Part 3
Matters of justification or excuse

Sentence or process

26 Execution of sentence, process, or warrant

(1) Every ministerial officer of any court authorised to execute a lawful sentence, and every prison manager of any prison, and every person lawfully assisting any such ministerial officer or prison manager, is justified in executing the sentence.

(2) Every ministerial officer of any court duly authorised to execute any lawful process of the court, whether of a civil or a criminal nature, and every person lawfully assisting him, is justified in executing it; and every prison manager required under the process to receive and detain any person is justified in receiving and detaining him.

(3) Every one duly authorised to execute a lawful warrant issued by any court or Justice or Community Magistrate or other person having jurisdiction to issue the warrant, and every person lawfully assisting him, is justified in executing the warrant; and every prison manager required under the warrant to receive and detain any person is justified in receiving and detaining him.


27 Execution of erroneous sentence or process

If a sentence is passed or a process is issued by a court having jurisdiction under any circumstances to pass such a sentence or issue such a process, or if a warrant is issued by a court or person having jurisdiction under any circumstances to issue such a warrant, the sentence passed or process or warrant is - sued shall be sufficient to justify the execution of it by every officer, prison manager, or other person authorised to execute it, and by every person lawfully assisting him, notwithstand¬ing that—

(a) the court passing the sentence or issuing the process had no authority to pass that sentence or issue that process in the particular case; or

(b) the court or other person issuing the warrant had no jurisdiction to issue it, or exceeded its or his jurisdiction in issuing it, in the particular case.


28 Sentence or process without jurisdiction

(1) Every officer, prison manager, or person executing any sentence, process, or warrant, and every person lawfully assisting him, shall be protected from criminal responsibility if—

(a) he acts in good faith under the belief that the sentence or process was that of a court having jurisdiction, or, as the case may be, that the warrant was that of a court, Justice, Community Magistrate, or other person having authority to issue warrants; and

(b) it is proved that the person passing the sentence or is - suing the process acted as such a court under colour of having some appointment or commission lawfully authorising him to act as such a court, or, as the case may require, that the person issuing the warrant acted as a Justice, Community Magistrate, or other person having authority to do so.

(2) This section shall apply notwithstanding that, in fact,—

(a) any such appointment or commission as aforesaid did not exist or had expired; or

(b) the court or the person passing the sentence or issuing the process was not the court or the person authorised by the appointment or commission to act; or

(c) the person issuing the warrant was not duly authorised to issue it.


29 Irregular warrant or process

(1) Every one acting under a warrant or process that is bad in law on account of some defect in substance or in form, apparent on the face of it, shall be protected from criminal responsibility to the same extent and subject to the same provisions as if the warrant or process were good in law if in good faith and without culpable ignorance or negligence he believed that the warrant or process was good in law; and ignorance of the law shall in this case be an excuse.

(2) It is a question of law whether the facts of which there is evidence do or do not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.

PART 6 - ENFORCEMENT OF PENALTIES

Orders relating to victim reparation

124.
Assistance with enforcement of orders for victim reparation—

(1)This section applies if—

(a)the ICC—

(i)makes an order under article 75 of the Statute requiring reparation; and

(ii)requests that the order be enforced in accordance with article 109 of the Statute; and

(b)neither the conviction in respect of which the order was imposed nor the order requiring reparation is subject to further appeal.

(2)The Attorney-General may give authority for the request to proceed if he or she is satisfied that the order—

(a)requires reparation; and

(b)is of a kind that can be enforced in the manner provided in this section.

(3)If the Attorney-General gives authority for the request to proceed,—

(a)the Attorney-General must refer the request to the appropriate New Zealand agency; and

(b)that agency must, without delay,—

(i)in a case where the order requires a monetary payment, take such steps as are necessary to enforce the order as if it were a sentence of reparation imposed under [section 32 of the Sentencing Act 2002]; or

(ii)in a case where the order requires the restitution of assets, property or other tangible items, take such steps as are necessary to enforce the order as if it were an order for the restitution of property made under section 404(1) of the Crimes Act 1961; or

(iii)in a case where the order requires another remedy, take such steps as are necessary to enforce the order as if it were enforceable under Part 6 of the High Court Rules; and

(c)that agency must, without delay, make such report to the Attorney-General on the results of any action taken as it considers to be appropriate in the circumstances.

