MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
1982
MPI Prosecution
Act
Procedures and
Information
Guidelines
Official
the
Supporting document for the MPI Organisational
Policy: Prosecutions and Infringements
under
Released
Page
1 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
Contents
Record of Reviews and Amendments........................................................................................... 5
PART 1
INTRODUCTION ......................................................................................................... 6
1.1
Application of these guidelines ...................................................................................... 6
1.2
Protecting independence ................................................................................................ 6
1.3
Reporting and recording conflicts of interest ............................................................. 6
1982
1.4
Prosecution Guidance...................................................................................................... 7
1.5
Meaning of “Prosecutor” ................................................................................................. 8
Act
PART 2
PROSECUTION DECISION-MAKING PROCESS .................................................. 9
2.1
Prosecution Process – overview ................................................................................... 9
2.2
Authority to make prosecution decision ...................................................................... 9
2.3
Making the decision whether to prosecute ................................................................ 10
2.3.1
Recommendation by OIC to Decision-maker
.......................................................... 10
Information
2.3.2
Legal Review by MPI Prosecutor
............................................................................. 11
2.3.3
Making and recording the decision whether to prosecute
...................................... 12
2.4
Prosecutor’s responsibilities post decision-making ............................................... 13
PART 3
TEST FOR PROSECUTION ................................................................................... 14
Official
3.1 – Evidential Test ................................................................................................................... 14
the
3.2 Public Interest Test .............................................................................................................. 15
3.2.1 Cost and resourcing
........................................................................................................ 18
3.2.2 Escalation to resolve disagreement
............................................................................... 18
under
3.2.3 Ongoing assessment of the public interest
................................................................... 18
PART 4 – SOME ALTERNATIVES TO PROSECUTION ......................................................... 19
4.1 Education and guidance ..................................................................................................... 19
4.2
Written warnings ............................................................................................................. 19
4.3 Infringement proceedings by charging document ........................................................ 20
Released
PART 5 – CHARGING STRATEGY – CHOICE OF CHARGE(S) AND DEFENDANT(S) .... 21
5.1 General guidance on choice of charges .......................................................................... 21
5.1.1 Charges under legislation MPI administers or has enforcement functions under .....
22
5.1.2 Charges under legislation for which MPI is not responsible and has no enforcement
functions
.................................................................................................................................... 22
5.2 Co-ordinated enforcement and prosecution decision-making.................................... 23
5.3 Statutory consents to prosecutions ................................................................................. 23
Page
2 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
5.3.1 Charges for which the consent of the Attorney-General or Solicitor General is
required
23
5.3.2 Solicitor-General Consent - Filing of charging document for category 1, 2 or 3
offences out of time
.................................................................................................................. 24
PART 6 CONDUCT OF THE PROSECUTION .......................................................................... 25
6.1
Who will conduct the prosecution? ............................................................................. 25
6.1.1 MPI Prosecutors
.............................................................................................................. 25
6.1.2
MPI staff outside Legal Services may conduct minor appearances
.................... 25
1982
6.1.3
Crown Solicitors
......................................................................................................... 25
6.1.4
Departmental lawyers
................................................................................................ 27
Act
6.1.5
External (non-Crown) lawyers
.................................................................................. 28
6.2
Significant Cases ............................................................................................................ 28
6.3
Hearings on marae .......................................................................................................... 28
6.4
Ongoing review of charges ........................................................................................... 29
6.5
Plea discussions and arrangements ........................................................................... 29
Information
6.6
Withdrawal of charges ................................................................................................... 30
6.7
Dismissal of charges ...................................................................................................... 30
6.8
Records and Reporting .................................................................................................. 31
PART 7 CRIMINAL DISCLOSURE ............................................................................................ 32
Official
7.1
Criminal Disclosure Act 2008 ....................................................................................... 32
the
7.2
Roles and responsibilities ............................................................................................. 33
7.3
Disclosure File Index and filing copies of disclosed materials ............................. 33
7.4
Specific disclosure steps .............................................................................................. 33
under
7.4.1
Standard form letters and disclosure file indices
.................................................... 34
7.4.2
Initial disclosure
