CROWN LAW
SOLICITOR-GENERAL’S
PROSECUTION GUIDELINES
As at 1 July 2013

PROSECUTION GUIDELINES

ATTORNEY-GENERAL’S INTRODUCTION
1.
Under  our  constitutional  arrangements,  the  Attorney-General  is  responsible  through
Parliament to the citizens of New Zealand for prosecutions carried out by or on behalf
of  the  Crown.   In  practice,  however,  the  prosecution  process  is  superintended  by  the
Solicitor-General,  who,  pursuant  to  s  9A  of  the  Constitution  Act  1986,  shares  all  the
relevant powers vested in the office of the Attorney-General.  These arrangements have
renewed force with the codification of the Solicitor-General’s responsibility for public
prosecutions in s 185 of the Criminal Procedure Act 2011.
2.
Unlike  most  similar  jurisdictions,  New  Zealand  has  no  centralised  decision-making
agency  in  relation  to  prosecution  decisions.    In  respect  of  Crown  prosecutions,
prosecutions  are  mainly  conducted  by  Crown  Solicitors  –  private  practitioners
appointed  to  prosecute  under  a  warrant  issued  by  the  Governor-General.    Other
prosecutions  are  conducted  by  the  New  Zealand  Police  and  numerous  other
enforcement  agencies  that  are  responsible  for  enforcing  a  particular  regulatory  area.
Notably,  the  2011  Review  of  Public  Prosecution  Services  did  not  recommend  any
fundamental change to these arrangements.
3.
The  absence  of  a  central  decision-making  process  underscores  the  importance  of
comprehensive guidelines, and the acceptance of core prosecution values.  The Review of
Public  Prosecution  Services  also  reiterated  the  important  role  the  Solicitor-General’s
Prosecution Guidelines play in setting core and unifying standards for  the conduct of
public  prosecutions.    The  revised  Guidelines  reinforce  the  expectations  that  the
Solicitor-General and I have of all prosecutors who prosecute on behalf of the State.
4.
New  Zealand  is  fortunate  to  be  served  by  a  public  prosecution  service  that  is
professional,  open,  fair  and  responsible.    These  standards  will  continue  through  the
day-to-day adherence to the values reflected in these Guidelines.

Hon Christopher Finlayson QC
Attorney-General
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PROSECUTION GUIDELINES

SOLICITOR-GENERAL’S INTRODUCTION
1.
New  Zealand’s  public  prosecution  system  is  in  the  midst  of  significant  change.    The
Criminal  Procedure  Act  2011  changes  the  way  criminal  cases  proceed  through  the
courts and imposes new obligations on all parties to conduct cases in a different way.
Fiscal restraints have forced Crown Solicitors and prosecuting agencies to consider how
to maintain fundamental prosecutorial standards with more limited resources.
2.
Notwithstanding  this  significant  change,  the  essentials  of  good  prosecution  practice
remain  the  same.    This  is  reflected  in  these  revised  Guidelines  which,  in  large  part,
continue  to  reflect  the  core  principles  established  by  the  2010  Guidelines.    The
revisions that have been made are largely those that are required to address the findings
of the 2011 Review of Public Prosecution Services and to provide new guidance in light of the
changes made by the Criminal Procedure Act 2011.
3.
Revisions  to  reflect  the  Review  of  Public  Prosecution  Services  include  those  that  aim  to
reinforce  the  Solicitor-General’s  oversight  of  all  public  prosecutions.    That  oversight
role is codified for the first time in the Criminal Procedure Act.  A key way in which
oversight  is  discharged  is  through  these  Guidelines,  which  apply  more  explicitly  to
government  agencies  than  past  versions.    Other  revisions  to  reflect  the  Criminal
Procedure Act include guidance on the approach prosecutors should take to the Act’s
case  management  process,  including  charge  discussions,  and  revised  guidance  on
appeals.
4.
As  noted  by  the  Attorney-General  in  his  introduction,  the  promulgation  of  these
Guidelines  is  an  important  unifying  force  in  light  of  the  diversity  of  New  Zealand’s
prosecution  arrangements.    I  am  confident  that  adherence  to  these  Guidelines  by
prosecutors  will  maintain  a  high  quality  public  prosecution  service  which  has  the
confidence of the public, the judiciary and the legal profession now and into the future.

Michael Heron QC
Solicitor-General
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PROSECUTION GUIDELINES

DEFINITIONS
Attorney-General:
The senior Law Officer of the Crown appointed under warrant by
the Governor-General.
Solicitor-General:
The junior Law Officer of the Crown appointed under warrant by
the Governor-General pursuant to the Royal Prerogative.
Law Officers:
The Attorney-General and the Solicitor-General.
Crown Solicitors:
Those who hold the warrant of Crown Solicitor for the following
regions:
•
Auckland;
•
Christchurch;
•
Dunedin;
•
Gisborne;
•
Hamilton;
•
Invercargill;
•
Napier;
•
New Plymouth;
•
Palmerston North;
•
Rotorua;
•
Tasman;
•
Tauranga;
•
Timaru;
•
Wanganui;
•
Wellington;
•
Whangarei.
Crown prosecutor:
A Crown Solicitor or a lawyer representing a Crown Solicitor; or
any other lawyer employed or instructed by the Solicitor-General
to conduct a Crown prosecution.
Crown prosecution:
A  prosecution  of  a  kind  specified  in  the  Crown  Prosecution
Regulations 2013, and which must be conducted by the Solicitor-
General or a Crown prosecutor.
Public prosecution:
A prosecution for an offence that is commenced by or on behalf
of  the  Crown,  including  a  prosecution  commenced  by  a  Crown
entity as defined in the Crown Entities Act 2004.
Government agencies:
All  departments  listed  in  Schedule  1,  State  Sector  Act 1988  and
Crown  entities  as  defined  in  the  Crown  Entities  Act  2004  who
have the ability to commence and conduct prosecutions, and the
New Zealand Police.
New Zealand Police:
Includes  all  employees  of  the  New  Zealand  Police,  regardless  of
whether they are constables as defined in the Policing Act 2008.
Enforcement agencies:
Includes government agencies.
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1.
PURPOSE AND PRINCIPLES OF THE GUIDELINES
1.1
The  purpose  of  these  Guidelines  is  to  ensure  that  the  principles  and  practices  as  to
prosecutions  in  New Zealand  are  underpinned  by  core  prosecution  values.    These
values  aim  to  achieve  consistency  and  common  standards  in  key  decisions  and  trial
practices.    If  these  values  are  adhered  to,  New Zealand  will  continue  to  have
prosecution processes that are open and fair to the defendant, witnesses and the victims
of crime, and reflect the proper interests of society.
1.2
Compliance  with  these  Guidelines  is  expected  in  respect  of  public  prosecutions  and
Crown prosecutions.  However, the Guidelines are intended to assist all those persons
whose function it is to enforce the criminal law by instituting and conducting a criminal
prosecution.  Specifically these Guidelines are intended to assist in determining:
1.2.1
Whether criminal proceedings should be commenced;
1.2.2
What charges should be filed;
1.2.3
Whether,  if  commenced,  criminal  proceedings  should  be  continued  or
discontinued.
And to:
1.2.4
Provide guidance for the conduct of criminal prosecutions; and,
1.2.5
Establish standards of conduct and practice that the Law Officers expect from
those whose duties include conducting prosecutions.
1.3
The  Guidelines  reinforce  the  expectation  of  the  Law  Officers  and  the  Courts  that  a
prosecutor will act in a manner that is fundamentally fair, detached and objective.  The
prosecutor  should  act  to  foster  a  rational  trial  process,  not  one  based  on  emotion  or
prejudice.
2.
COMPLIANCE WITH THE GUIDELINES
2.1
All  public  prosecutions  and  Crown  prosecutions,  whether  conducted  by  Crown
prosecutors,  government  agencies  or  instructed  counsel,  should  be  conducted  in
accordance with these Guidelines.
2.2
Adherence  to  the  Guidelines  is  also  a  condition  of  the  warrant  held  by  each  Crown
Solicitor.
2.3
The Guidelines are not an instruction manual for prosecutors, nor do they cover every
decision  that  must  be  made  by  prosecutors  and  enforcement  agencies.    They  do  not
purport to lay down any rule of law.  They instead reflect the aspirations and practices
of  prosecutors  who  adhere  to  the  United  Nations  Guidelines  on  the  Role  of  the
Prosecutor (1990) and the International Association of Prosecutors Standards (1999).
Private prosecutions
2.4
Private  prosecutions  are  recognised  in  and  regulated  by  the  Criminal  Procedure  Act
2011 and related legislation such as the Criminal Disclosure Act 2008.
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2.5
The  Solicitor-General  has  only  a  limited  role  or  authority  in  relation  to  private
prosecutions, for example when the power to stay a prosecution is exercised or there is
a  statutory  requirement  that  a  prosecutor  obtains  the  Solicitor-General’s  consent.
However,  the  Solicitor-General  expects  law  practitioners  conducting  a  private
prosecution to adhere to the Law Society’s general rules of professional conduct and to
all relevant principles in these Guidelines.
3.
THE SUPERVISION OF PROSECUTIONS
3.1
Section 185 of the Criminal Procedure Act 2011 codifies the Solicitor-General’s long-
standing  responsibility  to  maintain  general  oversight  of  the  conduct  of  public
prosecutions.  The discharge of this duty includes the issuing and maintenance of these
Guidelines, and the provision of general advice and guidance to government agencies as
required.
3.2
In  respect  of  prosecutions  by  government  departments  to  which  the  Cabinet  Directions
for the Conduct of Crown Legal Business 2012 apply, the Solicitor-General retains oversight
of legal services provided by Crown Solicitors, departmental lawyers or other instructed
counsel and may direct the manner in which those services are provided.
3.3
The  Solicitor-General’s  supervision  of  Crown  prosecutions  is  more  direct.    The
Solicitor-General must assume responsibility for and conduct every Crown prosecution
from  the  time  or  stage  prescribed  in  the  Crown  Prosecution  Regulations  2013.    A
Crown  prosecution  must  be  conducted  by  a  Crown  prosecutor  (ordinarily  a  Crown
Solicitor or counsel employed in the Crown Solicitor’s practice) in accordance with any
directions given by the Solicitor-General (either generally or in the particular case).
3.4
In relation to most practical matters, the relationship between the Solicitor-General and
a  Crown  Solicitor  is  based  on  the  Terms  of  Office  as  well  as  practice  and  convention.
While  a  Crown  Solicitor  is  subject  to  any  directions  given  by  the  Solicitor-General  in
respect of a Crown prosecution, it is the expectation of the Law Officers that opinions
of  the  Solicitor-General  in  relation  to  all  matters  within  the  province  of  a  Crown
Solicitor will be respected and complied with and, in the case of Crown prosecutions,
without resort to formal directions.
3.5
As  a  matter  of  practice,  government  agencies  conducting  prosecutions  and  Crown
prosecutors (ordinarily a Crown Solicitor) are expected to inform the Solicitor-General
or Deputy Solicitor-General (Criminal) of any matter which ought to be communicated
to those offices.  Without limiting the expectation, this will cover any matter of general
public or legal importance or which gives rise to substantial or new forms of legal risk.
3.6
Section 176 of the Criminal Procedure Act 2011 recognises the common law right of
the Attorney-General to intervene in the prosecution process and to stay a prosecution.
The  Solicitor-General  may  also  exercise  that  power  in  accordance  with  s  9A  of  the
Constitution Act 1986.  Implicit in the Law Officers’ ability to stay a prosecution is an
ability to direct the manner in which a prosecution is to be conducted in order to avoid
the need for the prosecution to be stayed.
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PROSECUTION GUIDELINES

