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Charging decisions
This chapter contains these topics:
• Purpose
• What is a good charging decision?
• Process for making good charging decisions
• What evidence do you have?
• Has an offence been committed?
• Is a pre-charge warning appropriate?
• Have you considered current strategic policy?
• Is prosecution required?
- Factors to be considered when determining public interest
• Which charge(s) should be filed?
• Example
• How many charges should be filed?
• Is the Attorney-General's consent required?
• Should you arrest or summons the suspect?
• Decision checked by supervisor
• File review by Prosecutions
Purpose of this chapter
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 Pre-charge warnings and Criminal procedure
chapters.
What is a good charging decision?
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.
Making a good charging decision from the beginning ensures that matters proceed
quickly through the court. This is due to early guilty pleas, less charge negotiation and
less defended charges.
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
• Has an offence been committed?
supervisor
• Is a pre-charge warning appropriate?
• File is reviewed by
• Have you considered current strategic policy?
Prosecutions
• 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.
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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 charge precedents also help to clarify what the elements are.
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.
Is a pre-charge warning appropriate?
Once you've ascertained that an offence has been committed, consider what further
action is required. See the Pre-charge 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 evidential test Is the admissible evidence sufficient to provide a
reasonable prospect of conviction?
In other words, if a court (either judge or jury) was
presented with all the admissible evidence, could they
reasonably be 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.
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2
The public interest The prosecution is required in the public interest.
test
It is not necessary or appropriate to prosecute all
offences for which there is sufficient evidence. Police
must exercise their discretion as to whether a prosecution
is required in the public interest. Considering whether the
public interest requires a 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:
Factor
Comment
Seriousness of the
The more serious the offence, the more likely prosecution is
offence
required.
Likely penalty upon
If it is a significant penalty including any confiscation order
conviction
or disqualification, then there is a strong public 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
If they have no previous convictions, are a child/young
the defendant
person or elderly, or were suffering mental illness at the
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 suspended sentence, or on parole
this favours prosecution.
The likelihood of the
Is there is a history of recurring conduct or was the offence
offence being continued the result of a single incident, an error of judgement or a
or repeated
genuine mistake (e.g. careless driving)?
The circumstances of
Is a prosecution likely to have a detrimental effect on their
the victim
physical or mental health? What is the extent of loss or
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?
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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
He hit the victim in the head.
do?
What was the suspect's As the suspect accidentally hit the victim, he had no intent
intent?
to assault him.
What was the result of
The victim was not injured.
the suspect's actions?
What is the appropriate As the suspect had no intent, no charge is warranted.
charge?
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
He hit the victim in the head.
do?
What was the suspect's He wanted to frighten the victim.
intent?
What was the result of
The victim is injured.
the suspect's actions?
What is the appropriate Given the suspect only intended to frighten the victim, the
charge?
most appropriate charge is s196 Crimes Act, common
assault.
If the suspect had intended to hurt the victim then injuring
with intent to injure - s189 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 suspect
He hit the victim in the head.
do?
What was the suspect's He wanted to kill the victim.
intent?
What was the result of
The victim is seriously injured.
the suspect's actions?
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What is the appropriate The charge which best reflects the action, intention and
charge?
result is wounding with intent to cause grievous bodily harm
- s188 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 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 Solicitor-General's Prosecution Guidelines recommend that all provable
offences punishable by more than seven years imprisonment should be included in the
charges. 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' (s202A Crimes Act)
which provides a mandatory prison sentence for a second offence within 2 years.
Is the Attorney-General's consent required?
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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
s20 - False claim of qualifications
1981
s20A - Unauthorised disclosure of official information
Flags, Emblems & Names
s11 - Offences involving New Zealand flag
Protection Act 1981
Films, Videos and
ss123 - 129, - Offences involving restricted and
Publications Classification
objectionable publications
Act 1993
Crimes Act 1961
ss100 - 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 must talk to the officer in charge first if they are
considering amending or withdrawing the charges. 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 supervisor). Communication is an important
educational tool for all parties.
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