......................................................................................................... 34
7.4.3
Further initial disclosure
............................................................................................ 34
7.4.4
Full disclosure
............................................................................................................ 35
7.4.5
On-going further disclosure
...................................................................................... 35
Released
7.4.6
Additional particular disclosure
................................................................................. 35
7.5
Service of disclosure ...................................................................................................... 35
7.6
Decision not to disclose relevant information .......................................................... 36
7.7
Further guidance on disclosure ................................................................................... 36
PART 8 WITNESSES AND VICTIMS......................................................................................... 37
8.1
Roles and responsibilities ............................................................................................. 37
Page
3 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
8.2
Code of Conduct for Expert Witnesses ...................................................................... 37
8.3
Victims .............................................................................................................................. 37
8.4
Others disadvantaged by an offence .......................................................................... 38
PART 9 SENTENCING ................................................................................................................ 39
9.1
Prosecutors, sentencing, and associated orders post-conviction ....................... 39
9.2
Restorative justice .......................................................................................................... 39
PART 10
APPEALS ............................................................................................................... 41
10.1 Appeals by the defendant.............................................................................................. 41
1982
10.2 Appeal by the Crown ...................................................................................................... 41
Act
10.3 Guidelines for obtaining consent to appeal from Solicitor-General ..................... 41
10.4 Conduct of appeal ........................................................................................................... 42
10.5 Reporting of the appeal judgment ............................................................................... 42
PART 11
COSTS ................................................................................................................... 44
11.1 Costs against defence counsel ....................................................................................... 44
11.2 Costs of prosecution and associated expenses .......................................................... 44
Information
11.3 Costs against the prosecution ........................................................................................ 44
PART 12
MEDIA .................................................................................................................... 46
12.1 Media statements ............................................................................................................ 46
Official
12.2 Media applications .......................................................................................................... 46
the
under
Released
Page
4 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
Record of Reviews and Amendments
All amendments to this document must be approved by the Chief Legal Adviser and
recorded in the table below.
Version
Date Reviewed
Parts amended (Y/N & detail)
By
CLA
number
(R)/Amended (A)
approval
obtained
1982
1
R&A 16 March 2018 All - replaces replaces prior
s 9(2)(a)
document MAF
Organisational
Act
Guidelines Standards
Prosecutions
and…
Information
Official
the
under
Links to templates and guidance documents are included as hyperlinks where appropriate.
Released
Page
5 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 1 INTRODUCTION
1.1 Application of these guidelines
These procedures and guidelines apply to all cases involving alleged offences which may be
prosecuted by the Ministry for Primary Industries (“MPI”). Their purpose is to support the MPI
Organisational Policy: Prosecutions and Infringements (“MPI Prosecution Policy”) by providing
further detail in respect of the procedures and guidelines to be followed by MPI staff in making
a decision whether or not to prosecute or to recommend appeals and by prosecutors in
reviewing files and conducting prosecutions.
1982
This document primarily applies to prosecutions. Infringements are included to a limited extent
only, as they will be the subject of separate Procedures and Guidelines. These guidelines
apply only to those infringement proceedings that will be placed before the District Court by
Act
filing a charging document and so require prosecution decision making at the outset, and those
that require a file review by a prosecutor before initiation of a non-defended or defended
infringement proceedings by filing a copy of an infringement notice with the Courts.
These Guidelines do not apply to frontline infringement issue.
1.2 Protecting independence
Information
Under the Solicitor-General’s Prosecution Guidelines (“SG Guidelines”) the independence of
the prosecution decision maker must be maintained. Independence in that context refers to
freedom from undue or improper pressure from any source, political or otherwise. The
prosecution decision-maker must be independent from persons or agencies that are not
properly part of the prosecution decision making process. The
MPI Prosecution Policy sets
Official
out MPI’s requirements in ensuring independence is protected and seen to be protected.
If any matters arise outside of the MPI Prosecution Policy that may compromise or be seen
the
to compromise that independence, they must be raised with the Chief Legal Adviser.
1.3 Reporting and recording conflicts of interest
Integrity and impartiality are fundamental obligations expected of public servants. A conflict
under
of interest is where a person’s interests or obligations conflict with or have the potential to
conflict with the responsibilities of their job or position. It means that their independence,
objectivity or impartiality could be called into question regardless of whether they actually
derive a financial or other benefit from the conflict.1
If an actual, potential or perceived conflict of interest arises for any staff member involved in
a prosecution or potential prosecution, the relevant regional Prosecution Team Leader, the
Released
Manager Prosecutions or the Chief Legal Adviser must be told immediately.