4.
THE INDEPENDENCE OF THE DECISION-MAKER
4.1
The  universally  central  tenet  of  a  prosecution  system  under  the  rule  of  law  in  a
democratic society is the independence of the prosecutor from persons or agencies that
are not properly part of the prosecution decision-making process.
4.2
In  practice  in  New Zealand,  the  independence  of  the  prosecutor  refers  to  freedom
from  undue  or  improper  pressure  from  any  source,  political  or  otherwise.    All
government agencies should ensure the necessary processes are in place to protect the
independence of the initial prosecution decision.
5.
THE DECISION TO PROSECUTE
The Test for Prosecution
5.1
Prosecutions ought to be initiated or continued only where the prosecutor is satisfied
that the Test for Prosecution is met.  The Test for Prosecution is met if:
5.1.1
The  evidence  which  can  be  adduced  in  Court  is  sufficient  to  provide  a
reasonable prospect of conviction – the Evidential Test; and
5.1.2
Prosecution is required in the public interest – the Public Interest Test.
5.2
Each aspect of the test must be separately considered and satisfied before a decision to
prosecute  can  be  taken.    The  Evidential  Test  must  be  satisfied  before  the  Public
Interest  Test  is  considered.    The  prosecutor  must  analyse  and  evaluate  all  of  the
evidence and information in a thorough and critical manner.
The Evidential Test
5.3
A  reasonable  prospect  of  conviction  exists  if,  in  relation  to  an  identifiable  person
(whether natural or legal), there is credible evidence which the prosecution can adduce
before a court and upon which evidence an impartial jury (or Judge), properly directed
in  accordance  with  the  law,  could  reasonably  be  expected  to  be  satisfied  beyond
reasonable  doubt  that  the  individual  who  is  prosecuted  has  committed  a  criminal
offence.
5.4
It is necessary that each element of this definition be fully examined when considering
the evidential test in each particular case.
Element
Description
There will often be cases where it is clear that an offence
has  been  committed  but  there  is  difficulty  identifying
who  has  committed  it.    A  prosecution  can  only  take
Identifiable individual
place  where  the  evidence  sufficiently  identifies  that  a
particular person is responsible.  Where no such person
can  be  identified,  and  the  case  cannot  be  presented  as
joint liability there can be no prosecution.
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PROSECUTION GUIDELINES

Element
Description
This means evidence which is capable of belief.  It may
be  necessary  to  question  a  witness  before  coming  to  a
decision  as  to  whether  the  evidence  of  that  witness
could be accepted as credible.  It may be that a witness
is  plainly  at  risk  of  being  so  discredited  that  no  Court
could safely rely on his/her evidence.  In such a case it
may be concluded that there is, having regard to all the
evidence,  no  reasonable  prospect  of  obtaining  a
conviction.  If, however, it is judged that a Court in all
the  circumstances  of  the  case  could  reasonably  rely  on
the evidence of a witness, notwithstanding any particular
Credible evidence
difficulties, then such evidence is credible and should be
taken into account.
Prosecutors may be required to make an assessment of
the quality of the evidence.  Where there are substantial
concerns  as  to  the  creditability  of  essential  evidence,
criminal  proceedings  may  not  be  appropriate  as  the
evidential test may not be capable of being met.
Where there are credibility issues, prosecutors must look
closely  at  the  evidence  when  deciding  if  there  is  a
reasonable prospect of conviction.
Only evidence which is or reliably will be available, and
legally admissible, can be taken into account in reaching
a decision to prosecute.
Prosecutors should seek to anticipate even without pre-
Evidence which the
trial  matters  being  raised  whether  it  is  likely  that
prosecution can adduce
evidence will be admitted or excluded by the Court.  For
example,  is  it  foreseeable  that  the  evidence  will  be
excluded  because  of  the  way  it  was  obtained?    If  so,
prosecutors  must  consider  whether  there  is  sufficient
other evidence for a reasonable prospect of conviction.
What is required by the evidential test is that there is an
objectively  reasonable  prospect  of  a  conviction  on  the
evidence.    The  apparent  cogency  and  creditability  of
Could reasonably be
evidence  is  not  a  mathematical  science,  but  rather  a
expected to be satisfied
matter of judgment for the prosecutor.   In forming his
or  her  judgment  the  prosecutor  shall  endeavour  to
anticipate and evaluate likely defences.
The  evidence  available  to  the  prosecutor  must  be
Beyond reasonable doubt
capable of reaching the high standard of proof required
by the criminal law.
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PROSECUTION GUIDELINES

