that offence, and too remote to
constitute an attempt to commit it, is a question of
law.
(3)
An act done or omitted with intent to commit an offence may constitute an
attempt if it is immediately or proximately connected
with the intended offence,
whether or not there was any act unequivocally showing the intent to commit that
offence.
(4)
Everyone who attempts to commit an offence in respect of which no punishment is
expressly prescribed by this or any other Act
[of the New Zealand Parliament
that extends to Niue], or by any [Act of the Niue Assembly], regulation, bylaw,
or other enactment
is liable to not more than half the maximum punishment to
which he would be liable if he had committed that offence.
Cf. 1915, No. 40, s. 264; 1963, No. 132, s. 6(1)
In subs. (4) the words in the first act of square brackets were inserted by s. 2(1) of the Niue Amendment Act 1974, and the reference to any Act of the Niue Assembly was substituted for a reference to any Ordinance by s 2(2)(e) of that Act.
230.
Attempt proved when offence is charged
-
Where the commission of the offence charged is not proved, but the evidence
establishes an attempt to commit the offence, the accused
may be convicted of
the attempt.
Cf. 1915, No. 40, s. 264A; 1963, No. 132, s. 6(1)
231.
Offence proved when attempt is charged
-
(1) Where an attempt to commit an offence is charged, but the evidence
establishes the commission of the full offence, the accused
may be convicted of
the
attempt.
(2)
After a conviction for that attempt, the accused shall not be liable to be tried
again for the offence which he was charged with
attempting to commit.
Cf. 1915, No. 40, s. 264B; 1963, No. 132, s. 6(1)
Parties to Offences
232.
Inciting
-
(1) Every
person who incites any person, whether ascertained or unascertained, to commit
any offence punishable by imprisonment shall
be liable to imprisonment for a
term not exceeding half the longest term to which a person committing the said
offence may be sentenced
or, where that offence is punishable by imprisonment
for life, to imprisonment for a term not exceeding 14
years.
(2)
If the offence to which any person is so incited is actually committed by him,
the person so inciting him shall be liable, on
a charge of inciting, to the same
punishment as if he had himself committed the offence, or he may be charged and
convicted as a
party to the offence so procured by him.
Cf. 1915, No. 40, s. 265
233.
Parties to offences
-
Every one is a party to and guilty of an offence
who-
(a) Actually commits the offence; or
(b) Does or omits any act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Counsels or procures any person to commit the offence.
Cf. 1915, No. 40, s. 266
234.
Common criminal purpose
-
If several persons form a common intention to prosecute any unlawful purpose and
to assist each other therein, each of them is a
party to every offence committed
by any one of them in the prosecution of that common purpose, the commission of
which offence was
known to be a probable consequence of the prosecution of that
common purpose.
Cf. 1915, No. 40, s. 267
235.
Counselling or procuring
-
(1) Every one who counsels or procures another to be a party to an offence of
which that other is afterwards guilty is a party to
that offence, although it
may be committed in a way different from that which was
counselled.
(2)
Every one who counsels or procures another to be a party to an offence is a
party to every offence which that other commits in
consequence of that
counselling or procuring, and which the person counselling or procuring knew to
be likely to be committed in
consequence of the counselling or
procuring.
236.
Accessory after the fact
-
(1) An accessory after the fact to an offence is one who, knowing any person to
have been a party to the offence, receives, comforts,
or assists that person or
tampers with or actively suppresses any evidence against him, in order to enable
him to escape after arrest
or to avoid arrest or
conviction.
(2)
No married person whose spouse has been a party to an offence shall become an
accessory after the fact to that offence by doing
any act to which this section
applies in order to enable the spouse, or the spouse and any other person who
has been a party to the
offence, to escape after arrest or to avoid arrest or
conviction.
Cf. 1915, No. 40, s. 268A; 1962, No. 40, s. 6
237.
Punishment of accessories
-
Every one who is accessory after the fact to any offence punishable by
imprisonment, being an offence in respect of which no express
provision is made
by this Act or by some other enactment for the punishment of an accessory after
the fact, is liable to imprisonment
for a term not exceeding 7 years if the
punishment for that offence is imprisonment for life, and not exceeding 5 years
if that punishment
is imprisonment for 10 or more years; and in any other case
is liable to not more than half the punishment to which he would have
been
liable if he had committed the offence.
Cf. 1915, No. 40, s. 268B; 1962, No. 40, s. 6
[Infancy
[237A.
Children under
10-
(1) No person shall be convicted of an offence by reason of any act done or
omitted by him when under the age of 10
years.
(2)
The fact that by virtue of this section any person has not been or is not liable
to be convicted of an offence shall not affect
the question whether any other
person who is alleged to be a party to that offence is guilty of that
offence.
[237B.
Children between 10 and 14
-
(1) No person shall be convicted of an offence by reason of any act done or
omitted by him when of the age of 10 but under the age
of 14 years, unless he
knew either that the act or omission was wrong or that it was contrary to
law.
(2)
The fact that by virtue of this section any person has not been or is not liable
to be convicted of an offence shall not affect
the question whether any other
person who is alleged to be a party to that offence is guilty of that
offence.]
Ss. 237A and 237B were inserted by s. 7 of the Niue Amendment Act 1970.
Defences
238.
Common law defences
-
All rules and principles of the common law which render any circumstance a
justification or excuse for any act or omission, or a
defence to any charge,
shall remain in force with respect to all offences constituted by this or any
other enactment, except so far
as inconsistent with this or any other
enactment.
Cf. 1915, No. 40, s. 269
239.
Common law offences
-
No person shall be proceeded against for any criminal offence at common
law.
Cf. 1915 No. 40, s.270
Sentences
240.
Power to fine instead of or in addition to imprisonment
-
Except where otherwise expressly provided, everyone liable to imprisonment for
any term for an offence may be sentenced to pay a
fine not exceeding [$200] in
addition to or instead of imprisonment.
Cf. 1915, No. 40, s. 272
241.
Enforcement of fines
-
(1) Every fine imposed upon any person by the High Court shall constitute a
judgment debt due by that person to the Crown, and payment
thereof shall be
enforceable and recoverable accordingly by writ of sale or any other civil
process of execution in the same manner
in all respects as if the debt had been
recovered in civil proceedings at the suit of the
Crown.
(2)
Any person upon whom any such fine has been imposed may, by warrant under the
seal of the High Court, be committed to prison by
a Judge of that Court for a
period not exceeding 6 months, but shall be entitled to be discharged from
imprisonment on payment of
the
fine.
(3)
When any person has been so committed to prison, no proceedings or further
proceedings shall thereafter be taken for the enforcement
of the fine by way of
civil process under this section.
Cf. 1915, No. 40, s. 273
242.
Imprisonment in Niue
-
Save so far as herein otherwise provided, every sentence of imprisonment shall
be carried into effect in some prison in Niue and
subject to the provisions of
any [Act of the Niue Assembly].
Cf. 1915, No. 40, s. 274; 1963, No. 132, s. 7
The reference to any Act of the Niue Assembly was substituted for a reference to any Ordinance by s. 2 (2) (e) of the Niue Amendment Act 1974.
In its application to Tokelau, this section was modified by substituting the word "enactment" for the words "Act of the Niue Assembly" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
243.
