Public Annotation (for critical readers following this request)

Protocols for the involvement of Crown Solicitors in private prosecutions

FYI #30158 — Ministry of Justice & Crown Law (March 2025)

This OIA request goes to the heart of an important and poorly understood issue in New Zealand’s justice system:

When a Crown Solicitor appears in a private prosecution, what stops that case from “masquerading” as a Crown prosecution, and who protects the defendant’s rights?

The requester’s concerns focus especially on prosecutions brought by the RNZSPCA, where Crown Solicitors routinely act—even though the SPCA is not part of the State and its cases are not Crown prosecutions under law.

The responses from the Ministry of Justice (MoJ) and Crown Law Office (CLO) were timely (within statutory deadlines) but extremely narrow, revealing the following system-level issues that readers may wish to consider:

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1. There are no written safeguards for preventing private prosecutions from being treated like Crown prosecutions.

Crown Law confirms:

There are no specific “safeguards,” protocols, or exemption documents.
(CLO refusal under s18(e): information does not exist)

Instead, Crown Law simply asserts:
• judges, lawyers, and Crown Solicitors “all understand the difference,”
• therefore no safeguards are needed.

This may reassure insiders, but it raises serious public-interest questions:

If no safeguards exist, how is the lay defendant protected?

How does a person without legal training know whether they’re facing the State or a private charity?

What happens when court staff, lawyers, or even judges get it wrong?

Multiple FYI requests over the years show that mis-intituling (e.g., R v [Defendant]) has occurred, contributing to real confusion.

Crown Law’s response does not engage with this.

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2. Crown Solicitors acting for the SPCA is authorised—but the reasoning behind that policy is hidden from the public.

Crown Law acknowledges:
• Crown Solicitors frequently represent RNZSPCA in animal welfare prosecutions.
• This requires a Solicitor-General’s dispensation.
• The dispensation exists (publicly released in earlier FYIs), but any internal discussion papers or risk assessments about granting it are exempt from the OIA because they fall under “Law Officer functions.”

This means:

The public cannot see the legal reasoning behind delegating Crown prosecution powers to a private organisation.

No transparency exists about concerns raised, alternatives considered, or how risks were assessed.

This exemption is structural—not a refusal—and leaves a significant democratic blind spot.

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3. The Ministry of Justice refused to answer whether registrars have instructions for identifying private prosecutions.

MoJ says such instructions (if they exist) are “judicial information,” not subject to the OIA.

This raises a critical question:

Do such instructions even exist at all?

The Ministry did not say:
• whether any registrar guidance exists,
• whether it is judicial or operational,
• or whether this gap contributes to real-world mis-classification.

If no guidance exists, it would help explain why:
• private prosecutions are sometimes filed as—or treated like—Crown prosecutions,
• court staff may mistakenly use “R v” prefixes,
• defendants may believe they are being prosecuted by the State when they’re not.

This is an area where transparency is clearly lacking.

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4. MoJ refuses to state what remedies exist when a private prosecution is mishandled.

MoJ rejected Q5 on s18(g) grounds (“information not held”).

This means the Ministry:
• holds no documentation describing remedies,
• has not produced any analysis of fairness risks under NZBORA ss 25 and 27,
• and has no guidance regarding what happens when a private prosecutor or Crown Solicitor breaches trial fairness rights.

This is striking, given:

The right to a fair trial is a core NZBORA right.

Yet MoJ holds no internal policy on remedies for abuse of private prosecutorial power.

This leaves defendants facing RNZSPCA or other private prosecutors with no official guidance on what to do if their rights are breached.

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5. The OIA responses rely heavily on technical definitions and structural exemptions—without addressing the requester’s real concern.

The requester asked:

“How do you stop private prosecutions from masquerading as Crown prosecutions?”

Neither agency answered this directly.

Instead:
• MoJ said “not our information.”
• CLO said “it doesn’t happen” because insiders understand the difference.

But evidence across FYI.org.nz indicates numerous members of the public have not understood the difference—and have been misled by titles, court processes, or solicitor involvement.

Examples in related FYIs include:
• confusion caused by use of “R v” in SPCA proceedings (#21758, #24692),
• inconsistent registry handling of private vs Crown filings (#29877),
• LCRO failing to engage with complaints about misuse of Crown Solicitor authority (#30869),
• Police declining perjury or process-abuse complaints in SPCA cases (#31840),
• questions about Crown Solicitor conflict of interest in private prosecutions (#29433).

Across these, the same pattern appears:

Ordinary people experience confusion and unfairness—while the agencies insist no problem exists.