Element
Description
This requires that careful analysis is made of the law in
order  to  identify  what  offence  or  offences  may  have
Commission of a criminal
been  committed  and  to  consider  the  evidence  against
offence
each  of  the  ingredients  which  establish  the  particular
offence.
The Public Interest Test
5.5
Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable
prospect of conviction, the next consideration is whether the public interest requires a
prosecution.    It  is  not  the  rule  that  all  offences for  which  there  is  sufficient  evidence
must  be  prosecuted.    Prosecutors  must  exercise  their  discretion  as  to  whether  a
prosecution is required in the public interest.
5.6
In  a  time  honoured  statement  made  in  1951  Sir Hartley  Shawcross  QC MP,  the  then
United  Kingdom  Attorney-General,  made  the  following  statement  to  Parliament  in
relation to prosecutorial discretion:
“It  has  never  been  the  rule  in  this  country  …  that  suspected  criminal
offences must automatically be the subject of prosecution.”
5.7
Broadly,  the  presumption  is  that  the  public  interest  requires  prosecution  where  there
has been a contravention of the criminal law.  This presumption provides the starting
point for consideration of each individual case.  In some instances the serious nature of
the case will make the presumption a very strong one.  However, prosecution resources
are  not  limitless.    There  will  be  circumstances  in  which,  although  the  evidence  is
sufficient to provide a reasonable prospect of conviction, the offence is not serious and
prosecution  is  not  required  in  the  public  interest.    Prosecutors  for  instance  should
positively  consider  the  appropriateness  of  any  diversionary  option  (particularly  if  the
defendant is a youth).
5.8
The  following  section  lists  some  public  interest  considerations  for  prosecution  which
may be relevant and require consideration by a prosecutor when determining where the
public interest lies in any particular case.  The following list is illustrative only.
Public interest considerations for prosecution
5.8.1
The predominant consideration is the seriousness of the offence.  The gravity
of the maximum sentence and the anticipated penalty is likely to be a strong
factor in determining the seriousness of the offence;
5.8.2
Where the offence involved serious or significant violence;
5.8.3
Where  there  are  grounds  for  believing  that  the  offence  is  likely  to  be
continued  or  repeated,  for  example,  where  there  is  a  history  of  recurring
conduct;
5.8.4
Where the defendant has relevant previous convictions, diversions or cautions;
5.8.5
Where the defendant is alleged to have committed an offence whilst on bail or
subject to a sentence, or otherwise subject to a Court order;
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5.8.6
Where the offence is prevalent;
5.8.7
Where the defendant was a ringleader or an organiser of the offence;
5.8.8
Where the offence was premeditated;
5.8.9
Where the offence was carried out by a group;
5.8.10  Where the offence was an incident of organised crime;
5.8.11  Where  the  victim  of  the  offence,  or  their  family,  has  been  put  in  fear,  or
suffered  personal  attack,  damage  or  disturbance.    The  more  vulnerable  the
victim, the greater the aggravation;
5.8.12  Where the offender has created a serious risk of harm;
5.8.13  Where  the  offence  has  resulted  in  serious  financial  loss  to  an  individual,
corporation, trust person or society;
5.8.14  Where the defendant was in a position of authority or trust and the offence is
an abuse of that position;
5.8.15  Where  the  offence  was  committed  against  a  person  serving  the  public,  for
example  a  doctor,  nurse,  member  of  the  ambulance  service,  member  of  the
fire service or a member of the police;
5.8.16  Where  the  defendant  took  advantage  of  a  marked  difference  between  the
actual or developmental ages of the defendant and the victim;
5.8.17  Where the offence was motivated by hostility against a person because of their
race,  ethnicity,  gender,  sexual  orientation,  disability,  religion,  political  beliefs,
age, the office they hold, or similar factors;
5.8.18  Where there is any element of corruption.
5.9
The  following  section  lists  some  public  interest  considerations  against  prosecution
which  may  be  relevant  and  require  consideration  by  a  prosecutor  when  determining
where  the  public  interest  lies  in  any  particular  case.    The  following  list  is  illustrative
only.
Public interest considerations against prosecution
5.9.1
Where the Court is likely to impose a very small or nominal penalty;
5.9.2
Where  the  loss  or  harm  can  be  described  as  minor  and  was  the  result  of  a
single  incident,  particularly  if  it  was  caused  by  an  error  of  judgement  or  a
genuine mistake;
5.9.3
Where the offence is not on any test of a serious nature, and is unlikely to be
repeated;
5.9.4
Where there has been a long passage of time between an offence taking place
and the likely date of trial such as to give rise to undue delay or an abuse of
process unless:
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•
the offence is serious; or
•
delay has been caused in part by the defendant; or
•
the offence has only recently come to light; or
•
the complexity of the offence has resulted in a lengthy investigation.
5.9.5
Where  a  prosecution  is  likely  to  have  a  detrimental  effect  on  the  physical  or
mental health of a victim or witness;
5.9.6
Where the defendant is elderly;
5.9.7
Where the defendant is a youth;
5.9.8
Where the defendant has no previous convictions;
5.9.9
Where  the  defendant  was  at  the  time  of  the  offence  or  trial  suffering  from
significant mental or physical ill-health;
5.9.10  Where the victim accepts that the defendant has rectified the loss or harm that
was  caused  (although  defendants  should  not  be  able  to  avoid  prosecution
simply because they pay compensation);
5.9.11  Where the recovery of the proceeds of crime can more effectively be pursued
by civil action;
5.9.12  Where  information  may  be  made  public  that  could  disproportionately  harm
sources of information, international relations or national security;
5.9.13  Where  any  proper  alternatives  to  prosecution  are  available  (including
disciplinary or other proceedings).
5.10
These  considerations  are  not  comprehensive  or  exhaustive.    The  public  interest
considerations  which  may  properly  be  taken  into  account  when  deciding  whether  the
public  interest  requires  prosecution  will  vary  from  case  to  case.    In  regulatory
prosecutions,  for  instance,  relevant  considerations  will  include  an  agency’s  statutory
objectives and enforcement priorities.
5.11
Cost is also a relevant factor when making an overall assessment of the public interest.
In  each  case  where  the  evidential  test  has  been  met,  the  prosecutor  will  weigh  the
relevant public interest factors that are applicable.  The prosecutor will then determine
whether or not the public interest requires prosecution.
No prosecution
5.12
If the prosecutor decides that there is insufficient evidence or that it is not in the public
interest to prosecute, a decision of “no prosecution” will be taken.
5.13
A decision of “no prosecution” does not preclude any further consideration of a case
by the prosecutor, if new and additional evidence becomes available, or a review of the
original decision is required.  It is anticipated that such a step will be rare.
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6.
REASONS FOR DECISIONS
6.1
Subject to considerations contained in the “Media Protocol for Prosecutors” (referred
to at Guideline 30), in any case of significant public interest, the Crown Solicitor or a
senior  manager  of  the  relevant  government  agency  may  if  he  or  she  sees  fit,  issue  a
statement  giving  broad  reasons  why  a  decision  to  prosecute  or  not  to  prosecute  was
made.
6.2
This step may also be taken by a Crown Solicitor in relation to a stay of proceedings or
application  to  dismiss  a  charge  under  s 147  of  the  Criminal  Procedure  Act  2011  or  a
decision to offer no evidence.
6.3
The Solicitor-General should be consulted before any statements are issued by a Crown
Solicitor.
7.
REOPENING A PROSECUTION DECISION
7.1
People  should  be  able  to  rely  on  decisions  taken  by  prosecutors.    Normally,  if  a
prosecutor tells a suspect or defendant that there will not be a prosecution, or that the
prosecution has been stopped, that is the end of the matter and the case will not start
again.
7.2
Occasionally  there  are  special  reasons  where  a  prosecutor  will  restart  the  prosecution
where that course is available under the applicable law, particularly if the case is serious.
7.3
These reasons include:
7.3.1
Rare  cases  where  a  reassessment  of  the  original  decision  shows  that  it  was
wrong and should not be allowed to stand;
7.3.2
Cases  which  are  stopped  so  that  more  evidence  which  is  likely  to  become
available in the near future can be collected and prepared.  In these cases, the
prosecutor  will  tell  the  defendant  that  the  prosecution  may  well  start  again;
and
7.3.3
Cases  which  are  stopped  because  of  a  lack  of  evidence  but  where  more
significant evidence is discovered later.
8.
THE CHOICE OF CHARGES
8.1
The nature and number of the charges filed should adequately reflect the criminality of
the defendant’s conduct as disclosed by the facts to be alleged at trial.  The charges may
be representative where the criteria under s 20 of the Criminal Procedure Act 2011 are
made out.
8.2
The number or seriousness of charges should not be inflated to increase the likelihood
of an offer by the defendant to plead guilty to lesser charges.
Trying defendants or charges together
8.3
Filing  unnecessary  additional  charges  or  joining  defendants  who  have  played  a  minor
role  to  major  alleged  offenders  in  large  multi-defendant  trials  is  not  in  the  public
interest.
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PROSECUTION GUIDELINES