That person must record the disclosure, the conflict and its management in writing in
accordance with the MPI Prosecution Policy. The Chief Legal Adviser has the final say
where there is a disagreement about whether a conflict of interest exists or how to manage
1 For further information refer to the State Services Code of Conduct, and the MPI Organisational Guidelines
"Conflicts of Interest".
Page
6 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
it. Records concerning conflict reporting and management should be maintained on the
relevant file held by the Legal Services Directorate.
1.4 Prosecution Guidance
All potential prosecutions must be managed, and all prosecutions conducted, in accordance
with the SG Guidelines and the MPI Prosecution Policy, and any other relevant guidance
issued. If there is any inconsistency between the SG Guidelines and these Procedures and
Guidelines, the SG Guidelines shall prevail.
Prosecutors should also be familiar with and follow other relevant external and internal
guidance. These include:
1982
General
Act
Cabinet Directions for the Conduct of Crown Legal Business
Attorney-General’s civil litigation values
Prosecutors’ Handbook
Guidance on the Conduct of Crown Prosecutions Commenced by a Prosecuting
Agency
Charging
Statutory Offences requiring the consent of the Attorney-General
Information
Guidelines for practitioners for filing criminal documents via email
Conduct of prosecutions
Solicitor-General’s Guidance on Provision of Legal Services by Crown Organisations
to each Other (yet to be published)
Official
Counsel classification guidance
Competing interests – Criminal Disclosure Act and Privacy
the
MPI Legal Peer Review Checklist
“No surprises” Cabinet Circular (Oct 2016)
Witnesses and victims under
Crown Law’s “The Role of the Expert Witness”
Code of Conduct for Expert Witnesses
Victims of Crime - Guidance for Prosecutors
Victims Code
Appeals
How to request an appeal – a guide for prosecuting agencies
Released
Media
Media Protocol for Prosecutors
MPI Organisational Policy – Media Response Policy
In-Court Media Coverage Guidelines 2016
Links to these documents are provided throughout these Procedures and Guidelines where
relevant.
Page
7 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
From time to time, the Chief Legal Adviser may also issue further guidance as to best practice
to be followed.
1.5 Meaning of “Prosecutor”
The word “prosecutor” can refer to either the person or agency that lays criminal charges
before the court, or the advocate who appears in support of those charges. In these
Procedures and Guidelines “prosecutor” refers to the advocate. General y a prosecutor will
be a solicitor in MPI Legal Services, but a prosecutor may also be a lawyer from another
department, an officer from another directorate in MPI who is conducting a minor appearance,
or a Crown Solicitor instructed by MPI.
1982
The word “prosecutor” can be used inconsistently, which you should remember when reading
the external guidance referred to above.
Act
Information
Official
the
under
Released
Page
8 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 2 PROSECUTION DECISION-MAKING PROCESS
2.1 Prosecution Process – overview
There are a number of steps in the prosecution process to ensure appropriate checks and
balances are applied to each file. Individual directorates, particularly the Compliance Services
Directorate, have detailed procedures that apply to this phase.
By way of overview, the file begins with an investigation and a recommendation from an
investigating officer (officer in charge or OIC; see section 2.3.1). The OIC’s line manager
reviews the file, then the Prosecution Decision-maker considers whether prosecution may be
1982
appropriate.
If the Prosecution decision-maker believes prosecution may be appropriate in applying both
Act
the evidential and public interest tests, the file is referred to an MPI Prosecutor to review the
evidence and assess whether the test for prosecution is met. (See section 2.3.2.) If the MPI
Prosecutor is of the view the test is met, the file is referred back to the Prosecution Decision-
maker for a final decision as to whether or not to prosecute.
Once charges have been filed, the conduct of the prosecution is the responsibility of the
Prosecutor authorised to undertake that role, albeit that Prosecutor acts on instructions and in
accordance with their professional obligations and at the direction of their manager, or
Information
otherwise under supervision. The Prosecutor is assisted by the OIC, who attends to disclosure
and assists the Prosecutor in accordance with these Procedures and Guidelines. As to
disclosure, see section 7.