Transfer of convicted persons to New Zealand
-
(1) Every person sentenced to imprisonment, or committed to prison, for 6 months
or more [including an offender who has been recalled
under section 244A of this
Act] may, by warrant [of the Cabinet] and the Seal of Niue, be transferred to
some prison in New Zealand
named or described in the
warrant.
(2)
On the issue of any such warrant, the person named therein shall thereupon be
taken in custody from Niue to New Zealand, and there
forthwith delivered to the
Superintendent of the prison named or described in the
warrant.
(3)
The warrant shall be delivered to the said Superintendent together with a
certificate under the hand of a judge of the High Court
and the seal of that
Court setting forth the fact of the conviction or commitment of the person named
in the warrant, the offence
of which he was convicted or the reason of the
commitment, and the term for which he has been so sentenced or
committed.
(4)
Where any person brought to New Zealand under the provisions of this section is
imprisoned in New Zealand under any of the foregoing
provisions of this
section,-
(a) The period during which he has been in custody since the sentence was imposed in Niue until his delivery to the Superintendent in New Zealand shall for all purposes be computed as part of the term of his imprisonment:
(b) Subject to the provisions of section 244 of this Act, he shall, be imprisoned in New Zealand in the same manner in all respects and shall be subject in all respects, to the same laws, as far as applicable, as if he had been sentenced by the Supreme Court of New Zealand to imprisonment for the like offence, or committed to prison by that Court on the like grounds.
Cf. 1915, No. 40, s. 275; 1962, No. 40, s. 7(2); 1964, No. 70, s. 57(1); 1965, No. 1, s. 3(3)
In subs. (1) the words in the first set of square brackets were inserted by s. 3(2) of the Niue Amendment Act 1968, and the words "of the Cabinet" were substituted for the words "under the hand of the Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
In its application to Tokelau, subs. (1) was modified by substituting the words "under the hand of the Administrator of Tokelau" for the words "of the Cabinet and the Seal of Niue" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
244.
Release of prisoners transferred to New Zealand
-
(1) Where any person (in this section referred to as the offender) brought to
New Zealand under the provisions of section 243 of
this Act is imprisoned in New
Zealand under the provisions of that
section,-
(a) The Minister of Justice, with the concurrence of [the Minister of Foreign Affairs],-
(i) May at any time, by warrant signed by him, grant to the offender, not being an offender serving a sentence of life imprisonment, remission of any part of his sentence, not exceeding one-fourth of the term thereof, on the ground of his good conduct and industry; and
(ii) May, where he considers that the conduct of the offender has been exemplary during his sentence, or that the offender has during his sentence performed some outstanding act of service, grant to the offender, not being an offender serving a sentence of life imprisonment, in addition to any remission which may be granted to him under subparagraph (i) of this paragraph, a special remission of part of his sentence, not exceeding one-twelfth of the term; and may revoke any such remission at any time before the offender is released; and
(iii) May, in the case of any offender who is a Niuean, direct by warrant signed by him that on the release of the offender he be allowed to remain in New Zealand;
(b) Where any offender is granted a remission of any part of his sentence under paragraph (a) of this subsection, then,-
(i) If pursuant to this section he is to be released in New Zealand, the Minister of Justice, with the concurrence of [the Minister of Foreign Affairs], may, by warrant at any time before the offender is released, impose such special condition of probation as he thinks fit in addition to those that apply by virtue of the provision of section 38 of the Criminal Justice Act 1954;*
*Not Niue Law. In New Zealand see now Criminal Justice Act 1985.
(ii) If pursuant to this section he is to be returned to Niue, the Minister of Justice, with the like concurrence, may, by warrant at any time before the offender is released for the purpose of being returned to Niue, direct that, until a date specified in the warrant (being a date not later, than the date of expiry of the term of the original sentence), the offender shall be subject to supervision by a person to be nominated from time to time by the [Premier], and shall comply with the direction of that person with respect to such matters as are specified in the warrant;
(c) The provisions of section 33A of the Criminal Justice Act 1954* (as enacted by section 4 of the Criminal Justice Amendment Act 1961), as far as they are applicable but subject to the provisions of this section, shall apply with respect to the offender as if he had been sentenced to imprisonment by the Supreme Court of New Zealand.
*Not Niue Law. In New Zealand see now Criminal Justice Act 1985.
(2)
The Prisons Parole Board, on considering the case of any offender under section
33A of the Criminal Justice Act 1954* (as so enacted),
shall have regard, in
addition to the matters specified in subsection (6) of that section, to such
other matters of any kind whatsoever
as it considers relevant in the
circumstances of the case, and may, in its discretion, recommend that the
offender-
(a) Be returned to Niue and released on his arrival there; or
(b) Be returned in custody to Niue and continue to serve the sentence of imprisonment in some prison in Niue until a date specified by the Board (being, in the case of a prisoner undergoing a sentence of life imprisonment, such date as the Board thinks fit, and, in the case of any other prisoner, a date not later than 3 months after his return to Niue) and be released on the date so specified; or
(c) Be released in New Zealand.
(3)
Any recommendation of the Prisons Parole Board under subsection (2) of this
section may be subject to such conditions as the Board
thinks fit, including, if
the Board thinks fit, a condition, in the case of a prisoner to whom paragraph
(a) or paragraph (b) of
that subsection applies, that, until a date specified by
the Board (being, in the case of an offender undergoing a sentence of life
imprisonment, such date as the Board thinks fit, and in any other case a date
not later than the date of the expiry of the original
sentence), he shall be
subject to supervision by a person to be nominated from time to time by the
[Premier] and shall comply with
the directions of that person with respect to
such matters as the Board
specifies.
(4)
The provisions of the Criminal Justice Act 1954* relating to the release of an
offender on probation shall not apply with respect
to any offender who is to be
returned to Niue pursuant to this
section.
*Not Niue Law.
In New Zealand see now Criminal Justice Act
1985.
(5)
Where pursuant to this section any offender is released in New Zealand, the
provisions of sections 35 to 39 of the, Criminal Justice
Act 1954,* as far as
they are applicable, shall apply as if he had been so released at or before the
expiry of a term of imprisonment
imposed by the Supreme Court of New
Zealand.
*Not Niue Law.
In New Zealand see now Criminal Justice Act
1985.
(6)
Where any offender who pursuant to this section is released in New Zealand
desires to return to Niue before the expiration of
the term of his probation,
the Minister of justice, on the application of the offender and with the
concurrence of [the Minister
of Foreign Affairs], may cancel the probationary
licence as from the date on which the offender leaves New Zealand, and by
warrant
direct that as from the date of the arrival of the offender in Niue
until a date specified in the warrant (being not later than the
date on which
the term of probation would have expired if the probationary licence had not
been cancelled) the offender shall be
subject to supervision by a person to be
nominated from time to time by the [Premier] and shall comply with the
directions of that
person with respect to such matters as are specified in the
warrant.
(7)
Every offender, if he is a Niuean, shall, as soon as he is entitled to be
released or as soon thereafter as may be, unless he
is to be released in New
Zealand under this section, be returned to Niue pursuant to a warrant signed by
the Minister of justice,
and in the meantime shall be detained in custody in
some prison in New Zealand appointed by that
warrant.
(8)
A recommendation of the Prisons Parole Board under this section may be given
effect to pursuant to a warrant signed by the Minister
of Justice with the
concurrence of [the Minister of Foreign
Affairs]
(9)
For the purposes of this section, cumulative terms of imprisonment shall be
treated as one
term.