8.4
The prosecutor should ensure that the number of charges, whether or not arising from
the same or related criminal acts, is truly necessary to properly reflect the criminality of
the defendant’s alleged conduct.
8.5
The  same  principle  should  be  applied  to  decisions  about  the  number  of  people  to be
prosecuted in relation to any given event.  Charges against multiple defendants should
be filed only where that is necessary to put the full picture before the fact-finder, or the
person charged has played more than a minor role in the offending.
8.6
In decisions both as to the number of charges or number of defendants, the prosecutor
should  take  into  account  the  cost  of  prosecuting  multiple  charges  and  defendants  in
proportion to the seriousness of the offending and any likely sentence.  Such decisions
should be made as early in the prosecution as possible.
9.
REVIEW OF CHARGES
9.1
Wherever  necessary  and  practicable,  the  charges  to  be  filed  should  be  reviewed  by  a
senior prosecutor.
9.2
Once  charges  have  been  filed,  and  before  trial,  the  prosecutor  should  review  the
charges  to  determine  whether  those  are  the  charges  that  should  be  prosecuted  or
whether:
9.2.1
Any of the charges should be amended to bring them into conformity with the
evidence available;
9.2.2
Other charges should be added; and
9.2.3
Any  charges  should  be  withdrawn  (because,  for  example,  they  are  no  longer
considered necessary in the public interest, or are not adequately supported by
the evidence).
9.3
When  the  Solicitor-General  or  Crown  prosecutor  assumes  responsibility  for  a  Crown
prosecution, he or she should undertake an independent review of the charges.  There
is a limited opportunity to amend or withdraw existing charges in Crown prosecutions
without  obtaining  the  leave  of  the  Court,  or  to  add  new  charges  without  filing  a
charging document.  It is for the Solicitor-General or the Crown prosecutor to decide
what  of  the  original  charges  should  remain,  be  amended  or  withdrawn,  and  what
additional  charges  are  required.    The  charges  should  be  founded  on  the  available
evidence, and should reasonably reflect the criminality disclosed on the evidence.
10.
COORDINATION OF PROSECUTION DECISIONS
10.1
Government  agencies  should  respond  to  criminal  behaviour  in  a  coordinated  way.
When  determining  whether  to  commence  a  prosecution,  the  prosecutor  should
consider  any  existing  or  likely  prosecution  of  the  defendant  (or  other  proceedings
against the defendant) by another government agency.  If a prosecution is proposed to
be  commenced  under  a  specific  regulatory  statute,  consultation  with  the  agency
administering that statute is appropriate.
12

PROSECUTION GUIDELINES

11.
STATUTORY CONSENTS TO PROSECUTIONS
11.1
There  are  numerous  offences  that  can  only  be  prosecuted  with  the  consent  of  the
Attorney-General.    In  practice  this  function  is  almost  always  undertaken  by  the
Solicitor-General.  Often, where offences may touch on matters of security or involve
foreign  relations  or  international  treaty  obligations,  consent  is  required  to  ensure  that
the circumstances of the prosecution accord with the statutory purpose of the Act.  The
offence of bribery in relation to a Member of Parliament requires the consent of a High
Court judge.
11.2
The  process  for  recording  consent  is  set  out  in  s 24  of  the  Criminal  Procedure  Act
2011.  Prosecutors seeking the Attorney-General’s consent should provide a draft copy
of  the  charging  documents  and  sufficient  material  to  allow  the  Solicitor-General  to
properly consider the evidence and relevant circumstances of the alleged offence.
12.
IMMUNITIES FROM PROSECUTION
12.1
On occasions the prosecution case will depend upon the evidence of an accomplice or
participant in an offence in order to proceed against a defendant considered to be more
culpable or a greater risk to public safety.
12.2
Unless that potential witness has already been charged and sentenced he or she may be
justified in declining to give evidence on the grounds of self-incrimination.
12.3
In  such  a  case  it  will  be  necessary  for  the  prosecutor  to  consider  giving  the  witness
immunity from prosecution.  Immunity takes the  form of a written undertaking from
the  Solicitor-General  to  exercise  the  power  to  stay  if  the  witness  is  prosecuted  for
nominated  offences.    It  thus  protects  the  witness  from  both  public  and  private
prosecutions.
12.4
The only person able to give such an undertaking is the Solicitor-General.
12.5
The  only  purpose  in  giving  immunity  is  to  enable  the  prosecutor  to  use  otherwise
unavailable evidence.
12.6
Immunities  are  to  be  used  sparingly  and  only  in  cases  where  it  is  demonstrably  clear
that  without  the  evidence  given  under  immunity  the  prosecution  case  is  unlikely  to
succeed, or there is a risk it will be significantly weakened.
12.7
Before agreeing to give immunity, the Solicitor-General will almost invariably need to
be satisfied of at least the following matters:
12.7.1  That the offence in respect of which the evidence is to be given is serious;
12.7.2  That  there  are  no  other  reasonably  available  avenues  of  gaining  sufficient
evidence  to  bring  a  successful  prosecution  other  than  relying  upon  the
evidence to be given under immunity;
12.7.3  That  the  evidence  to  be  given  under  immunity  is  admissible,  relevant  and
significantly strengthens the prosecution case;
12.7.4  That the witness, while having committed some identifiable offence, is not an
equal or greater risk to the public safety than the person to be tried;
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PROSECUTION GUIDELINES

12.7.5  That  the  evidence  to  be  given  under  immunity  is  apparently  credible  and,
preferably, supported by other admissible material;
12.7.6  That  no  inducement,  other  than  the  possibility  of  an  immunity,  has  been
suggested to the witness; and
12.7.7  That  admissible  evidence  exists,  sufficient  to  charge  the  witness  with  the
offences he or she is believed to have committed.
12.8
The  formal  opinion  of  the  senior  prosecutor  (almost  invariably  the  Crown  Solicitor)
regarding the merits of the immunity will be required.
12.9
The witness who is to testify under immunity should provide a brief of the evidence he
or  she  is  to  give.    That  person  should  be  advised  that  they  should  seek  independent
legal advice, the reasonable cost of which will be met by the prosecution.  The witness
should  be  advised  that  should  the  application  for  immunity  be  declined  the  brief  of
evidence  and  any  other  information  obtained  from  that  person  in  connection  with  a
promise to apply for immunity cannot be used against that person by the prosecution.
The brief of evidence will be subject to the ordinary rules of disclosure.
13.
DIRECTION BY THE SOLICITOR-GENERAL THAT A
PROSECUTION SHOULD BE CONDUCTED AS A
CROWN PROSECUTION
13.1
Under regulation 4 of the Crown Prosecution Regulations 2013, the Solicitor-General
may  direct  that,  having  regard  to  the  particular  features  of  the  proceeding,  the
proceeding should be conducted as a Crown prosecution.
13.2
A  direction  will  only  be  issued  in  the  rare  case  where  the  Solicitor-General’s  direct
oversight  of  a  prosecution  is  required.    Features  of  a  prosecution  that  may  indicate  a
direction under regulation 4 is appropriate include where:
13.2.1  The  prosecution  is  for  an  offence  that  is  so  serious  that  it  should  be
prosecuted by the Crown in the public interest;
13.2.2  The prosecution is of an alleged offender whose criminal history is so serious
that the offence should be prosecuted by the Crown in the public interest;
13.2.3  The prosecution raises complex or novel legal principles;
13.2.4  The prosecution raises issues that require the advocacy or independence of the
Crown;
13.2.5  The  prosecution  involves  matters  which  are  of  particular  general  or  public
importance;
13.2.6  A prosecution for the offence is rare or novel;
13.2.7  The  nature  of  the  evidence  and/or  the  characteristics  of  witnesses  require
specialist prosecution skills; or
13.2.8  The
prosecution
involves
highly
sensitive
and/or
confidential
Crown/government information and/or raises issues of national security.
14