A diagram of the prosecution process can be found here (link under development)
Official
2.2 Authority to make prosecution decision
The
MPI Prosecution Policy describes who has authority to decide to prosecute, not to
the
prosecute, or to warn. For the purposes of these Guidelines, these staff are prosecution
decision makers.
It is expected that prosecution decisions will be made by Tier 4 Managers or authorised Tier
under
5 Managers2 unless any one or more of the escalation criteria set out at section 3.1 of the
MPI
Prosecution Policy apply. In that case prosecution decisions must be made by the Director
Compliance Services.
The Director Compliance Services is the decision-maker for proposed international fishing
prosecutions under section 113ZE Fisheries Act 1996, which also require consent of the
Attorney-General. (See section 5.3.1 below.)
Released
A Prosecution Decision-maker must not have had any significant involvement in the
preparation of the case file, or, in the case of infringements, prior involvement in the
3
adjudication of an infringement now to be the subject of a prosecution decision.
2 The requirements for authorising Tier 5 managers to make prosecution decisions are set out in their job
descriptions.
3 ”Significant involvement” in the preparation of the case file means personal involvement in gathering evidence,
discussing evidence with witnesses, alleged offenders, or other parties who may be perceived to have a vested
Page
9 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
2.3 Making the decision whether to prosecute
No prosecution may be commenced or continued unless it meets the two part test set out
in the SG Guidelines. In essence that test has two parts:
evidential sufficiency: there is available and admissible evidence sufficient to
provide a reasonable prospect of conviction; and
public interest: whether the prosecution is in the public interest.
Important: The decision must be based only on information contained in the case file.
Every Prosecution Decision-maker must be satisfied that all relevant information has been
1982
obtained and that the file is prepared to a satisfactory standard as per the requirements in
these Procedures and Guidelines.
Act
The
SG Guidelines provide guidance on the matters to be considered when deciding if the
test for prosecution is met in a particular case file. These are set out below.
2.3.1 Recommendation by OIC to Decision-maker
Having completed an investigation into suspected offending, the OIC should complete their
own summary report outlining their key findings, identifying any offences that appear to have
been committed and setting out the evidence in support of the offences identified, including
as to each element of the offence. The report should clearly set out the OIC’s recommendation
Information
in respect of how any identified offending should be addressed. This will include one or more
of the following responses:
no action to be taken (such as when the evidential test is not met)
education to be provided (for when an educative response is appropriate for offending
that otherwise warrants prosecution, or when no offence has been disclosed but
Official
education is still an appropriate response)
administrative or compliance action taken under relevant legislation breached (for
the
example, withdrawal/suspension/revocation of licence or privilege, issuance of
compliance notice, deemed value invoice issued etc). As to these, specific legal advice
should be sought before acting or recommending such action
warning issued (see 4.2 below)
infringement notice issued (see 4.3 below, and Infringement Guidelines)
under
pecuniary penalty pursued in High Court. MPI will develop guidelines for pecuniary
penalty proceedings. Specific legal advice is also required
consideration of post-conviction forfeiture action under the Criminal Proceeds
(Recovery) Act 2009 or, civil action (which does not require conviction), if this has not
already occurred
prosecution
Released
If the recommendation/s include issuing a warning, infringement notice or proceeding with a
prosecution, the officer should clearly identify each offence, the evidence in support of each
element of the offence, and the reason for their recommendation.
The report should also set out the al eged offender’s past compliance and prosecution history,
and any exonerating information, material relevant to any defence, and known information in
interest in the decision; handling or collating of exhibits; and any other operational decisions relating to the case.
It does not include the allocation of staff and resources to the case and the general management of staff.
Page
10 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
mitigation should be addressed in the report. A copy of the person’s criminal history should
be included in the file.
When submitted to the OIC’s line manager, the file should be complete and ready for review.
The format of the file should be in accordance with the standard file layout and contain a File
Index and File Cover Sheet .
In the event any relevant information is omitted from the file (for example, confidential
informant identification) this should be noted in the report. The decision maker and the
prosecutor should be entitled to assume the file provided to them is complete (including any
exculpatory or known mitigating information) and that any relevant information not on the file
is referred to in the officer’s report.
