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THE NIUE ACT 1966
Act 38 of 1966 - 1 January 1967
Commencement: Pt
XXX -
Rest -
Title
1. Short Title and commencement
2. Interpretation
3. Application
PART I
THE EXECUTIVE GOVERNMENT OF
4-14D. Repealed
The Public Revenues of
15. Repealed
16. Loans to
17. Treasurer of
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 Repealed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 Repealed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
31-47. Repealed
48. Publication of enactments in the Niue Island Gazette
Regulations
49. Repealed
Village councils
51. Village Council bylaws
52. Validity and disallowance of bylaws
PART III
THE HIGH COURT OF
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 Repealed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 Repealed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 dwelling house, 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.
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
243. Transfer of convicted persons to
244. Release of prisoners transferred to
244A. Recall of offender subject to supervision
245. Person conditionally released from imprisonment, or portion of
whose sentence is conditionally remitted, may be re-imprisoned
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
251A. 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
305. Arrest in
306. Order of return to
307. Refusal of order in case of hardship
308. Imprisonment or release pending return
309. Release on security instead of return
310. Return to
311. Cancellation of order of return
Extradition from
312. Arrest in
313. Order of return to
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
319. Cancellation of order of return
Application of Extradition Act to
320. Extradition Act in force in
PART IX
CROWN SUITS
321. Crown proceedings in
322. Repealed
PART X
323-334. Repealed
PART XI
THE LAND COURT OF NIUE
335-385. Repealed
PART XII
THE LAND APPELLATE COURT OF
386-404. Repealed
PART XIII
CUSTOMARY LAND
405-414. Repealed
PART XIV
PARTITION AND EXCHANGE OF
415-430. Repealed
PART XV
ALIENATION OF
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
573. Leaving
574. Leaving
575. Leaving
576. Leaving
577. Leaving
578. Attempting to leave
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
609. Conditions of removal
610. Method of removal
611. Admission to hospital of persons removed to
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
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
657. [Repealed]
658. Actions and prosecution s in relation to
PART XXXI
THE
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
670. Contribution to Government Superannuation Fund by employees of the
671. Repealed
PART XXXII
THE LAWS OF
Application of the Laws of
672. Law of
673. Jurisdiction of the High Court
674. Common law and equity to be administered concurrently
675. Statute law of
676. When enactment in force in
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
688. Demise of the Crown Act in force in
689. Designs Act in force in
689A. Misuse of Drugs Act in force in
690. Incorporated Societies Act in force in
691. Industrial and Provident Societies Act in force in
692. Parts of Infants Act in force in
693. Marine Insurance Act in force in
694. Mercantile Law Act in force in
695. Merchandise Marks Act in force in
696. Occupiers Liability Act in force in
697. Partnership Act in force in
698. Patents Act in force in
699. Post Office Act in force in
700. Property Law Act in form in
701. Sale of Goods Act in form in
701A. Seal of New Zealand Act in force in
702. Trade Marks Act in force in
703. Trustee Act in force in
704. Wills Act Amendment Act 1852 in force in
705. Merchant Shipping Act (U.K.) not to apply to
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
718. Time of day in
719. Statutory references to time
720. Statutory declarations
721. Execution of documents in
722. Taxes on Niuean land
723. Bankruptcy
724. Warrants of arrest
725. Trespass ab initio
Miscellaneous Provisions
726. Banking
727.
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
730. The High Court
731. The
732. The Land Appellate Court
733. The
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
[
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
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
["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
"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;
"
["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
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
"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
"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.
"
"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
PART I
THE EXECUTIVE GOVERMENT OF
4-14D. Repealed by s. 2(1) of the
The Public Revenues of
15. Repealed by s. 2(1) of the
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
(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
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
any such graduate
employee may practise medicine or surgery in
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
(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
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
(4) No person transferred
pursuant to this section shall be entitled to be returned to
(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
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
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
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
PART II
THE LEGISLATIVE GOVERNMENT OF
31-44. Repealed by s. 2(1) of the
45, 46. Repealed by s. 10(2) of the
47. Repealed by s. 2(11) of the
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
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
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)
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
Constitution of the High Court
53-61. Repealed by s. 2(1) of the
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
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
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
(a) A Commissioner of
the High Court;
(b) A Solicitor of
the Supreme Court of
(c) The Registrar of
the High Court;
(d) A Postmaster;
(e) The Comptroller
of Customs;
(f) Repealed by s
2(1) of the
(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
(7) Every such
affidavit shall, if made in
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
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
Jurisdiction of the Supreme Court in
106. Civil
jurisdiction of Supreme Court extends to
(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
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
(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
(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
(5) No prosecution in
Cf. 1915, No. 40, s.
155
Cases Stated by the High Court or
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
(4) Every case so
stated shall be under the seal of the High Court, the Land Appellate Court, or
the
(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
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
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
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
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
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
(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
125. No certiorari,
mandamus, or prohibition - The
Supreme Court shall not exercise control over any Court in
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
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.
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
(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
[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
[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
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
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
(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
(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
(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
(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
(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
*Not
(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
(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
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
[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
248. Jurisdiction
of High Court - Except where otherwise expressly
provided, all offences against the laws of
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
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).