PROSECUTION GUIDELINES

13.3
Consideration  of  whether  a  direction  is  appropriate  may  be  at  the  instigation  of  the
prosecuting agency or the Solicitor-General.
14.
WITNESS ANONYMITY ORDERS
14.1
All applications for witness anonymity orders by an enforcement agency must have the
prior approval of the Solicitor-General.
14.2
When  the  application  is  made  the  Solicitor-General  should  be  provided  with  material
from the person in relation to whom the order is sought; either in statement or affidavit
form,  explaining  that  person’s  perception  of  the  likely  danger  to  them  or  the  risk  of
serious damage to property.  That statement should be accompanied by a report from
the  Police  as  to  the  likelihood  of  danger,  or  serious  damage  to  property  and  with  an
opinion  from  or  through  a  Crown  Solicitor  as  to  the  application  of  ss 110(4)(a)  or
112(4) of the Evidence Act 2006.
15.
BAIL
15.1
Generally, matters relating to bail are codified in the Bail Act 2000.  In addition s 24(b)
of the New Zealand Bill of Rights Act 1990 provides that those who are charged with
criminal offences shall be released on reasonable terms and conditions unless  there is
just cause for continued detention.
15.2
The core principles in relation to whether to remand the defendant in custody or order
release on bail are found in s 8 of the Bail Act 2000.
15.3
Prosecutors opposing bail should base their opposition only on factors relevant to bail
and on the basis of credible, cogent and relevant information.
15.4
Where, by virtue of s 8(2)(b) of the Bail Act 2000 the issue of bail involves the strength
of the prosecution case, prosecutors should pay special attention to s 20(2) of that Act.
15.5
In accordance with s 30 of the Victims’ Rights Act 2002, prosecutors should make all
reasonable efforts to ensure any views of the victim are put before the Court where an
application for bail is made by a defendant charged with a specified offence under s 29.
15.6
Prosecutors should take account of the Bail Practice Note (Bail Act 2000) of 7 February
2002 issued by the Chief District Court Judge which details the Court’s expectations of
prosecutors.
15.7
Crown  prosecutors  appear  on  bail  matters  in  two  different  capacities.    If  the
prosecution  is  not  a  Crown  prosecution,  they  may  appear  on  instructions  from  the
agency that commenced the proceeding.  If the prosecution is a Crown prosecution, the
Crown prosecutor appears as the prosecutor.
15.8
In both capacities the Crown prosecutor should seek and be cognisant of the views of
the  agency  that  commenced  the  proceeding  as  to  any  bail  risks  presented  by  the
defendant,  however,  the  ultimate  decision  as  to  what  will  be  said  to  the  Court  about
eligibility  for  bail  is  the  responsibility  of  the  Crown  prosecutor.    This  is  not
incompatible  with  the  role  of  that  agency  whose  legitimate  views  as  to  bail  are  to  be
placed before the Court.
15

PROSECUTION GUIDELINES

16.
DISCLOSURE
Disclosure obligations
16.1
Proper  disclosure  is  central  to  preventing  wrongful  convictions.    Under  the  Criminal
Disclosure Act 2008 a “prosecutor” is the person in charge of the file or files relating to
a  criminal  prosecution.    Where  the  proceeding  is  a  Crown  prosecution,  a  Crown
prosecutor will have custody of the trial file but the person in charge of the files is the
person  designated  by  the  enforcement  agency  as  the  officer  or  employee  responsible
for the file.  The Crown prosecutor should not be considered the “prosecutor” for the
purposes  of  the  Act.    In  any  other  prosecution  (whether  conducted  by  a  Crown
prosecutor or not) the prosecutor as well as the officer or employee designated by the
relevant  government  agency  as  the  person  responsible  for  the  file  is  relevantly  a
“prosecutor” in terms of the Act.
16.2
The Criminal Disclosure Act 2008 prescribes a comprehensive regime for disclosure by
prosecutors to a defendant.  Disclosure obligations will not be carried into effect merely
by seeking assurances from the person in charge of the file that the trial file contains all
necessary disclosure material and that any other material disclosed represents complete
disclosure.  In a Crown prosecution, a Crown prosecutor should ensure that the person
in  control  of  the  relevant  files  is  aware  of  and  has  complied  with  the  obligations
imposed by the Criminal Disclosure Act 2008.
16.3
Enforcement  agencies  should  be  in  a  position  to  verify  what  documents  have  been
disclosed and when by appropriate record keeping.
16.4
For  the  purpose  of  disclosure,  enforcement  agencies  shall  ensure  that  the  prosecutor
has access to all relevant information relating to the charges in the possession of that
agency.
16.5
Enforcement agencies and prosecutors should use their best endeavours to make initial
disclosure by the time of the defendant’s first appearance to facilitate entry of a plea by
the  second  appearance.    As  long  as  initial  disclosure  has  been  made,  the  Court  has  a
discretion to require a plea under s 39(1) of the Criminal Procedure Act 2011.
Evidence that is not disclosed until trial
16.6
Section  113  of  the  Criminal  Procedure  Act  2011  provides  that  the  trial  may  be
adjourned  or  the  jury  discharged  if  the  defendant  is  likely  to  be  prejudiced  by  the
production  of  a  prosecution  witness  without  sufficient  notice.    Therefore  the
prosecutor should provide adequate notice of an intention to call any additional witness
and  provide  the  defence  and  the  Court  with  a  brief  of  the  evidence  that  witness  will
give.  In jury trials, this practice should be followed even though the prosecutor is not
limited  at  trial  to  the  evidence  filed  in  formal  statements  or  adduced  under  an  oral
evidence order.
Information which the prosecutor does not intend to produce in evidence
16.7
Prosecutors are reminded to make available to the defence the names, and if authorised
under  s 17  of  the  Criminal  Disclosure  Act 2008,  the  addresses  of  all  those  who  have
been  interviewed  who  are  able  to  give  evidence  on  a  relevant  subject  but  whom  the
prosecution does not intend to call, irrespective of the prosecutor’s view of credibility.
It  is  for  the  prosecutor  to  decide  whether  the  evidence  meets  the  test  of  “relevance”
provided in s 8 of the Criminal Disclosure Act 2008.
16

PROSECUTION GUIDELINES

Previous convictions of proposed witnesses
16.8
Section  13(3)(d)  of  the  Criminal  Disclosure  Act  2008  requires  the  prosecution  to
disclose any convictions of a prosecution witness that are known to the prosecutor and
that may affect the credibility of that witness.
16.9
An enforcement agency entitled to access criminal record databases should do so as a
matter  of  course.    If  the  enforcement  agency  is  in  doubt  about  whether  a  conviction
should be disclosed, counsel’s advice should be taken.  Any list of convictions is part of
full disclosure and as such should be supplied as soon as is reasonably practicable after
a  defendant  has  pleaded  not  guilty  in  accordance  with  s  13(1)  of  the  Criminal
Disclosure  Act  2008.    If  the  prosecuting  agency  intends  to  withhold  details  of
convictions, the defendant should be notified in sufficient time to enable rulings to be
sought from the Court.
Disclosure of any inducement or immunity given to a witness
16.10
The  defendant  should  always  be  advised  of  the  terms  of  any  immunity  from
prosecution  given  to  any  witness.    Likewise  the  existence  of  any  other  factor  which
might operate as an inducement to a witness to give evidence should be disclosed to the
defendant.    This  includes  the  fact  that  the  witness  has  been  paid  for  providing
information (R v Chignell [1991] 2 NZLR 257).
Identity of informer
16.11
There will be good reason for restricting disclosure where the identity of an informer is
at stake.  The general principle is that the identity of an informer may not be disclosed
unless the Judge is of the opinion that the disclosure of the name of the informer, or of
the  nature  of  the  information,  is  necessary  or  desirable  in  order  to  establish  the
innocence of the defendant.
16.12
A statutory restriction on disclosure of the true identity of undercover police officers is
contained in s 108 of the Evidence Act 2006.
Obligations or requests under Official Information Act 1982/Privacy Act 1993
16.13
Government  agencies  are  subject  to  the  Official  Information  Act  1982,  but  Crown
Solicitors are not.  Official information should be made available unless there is good
reason for withholding it.  Under s 18(da) of the Act, a request for official information
from a defendant or a person acting on behalf of the defendant may be refused if the
defendant could seek the information under the Criminal Disclosure Act 2008.
16.14
While as a matter of practical convenience Crown Solicitors may facilitate responses to
requests for official information, they are not as a matter of law obliged to do so.  The
responsibility  to  provide  this  information  rests  on  government  agencies,  and  requests
made of a Crown Solicitor should be referred to them.  The Crown Solicitor should be
advised of all information supplied to other parties.
16.15
Government  agencies  and  Crown  Solicitors  are  subject  to  the  Privacy  Act  1993.
Personal information (i.e. that particular category of official information held about an
identifiable  person)  is  the  subject  of  an  explicit  right  of  access,  upon  request,  by  that
person unless it comes within some limited exceptions.  Under s 29(1)(ia) of the Act, an
agency may refuse to disclose information to a defendant or a defendant’s agent if the
defendant could seek the information under the Criminal Disclosure Act 2008.
17