1982
NOTE: Where the purpose of this report (or any other) is to seek legal advice from a
prosecutor, it should be clearly addressed to the prosecutor, with the decision maker copied
Act
in, and marked as “legal y privileged – prepared for the purpose of obtaining legal advice/file
review”.
2.3.2 Legal Review by MPI Prosecutor
Prosecution Team Leaders are responsible for the allocation and reallocation of requests for
file review across their teams, taking into account such factors as the significance of the
prosecution, complexity, the place of the alleged offending, capacity and any relevant
classification requirements.
Information
While a decision maker may refer a file to their local prosecutor, it may be allocated to another
prosecutor.
2.3.2.1 Legal review
On receipt of a file for review, if the MPI Prosecutor considers a case file is deficient in any
Official
way, they must promptly notify the OIC (copied to the OIC’s line manager), detailing the further
information needed. Any deficiencies unable to be readily rectified by the OIC should be noted
the
in the legal review and their impact advised.
If the file is considered by the MPI Prosecutor to be significantly deficient (and particularly
where the OIC’s files are frequently deficient), the Prosecutor should discuss this with the
OIC’s Team Manager. under
Timeliness is an expectation at all stages of a prosecution, or potential prosecution, including
timely review. Reviews should be completed within six weeks of receiving a complete file.
Whilst that may not be possible in large or complex files, good communication with the OIC
and with Prosecutions team management is expected.
In carrying out a legal review, the Prosecutor must comply with these Procedures and
Guidelines, the
MPI Prosecution Policy and the
SG Guidelines. The MPI Prosecutor must
Released
also seek peer review by another prosecutor if required in accordance with the
MPI Legal
Services Peer Review Checklist. With the agreement of the Manager Prosecutions advice
may be sought from Crown Solicitors, as noted in the
MPI Prosecution Policy.
The MPI Prosecutor shall present their legal review as written advice (the Legal Review) in
the form set out in the File Review Template, the level of detail of which will depend on the
particular offence(s). Generally the Legal Review should:
set out the elements of the offence and any relevant statutory defences;
assess whether the evidence meets the Test for Prosecution : namely
Page
11 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
o whether there is sufficient evidence which can be adduced in Court to
provide a reasonable prospect of conviction; and
o whether prosecution is required in the public interest;
include reference to any relevant statutory objectives and enforcement priorities;
include any matters pertaining to cost relevant to the assessment of public interest
(for example the likely cost of instructing the file to the Crown); and
list the choice of charges; and
advise on the significance of the potential prosecution.
2.3.2.2 Significant prosecutions
1982
Potentially “significant prosecutions” for MPI or the wider Crown need to be identified as early
as possible, and identification and classification as such may impact on conduct of the file
Act
review, allocation of peer review, allocation of counsel, reporting and oversight. In the first
instance the identification of significant files is the responsibility of the prosecutor who receives
the file for review. Matters to be considered include whether the case:
raises legal issues that will likely have impacts beyond the particular prosecution;
is large and/or technically complex;
will involve significant internal/Crown/Court resources and costs;
Information
involves or touches on international fisheries prosecutions;
involves a major commercial enterprise;
involves or may require a well-resourced defence team, or
have other features that may present significant risk or opportunity (such as a test case
or to re-set sentencing levels for a particular offence).
Official
Once a decision is made to prosecute, significant prosecutions should be marked as
“significant” on the fortnightly prosecutions report. They should also be flagged for possible
the
inclusion in the Litigation and Prosecution report to SLT.
2.3.3 Making and recording the decision whether to prosecute The Prosecution Decision-maker must decide how the matter should proceed after
under
considering both the OIC’s summary report, the MPI Prosecutor’s Legal Review, and any
Crown Solicitor’s advice received. Part 3 describes the test for prosecution.
The Prosecution Decision-maker must record, and place on the case file, their decision
(
whether that decision is to prosecute or not) and sufficiently detailed reasons for that
decision. The extent of the reasons needs to be considered given the significance of the
potential prosecution. Reasons should include considerations such as the relevant statutory
Released
objectives, and what factors have been taken into account. Decisions may be reviewed from
time to time and reasons must be sufficient to enable MPI’s decision making to be transparent
and understood.