(4)For the purposes of this section,—

(a)[section 145 of the Sentencing Act 2002] and Part 3 of the Summary Proceedings Act 1957 (which relate, respectively, to the enforcement of a sentence of reparation and the enforcement of fines) apply with any necessary modifications to an order of the ICC for monetary payment as if it were an order of the District Court made in summary proceedings; and

(b)Part 6 of the High Court Rules apply, with any necessary modifications, to an order referred to in subsection (3)(b)(iii).

(5)Despite subsection (4), an order may not be made under Part 3 of the Summary Proceedings Act 1957—

(a)imposing a sentence for non-payment of an order of the ICC requiring monetary payment; or

(b)modifying an order of the ICC made under article 75 of the Statute, without the prior agreement of the ICC; or

(c)remitting or directing that no further steps be taken to enforce all or any part of a sum of money due under an order made by the ICC, without the prior agreement of the ICC.

(6)Nothing in this section limits or affects the provision of other types of assistance to the ICC in relation to an order made under article 75 of the Statute.

Cf Statute, articles 75(5) and (6), 109(1)

125.
Enforcement of fines—

(1)This section applies if—

(a)the ICC—

(i)orders payment of a fine under article 77(2)(a) of the Statute; and

(ii)requests that the order be enforced in accordance with article 109 of the Statute; and

(b)neither the conviction in respect of which the order was imposed nor the order for payment of a fine is subject to further appeal.

(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that the order—

(a)involves a monetary penalty; and

(b)is of a kind that can be enforced in the manner provided in this section.

(3)If the Attorney-General gives authority for the request to proceed,—

(a)the Attorney-General must refer the request to the appropriate New Zealand agency; and

(b)that agency must, without delay,—

(i)take such steps as are necessary to enforce the order as if it were a fine imposed on conviction . . .; and

(ii)make such report to the Attorney-General on the results of any action taken as it considers to be appropriate in the circumstances.

(4)For the purposes of this section, Part 3 of the Summary Proceedings Act 1957 (which relates to the enforcement of fines) applies, with any necessary modifications, to a fine imposed by the ICC.

(5)Despite subsection (4), an order may not be made under Part 3 of the Summary Proceedings Act 1957—

(a)imposing a sentence for non-payment of a fine imposed by the ICC; or

(b)modifying an order of the ICC for payment of a fine, without the prior agreement of the ICC; or

(c)remitting or directing that no further steps be taken to enforce all or any part of a fine payable under an order made by the ICC, without the prior agreement of the ICC.

(6)Nothing in this section limits or affects the provision of other types of assistance to the ICC in relation to a penalty imposed under article 77 of the Statute.

Cf Statute, articles 77(2)(a), 109(1)

Assistance with enforcement of forfeiture orders

126.
Request for forfeiture of tainted property—

(1)This section applies if—

(a)the ICC—

(i)makes an order under article 77(2)(b) of the Statute for the forfeiture of tainted property; and

(ii)requests assistance under article 109(1) of the Statute to enforce the forfeiture order; and

(b)neither the conviction in respect of which the order was imposed nor the forfeiture order is subject to further appeal.

(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that the order is of a kind that can be enforced in the manner provided in sections 127 to 131.

(3)If the Attorney-General gives authority for the request to proceed, the Attorney-General must refer the request to the Solicitor-General for registration of the forfeiture order in the manner provided in sections 127 to 129.

Cf 1992 No 86 s 54; Statute, articles 77(2)(b), 109(1)

127.
Solicitor-General may apply for registration—

(1)The Solicitor-General may apply to the High Court for the registration of a forfeiture order or an amendment to such an order.

(2)On an application under subsection (1), the Court must register the order or the amendment to the order under section 128 if it is satisfied that the order or amendment to the order is in force.