(10)
Where any offender is for the time being subject to supervision in Niue under
this section, the term of his sentence shall continue
to run while he is subject
to supervision as if he were still serving the sentence; and the date of expiry
of the sentence shall
be determined accordingly.]
Cf. 1915, No. 40, s. 275A; 1962, No. 40, s. 7(1); 1963, No. 132, s. 8(2)(b), (3), (4); 1964, No. 70, s. 57 (1); 1965, No. 1, s. 3(3)
In subss. (1) (a), (1) (b) (i), (6), and (8) the references to the Minister of Foreign Affairs were substituted for references to the Minister of Island Affairs (as substituted by s. 8 (2) of the Maori and Island Affairs Department Act 1968) by s. 2 (4) (a) of the Niue Amendment Act (No. 2) 1974.
In subss. (1)(b)(ii)(3), and (6) the word "Premier" was substituted for the words "Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
Subs. (10) was added by s. 2 of the Niue Amendment Act 1968
*Not Niue law. In New Zealand see now Criminal Justice Act 1985
[244A.
Recall of offender subject to supervision
-
(1) Where any offender undergoing a sentence of imprisonment for life is for the
time being subject to supervision in Niue pursuant
to section 244 of this Act,
[[the Cabinet]] may at any time before the expiration of the period of
supervision, by warrant... direct
that the offender be
recalled.
(2)
On the giving of that direction, the supervision shall be deemed to be
cancelled, and the offender may be arrested without warrant
by any constable,
and, subject to section 244 of this Act, shall continue to serve his original
sentence.
(3)
The powers conferred by subsection (1) of this section may be exercised on such
grounds as [[the Cabinet thinks fit]] and whether
or not the offender has
committed a breach of any condition of his supervision.]
This section was inserted by s. 3 (1) of the Niue Amendment Act 1968.
In subs. (1) the words "the Cabinet" were substituted for the words "the Minister of Justice, on the application of the Resident Commissioner and with the concurrence of the Minister of Island Affairs", and the words" signed by him" were omitted, s. 2(1) of the Niue Amendment Act 1974.
In subs. (3) the words "the Cabinet thinks fit" were substituted for the words "the Minister of Justice and the Minister of Island Affairs think fit" by s. 2(1) of the Niue Amendment Act 1974.
245.
Person conditionally released from imprisonment, or portion of whose sentence is
conditionally remitted, may be reimprisoned
-
(1) Any person who is released from
imprisonment-
(a) Pursuant to a remission of part of his sentence under paragraph (a) of subsection (1) of section 244 of this Act or to a recommendation of the Prisons Parole Board under paragraph (c) of that subsection subject to any conditions imposed under that section, and is returned to Niue under that section (including a person who returns to Niue pursuant to subsection (6) of that section); or
(b) Pursuant to a remission of part of his sentence under section 286 of this Act subject to any conditions imposed under that section,-
and
who commits a breach of any such condition may be arrested by any constable
without warrant and brought before a judge of the
High Court, and may be
sentenced to imprisonment in the case of a person who was undergoing a sentence
of life imprisonment, for
such period as the Court thinks fit, and in any other
case for any period not exceeding the unexpired portion of the term of his
original
sentence.
(2)
For the purposes of this section, cumulative terms of imprisonment shall be
treated as one term.
Cf. 1915, No. 40, s. 275B; 1962, No. 40, s. 8
246.
Cumulative sentences
-
(1) When an offender is sentenced for more offences than one at the same time,
or if, when sentenced for one offence, he has already
been sentenced for any
other offence and has not yet completed the sentence so imposed upon him, the
Court may direct that the sentences
passed on him for his several offences shall
take effect one after the other or
concurrently.
(2)
Save as provided by this section, every sentence of imprisonment shall commence
to take effect on the day on which the sentence
is pronounced.
Cf. 1915, No. 40, s. 277
PART
VI
(As to the application
of this section to Tokelau, see the Tokelau Crimes Regulations 1975 S.R.
1975/279).
CRIMINAL
PROCEDURE
247.
Magistrate
-
In this Part of this Act the term "Magistrate" means ... any judge of the Land
Court or of the Land Appellate Court, the Registrar
of the High Court or of the
Land Court, the Comptroller of Customs, or any Medical
Officer.
248.
Jurisdiction of High Court
-
Except where otherwise expressly provided, all offences against the laws of Niue
may be tried in the High Court in accordance with
this Part of this
Act.
Cf. 1915, No. 40. s. 279
249.
Felonies and misdemeanours
-
There shall be no distinction between felonies and misdemeanours and between
offences punishable on indictment and by way of summary
conviction; and, so far
as may be necessary for the purpose of any rule of the common law or of any
enactment in force in Niue, all,
such offences shall be deemed to be
misdemeanours.
Cf. 1915, No. 40, s. 280
Preliminary Proceedings
[250.
Arrest without warrant
-
(1) No person shall be arrested without warrant except pursuant to this Act or
pursuant to some other enactment giving power to arrest
without
warrant.
(2)
Any constable and any person whom he calls to his assistance may, without
warrant, arrest and take into
custody-
(a) Any person whom he finds disturbing the public peace or whom he has good cause to suspect is committing treason (as defined in section 73 of the Crimes Act 1961) or any office punishable by imprisonment;
(b) Any person whom he has good cause to suspect of having committed a breach of the peace or treason (as so defined) or any offence punishable by imprisonment;
(c) Any person whom he has good cause to suspect to be attempting or about to commit a breach of the peace or treason (as so defined) or any offence punishable by imprisonment;
(d) Any person whom he has good cause to suspect is committing an offence against section 214 or section 216 of this Act.
(3)
Any person may, without warrant, arrest and take into
custody-
(a) Any person whom, in any public place, he finds disturbing the public peace;
(b) Any person whom he has good cause to suspect to be about to commit, in a public place, a breach of the peace.
(4)
The foregoing provisions of this section shall be read subject to the express
provisions of any enactment imposing any limitation,
restriction, or condition
on the exercise of any power to arrest without warrant conferred upon any
constable or any other person
in respect of any specified offence or any
specified class of
offences.
(5)
Where under any enactment, other than this Act, any officer or other person, not
being a constable, has power, without warrant,
to arrest any other person, any
constable may exercise that power in the same cases and in the same manner as
that officer or other
person.
(6)
Where, any person other than a constable, arrests, without warrant any other
person, he shall as soon as reasonably possible thereafter
deliver that other
person into the custody of a constable.]
This section was substituted for the original s. 250 by s. 23 of the Niue Amendment Act 1971.
As to sub (2) and the release on bail by a constable, see s. 255A(2) of this Act.
251.
Arrest on warrant of Magistrate
-
A Magistrate, on receiving such information on oath as seems sufficient to him,
whether made in writing or not, may, if he thinks
fit, issue his warrant for the
arrest of any person for any offence against the laws of Niue, and thereupon any
constable or other
person specified in the warrant in that behalf may arrest the
accused, who shall be forthwith brought before a judge of the High
Court or a
Magistrate, there to be dealt with in accordance with the provisions of this
Part of this Act.
Cf. 1915, No. 40, s. 282
[251A.
Duty of persons arresting
-
(1) It is the duty of every one arresting any other person to inform the person
he is arresting, at the time of the arrest, of the
act or omission for which the
person is being arrested, unless it is impracticable to do so, or unless the
reason for the arrest
is obvious in the circumstances. The act or omission need
not be stated in technical or precise language, and may be stated in any
words
reasonably sufficient to give that person notice of the true reason for his
arrest.