PROSECUTION GUIDELINES

“Third party” disclosure
16.16
The Criminal Disclosure Act 2008 makes provision for a defendant to seek orders that
a  person  other  than  the  prosecutor  disclose  information  likely  to  assist  the  defence.
Section 26(1)(b)  of  the  Act  requires  notice  of  the  application  to  be  served  on  the
prosecutor and that person may be heard at a hearing under s 27.
16.17
At  any  hearing  the  prosecutor,  while  mindful  of  the  right  to  a  fair  trial,  may  make
submissions  that  assist  the  Court  on  the  question  of  the  relevance  or  admissibility  of
the evidence sought and, particularly where a third party is unrepresented, remind the
Court of any statutory or other interests of the third party in non-disclosure.
Contempt applications
16.18
In  relation  to  a  s 27  non-party  disclosure  hearing,  any  contempt  application  under
s 29(6) of the Criminal Disclosure Act 2008 should be referred to the Deputy Solicitor-
General (Criminal).
17.
CASE MANAGEMENT
17.1
The case management provisions of the Criminal Procedure Act 2011 aim to reduce the
time  taken  for  cases  to  be  resolved;  better  focus  the  next  court  appearance  after  the
defendant enters a plea; and increase the proportion of cases in which pleas are entered
or charges are withdrawn as a result of out-of-court discussions.
17.2
The  obligation  on  a  prosecutor  is  to  engage  in  case  management  discussions  and  to
jointly complete a case management memorandum.  Prosecutors should use their best
endeavours to engage defence counsel in discussions and assist with the completion of
the  memorandum  and  should  document  their  efforts  in  this  respect.    There  are  costs
sanctions  for  failure  to  comply  with  these  and  other  obligations  under  the  Criminal
Procedure Act 2011.
17.3
In accordance with usual practice before the Act’s commencement, prosecutors should
be  prepared  to  conduct  case  management  discussions  on  a  without  prejudice  basis
having regard to the purposes of the case management procedure in s 55(1)(a) of the
Act.
17.4
Any agreement reached by the prosecutor as part of the case management discussions
and recorded in the case management memorandum should bind any other prosecutor
(for example, a different prosecutor who attends the case review hearing).  Departure
from an agreement reached as part of case management discussions should only occur
in  exceptional  cases,  and  should  be  authorised  by  the  Crown  Solicitor  or  senior
manager  within  the  relevant  government  agency.    Examples  of  exceptional
circumstances may include where significant new evidence has come to light since the
agreement was reached or where the prosecutor was unaware of information so that it
should negate the agreement in the interests of justice.
17.5
In cases where defence counsel will not discuss case management or jointly complete
the  memorandum,  the  prosecutor  should  not  file  a  unilateral  case  management
memorandum.  Prosecutors should, however, be prepared to discuss case management
at  the  review  hearing  that  will  be  held  in  the  absence  of  a  case  management
memorandum  and  be  in  a  position  to  draw  upon  their  record  of  the  efforts  taken  to
engage in the case management process.
18

PROSECUTION GUIDELINES

18.
PLEA DISCUSSIONS AND ARRANGEMENTS
18.1
Principled  plea  discussions  and  arrangements  have  a  significant  value  for  the
administration of the criminal justice system, including:
18.1.1  Relieving victims or complainants of the burden of the trial process;
18.1.2  Releasing  the  saved  costs  in  Court  and  judicial  time,  prosecution  costs,  and
legal aid resources to be better deployed in other areas of need;
18.1.3  Providing  a  structured  environment  in  which  the  defendant  may  accept  any
appropriate responsibility for his or her offending that may be reflected in any
sentence imposed.
18.2
Subject  to  the  requirements  of  these  Guidelines,  the  Solicitor-General  views  it  as
appropriate  for  a  prosecutor  to  engage  with  defence  counsel  in  a  process  concerning
disposition  of  charges  by  plea.    In  the  majority  of  cases,  plea  discussions  are  likely  to
occur  as  part  of  the  preparation  of  a  joint  case  management  memorandum  following
the entry of a not guilty plea.
18.3
Any  discussions  should  be  between  the  prosecutor  and  defence  counsel,  and  not
directly with the defendant.  In any case where the defendant has waived their right to a
lawyer,  any  question  of  appropriate  charges  should  be  dealt  with  at  the  case  review
hearing.
18.4
Any plea arrangement should be properly recorded in a form capable of being placed
before  a  Court.    The  prosecutor  may  not  depart  from  the  terms  of  an  arrangement
unless he or she has been materially misled by any information (from any source) as to
the  facts  relied  on  in  the  plea  discussions  and  the  Crown  Solicitor  or  senior  manager
within the relevant government agency agrees that it is appropriate in the circumstances
to repudiate the arrangement in whole or in part.
18.5
Where it is practical and appropriate, the victim or complainant should be informed of
any plea discussions and given sufficient opportunity to make his or her position as to
any  proposed  plea  arrangement  known  to  the  prosecutor.    It  is  expected  that
prosecutors  will  establish  or  continue  effective  processes  to  manage  victims’
expectations, consistent with the principle that while victims’ rights are an integral part
of  the  criminal  justice  system,  ultimately  the  prosecutor  should  make  decisions  based
on the broader public interest and interests of justice.
18.6
Plea  arrangements  may  be  contemplated  in  cases  where  the  charges  filed  are  “clearly
supported” by the evidence.  The overarching consideration is the interests of justice.
However, the following considerations are relevant:
18.6.1  Whether  the  charges  agreed  to  adequately  reflect  the  essential  criminality  of
the conduct; and
18.6.2  Whether  the  charges  agreed  to  provide  sufficient  scope  for  sentencing  to
reflect that criminality.
19