128.
Method of registration of order—

(1)A forfeiture order, or an amendment to such an order, must be registered in the High Court by the registration in accordance with the prescribed procedure, if any, of—

(a)a copy of the order or amendment sealed by the ICC; or

(b)a copy of the order or amendment authenticated in accordance with subsection (2).

(2)A document is authenticated for the purposes of subsection (1)(b) if it purports to be—

(a)signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of the ICC; or

(b)authenticated in any other manner authorised by the Statute or the Rules.

(3) An amendment to a forfeiture order does not, for the purposes of this Act and of the Criminal Proceeds (Recovery) Act 2009, have any effect until it is registered.

(4) A facsimile copy of a sealed or authenticated copy of an order or an amendment of an order has the same effect, for the pur¬poses of this Act and of the Criminal Proceeds (Recovery) Act 2009, as the sealed or authenticated copy that is not a facsim¬ile.

(5)Despite subsection (4), registration effected by means of a facsimile copy ceases to have effect on the expiry of the period of 21 days commencing on the date of registration unless, before the expiry of that period, the sealed or authenticated copy is registered.

129.
Notice of registration of order—

If the High Court registers an order under section 128, the Court may direct the Solicitor-General to do either or both of the following:

(a)give notice of the registration, in the manner and within the time the Court considers appropriate, to such persons (other than a person convicted of an offence in respect of which the order was made) as the Court has reason to believe may have an interest in the property:

(b)publish notice of the registration in the manner and within the time the Court considers appropriate.

Cf 1995 No 27 s 42(4)

130 Effect of registration of order

(1) A forfeiture order registered under section 128 has effect and
may be enforced as if it were a profit forfeiture order—
(a) made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and
(b) entered on the date of registration.

(2) Subsection (1) applies subject to sections 132 and 133.

(3) If a forfeiture order is registered under section 128,—
(a) subpart 3 of Part 2 of the Criminal Proceeds (Recovery) Act 2009 so far as is applicable and with any necessary modifications, and except to the extent that this Act pro¬vides otherwise, applies in relation to the order; and
(b) the property must be disposed of, or otherwise dealt with, in accordance with the order of, or directions given by, the ICC and the Attorney-General may give such directions as may be necessary to give effect to that order or those directions; and
(c) if, for any reason, the Attorney-General is not able to dispose of the property in accordance with the ICC’s order or directions, the Attorney-General may, after consulting with the ICC, arrange for the property to be transferred to the person in whom it was vested immediately before the forfeiture order was made.

(4) A restraining order registered in accordance with section 112(2) has effect, and may be enforced, as if it were a re¬straining order—
(a) made under the Criminal Proceeds (Recovery) Act 2009; and
(b) entered on the date of registration.

131 Forfeiture order may be treated as profit forfeiture order

(1) If the Attorney-General is unable to give effect to a forfeiture order, the Attorney-General must take measures to recover—
(a) the value specified by the ICC as the value of the tainted property ordered by the ICC to be forfeited; or
(b) if the ICC has not specified the value of the tainted property, the value that, in the opinion of the Attorney-General, is the value of the tainted property ordered by the ICC to be forfeited.

(2) In a case to which subsection (1) applies, the forfeiture order
is to be treated as a profit forfeiture order for the equivalent amount and may be enforced accordingly as if it were a profit forfeiture order—
(a) made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and
(b) entered on the date of registration.

132.
Third parties may apply for relief—

(1)If a forfeiture order is registered under section 128, a person (other than a person convicted of an offence in respect of which the order was made) who claims an interest in any of the property to which the order relates may apply to the High Court for an order under section 133.

(2)A person on whom notice of the hearing of the ICC held in connection with the making of the forfeiture order was served, or who appeared at the hearing, may not make an application under subsection (1) without the leave of the High Court.

(3)The High Court must not grant leave under subsection (2) unless it is satisfied that—

(a)the applicant had good reason for failing to attend the hearing held by the ICC in connection with the making of the forfeiture order; or

(b)evidence proposed to be adduced by the applicant in connection with the application under subsection (1) was not reasonably available to the applicant at the time of the hearing of the ICC; or

(c)there are special reasons justifying the grant of leave.