Templates for these decisions are under development (link pending)
Where a decision is made to issue a written warning instead of prosecuting, reasons for that
decision must also be placed on the case file.
Page
12 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
Where a Prosecution Decision-maker wishes not to prosecute even if the MPI Prosecutor
considers both the evidential and public interest tests are met, the matter should be referred to
the Chief Legal Adviser and Director Compliance Services before a decision is made.
2.4 Prosecutor’s responsibilities post decision-making
Once a decision is made to prosecute, the accountability for legal issues in connection with
the prosecution file passes to the Prosecutor. Some of that accountability remains even if the
conduct of the prosecution is allocated to the Crown or external counsel.
In particular, the Prosecutor:
1982
approves the wording of the charge(s);
reviews the Summary of Facts prepared by the OIC to ensure that they present
events suitably to form the basis of sentencing, if the charges are not defended;
Act
ensures the prosecution file is prepared to an appropriate standard;4
updates the File Cover Sheet as the prosecution proceeds;
monitors progress of any prosecution briefed to external Crown counsel and provides
or facilitates support for external Crown counsel;
ensures the competent and ethical conduct of the prosecution;
prepares court documents to a high professional standard, and seeks peer review in
accordance with the
MPI Legal Services Peer Review Checklist;
Information
reports the result of each appearance as soon as possible, and at least on the same
day; and
completes a detailed prosecution report at the conclusion of the prosecution and
arranges for the relevant MPI database(s) to be updated accordingly.
Official
The MPI Prosecutor should keep their Team Leader (and the Manager Prosecutions and the
Chief Legal Adviser if appropriate) appraised of any significant developments in the file.
“Significant developments” include:
the
developments that may affect the conduct of other prosecutions;
matters posing significant risk (including reputational and financial risk) to the
prosecution or MPI;
under
indications of media interest;
developments of which MPI may wish to alert the media;
matters affecting resourcing of the prosecution;
actual or potential conflicts of interest becoming apparent (such as the Prosecutor
being required to give evidence).
Prosecutors should also look to identify and address other issues, such as legislative issues
Released
(via the Legislation Issues Register), risk reporting, or issues that raise training or
operational needs.
Prosecutors should also be familiar with the
“No surprises” Cabinet Circular (Oct 2016) which
provides guidance to ensure Ministers are promptly informed of matters of significance
relevant to their portfolios. Reporting to Ministers is by the Compliance Services Directorate.
4 The prosecution file is the case file plus other documents necessary for the prosecution, such as submissions.
Page
13 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 3 TEST FOR PROSECUTION
As noted above, the Test for Prosecution has two limbs:
the Evidential Test; and
the Public Interest Test.
3.1 – Evidential Test
The
SG Guidelines5 describe the “evidential test” as fol ows:
“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
1982
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.
Act
5.4 It is necessary that each element of this definition be fully examined when considering the
evidential test in each particular case.
Identifiable individual
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 place where the
evidence sufficiently identifies that a particular person is responsible. Where no such person
Information
can be identified, and the case cannot be presented as joint liability there can be no
prosecution.
Credible evidence
This means evidence which is capable of belief. It
may be necessary to question a witness
Official
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
the
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 difficulties, then such evidence is credible and
should be taken into account.
under
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.
Evidence which the prosecution can adduce
Released
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-trial matters being raised whether it is likely that 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.
5 Solicitor-General’s Prosecution Guidelines 1 July 2013
Page
14 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
Could reasonably be expected to be satisfied
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 evidence is not a
mathematical science, but rather a matter of judgement for the prosecutor. In forming his or
her judgement the prosecutor shall endeavour to anticipate and evaluate likely defences.
Beyond reasonable doubt
The evidence available to the prosecutor must be capable of reaching the high standard of
proof required by the criminal law.
Commission of a criminal offence
1982
This requires that careful analysis is made of the law in order to identify what offence or
offences may have been committed and to consider the evidence against each of the
Act
ingredients which establish the particular offence”
3.2 Public Interest Test
Even if the Evidential Test is met, not all offences for which there is sufficient evidence must
be prosecuted. The Prosecution Decision-maker will exercise his or her discretion as to
whether a prosecution is required in the public interest, fol owing receipt of the Prosecutor’s
Legal Review.
