5 October 2021
IR-01-21- 27574
Amy Van Wey Lovatt
[FYI request #16707 email]
Dear Amy
Request for information
Thank you for your emails dated 11 and 12 September 2021 requesting
information pursuant to the Official Information Act 1982 (OIA). My response to
each of your requests can be found below.
I am requesting the Police manuals, guidelines, and procedural
documents for investigating offences under:
(1) Part 6 of the Crimes Act 1961, Crimes affecting the administration of
law and justice, and
(2) Part 9A of the Crimes Act 1961, Crimes against personal privacy.
Further to my request, I request two other NZ Police manuals, protocols
and/or guideline documents on handling and investigating acts consistent
with:
(1) offences under sections 150A-157 of the Crimes Act (duty of care);
and
(2) offences under the Summary Offences Act 1981
Police does not have manuals, guidelines, and procedural documents for
investigating offences specific to Part 6 of the Crimes Act 1961, (Crimes affecting
the administration of law and justice), Part 9A of the Crimes Act 1961, (Crimes
against personal privacy), offences under sections 150A-157 of the Crimes Act
(duty of care); and offences under the Summary Offences Act 1981. This part of
your request is therefore refused under section 18(e) as the documents alleged
to contain the requested information do not exist.
I also request documents which detail the other legislative acts that
describe offences which are under the jurisdiction of the police to
investigate and bring charges. If these documents are publicly available,
please provide a link to the specific information.
Assessment of all potential evidence is an integral part of any police investigation
to determine its admissibility, relevance, and reliability. All evidence must be
investigated and assessed in an impartial and proper way. The police chapter on
Charging decisions provides guidance on aspects of your questions and has
been provided with this response.
Police also refer to ‘The Solicitor General’s Prosecution Guidelines’ when making
decisions around charging. The purpose of the Guidelines is to ensure good
principles and practice by government prosecuting agencies (including Police)
when making decisions relating to potential prosecutions. The Solicitor General’s
Prosecution Guidelines can be found at the following link:
https://www.crownlaw.govt.nz/publications/prosecution-guidelines
The following document is enclosed:
Police policy: Charging decisions
I trust that this information will be sufficient to answer your request. If you are not
satisfied with my response to your request, you have the right to complain to the
Office of the Ombudsman and seek an investigation and review of my decision.
Yours sincerely
Craig Scott Detective Inspector
National Criminal Investigations Group
Police National Headquarters
Charging decisions
Table of Contents
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Table of Contents
2
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Policy statement and principles
4
-
What
4
-
Why
4
-
How
4
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Process for making good charging decisions
4
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What evidence do you have?
4
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Has an offence been committed?
4
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Is a formal warning appropriate?
5
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Have you considered current strategic policy?
5
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Is prosecution required?
5
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Factors to be considered when determining public interest
5
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Which charge(s) should be filed?
6
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Example
6
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Scenario 1
6
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Scenario 2
7
-
Scenario 3
7
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How many charges should be filed?
7
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Is the Attorney-General's consent required?
8
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Should you arrest or summons the suspect?
8
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Decision checked by supervisor
8
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File review by Prosecutions
8
Charging decisions
Policy statement and principles
What
A good charging decision is made when the charges chosen adequately reflect the nature and extent of the criminal conduct (disclosed by
the evidence) and provide the court with an appropriate basis for sentence.
This chapter:
- provides guidance and creates a process for making good charging decisions
- ensures that nationally consistent charging decisions are made
- must be read in conjunction with the
Formal warnings and
Criminal procedure chapters.
Why
Making a good charging decision from the beginning ensures that matters proceed efficiently through the court.
How
To ensure good charging decisions Police will follow the process set out below in accordance with the Solicitor General’s Prosecution
Guidelines 2013.
Process for making good charging decisions
Use this table as a guide to ensure good charging decisions are made.
Answer these questions…
Then these actions follow…
-
What evidence do you have?
-
Decision is checked by a supervisor
-
Has an offence been committed?
-
File is reviewed by Prosecutions
-
Is a formal warning appropriate?
-
Have you considered current strategic policy?
-
Is prosecution required?
-
Which charge(s) should be filed?
-
How many charges should be filed?
- Is the Attorney-General's consent required?
-
Should you arrest or summons the suspect?
What evidence do you have?
Once the initial investigation is complete, look objectively at all the information you have obtained. What can you prove the suspect has
done? When contemplating charges you can only rely on admissible evidence. Suspicions and inadmissible evidence cannot be taken into
account. If you are unsure whether something is likely to be admitted, seek guidance from your Police Prosecution Service (PPS) or Legal
Services team.
If you identify evidential weaknesses, seek to rectify these before determining whether or which charges can be filed.
Has an offence been committed?