(2)
It is the duty of every one who arrests any other person pursuant to any process
or
warrant-
(a) If he has the process or warrant in his possession at the time of the arrest, to produce it if required by that person to do so;
(b) If he does not have the process or warrant in his possession at the time of the arrest, to show it to the arrested person as soon as practicable after the arrest, if that person so requires.
(3)
Where under any enactment any person other than a constable has, by virtue of
his office, a power of arrest without warrant, he
shall, whenever he arrests any
other person pursuant to that
power,-
(a) If he has evidence of his appointment to that office in his possession at the time of the arrest, produce it if required by that person to do so;
(b) If he does not have evidence of his appointment in his possession at the time of the arrest, show it to the arrested person as soon as practicable after the arrest, if that person so requires.
(4)
A failure to fulfil any of the duties mentioned in the foregoing provisions of
this section shall not of itself deprive the person
arresting, or his
assistants, of protection from criminal responsibility, but shall be relevant to
the inquiry whether the arrest
might not have been effected, or the process or
warrant executed, by reasonable means in a less violent
manner.
(5)
Every person who is arrested on a charge of any offence shall be brought before
the High Court, as soon as possible, to be dealt
with according to
law.
(6)
Nothing in this section shall limit or affect the express provisions of any
enactment
whereby,-
(a) The burden of proving the absence of reasonable or probable cause, or the absence of justification, for any arrest is on any person;
(b) Any person having, by virtue of his office, a power of arrest without warrant, is entitled, in any specified circumstances, to exercise that power without the production of evidence of his appointment to that office, or is required in exercising the power, to comply with any specified conditions or restrictions in addition to or instead of producing evidence of his appointment.]
This section was inserted by s. 24 of the Niue Amendment Act 1971.
252.
Committal by Magistrate for trial
-
(1) When any person arrested with or without warrant under the foregoing
provisions is brought before a Magistrate, the Magistrate
may, after such
preliminary inquiry (if any) as he thinks fit, and, after giving the prisoner an
opportunity of being heard, by warrant
either discharge the prisoner, or commit
him to prison to await trial by the High Court for the offence for which he was
arrested,
or admit him to bail, with or without sureties, conditioned to appear
before the High Court in due course for trial for the
offence.
(2)
No such discharge by a Magistrate shall amount to an acquittal so as to preclude
the prosecution and trial of the accused in the
High Court for the offence for
which he was so arrested.
Cf. 1915, No. 401 s. 283
Trial by the High Court
253.
Information
-
Every prosecution in the High Court for any offence shall be commenced by an
information in writing laid by a constable or any other
prosecutor before a
judge or the Registrar of that Court.
Cf. 1915, No. 40, s. 284; 1921, No. 14, s. 7(1)
In its application to Tokelau this section was modified by adding the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
254.
Warrant or summons
-
On the commencement of any such prosecution, any judge of the High Court may, if
he thinks fit, unless the accused is already in
custody, at any time and from
time to time issue either a warrant for the arrest of the accused or a summons
requiring him to appear
before the High Court at the time and place specified in
the summons, there to answer the charge so made against him in the information
and set out in the summons.
Cf. 1915, No. 40, s. 285; 1921, No. 14, s. 7(2)
In its application to Tokelau, this section was modified by inserting after the words "Judge of the High Court", the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
255.
Warrant after issue of summons
-
Any such warrant may be at any time issued by a Judge of the High Court,
notwithstanding the fact that a summons has been already
issued to the accused
as aforesaid.
Cf. 1915, No, 40, s 286
In its application to Tokelau, this section was modified by inserting after the words "High Court" the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279)
[255A.
Arrested person may be released on bail by constable in certain
cases
-
(1) Where, under the provisions of subsection (1) of section 250 of this Act,
any person, is arrested without warrant by a constable
or some other person on
the grounds that the constable or other person suspects on reasonable grounds
that the person arrested has
committed any one or more of the following
offences:
(a) Wilful mischief to property; or
(b) Resisting a constable in the execution of his office; or
(c) Using profane, indecent, or obscene language; or
(d) Indecent behaviour; or
(e) Assault; or
(f) Fighting or drunkenness in a public place; or
(g) Any offence against the provisions of subsection (2) of section 205 of this Act,-
then,
notwithstanding the provisions of subsection (2) of section 250 of this Act, on
the arrested person being brought before a constable
in charge of any police
station, the constable in charge of the police station may, in his discretion,
release the arrested person
on bail, with or without sureties, conditioned for
the appearance of the arrested person before the High Court at such place and
at
such time (being not more than 3 clear days after the date of the arrest of the
arrested person) as the constable in charge of
the police station
specifies.
(2)
Should the constable in charge of a police station not release any arrested
person on bail in accordance with the provisions of
subsection (1) of this
section, the provisions of subsection (2) of section 250 of this Act shall apply
to that
person.
(3)
Where any person who has been released on bail in accordance with the provisions
of subsection (1) of this section appears before
the High Court, then, on his
appearance before the High Court, he shall be deemed to be in
custody.
(4)
Nothing in subsection (1) of this section shall derogate from the provisions of
section 257 of this Act.]
This section was inserted by s. 8 of the Niue Amendment Act 1970.
256.
Prisoners brought before Judge of High Court before commencement of prosecution
-
(1) When any person charged with an offence is brought before a judge of the
High Court in custody, having been arrested without
warrant or on a warrant
issued by a Magistrate, the Judge may from time to time, unless a prosecution
has been already commenced
against the prisoner by information as aforesaid,
either discharge the prisoner, or remand him in custody pending the commencement
of a prosecution, or release him on bail, with or without sureties, conditioned
for his appearance before the High Court at such
time and place as the Judge
thinks
fit.
(2)
No discharge under this section shall amount to an acquittal so as to preclude
the prosecution or trial of the prisoner for the
offence for which he has been
so arrested.
In its application to Tokelau, subs. (1) was modified by adding after the words "Judge of the High Court", the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu", and by inserting after the words "the Judge", wherever they occur, the words "or the Commissioner, as the case may be". See regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279)
257.
Remand
-
When any prosecution has been commenced in the High Court, the Court may from
time to time either remand the accused in custody or
admit him to bail, with or
without sureties, conditioned to appear before the High Court at any other time
or place.
Cf. 1915, No. 40, s. 288
As to release on bail by a constable, see s. 255A(4) of this Act.
257.
Trial of accused in his absence
-
When any person who is prosecuted for an offence punishable by fine only has
been duly summoned to appear before the High Court and
fails to appear in
accordance with the summons, the Court may try and sentence him for that offence
in his absence.
Cf. 1915, No. 40, s. 289
Assessors
259.
Constitution of Court on criminal trials
-
Every criminal trial in the High Court shall take place before one Judge of that
Court sitting with or without assessors in accordance
with the provisions of
this Part of this Act.
Cf. 1915, No. 40, s. 290
260.
Judge with assessors
-
On the trial of any person for any offence punishable by imprisonment for more
than 5 years, the judge shall sit with assessors.
Cf. 1915, No. 40, s. 291
261.
Judge without assessors
-
On the trial of any person on an information charging him exclusively with an
offence or offences punishable only by fine, the Judge
shall sit without
assessors.
Cf. 1915, No. 40, s. 292
262.