(4)An application under subsection (1) must be made before the expiry of the period of 2 months beginning on the date on which the forfeiture order is registered in the High Court.

(5)Despite subsection (4), the High Court may grant a person leave to make an application under subsection (1) after the expiry of the period referred to in subsection (4) if it is satisfied that the person's failure to apply within that period was not owing to any neglect on the person's part.

(6)A person who makes an application under subsection (1) must serve notice of the application on the Solicitor-General, who must be a party to any proceedings on the application.

(7)This section and section 133 apply subject to any contrary provision in the Statute or the Rules.

Cf 1991 No 120 s 23C; 1992 No 86 s 57(1) and (3); Statute, articles 77(2)(b), 109(1)

133.
Court may grant relief to third party—

(1)This section applies if—

(a)a person applies to the High Court for an order under this section in respect of an interest in property; and

(b)the Court is satisfied that the applicant's claim is valid.

(2)If this section applies, the High Court must make an order—

(a)declaring the nature, extent, and value of the applicant's interest in the property; and

(b)either—

(i)directing that the interest be transferred to the applicant; or

(ii)declaring that payment be made to the applicant of an amount equal to the value of the interest declared by the Court.

(3)Despite subsection (2), the Court may, if it thinks fit, refuse to make an order under that subsection if it is satisfied that—

(a)the applicant was, in any respect, involved in the commission of the offence in respect of which the order was made; or

(b)although the applicant acquired the interest at the time of or after the commission of the offence, it was not acquired in good faith and for value.

Cf 1995 No 27 s 46

134.
Cancellation of registration of order—

(1)If a forfeiture order has been registered under section 128, the Attorney-General may direct the Solicitor-General to apply to the High Court for cancellation of the registration.

(2)Without limiting the generality of subsection (1), the Attorney-General may give a direction under that subsection in relation to a forfeiture order if—

(a)the order has, since its registration in New Zealand, ceased to have effect; or

(b)the order was registered in contravention of section 126; or

(c)the Attorney-General considers that cancellation is appropriate having regard to the arrangements in force with the ICC in relation to the enforcement of orders of that kind; or

(d)the ICC so requests.

(3)If, in accordance with a direction given under subsection (1), the Solicitor-General applies to the High Court for cancellation of the registration of a forfeiture order, the Court must cancel the registration accordingly.

(4) If, under the Criminal Proceeds (Recovery) Act 2009, a forfeiture order registered under section 128 of this Act is discharged (in whole or in part) or is revoked, that discharge or revocation constitutes a ground for an application for cancellation of the order under this section.

Cf 1995 No 27 s 47


Transfer of money or property recovered under this Part

135.
Money or property recovered to be transferred to ICC—

(1)Any money or property, including the proceeds of sale of property, recovered as a result of the enforcement under this Part of an order of the ICC must be transferred to the ICC.

(2)Subsection (1) applies—

(a)subject to section 130(3)(b) and (3)(c); but

(b)despite any other provision in this Part or in any other Act.

Cf Statute, articles 75(5), 109(3)

PART 7 - PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Enforcement of sentences in New Zealand

139.
New Zealand may act as State of enforcement—

(1)The Minister may advise the ICC that New Zealand is willing to allow persons who are ICC prisoners as a result of being sentenced to imprisonment by the ICC to serve those sentences in New Zealand, subject to any specified conditions.

(2)If advice is given under subsection (1), the Minister may, at any time, advise the ICC—

(a)of further conditions that New Zealand wishes to impose in relation to the serving of sentences in New Zealand by ICC prisoners; or

(b)that it wishes to withdraw a condition referred to in subsection (1) or paragraph (a).


(3)Before providing advice under subsection (1) or subsection (2), the Minister must consult with—

(a)the Commissioner of Police; and

(b)the chief executive of the Department of Corrections; and

(c)the chief executive of the Department of Labour.

(4)If advice is given under subsection (1), the Minister may, at any time, advise the ICC that New Zealand is no longer willing to allow ICC prisoners to serve their sentences in New Zealand.