Consider whether the evidence you have obtained discloses an offence. Before filing a charge, you must be able to prove each element of
the offence. If you need assistance identifying the elements of an offence, the
legislation commentary will be useful.
The
Legislative Reference Table (LRT) also helps to clarify the elements of the offence.
In other circumstances the legislation governing the offence may be administered by another agency. For example, benefit fraud is
investigated and prosecuted by the Ministry of Social Development. In these circumstances, the most appropriate action may be to contact
the relevant agency so they can investigate the offence.
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Charging decisions
Is a formal warning appropriate?
Once you've ascertained that an offence has been committed, consider what further action is required. See the
Formal warnings chapter to
determine whether a warning is the most appropriate outcome for the offence committed by the suspect. If the suspect has committed
multiple offences it may be appropriate to 'warn' for some offences but not for others.
Have you considered current strategic policy?
Take into account any current strategic Police policy promoting prosecution in particular areas of focus. For example, although many
offences involving liquor are not serious, they may be offences for which a District has, from time to time, a low tolerance for offending. It
may be that liquor-related offending is identified as a high-prevalence offence where warnings or diversion should not be available for a
specified period of time.
Is prosecution required?
If an offence has been committed, and a warning is not appropriate, you must consider whether to commence prosecution (by filing
charges). There are two steps required by the
Solicitor-General's Prosecution Guidelines to make this determination:
Step Test
Description
1
The
Is the admissible evidence sufficient to provide a reasonable prospect of conviction?
evidential In other words, if a court (either judge or jury) was presented with all the admissible evidence, could they reasonably be
test
expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed the offence alleged?
If the evidential test:
- is not met, the charge cannot be filed
- is met, then the public interest test must next be considered.
2
The
The prosecution is required in the public interest.
public
It is not necessary or appropriate to prosecute all offences for which there is sufficient evidence. Police must exercise their
interest
discretion as to whether a prosecution is required in the public interest. Considering whether the public interest requires a
test
prosecution is often difficult and requires considering a number of factors about the offender, the offence, and the victim.
Factors to be considered when determining public interest
The
Solicitor-General's Prosecution Guidelines list a number of factors to consider when determining whether prosecution is in the public
interest. This list is not exhaustive, however it gives a good indication of what types of factors should be considered. Some of the main
considerations are:
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Charging decisions
Factor
Comment
Seriousness of the
The more serious the offence, the more likely prosecution is required.
offence
Likely penalty upon
If it is a significant penalty including any confiscation order or disqualification, then there is a strong public
conviction
interest for a prosecution. Similarly, where a reparation order is required and prosecution is the only way to
recover the cost, this favours prosecution.
The circumstances of the If they have no previous convictions, are a child/young person or elderly, or were suffering mental illness at the
defendant
time of the offence, there is a lesser public interest in prosecution.
If the defendant:
- was in a position of authority or trust, a ringleader or an organiser of the offence, or
- has breached a protection or non-contact order, or
- committed the offence whilst on bail, on probation, or subject to a sentence, or on parole
this favours prosecution.
The likelihood of the
Is there is a history of recurring conduct or was the offence the result of a single incident, an error of judgement
offence being continued or a genuine mistake (e.g. careless driving)?
or repeated
The circumstances of the Is a prosecution likely to have a detrimental effect on their physical or mental health? What is the extent of loss or
victim
harm they have suffered?
Which charge(s) should be filed?
If prosecution is appropriate, the next consideration is which charge or charges to file. First identify what type of offence has been
committed - for example, a property offence or a drug offence. This will help you to narrow the relevant legislation.
While the appropriate charge is sometimes obvious (e.g. driving whilst disqualified) there are often circumstances where an action could be
reflected by a number of different charges. In these circumstances work is required to determine the most appropriate charge or charges.
Consider the following:
- What did the suspect do?
- What was the suspect's intent?
- What was the result of the suspect's actions?
It is essential to consider all three factors before determining a charge as the same scenario with one factor altered can significantly affect
the most appropriate charge. To illustrate this, consider this example:
Example
Scenario 1
The suspect is standing in the street flailing his fisted arms round. He accidentally hits the victim in the head - the victim is not injured.
What did the suspect do?
He hit the victim in the head.
What was the suspect's intent?
As the suspect accidentally hit the victim, he had no intent to assault him.
What was the result of the suspect's actions?
The victim was not injured.
What is the appropriate charge?
As the suspect had no intent, no charge is warranted.
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Charging decisions
Scenario 2
The suspect is standing in the street flailing his fisted arms around. He sees the victim and wants to frighten him. He hits the victim in the
head as he walks past, breaking his nose.
What did the suspect do?
He hit the victim in the head.
What was the suspect's intent?
He wanted to frighten the victim.
What was the result of the suspect's The victim is injured.
actions?