Judge with or without assessors as he thinks fit
-
(1) In all other criminal trials, the Judge shall sit without assessors, unless
the Court in its discretion orders otherwise, either
on its own motion or on the
application
ex
parte or
otherwise of either the prosecutor or the
accused.
(2)
Repealed
2/9/1975
263.
Order
appointing assessors
- Any such
order may be made at any time after the commencement of the prosecution, and
whether before or during the trial; but, if
made after any evidence has been
heard at the trial, all such evidence shall, except so far as repeated before
the Judge and assessors,
be of no force or effect.
Cf. 1915, No. 40, s. 294
264.
Number and qualifications of assessors
-
(1) The assessors shall in all cases be 6 in number, and shall be such fit and
proper persons (whether men or women) as a Judge of
the Court think, fit,
subject to any rules of Court which may be made in that behalf, to appoint by
warrant under his hand and the
seal of the Court and the consent of an assessor
shall not be requisite for his
appointment.
(2)
No person shall be appointed as an assessor unless he has first be nominated by
the [Cabinet] by warrant published in the
Niue
Island
Gazette as
a person qualified for appointment as an assessor under this Act, either
generally or in respect of any particular case or class
of cases; and the
[Cabinet] may accordingly from time to time nominate in this behalf such and so
many persons as [the Cabinet thinks]
qualified by reason of their character,
education, ability, or reputation to hold that office, and may at any time in
like manner
revoke any such nomination.
Cf. 1915, No. 40, s. 295; 1965, No. 1, s. 3(1)
In subs. (2) the words "Cabinet", wherever it occurs, was substituted for the word "Governor-General", and the words "the Cabinet thinks" were substituted for the words "he thinks" by s. 2(1) of the Niue Amendment Act 1974.
In its application to Tokelau, subs. (2) was modified by substituting the words "under its hand for the words published in the Niue Island Gazette by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
265.
Default of assessors
-
If any person so appointed as an assessor, and having had reasonable notice of
the time and place of the trial, fails without reasonable
excuse duly to attend
at the trial or at any adjournment thereof, or duly to make oath as such, or
duly to act as assessor throughout
the trial, he shall be guilty of contempt of
the High Court.
Cf. 1915, No. 40, s. 296
266.
Remuneration of assessors
-
Every assessor shall be entitled to receive from [the Niue Government Account]
such remuneration or allowances in respect of his
services as may be authorised
by the judge at the trial in conformity with any rules of Court which may be
made in that behalf.
Cf. 1915, No. 40, s. 297; 1957, No. 103, s. 95(1)
The reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
267.
Oath of assessors
-
Before an assessor commences to act as such, he shall in open Court and in the
presence of the accused make oath to act well and
truly as assessor and to
decide in accordance with the evidence and with law.
Cf. 1915, No. 40, s. 298
268.
Change of assessors
-
At any time after the appointment of an assessor and before he has been sworn as
aforesaid, a judge of the Court may, either of his
own motion or on the
application
ex
parte or
otherwise of the prosecutor or the accused, if he is satisfied there is any
reasonable and sufficient objection to that assessor,
remove him and appoint
another assessor in his place.
Cf. 19 15, No. 40, s. 299
269.
Discharge of assessors and new trial
-
(1) If at any time after the commencement of the trial and before judgment the
Judge is of opinion that, owing to the misbehaviour
of any assessor, or to the
death, illness, or absence of any assessor, or to any accident or misadventure,
or to any other sufficient
cause, a new trial is necessary m the interests of
justice, he may discharge the assessors and order, a new trial
accordingly.
(2)
Every such new trial shall take place before the same or another judge with
assessors in the same manner as if no previous trial
had taken place.
Cf. 1915, No. 40, s. 300
270.
Concurrence of assessors
-
On a trial with assessors, no person shall be convicted by the judge of any
offence, unless the conviction is concurred in by not
less than 4 of the
assessors.
Cf. 1915, No. 40, s. 301
271.
Concurrence of Judge
-
If the Judge is of opinion that the accused should not be convicted, or if fewer
than 4 of the assessors concur in his conviction,
the accused shall be
acquitted.
Cf. 1915, No. 40, s. 302
272.
Sentence
-
The concurrence of assessors in the sentence to be passed by the Judge shall not
be necessary.
Cf. 1915, No. 40, s. 303
273.
Concurrence of assessors not necessary except for conviction
-
The concurrence of the assessors shall not be necessary for any other act of the
Court or the judge other than conviction, and in
all other respects the
jurisdiction of the Court shall be exercised by the judge in the same manner as
if he was sitting without
assessors.
Cf. 1915, No. 40, s. 304
Miscellaneous Provisions
274.
Alternative and cumulative charges
-
(1) Subject to the provisions of this section, in any prosecution in the High
Court the information of the prosecutor may relate
to 2 or more distinct
offences, whether alternative or
cumulative.
(2)
No information for the offence of murder shall charge any other offence except
manslaughter.
(3)
No information for the offence of rape shall charge any other offence except
indecent assault and an attempt to commit rape.
Cf. 1915, No. 40, s. 305
275.
Relation between information and conviction
-
On an information for any offence the accused may be convicted either of the
offence charged in the information or of any offence
which is included within
the offence so charged and which might lawfully have been charged in the same
information.
Cf. 1915, No. 40,s. 306
276.
Withdrawal of information
-
(1) An information in the High Court for any offence may at any time, whether
before or during the trial, be withdrawn by the prosecutor
with the leave of a
Judge of the Court, but not
otherwise.
(2)
An information so laid and withdrawn shall not operate as a bar to any further
proceedings against the accused in respect of the
same offence.
Cf. 1915, No. 40, s. 307
In its application to Tokelau, this section was modified by inserting after the words "High Court" the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
277.
Drawing up. of conviction
-
(1) On the conviction of any person of any offence before the High Court, a
minute or memorandum of the conviction shall thereupon
be drawn up and preserved
as a record of the Court, and a formal conviction under the seal of the Court
may be drawn up at any time
afterwards when it becomes
necessary.
(2)
In the meantime the conviction and sentence may be carried into execution, and
shall have the same force and effect in every respect
as if the conviction had
been formally drawn up under the seal of the Court.
Cf. 1915, No. 40, s. 308
278.
Defects of summons, or warrant
-
(1) No objection shall be m or allowed to any information, summons, or warrant
in any criminal proceedings before the High Court
for any alleged defect therein
in substance or in form, or for any variance between the information, summons,
or warrant and the
evidence adduced at the
trial.
(2)
The High Court may at any stage of the trial amend the information in such
manner as it thinks fit in respect of any such defect
or
variance.
(3)
Where under subsection (2) of this section any information is amended by
substituting one offence for another, the following provisions
shall
apply:
(a) Subject to the provisions of paragraphs (b) and (c) of this subsection, the trial shall be continued as if the accused had originally been charged with the substituted offence;
(b) Before the trial is continued, the substance of the information as amended shall be stated to the accused and he shall be asked how he pleads; and, if he pleads guilty, the High Court may convict him or deal with him in any other manner authorised by law;
(c) Any evidence already given shall be deemed to have been given in and for the purposes of the trial of the information as amended, but either party shall have the right to examine or cross-examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged.
(4)
The High Court may, at the request of the accused, if it is of opinion that he
would be embarrassed in his defence by reason of
any amendment made or proposed
to be made under this section, adjourn the trial.
Cf. 1915, No. 40, s. 309
279.