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6. DeepResearch: Systemic transparency issues identified across FYI.org.nz

Reviewing related FYI requests over the last five years shows:

Pattern 1 — Crown Law consistently refuses to release:
• dispensation analyses,
• policy advice,
• internal deliberations on private prosecution involvement.

Rationale: “Law Officer functions” exemption.

Pattern 2 — MoJ often says it “does not hold” guidance on registrars, prosecutors, or court process where judicial/operational boundaries blur.

This makes it impossible to confirm:
• whether registrars have uniform instructions,
• whether mis-classification issues have been identified,
• whether MoJ has studied fairness impacts of private prosecutions.

Pattern 3 — Police routinely decline to investigate perjury or misconduct in private prosecutions.

This is documented in OIAs #28299, #30970, #31840.

Pattern 4 — LCRO delays or refuses complaints about lawyers acting as prosecutors for private organisations (SPCA, FENZ, private litigants).

Because rules focus on client representation, not self-representation.

Pattern 5 — No agency accepts responsibility for ensuring fairness when a private charity prosecutes with Crown Solicitor support.

SPCA prosecutions fall directly into this gap.

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7. Critical questions readers may wish to consider
1. If no written safeguards exist, how can the public be sure that a private prosecution is not being treated as a Crown prosecution?
2. If registrars receive no formal instruction, how do they identify or correctly process private prosecutions?
3. If Crown Solicitor involvement does not transform a case into a Crown prosecution, why is their role not subject to transparency?
4. Who protects the trial rights of defendants?
5. Why does the Ministry of Justice have no documentation on remedies for mishandled private prosecutions?
6. If the Solicitor-General’s reasoning is permanently exempt from OIA, how can the public ever understand why dispensations were granted?
7. Is the current system fit for purpose when a private charity can access Crown prosecution expertise without public accountability?

These are important democratic questions.

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★ Final Summary

The MoJ and Crown Law responses were timely but lack substantive engagement with the core concerns. The official position is:
• private prosecutions remain private,
• Crown Solicitors acting for SPCA are authorised,
• no safeguards or protocols are needed,
• no written policies exist,
• and internal reasoning is outside the OIA.

For many members of the public—and especially for those looking at real cases from the outside—this leaves a troubling picture of significant transparency gaps in the handling of private prosecutions in New Zealand.

This annotation will be updated when further relevant information becomes available.

★ PUBLIC EXPLAINER GRAPHIC
PRIVATE PROSECUTION vs CROWN PROSECUTION
A Simple Guide for NZ Citizens, Defendants, Journalists & OIA Readers

1. WHO IS BRINGING THE CASE?

CROWN PROSECUTION:
The State (Police → Crown Law → Crown Solicitor)

PRIVATE PROSECUTION:
Any individual or organisation
(e.g., RNZSPCA, companies, individuals)

2. WHO PAYS FOR THE PROSECUTION?

CROWN:
Public money (taxpayer)

PRIVATE:
Private money — unless a Crown Solicitor appears with Solicitor‑General permission

3. WHO APPEARS IN COURT?

CROWN PROSECUTION:
Crown Solicitor, acting for the State (“R v Defendant”)

PRIVATE PROSECUTION:
A private lawyer, the organisation, or a Crown Solicitor
(acting for the *private* prosecutor — not the Crown)

4. WHO HAS OVERSIGHT?

CROWN:
Attorney‑General / Solicitor‑General (Crown Law)

PRIVATE:
No routine State oversight unless Crown intervenes

5. WHAT RIGHTS PROTECT THE DEFENDANT?

CROWN:
• SG Prosecution Guidelines
• High disclosure duties
• Public accountability

PRIVATE:
• No SG Guidelines
• No guaranteed disclosure standard
• No oversight body

6. RISKS FOR THE PUBLIC

• Confusion: Crown Solicitor present ≠ Crown case
• Mis‑labelled cases (“R v …”)
• No written safeguards (confirmed under OIA)
• No documented remedies for mishandled private prosecutions
• Law Officer exemption hides SG reasoning from public

7. HOW PRIVATE PROSECUTIONS CAN MASQUERADE AS CROWN PROSECUTIONS

Private Organisation
↓ hires
Crown Solicitor
↓ appears in court
But legally acting for a private party, not the Crown

8. WHY THIS MATTERS

• Prosecution power is one of the strongest in a democracy
• Lay defendants cannot easily tell private vs Crown cases
• No safeguards exist to prevent confusion
• SPCA/Crown Solicitor arrangements lack transparency
• Fair‑trial rights may be compromised with no accountability

TAKEAWAY:
Always ask:
“Is this really a Crown prosecution — or a private one wearing Crown clothing?”