What is the appropriate charge?
Given the suspect only intended to frighten the victim, the most appropriate charge is s
196 Crimes
Act, common assault.
If the suspect had intended to hurt the victim then injuring with intent to injure - s
189 Crimes Act,
would be warranted.
If the victim had not been injured (as in scenario 1), Summary Offences Act assault would be the
most appropriate charge.
Scenario 3
The suspect is standing in the street flailing his fisted arms around. He knows that the sick elderly victim is going to walk past shortly and
he wants to kill him. He hits the victim in the head with his fist. The victim survives but suffers serious head injuries which require long
term hospitalisation.
What did the
He hit the victim in the head.
suspect do?
What was the
He wanted to kill the victim.
suspect's intent?
What was the result The victim is seriously injured.
of the suspect's
actions?
What is the
The charge which best reflects the action, intention and result is wounding with intent to cause grievous bodily harm -
appropriate charge? s
188 Crimes Act. The maximum penalty of 14 years imprisonment is sufficient to allow the court to impose an
adequate sentence.
If the suspect had achieved his goal of killing the victim, the offence would be murder.
As you can see from the example above, even though the action remains the same, changing the other factors results in the most
appropriate offence ranging from a low level Summary Offences Act assault to murder. That is why it is important to look at the full
evidence and consider all three factors before determining the most appropriate offence.
How many charges should be filed?
In determining the totality of charges to proceed, the selection of charges should seek to reflect the seriousness and the extent of the
offending. It should also provide the court with adequate sentencing powers, and enable the case to be dealt with fairly and expeditiously
according to law.
Consider the following when selecting the appropriate charge(s):
- the charge(s) should accurately reflect the extent of the suspect's alleged involvement and responsibility, allowing the courts the
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Charging decisions
discretion to sentence appropriately
- the choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one defendant
- there must never be overloading of charges by selecting more charges than are necessary just to encourage the suspect to plead
guilty to a few, and
- there should be no overcharging by selecting a charge which is not supported by the evidence in order to encourage a plea to a lesser
allegation.
In the ordinary course, the charge or charges filed will be the most serious disclosed by the evidence. The decision will also be weighted
towards inclusion of charges where the alleged offences are to be filed against a member of an organised crime organisation.
Where the evidence supports multiple offences (e.g. assault, wilful damage, offensive behaviour, resisting arrest, obstruction and offensive
language) it is not appropriate to file all possible charges unless this truly reflects the seriousness of the offending. In these circumstances
the charges chosen should show the seriousness of the incident in relation to other comparable incidents. Consider whether:
- the charge should contain alternatives (s19 CPA), or
- a representative charge is appropriate (s20 CPA).
Charges should give the court adequate powers to sentence and impose appropriate post-conviction orders. For example, if the defendant
should be disqualified from driving as part of their sentence, ensure the charges filed allow the court to make that order.
Some charges should be carefully considered for inclusion. As per the
Prosecuting family violence policy, a breach of protection order
should be filed where the evidence supports this charge. Another example is 'possession of an offensive weapon' (s
202BA Crimes Act)
which provides a mandatory prison sentence for a second s
202A(4) offence within 2 years.
Is the Attorney-General's consent required?
There are a number of charges which require the consent of the Attorney-General prior to being filed. A full list is available here. These
charges include:
Act
Offences
Summary Offences Act 1981
s
20 - False claim of qualifications
s
20A - Unauthorised disclosure of official information
Flags, Emblems & Names Protection Act 1981
s
11 - Offences involving New Zealand flag
Crimes Act 1961
s
s100 -
105D, - Offences involving bribery and corruption
If you are unclear whether a charge requires the consent of Attorney-General, contact Legal Services. Proof of consent must be filed with
the charging document.
Should you arrest or summons the suspect?
Once you have decided to commence prosecution you must decide whether to arrest or summons the suspect. Refer to the Arrest and
detention chapter for assistance.
Decision checked by supervisor
If at any stage of the procedure you need guidance, seek the assistance of your supervisor. It is their responsibility to assist you and to
check whether the number and types of charges you have selected are the most appropriate. The PPS is also able to assist you in making
these decisions.
File review by Prosecutions
The decision to prosecute and the charges you have filed will be independently reviewed by PPS who have discretion to amend, withdraw
and file additional charges. Review is a continuing process and prosecutors must consider any change in circumstances that occurs as the
case develops.
Where practicable, prosecutors will talk to the officer in charge first if they are considering amending or withdrawing the charges.
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Charging decisions
Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests
with PPS. If you do not understand any decision made by PPS you should discuss this with the prosecutor (or their District Prosecution
Manager).
Printed on : 20/09/2021
Printed from :
https://tenone.police.govt.nz/pi/charging-decisions
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