Payment of witnesses
-
Any witness at a criminal trial may, if the judge thinks fit and certifies
accordingly, be paid out of [the Niue Government Account]
such allowance for his
expense and loss of time as is so certified, subject to such rules of Court as
may he made in that behalf.
The reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s 2(2)(f) of the Niue Amendment Act 1974.
280.
Court may order convicted person to come up for sentence if caned upon
-
(1) The Court, on convicting an accused person of an offence under any enactment
may, having regard to the circumstances, including
the nature of the offence and
the character of the offender, instead of passing sentence, order the offender
to appear for sentence
if called upon to do so, on such conditions as it thinks
fit, including, if the Court thinks fit, a condition that the offender shall
be
subject to supervision for such period as the Court specifies, not exceeding the
period specified in or pursuant to subsection
(3) of this section, by a person
to be nominated from time to time by the
[Premier].
(2)
The making of an order under this section shall not limit or affect the power of
the Court, under any enactment applicable to
the offence, to make any order for
the payment of costs, damages, or compensation, or for the restitution of any
property, notwithstanding
that the offender is not sentenced on conviction, and
the provisions of every such enactment shall apply
accordingly.
(3)
Any person in respect of whom an order is made under this section may be called
upon to appear for sentence within any period
specified by the Court in the
order, bring a period not exceeding 3 years from the date of the conviction, or
if no period is so
specified, within one year from the date of the
conviction.
(4)
Where any person is brought up for sentence under this section, the Court may,
after inquiry into the circumstances of the case
and the conduct of the offender
since the order was made, sentence or otherwise deal with the offender for the
offence in respect
of which the order was made.
Cf. 1915, No. 40, s. 310A; 1962, No. 40, s. 9; 1964, No. 70, s. 57(1); 1965, No. 1, s. 3(3)
In subs. (1) the word "Premier" was substituted for the words "Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
281.
Conviction without sentence or discharge without conviction
-
(1) If on any criminal trial the Court thinks that the charge, though proved, is
in the particular case of so trifling a nature or
was committed under such
circumstances that no punishment should be imposed, the Court may convict the
accused and discharge him
without sentence, either unconditionally or on such
conditions as the Court thinks fit to
impose.
(2)
If any person who is so convicted and discharged on conditions commits any
breach of those conditions, he shall be guilty of an
offence punishable in the
same manner as the offence of which he was so previously
convicted.
(3)
Without limiting the powers conferred on the High Court by subsection (1) of
this section, where any person is accused of any
offence, the High Court, after
inquiry into the circumstances of the case, may in its discretion discharge him
without convicting
him, unless by any enactment applicable to the offence a
minimum penalty is expressly provided for. A discharge under this subsection
shall be deemed to be
acquittal.
(4)
The High Court, when discharging any person under subsection (3) of this
section, may if it is satisfied that the charge is proved
against him, make any
order for the payment of costs, damages, or compensation, or for the restitution
of any property , at it could
have made under any enactment applicable to the
offence with which he is charged if it had convicted him and sentenced him, and
the
provisions of every such enactment shall apply accordingly.
Cf. 1915, No. 40, s. 311
[282.
Bail
-
(1) When any person is admitted to or released on bail under this Act or under
any other enactment, he shall, with or without sureties,
enter into a bail bond
in favour of Her Majesty the Queen in such sum as may be required, conditioned
in such manner as may be appropriate
to the particular case and as may be
required.
(2)
Every such bond shall be in a form from time to time prescribed by [[the Chief
Justice of the High Court]], or, if no such form
is prescribed by him, in any
suitable
form.
(3)
Every such bond shall be taken by and before a Judge of the High Court, a
Magistrate, or the Registrar of the High Court, or,
where a person is released
on bail pursuant to section 255A of this Act, by a constable in charge of the
police
station.
(4)
Every such bond shall be signed by the person admitted to or released on bail
and by his sureties (if any) and the signature of
that person and of each of his
sureties (if any) shall be attested by a Judge of the High Court, a Magistrate,
the Registrar of the
High Court, or a
constable.
(5)
When any person is admitted to or released on bail, the Judge of the High Court,
Magistrate, or constable admitting or releasing
him may require him to deposit
with that Judge, Magistrate, or constable or with the Registrar of the High
Court a sum of money (being
not greater than the amount of the recognisance
entered into in the bond). Any such sum so deposited with a Judge, Magistrate,
or
constable shall, as soon as reasonably possible after the deposit, be paid by
the person with whom it was deposited to the Registrar
of the High
Court.
(6)
Where any person admitted to or released on bail has fully performed the
conditions of his bond, the bond shall be void and any
sum deposited by him
pursuant to subsection (5) of this section shall be forthwith repaid to him but
without any
interest.
(7)
Where any person admitted to or released on bail fails to perform any condition
of his bond, the Registrar of the High Court shall
fix a place and time at and
on which the High Court may consider the estreat of the bond, and shall, not
less than 7 clear days before
the time fixed, cause to be served on the person
admitted or released on bail (if he can be found) and upon the sureties (if any)
notice that, unless at the place and time fixed some person bound by the bond
proves to the satisfaction of the High Court that it
ought not to be warranted,
the bond may be
estreated.
(8)
If at the time and place fixed by the Registrar under subsection (7) of this
section no sufficient cause to the contrary is shown,
the High Court, on proof
of
non-performance
of the bond to such amount as it thinks fit as to any. person bound thereby upon
whom notice is proved to have been served
in accordance with subsection (7) of,
this section, and the whole or any part of any sum deposited under subsection
(5) of this section
may (but otherwise without prejudice to the rights of Her
Majesty the Queen under the estreated bond) be forfeited accordingly to
Her
Majesty the
Queen:
Provided
that, if the Court is satisfied that the person admitted to or released on bail
cannot be found, it may estreat the bond
at against him, notwithstanding that
the notice has not been served on
him:
Provided
also that no bail bond shall be estreated save by a Judge of the
Court.
(9)
Any sum payable in connection with any estreated bond shall be recoverable as if
it were a
fine.
(10)
Where any person has been admitted to or released on bail, any surety under the
bail bond entered into by that person may, at
any time and at any place, without
warrant arrest and seize that person while he is not in the custody of the law
and deliver him
into the custody of a constable and, on any such delivery, the
surety shall cease to be liable under the bond.
This section was substituted for the original s. 282 by s. 9 of the Niue Amendment Act 1970.
In subs. (2), the reference to the Chief Justice of the High Court was substituted for a reference to the Chief Judge of the High Court by s. 2(2)(g) of the Niue Amendment Act 1974.
283.
Stay of proceedings by Cabinet
-
In any criminal prosecution, the [Cabinet] may direct a stay of proceedings, and
the proceedings shall be stayed accordingly.
Cf. 19155 No. 40, s. 313
The word "Cabinet" was substituted for the word "Attorney-General" by s. 2(1) of the Niue Amendment Act 1974.
284.
Search warrants
-
(1) Any judge of the High Court or Magistrate who is satisfied on the oath of
any person that there is reasonable ground for believing
that there is in any
building, ship, aircraft, receptacle, or
place-
(a) Anything which there is reasonable ground to believe will afford evidence as to the commission of any offence; or
(b) Anything in respect of which any offence has been or is suspected of having been committed; or
(c) Anything which there is reasonable ground for believing to be intended to be used for the purpose of committing any offence-
may,
by warrant under his hand, authorise some constable or other officer of the Niue
Public Service to search the building, ship,
aircraft, receptacle, or place for
any such thing, and to seize and bring it before the person by whom the warrant
has been
issued.