PROSECUTION GUIDELINES

18.7
In the context of plea discussions, it is not acceptable for prosecutors to:
18.7.1  Proceed with unnecessary additional charges or a more serious charge with a
view to securing a negotiated plea;
18.7.2  Agree to a plea of guilty to an offence not disclosed by the evidence; or
18.7.3  Agree  to  a  plea  of  guilty  on  the  premise  that  the  prosecutor  will  support  a
specific sentence.
18.8
Plea discussions will often encompass discussions about the factual basis of sentencing.
Any document in the nature of a summary of facts should contain a full account of the
charges  filed  on  the  basis  of  those  facts  that  could  have  been  proved  by  admissible
evidence  if  the  matter  went  to  trial.    It  should  not  omit  any  material  fact  for  the
purposes  of  any  plea  arrangement  with  the  defendant,  and  in  particular  should  not
outline facts to the court which are misleading or, when measured against the essential
elements  of  the  offence  to  which  the  defendant  has  pleaded  guilty,  would  cause  the
court  to  reject  the  plea  in  favour  of  a  plea  of  not  guilty.    Facts  that  should  not  be
omitted include the extent of the injury or damage suffered by a victim.
18.9
The  Solicitor-General  must  approve  all  plea  arrangements  in  relation  to  murder
charges.
19.
THE PROSECUTOR AND TRIAL FAIRNESS
19.1
The overarching duty of a prosecutor is to act in a manner that is fundamentally fair.
Prosecutors  should  perform  their  obligations  in  a  detached  and  objective  manner,
impartially and without delay.
19.2
Legal  practitioners  acting  in  a  prosecutorial  capacity  should  do  so  in  accordance  with
their ethical obligations as officers of the Court and conduct themselves according to
the rules of professional conduct.
19.3
Prosecutors should always protect the right to a fair trial.  Subject to that requirement,
prosecutors  may  act  as  strong  advocates  within  the  adversarial  process  and  may
prosecute their case forcefully in a firm and vigorous manner.  However, prosecutors
should not strive for a conviction.  They should present their case dispassionately and
avoid inflammatory language.
19.4
Prosecutors should ensure that they comply with the disclosure obligations contained in
the Criminal Disclosure Act 2008.
19.5
Prosecutors should be cognisant of the needs of victims and ensure that, in accordance
with the law and the requirements of a fair trial, victims and witnesses are treated with
care and respect.
19.6
Prosecutors  should  be  prepared  to  assist  the  trial  Judge  on  matters  of  fact  or  law  in
relation  to  any  matter  in  the  summing  up,  whether  or  not  the  matter  relates  to  the
prosecutor’s case.
20.
ASSISTANCE TO THE COURT
20.1
Obtaining a conviction is a consequence but not the purpose of a prosecution.
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20.2
Without compromising professional obligations and public responsibilities prosecutors
should,  where  appropriate,  assist  the  Court  in  the  fair,  prompt  and  cost  efficient
disposal of criminal matters.
20.3
In particular, but without limiting the general obligation, prosecutors should be astute
to ensure that:
20.3.1  The number of witnesses called at trial is necessary;
20.3.2  Courts  are  provided  with  information  and  submissions  of  a  standard  upon
which the Court can rely;
20.3.3  In the case of an unrepresented defendant where there is no amicus the Court
is  informed  of  any  matter  appearing  to  show  that  the  defendant  is  unable
reasonably to conduct his or her case; and
20.3.4  The summing up is free from errors of fact or law irrespective of whether the
particular  point  was  more  properly  one  for  the  defendant’s  trial  counsel  to
make.
21.
PROSECUTORS AND SENTENCING
21.1
The prosecutor should be prepared to draw the attention of the Court to the proven or
accepted facts of the case and any binding or relevant sentencing principles.
21.2
While  the  prosecutor  should  not  press  for  a  particular  term  of  imprisonment  or  any
other sentence, where it is considered necessary or appropriate, he or she should assist
the sentencing court by providing:
21.2.1  Any applicable principles from the Courts including guideline judgments;
21.2.2  All  proven  aggravating  factors  including  the  convicted  person’s  criminal
record;
21.2.3  The impact on any victims of the offending; and
21.2.4  The prosecutor’s view as to the appropriate sentence range or tariff.
21.3
A  similar  approach  should  be  taken  to  any  submissions  from  the  prosecutor  for  the
purposes of a sentence indication.
21.4
The Court may give a sentence indication if it is satisfied that the information available
to  it  is  sufficient  for  that  purpose.    Prosecutors  are  obliged  to  comply  with  a  request
from the court for additional information as may be made in accordance with s 61(3) of
the  Criminal  Procedure  Act  2011  or  r  4.9  of  the  Criminal  Procedure  Rules  2012.    A
sentence indication which forms the basis of a defendant’s guilty plea will ordinarily be
binding on the sentencing Judge.
22.
PRE-TRIAL APPLICATIONS
22.1
The  need  for,  and  nature  of,  pre-trial  applications  are,  and  will  remain,  a  matter  of
judgement for the prosecutor.  It is anticipated that in all such cases the Crown Solicitor
and  senior  officers  and  employees  of  government  agencies  will  ensure,  through
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effective  quality  control  mechanisms,  that  all  applications  are  justified  in  the
circumstances at the time, are properly supported by the relevant law and evidence, and
are filed in a timely fashion.
22.2
In relation to applications as to the admissibility of evidence under s 78 or s 101 of the
Criminal Procedure Act 2011, the prosecutor is not obliged to file an application if he
or  she  is  satisfied  that  there  is  no  arguable  objection  to  the  admissibility  of  the
identified evidence.
23.
JURY SELECTION
23.1
The Supreme Court judgment in R v Gordon-Smith (No 2) [2009] 1 NZLR 725 confirmed
the  lawfulness  of  the  practice  known  as  “jury  vetting”,  whereby  Crown  prosecutors
receive  from  the  Police  information  about  previous  criminal  convictions  of  those
whose  names  appear  on  the  jury  panel,  to  assist  in  determining  whether  or  not  to
challenge those people from becoming jurors.
23.2
The practice of jury vetting does not apply to persons whose criminal convictions are
covered by the Criminal Records (Clean Slate) Act 2004.
23.3
In Gordon-Smith the Supreme Court held that a Crown prosecutor should disclose to a
defendant  any  previous  convictions  of  a  potential  juror  known  to  the  Crown,  if  the
previous  convictions  give  rise  to  a  real  risk  that  the  juror  might  be  prejudiced  against
the defendant or in favour of the Crown.  Disclosure is otherwise not required.
24.
PROCEEDING IN THE DEFENDANT’S ABSENCE
24.1
Prosecutors should be aware of the ability of the Courts under the Criminal Procedure
Act 2011 to proceed in the absence of the defendant before and after plea.
24.2
It  is  inappropriate  for  a  defendant  to  be  able  to  frustrate  the  course  of  justice  by
absconding.    In  some  cases,  absconding  may  lead  to  complainants  withdrawing
otherwise  meritorious  complaints.    There  is  also  the  inconvenience  that  is  otherwise
caused  to  victims,  witnesses  and  jurors;  the  risk  that  witnesses’  memories  will  fade
thereby reducing the reliability and credibility of the evidence they eventually give; the
difficulties  caused  for  any  co-defendants  who  may  wish  the  case  to  proceed  against
them in a timely manner; and the inability for victims, particularly in serious cases, to
move on from the offence.
24.3
Examples of cases where prosecutors may seek to proceed in absence for category 2, 3
or 4 offences are:
24.3.1  Where  the  offending  is  particularly  traumatic  such  as  sexual  or  violent
offending and the prospect of giving evidence is especially distressing; or
24.3.2  Where there are multiple co-defendants who have attended for trial and wish
to have the charges heard.
24.4
Notwithstanding the examples provided at paragraph 24.3 the prosecutor will need to
be  able  to  identify  clear  public  interest  factors  that  render  it  demonstrably  in  the
interests of justice to proceed in absence.
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25.
RETRIALS AND STAY OF PROCEEDINGS
25.1
The common law right of the Attorney-General to intervene in the prosecution process
and  to  stay  any  prosecution  from  proceeding  further  is  recognised  in  s  176  of  the
Criminal Procedure Act 2011.
25.2
In  New Zealand  the  power  to  stay  has  been  sparingly  exercised.    That  conservative
approach is likely to continue.
25.3
Generally  speaking  the  power  of  entering  a  stay  will  be  exercised  in  three  types  of
situation:
25.3.1  Where  a  jury  has  been  unable  to  agree  after  two  trials.    After  a  second
disagreement  the  Crown  Solicitor  must  refer  the  matter  to  the  Solicitor-
General for consideration of a stay.  A stay will normally be directed unless the
Solicitor-General  is  satisfied  that  some  event,  not  relating  to  the  strength  of
the  Crown’s  case,  brought  about  one  or  both  of  the  disagreements,  or  that
new and persuasive evidence would be available on a third trial, or that there is
some  other  exceptional  circumstance  making  a  third  trial  desirable  in  the
interests of justice.
25.3.2  If  the  Solicitor-General  is  satisfied  that  the  prosecution  was  commenced
wrongly, or that circumstances have so altered since it was commenced as to
make its continuation oppressive or otherwise unjust.
25.3.3  To  clear  outstanding  or  stale  charges  or  otherwise  to  conclude  unresolved
charges;  for  example,  where  an  offender  has  been  convicted  on  serious
charges but a jury has disagreed on other less serious charges, or a convicted
person  is  serving  a  substantial  sentence  and  continuing  with  further  charges
would serve no worthwhile purpose.
25.4
The possible circumstances which may justify a stay under paragraphs 25.3.2 and 25.3.3
above are variable.  In general terms, however, the same considerations will apply as are
involved in the original decision to prosecute, always with the overriding concern that a
prosecution not be continued when its continuance would be oppressive or otherwise
not in the interests of justice.
26.
APPEALS
Consent to appeal or bring judicial review proceedings
26.1
Pursuant to the Cabinet Directions on the Conduct of Crown Legal Business 2012 a government
department  must  obtain  the  Solicitor-General’s  consent  to  appeal  any  decision  of  a
Court or to commence judicial review proceedings.  Pursuant to these Guidelines that
direction is extended to any appeal by a public prosecutor or a Crown prosecutor.
26.2
Prosecutors  should  provide  the  Crown  Law  Office  with  the  information  and
documents that are required for the Solicitor-General to decide whether consent should