(5)Any advice given under subsection (4) does not affect the enforcement of sentences for which the Minister has accepted the designation of the ICC under section 140(1)(c).

Cf Statute, article 103(1) and (2)

140.
Request for sentence to be served in New Zealand—

(1)This section and sections 141 to 156 apply if—

(a)the Minister has given advice under section 139(1) and has not withdrawn that advice under section 139(4); and

(b)the ICC imposes a sentence of imprisonment on a person—

(i)convicted of an international crime; or

(ii)convicted of an offence against the administration of justice; and

(c)the ICC designates New Zealand, under article 103 of the Statute, as the State in which the sentence is to be served.

(2)If the Minister accepts the designation, the Minister must issue an order for detention in the prescribed form, and forward that order and any information about the person supplied by the ICC to each of the following persons:

(a)the Commissioner of Police:

(b)the chief executive of the Department of Corrections:

(c)the chief executive of the Department of Labour.

(3)The Minister may, at any time, ask the ICC to give 1 or more of the following assurances:

(a)that all or part of the transportation costs incurred by New Zealand in the enforcement of the sentence will be met by the ICC:

(b)that the ICC will arrange for the transportation of the ICC prisoner who is the subject of the designation,—

(i)to New Zealand, for the purpose of enabling his or her sentence to be enforced in New Zealand; or

(ii)from New Zealand, on the completion of the sentence, or if the ICC prisoner is to be transferred to another country:

(c)an assurance relating to such other matters as the Minister thinks appropriate.

141.
Prisoner to be held in custody—

(1) If the Minister accepts the designation of New Zealand as the State in which a sentence of imprisonment imposed by the ICC is to be served, the ICC prisoner may be transported to New Zealand in the custody of—
(a) a Police employee; or
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC .

(2) On arrival in New Zealand or, if the person is already in New Zealand when the sentence is imposed, on the imposition of the sentence, the ICC prisoner must be detained in accordance with the Corrections Act 2004 as if the prisoner had been sentenced to imprisonment under New Zealand law.

(3)Despite subsection (2) and any other enactment,—

(a)the ICC prisoner has the right to communicate on a confidential basis with the ICC, without impediment from any person:

(b)a Judge of the ICC or a member of the staff of the ICC may visit the ICC prisoner for the purpose of hearing any representations by the prisoner without the presence of any other person, except any representative of the prisoner:

(c) the ICC prisoner must not, without the prior agreement of the ICC, be—
(i) temporarily released from custody under section 62 of the Corrections Act 2004; or
(ii) temporarily removed from prison under section 62 of the Corrections Act 2004 unless that re-moval is to a hospital:

(d) the Minister must advise the ICC if the ICC prisoner is transferred to a hospital under section 62 of the Corrections Act 2004.

Cf Statute, articles 106, 110(1)

142. Order for detention to act as authority for detention—

The order for detention issued by the Minister under section 140(2) is sufficient authority for the detention of the prisoner to which the notice relates for the purposes of this Part and the Corrections Act 2004—
(a) until the ICC prisoner completes, or is released from, the sentence or is transferred to another country; and
(b) during any further period that the ICC prisoner is required to serve the sentence if the ICC makes an order for recall of the prisoner.

143. Parole Act 2002 does not apply in certain cases

(1)The administration of a sentence of imprisonment imposed by the ICC that is served in New Zealand, including any decision to release or transfer the ICC prisoner, must be undertaken in accordance with Part 10 of the Statute and the Rules.

(2)The [Parole Act 2002] does not apply to a sentence of imprisonment imposed by the ICC that is served in New Zealand unless the sentence has been imposed for an offence against the administration of justice.

(3)If, in relation to the administration of a sentence of imprisonment imposed for an offence against the administration of justice that is served in New Zealand by an ICC prisoner, there is any inconsistency between the provisions of the [Parole Act 2002] and the provisions of the Statute and the Rules, the provisions of the Statute and the Rules prevail.

Cf Statute, articles 106(1), 110(1) and (2)