(2)
Every such warrant shall be executed by day (that is to say, after sunrise and
before sunset), unless the warrant expressly authorises
the execution thereof by
night.
(3)
Every such warrant may be executed by reasonable force if
necessary.
(4)
When any such thing is seized and brought before the person by whom the warrant
was issued, he may either order it to be detained
for the purpose of evidence on
the trial of any person for any such of offence as aforesaid or may direct it to
be delivered to any
person believed by the person so issuing the warrant to be
entitled
thereto.
(5)
No such order of delivery shall, in any manner affect the right of any person to
the ownership or possession of the
thing.
(6)
Any thing so ordered to be detained as evidence of an offence, may be detained
'm pursuance of
-the
order for such time as is reasonably necessary for the purpose of any
proceedings instituted or to be instituted in respect of
the offence.
Cf. 1915, No. 40, s. 314
[284A.
Power to enter premises to arrest offender or prevent offence
-
(1) Where
any constable is authorised by this Act or by any other enactment to arrest any
person without warrant, that constable,
and all persons whom he calls to his
assistance, may enter on any premises, by reasonable force if necessary, to
arrest that person
if the
constable-
(a) Has found that person committing treason (as defined in section 73 of the Crimes Act 1961) or any offence punishable by imprisonment and is freshly pursuing that person; or
(b) Has good cause to suspect that that person has committed any such offence on those premises.
(2)
Any constable, and all persons whom he calls to his assistance, may enter on any
premises, by reasonable force if necessary, to
prevent the commission of any
offence that would be likely to cause immediate and serious injury to any
person. or property, if he
believes, on reasonable and probable grounds, that
any such offence is about to be
committed.
(3)
If, in any case to which this section applies, the constable is not in uniform
and any person in actual occupation of the premises
requires him to produce
evidence of his authority, he shall before entering on the premises produce his
badge or other evidence that
he is a
constable.
(4)
Nothing in this section shall affect in any way the power of any constable to
enter any premises pursuant to a warrant.]
This section was inserted by s. 25 of the Niue Amendment Act 1971.
285.
Transmission of certain warrants and orders by telegram
-
(1) Where,
as a result of the exercise by the
Governor-General
of the prerogative of mercy of the Crown or of a judgment by the [Court of
Appeal] of New Zealand on an appeal from the High
Court or of a judgment of the
Privy Council on an appeal from the [Court of Appeal] of New Zealand, any person
held in custody in
Niue is entitled to be released from custody, the warrant
signed by the
Governor-General
or, as the case may be, the order of the [Court of Appeal] or of the Privy
Council may be transmitted to Niue by telegram,
and the telegraphic copy shall
be sufficient authority to all persons concerned to release that person
accordingly.
(2)
In this section the term "telegram" includes a radiogram, a cablegram, and any
similar means of communication.
In subs. the words "Court of Appeal", wherever they occur, were substituted the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
286.
Pardon and remission of
sentenced -
(1) When any person has been convicted of an offence by the High Court, whether
before or after the commencement of this Act, the
Governor-General,
by warrant signed by him, may pardon the offender, or may remit any portion of a
sentence of imprisonment passed upon the
offender or any portion of a fine
imposed upon
him.
(2)
In the case of an offender sentenced to imprisonment for a term of less than one
year or to pay a fine not exceeding [$100], the
[Cabinet] may exercise the like
powers of pardon or
remission.
(3)
In the case of an offender sentenced to imprisonment for a term of one year or
more, the [Cabinet] may, if the conduct and industry
of the offender have been
satisfactory, remit not more than
one-fourth
of the
sentence.
(4)
Any such pardon or remission may be made subject to such conditions as the
Governor-General
or, as the case may be, the [Cabinet] thinks fit, including in the case of the
remission of part of the sentence of an offender
undergoing a sentence of
imprisonment, if the
Governor-General
[or the Cabinet, as the case may be], thinks fit, a condition that, until a date
specified by the
Governor-General
[or the Cabinet, as the case may be], (being, in the case of an offender
undergoing a sentence of life imprisonment, such
date as the
Governor-General
thinks fit, and in any other case a date not later than the date of the expiry
of the term of the original sentence), he shall
be subject to supervision by a
person to be nominated from time to time [by the Premier], and shall comply with
the directions of
that person with respect to such matters as the
Governor-General
[or the Cabinet, as the case may be],
specifies.
(5)
For the purposes of this section, cumulative terms of imprisonment shall be
treated as one
term.
(6)
The
Governor-General
may in like manner pardon any offender who has given evidence which leads to the
conviction of an
accomplice.
(7)
Where any person is granted a free pardon under this section, that person shall
be deemed never to have committed the
offence:
Provided
that the granting of a free pardon shall not affect anything lawfully done or
the consequences of anything unlawfully done
before it is
granted.
(8)
Nothing in this section shall affect the prerogative of mercy.
Cf. 1915, No. 40, s. 314B; 1965, No. 1, s. 3; 1965, No. 56, s. 2
In subss. (2) and (3) the word "Cabinet" was substituted for the words "Resident Commissioner, with the concurrence of the Executive Committee of Niue" by s. 2(1) of the Niue Amendment Act 1974.
In subs. (4) the word "Cabinet" was substituted for the words "Resident Commissioner" with such concurrence as aforesaid", and the words "or the Cabinet, as the case may be", wherever they occur, were substituted for the words "the Resident Commissioner, as the case may be" and the words "by the Premier" were substituted for the words "by the Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
287.
Compensation for loss of property
-
(1) On the
conviction of any person for any offence, the High Court may order the offender
to pay to any person such sum as it thinks
fit by way of compensation for any
loss or damage to property suffered by that person through or by means of the
offence.
(2)
Where on the arrest of the offender any money was taken from him, the High Court
may in its discretion order the whole or any
part of the money to be applied to
any such
payment.
(3)
Any order for payment under this section may enforced in the same manner as a
fine.
(4)
An order under this section shall not affect the right of any person to recover
by civil proceedings any sum in excess of the
amount recovered under the
order.
PART
VII
As to the application
of this Part to Tokelau, see the Tokelau Crimes Regulations 1975 (S.R.
1975/279.)
LAW
OF EVIDENCE
288.
Definitions
-
In this
Part of this Act, unless the context otherwise
requires,-
"Court" includes any person acting in any judicial capacity or having by law or by consent of parties authority to hear, receive, and examine evidence;
"Proceedings" includes any action, trial, inquiry, cause, or matter, whether civil or criminal, depending or to be inquired of or determined in or by any Court.
Cf. 1915, No. 40, s. 315
289.
Discretionary power of admitting or rejecting
evidence
-
(1) Subject
to the provisions of this Act, a Court may in any proceedings admit and receive
such evidence as it thinks fit, and accept
and act on such evidence as it thinks
sufficient, whether that evidence is or is not admissible or sufficient at
common
law.
(2)
A Court may in any proceedings refuse to receive any evidence, whether
admissible or not at common law, which it considers irrelevant,
or needless, or
unsatisfactory as being hearsay or other secondary evidence.
Cf. 19 15, No. 40, ss. 316, 317
290.
All witnesses competent
-
Subject to
the provisions of this Part of this Act, no witness in any proceedings shall be
deemed incompetent by reason of interest
or on any other ground
whatever.
