CROWN LAW
SOLICITOR-GENERAL’S
PROSECUTION GUIDELINES
As at 1 July 2013
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TABLE OF CONTENTS
Attorney-General’s Introduction .............................................................................................................. 1
Solicitor-General’s Introduction ............................................................................................................... 2
Definitions ................................................................................................................................................... 3
1.
Purpose and Principles of the Guidelines ............................................................................... 4
2.
Compliance with the Guidelines .............................................................................................. 4
Private prosecutions ........................................................................................................... 4
3.
The Supervision of Prosecutions ............................................................................................. 5
4.
The Independence of the Decision-maker ............................................................................. 6
5.
The Decision to Prosecute ........................................................................................................ 6
The test for prosecution .................................................................................................... 6
The evidential test ............................................................................................................... 6
The public interest test....................................................................................................... 8
No prosecution ................................................................................................................. 10
6.
Reasons for Decisions.............................................................................................................. 11
7.
Reopening a Prosecution Decision ........................................................................................ 11
8.
The Choice of Charges ............................................................................................................ 11
Trying defendants or charges together .......................................................................... 11
9.
Review of Charges .................................................................................................................... 12
10.
Coordination of Prosecution Decisions ................................................................................ 12
11.
Statutory Consents to Prosecutions ....................................................................................... 13
12.
Immunities from Prosecution ................................................................................................. 13
13.
Direction by the Solicitor-General that a Prosecution Should be Conducted as a Crown
Prosecution ................................................................................................................................ 14
14.
Witness Anonymity Orders ..................................................................................................... 15
15.
Bail .............................................................................................................................................. 15
16.
Disclosure .................................................................................................................................. 16
Disclosure obligations ...................................................................................................... 16
Evidence that is not disclosed until trial ....................................................................... 16
Information which the prosecutor does not intend to produce in evidence ........... 16
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Previous convictions of proposed witnesses ................................................................ 17
Disclosure of any inducement or immunity given to a witness ................................. 17
Identity of informer .......................................................................................................... 17
Obligations or requests under Official Information Act 1982/Privacy Act 1993 .. 17
“Third party” disclosure .................................................................................................. 18
Contempt applications ..................................................................................................... 18
17.
Case Management ..................................................................................................................... 18
18.
Plea Discussions and Arrangements ...................................................................................... 19
19.
The Prosecutor and Trial Fairness ......................................................................................... 20
20.
Assistance to the Court ............................................................................................................ 20
21.
Prosecutors and Sentencing .................................................................................................... 21
22.
Pre-trial Applications ............................................................................................................... 21
23.
Jury Selection ............................................................................................................................. 22
24.
Proceeding in the Defendant’s Absence ............................................................................... 22
25.
Retrials and Stay of Proceedings ............................................................................................ 23
26.
Appeals ....................................................................................................................................... 23
Consent to appeal or bring judicial review proceedings ............................................. 23
Appeals against pre-trial rulings...................................................................................... 23
Appeals against sentence ................................................................................................. 24
Appeals on questions of law ........................................................................................... 24
Judicial review ................................................................................................................... 25
27.
Solicitor-General’s Reference Procedure .............................................................................. 25
28.
Relationship between Crown Prosecutors and Enforcement Agencies ........................... 26
The Police or other investigator ..................................................................................... 26
Recipients of advice .......................................................................................................... 26
Serious Fraud Prosecutors’ Panel ................................................................................... 26
Crown prosecutions ......................................................................................................... 27
29.
Victims ....................................................................................................................................... 27
30.
Media .......................................................................................................................................... 27
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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
•
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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PROSECUTION GUIDELINES
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
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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PROSECUTION GUIDELINES
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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Document Outline