be given, as identified in the Crown Law Office Prosecutors’ Handbook.
Appeals against pre-trial rulings
26.3
Leave  of  the  appeal  court  is  required  to  file  an  appeal  against  a  pre-trial  ruling.
Although there is a 20 working day time limit to file a leave application in relation to a
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pre-trial appeal, prosecutors should take steps to progress any application as a matter of
priority.  Often a critical factor in relation to these appeals will be the trial date and any
reason why the trial may not be adjourned.
Appeals against sentence
26.4
The prosecutor has a right of appeal against sentence.
26.5
Section  246  of  the  Criminal  Procedure  Act  2011  requires  that  any  appeal  by  a
prosecutor  against  sentence,  including  an  appeal  by  a  private  prosecutor,  is  only
brought by or with the consent of the Solicitor-General.
26.6
Consent  will  not  be  given  unless  the  sentence  imposed  is  considered,  in  all  of  the
circumstances, manifestly inadequate or contrary to principle.
26.7
In  considering  whether  an  appeal  against  sentence  should  be  brought,  prosecutors
should take into account that:
26.7.1  A  sentence  will  be  increased  on  a  prosecutor’s  appeal  only  where  it  is
manifestly inadequate or contrary to principle;
26.7.2  Any  increase  will  take  the  sentence  imposed  only  to  the  lower  end  of  the
correct available range;
26.7.3  Despite paragraph 26.7.2 above, an appeal may be justified where the appeal
involves  an  important  matter  of  principle,  or  the  appeal  is  to  be  taken  to
establish or modify a sentencing guideline judgment.
26.8
Where the appeal is to be taken on the grounds of error of principle it will be necessary
to:
26.8.1  Identify the principle; and
26.8.2  Demonstrate either:
•
that  the  principle  is  one  of  application  beyond  the  facts  of  the
particular case, or
•
that  the  sentence  has  brought  about  an  unfairness  having  regard  to
sentences  imposed  on  co-offenders,  or  in  similar  cases  where  the
offenders are serving a term of imprisonment.
Appeals on questions of law
26.9
Prosecutors may appeal on a question of law arising in a ruling by the trial court.  Leave
of the appeal court is required.  The ruling must be made in proceedings that relate to
or follow the determination of the charge or during the determination of the charge.
26.10
There must be a question of law that:
26.10.1  Was a significant factor in the disposition of the case; and
26.10.2  Has sufficient public interest to engage the appeal court.
26.11
An appeal on a question of law will only be appropriate if the ruling in question:
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26.11.1  Is sufficiently clear and precise to be capable of being challenged; and
26.11.2  Is concerned with a point of law, rather than the sufficiency of the evidence in
the case.
26.12
The  ability  to  appeal  on  a  question  of  law  arising  in  a  determination  of  the  charge
(except a question that arises in a jury verdict) is not intended to provide an ability to
appeal based on the merits of the case.
26.13
If the appeal court in consequence of an appeal on a question of law orders a new trial
Guideline 5 (above) will continue to be relevant.
Judicial review
26.14
A judicial review of a Court’s decision in a criminal prosecution may only be brought by
or with the consent of the Solicitor-General.
26.15
Judicial  review  is  not  a  review  of  the  merits  of  a  decision,  but  rather  a  review  of  the
process  by  which  the  decision  is  made.    The  grounds  on  which  a  decision  may  be
reviewed are limited.  The scope of statutory rights of appeal in criminal cases means
that there are few circumstances in which a judicial review of a decision in a criminal
prosecution should be brought.
26.16
Prosecutors  are  referred  to  the  guidance  in  these  Guidelines  as  to  when  an  appeal
against  a  decision  or  ruling  should  be  taken.    That  guidance  also  applies  to  a  judicial
review of that decision.
27.
SOLICITOR-GENERAL’S REFERENCE PROCEDURE
27.1
The Solicitor-General may refer a question of law that arises out of a trial to the Court
of  Appeal.    A  question  of  law  that  arises  out  of  a  first  appeal  against  conviction  or
sentence  to  the  High Court  or  Court  of  Appeal may  also  be  referred  to  the  Court  of
Appeal or the Supreme Court.
27.2
A Reference will only be appropriate if the ruling in question:
27.2.1  Is sufficiently clear and precise to be capable of being challenged;
27.2.2  Is concerned with a point of law, rather than the sufficiency of the evidence in
the case; and
27.2.3  Raises a point of practical importance which is likely to be followed in other
cases.
27.3
The Reference procedure is not to be used:
27.3.1   To determine theoretical questions of law; or
27.3.2  To  refer  a  ruling  which  is  clearly  in  ignorance  of  or  inconsistent  with  clear
existing authority.
27.4
A material consideration may be whether the ruling has been reported and is likely to
be followed in other cases.
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28.
RELATIONSHIP BETWEEN CROWN PROSECUTORS
AND ENFORCEMENT AGENCIES
The Police or other investigator
28.1
Crown prosecutors appear in the criminal courts in two distinct capacities, namely on
instructions  from  the  person  or  government  agency  who  commenced  the  proceeding
or, in respect of Crown prosecutions, as the Crown’s representative.
28.2
When acting on instructions, the Crown prosecutor is instructed in that capacity as an
agent  or  officer  of  the  Crown  and  should  still  act  in  accordance  with  the  applicable
guidelines.  While Crown prosecutors are expected to consult closely with and take into
account the views of the investigator or officer in charge of the case on all significant
matters,  it  is  also  the  Law  Officers’  expectation  that  government  agencies  who
commence proceedings will follow the advice of the Crown prosecutor as to the nature
of the charges and conduct of the prosecution.
28.3
The relationship between the Crown prosecutor and the agency who commenced the
proceeding  should  also  be  conducted  in  accordance  with  any  Memorandum  of
Understanding  or  similar  agreement  between  the  Solicitor-General  and  the  chief
executive of that agency.
Recipients of advice
28.4
Due  to  the  increasing  complexity  of  the  criminal  law  and  considerations  arising  from
the  New Zealand  Bill  of  Rights  Act  1990,  many  criminal  or  regulatory  investigations
will require specialised legal advice from the earliest stages.
28.5
In this regard, Crown Solicitors are expected to have and maintain sufficient capacity to
give  advice  as  and  when  necessary,  and  to  develop  and  maintain  appropriate
relationships with the locally based government agencies to ensure effective legal advice
is sought and given.
28.6
In giving investigative advice, the solicitor-client relationship is modified to the extent
that the investigators to whom the advice is directed are expected to act in accordance
with that advice.
Serious Fraud Prosecutors’ Panel
28.7
Members  of  the  Serious  Fraud  Prosecutors’  Panel  are  appointed  by  the  Solicitor-
General  after  consultation  with  the  Director  in  accordance  with  s  48  of  the  Serious
Fraud  Office  Act  1990.    Proceedings  in  relation  to  the  prosecution  of  serious  or
complex  fraud  are  taken  on  behalf  of  the  Director  and  subject  to  the  Director’s
instruction  until  the  Solicitor-General  assumes  responsibility  for  the  prosecution  in
accordance with the Crown Prosecution Regulations 2013.  Once the Solicitor-General
has assumed responsibility for the prosecution, the Solicitor-General may give binding
directions to an instructed panel member.  Such directions will be given in consultation
with the Director.
28.8
Panel members should consult the Director throughout the course of a prosecution and
have  regard  to  the  Serious  Fraud  Office’s  broader  objectives  in  relation  to  serious  or
complex fraud.  Both before and after the point at which the Solicitor-General assumes
responsibility  for  the  prosecution,  panel  members  must  otherwise  act  in  accordance
with these Guidelines.
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Crown prosecutions
28.9
Once the Crown has assumed responsibility for a prosecution, all decisions in relation
to  disclosure,  the  charges  filed,  the  evidence  to  be  adduced,  the  conduct  of  the
prosecution  and  the  nature  and  scope  of  any  continuing  investigation  (where  it  is
probable  that  will  result  in  evidence  or  information  relevant  to  the  trial)  are  matters
solely for the Crown prosecutor to decide.
28.10
In  the  discharge  of  this  responsibility,  Crown  prosecutors  are  expected  to  consult
closely with and take into account the views of the investigator or officer in charge of
the case and to explain the basis of any significant decision.
29.
VICTIMS
29.1
Victims of crime in the criminal justice system are to be:
29.1.1  Treated with courtesy and compassion; and with
29.1.2  Respect for their dignity and privacy.
29.2
The key means of observing these principles is through the provision of information to
ensure that victims understand the process and know what is happening at each stage.
So far as is possible, the victim should have explained to them the court processes and
procedures, and should be kept informed of what is happening during the course of the
proceedings.
29.3
Prosecutors should seek to protect the victim’s interests as best they can whilst fulfilling
their duty to the Court and in the conduct of the prosecution on behalf of the Crown.
29.4
Crown  prosecutors  are  referred  to  the  protocol  “Victims  of  Crime  –  Guidance  for
Prosecutors” (issued with these Guidelines) for greater detail as to the role and duties
of  prosecutors  in  respect  of  victims.    Prosecutors  in  government  agencies  should  be
aware of and take into account the guidance provided in that protocol.
30.
MEDIA
30.1
When communicating with the public through the media, prosecutors are to ensure that
they:
30.1.1  Do  not  make  remarks  that  may  prejudice  fair  trial  interests  or  the  perceived
objectivity of the judge;
30.1.2  Support the administration of justice and the integrity of the criminal justice
system;
30.1.3  Respect the principle of open justice;
30.1.4  Recognise  the  public  interest  in  receiving  accurate  information  about  the
criminal justice system and criminal prosecutions; and
30.1.5  Treat victims of crime with courtesy and compassion, and respect their dignity
and privacy.
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30.2
Crown  prosecutors  are  referred  to  the  protocol  “Media  Protocol  for  Prosecutors”
(issued with these Guidelines) for greater detail as to the role and duties of prosecutors
in respect of the media.  Prosecutors in government agencies should be aware of and
take into account the guidance provided in that protocol.
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