Cf. 19 15, No. 40, s. 318
291.
Evidence of parties and their husbands and wives
-
In any
civil proceedings the parties thereto, and the persons on whose behalf the
proceedings are brought or defended, and the husbands
and wives of those parties
or persons respectively, shall be competent and compellable to give evidence an
behalf of either or any
of the parties to the proceedings.
Cf. 1915, No. 40, s. 319
292.
Evidence of accused persons and their husbands and
wives
-
(1) Every person charged with any offence shall be competent but (except where
the contrary is expressly provided any enactment)
not a compellable witness upon
his trial for that
offence.
(2)
The wife or husband of any person charged with an offence shall be a competent
witness on the trial of that person, but shall
not be a compellable witness,
except in the following cases:
(a) When called as a witness by the accused;
(b) When the offence of which the accused is charged is an offence against the wife or husband of the accused or against a child of the accused.
(3)
If any witness who under this section is competent but not compellable gives
evidence on any such trial, he shall be liable to
cross-examination
in the same manner as if he were a compellable witness, whether the matter on
which he is so
cross-examined
arises out of his examination in chief or not.
Cf. 1915, No. 40, s. 320
293.
Cross-examination
as to credit
-
In any
proceedings the Court may limit in any manner and to any extent which it think
fit the
cross-examination
of any witness as to credit, and shall refuse to permit any such
cross-examination
which is needlessly offensive or injurious to the witness, having regard to the
nature or gravity of the imputations made
against him, to the importance of his
evidence, and to the effect of those imputations upon his
credibility.
Cf. 1915, No. 40, s. 321
294.
Criminating questions
-
Nothing in
this Part of this Act shall take away or affect the privilege of any witness to
refuse to answer any question which may
tend to criminate him.
Cf. 1915, No. 40, s. 322
295.
Evidence of prisoners
-
(1) On
application made in that behalf by any person who states on oath that any
prisoner can give material evidence in any proceedings
in any Court, a judge of
the High Court may, by order under his hand, require the prisoner to be brought
up for examination as a
witness in the
proceedings.
(2)
In every such case the judge may, before making such an order, require the
applicant to deposit a sum sufficient to pay the expense
of bringing up the
prisoner, maintaining him while out of prison, and returning him thither,
including the expense of his custody
in the meantime.
Cf. 1915, No. 40, s. 323
296.
Judicial notice of Acts,
etc.
-
In all
proceedings the Court shall take judicial notice of all Acts [of the Niue
Assembly or of the Parliament of New Zealand],. .
. Orders in Council,
regulations, Proclamations, and laws in force in Niue, including Niuean custom
so far as it has the force of
law under this Act.
Cf. 1915, No. 40, s. 324; 1965, No. 1, s. 3(1)
The words in square brackets were inserted by s. 2(1) of the Niue Amendment Act 1974. The word "Ordinances" has been omitted as otiose.
In its application to Tokelau this section was modified by substituting the word "enactments" for the words "Acts, Acts of the Niue Assembly, Order in Council, regulations, Proclamations" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279). This regulation did not take into account the words inserted by s. 2(1) of the Niue Amendment Act 1974. See the wording of this section as now so amended.
297.
Judicial notice of seals,
etc. - In
every proceeding the Court shall take judicial notice of the Seal of Niue and of
the seal of any Court, officer, or other person
authorised or required by law to
use any such seal, and of the signature of any Judge or any officer, whether,
judicial or not, of
the Niue Public Service, and of the Public Seal of New
Zealand, and of the signature of the
Governor-General
or of any member of the Executive Council of New Zealand, or of the
Attorney-General
or
Solicitor-General
of New Zealand, and of the signature of any Judge of the Supreme Court of New
Zealand, and of the seal of that Court or of
any Registrar thereof.
Cf. 1915, No. 40, s. 325; 1957, No. 103, s. 95(1)
298.
Power to administer oaths
-
All Courts
are hereby empowered to administer an oath to all such witnesses as are lawfully
called or voluntarily come before them,
or to take the affirmation of any such
witness instead of an oath.
Cf. 1915, No. 40, s. 326, 299.
299.
Form of oath
-
Except when
the person making the oath consents to any other form of oath, an oath shall,
whether in judicial or other proceedings,
be made in the following
form:
The officer administering the oath shall address to the person making the oath the following words: "Do you swear by Almighty God that the evidence you are about to give touching the matter now before the Court shall be the truth, the whole truth, and nothing but the truth?", or words to the like effect, and the person making the oath shall thereupon, while holding in his hand a copy of the Bible, Old Testament, or New Testament, indicate his assent to the oath so administered by uttering the words "I do", or other words to the like effect.
Cf. 1915, No. 40, ss. 327, 328, 300.
300.
Absence of religious belief
-
Where an
oath has been duly made, the fact that the person making it had at the time of
making it no religious belief shall not for
any purpose affect the validity of
the oath.
Cf. 1915, No. 40, s. 329
301.
Affirmation may be made instead of oath
-
Every
person shall be entitled as of right to make his solemn affirmation instead of
an oath in cases in which an oath is required
or allowed by law, and that
affirmation shall be of the same force and effect as an oath.
Cf. 1915, No. 40, s. 330(1)
302.
Form of affirmation
-
The officer
administering an affirmation shall address to the person making the affirmation
the following words:
"Do you solemnly, sincerely, and truly affirm that. the evidence you are about to give touching the matter before the Court shall be the truth, the whole truth, and nothing but the truth?", or words to the like effect, and the person, making the affirmation shall thereupon indicate his assent to the affirmation so administered by uttering the words "I do", or other words to the like effect.
Cf. 1915, No. 40, s. 330(2)
303.
Evidence of children without oath
-
In any
proceedings all witnesses who are or appear to be under the age of 12 years may
be examined without oath, but any such witness
shall in that case be required
before being examined to make the following declaration: "I promise to speak the
truth, the whole
truth, and nothing but the truth", or a declaration to the like
effect; and such a declaration shall be of the same force and effect
as if the
witness had taken an oath.
Cf. 1915, No. 40, s. 331
304.
Necessity of oath
-
Subject to
the provisions of this Act, all witnesses in any judicial proceedings, civil or
criminal, shall be examined on oath.
Cf. 1915. No. 40, s. 332
PART
VIII
EXTRADITION
Extradition from Niue to New Zealand or to the Cook Islands
305.
Arrest in Niue of fugitive offenders from New Zealand or the Cook Islands
-
When a
warrant has been lawfully issued by any competent authority in New Zealand or in
the Cook Islands for the arrest of any person
and that person is suspected of
being in Niue or of being about to come into Niue, a Judge of the High Court
may, if he is satisfied
in any manner that the warrant has been issued, and
whether it has been produced to him or not, issue his warrant for the arrest
of
that person in Niue, and that warrant shall be addressed to such person or
persons as the judge thinks fit.
Cf. 1915, No. 40, s. 333
306.
Order of return to New Zealand or to the Cook Islands
-
On the
arrest of any person in pursuance of a warrant so issued by a judge of the High
Court, the person so arrested shall be forthwith
brought before the High Court,
which may, on the production of the original warrant issued in New Zealand or in
the Cook Islands,
order the return of that person to New Zealand or to the Cook
Islands, as the case may be.
Cf. 1915, No. 40, s. 334
307.
Refusal of order in case of hardship
-
The Hig