Information
The SG Guidelines describe the public interest test as follows:
“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
Official
prosecuted. Prosecutors must exercise their discretion as to whether a prosecution is required
in the public interest.
the
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 automatical y be the subject of prosecution.”
under
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
Released
any diversionary option (particularly if the defendant is a youth).”
There is a multitude of factors that may be considered in determining whether prosecution is
in the public interest. A non-exhaustive list of such factors is contained in the
SG Guidelines and the
MPI Prosecution Policy.
Prosecutors and decision makers should also be alert to
other factors that are relevant to the public interest.
Listed in full given their importance, the
SG Guidelines list the following as illustrations of
factors for or against prosecution:
“Public interest considerations for prosecution
Page
15 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
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;
1982
5.8.6 Where the offence is prevalent;
Act
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;
Information
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
Official
of that position;
5.8.15 Where the offence was committed against a person serving the public, for example a
the
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;
under
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.
Public interest considerations against prosecution
Released
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:
• the offence is serious; or
Page
16 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
• 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;
1982
5.9.9 Where the defendant was at the time of the offence or trial suffering from significant mental
or physical ill-health;
Act
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
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
Official
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
the
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
under
interest requires prosecution.”
The
MPI Prosecution Policy sets out the following:
“The prosecution decision-maker must also take into account:
MPI’s statutory objectives and enforcement priorities including National Compliance
sector strategies, if appropriate;
Released
alternatives to prosecution such as directive options to achieve compliance or pecuniary
penalties;
any existing or likely prosecution or other proceedings involving the defendant(s) by
another government agency, and the likely outcome;
the relevant statutory timeframes and the period since the matter first came to Ministry
attention;
the resources available to the Ministry relative to the public interest in a prosecution
proceeding;
any guidelines issued by the Chief Legal Adviser;
the obsolescence or obscurity of the law; and
Page
17 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
whether the prosecution might be counter-productive, for example, by enabling a
defendant to be seen as a martyr.
Factors that must not be taken into account include:
colour, race, ethnicity, sex or marital status, religious, ethical or political beliefs;
personal knowledge of the offender;
political advantage or disadvantage to the prosecuting agency or people linked to it; and
the possible effect on the personal or professional reputation or prospects of those
responsible for decision making, the agency, or linked to it. “
The
SG Guidelines make clear that, in regulatory prosecutions, an agency’s statutory
1982
objectives and enforcement priorities will be relevant public interest considerations (see clause
5.10). In MPI’s case, Compliance sector plans will be relevant.
Act
Other factors will also be relevant from time to time, e.g. commercial motivation would be a
factor favouring prosecution. Availability of other procedures such as a pecuniary penalty and
whether the defendant is from outside New Zealand and unlikely to return may also affect the
decision.
3.2.1 Cost and resourcing
Cost and resourcing is also a relevant public interest factor as noted in the
SG Guidelines. If
the MPI Prosecutor identifies that the case may involve significant time and or/resources, this
Information
should be noted and brought to the attention of the Prosecution Decision-maker in the Legal
Review, and to Prosecutions team management.
It is important for the Prosecutor and the decision maker to give proper and realistic
consideration to the costs and resourcing that may be involved in a significant prosecution that
Official
does not resolve pre-trial. This should not be confined to MPI costs and resourcing. This may
need to include factoring in the costs of in-house legal support, Compliance resourcing,
the
external counsel in some cases, witnesses and associated costs and resourcing for a
sustained period. Those, Court costs and opportunity costs, may be easily underestimated.
3.2.2 Escalation to resolve disagreement
If there is a disagreement between the Prosecution Decision-maker and the MPI Prosecutor
under
on whether or not the public interest requires prosecution, (or evidential sufficiency, or
charging strategy) the Chief Legal Adviser and Director Compliance Services must be
consulted. If there is still disagreement the decision lies with the Director Compliance Services
after obtaining legal advice from the relevant Crown Solicitor. The Crown Solicitor’s advice
will be followed, unless there are exceptional reasons to depart from that advice and those
reasons are fully documented. (Refer to the
MPI Prosecution Policy p 6)
Released
3.2.3 Ongoing assessment of the public interest
As with evidential sufficiency, the assessment of the public interest is an ongoing obligation
and should be reassessed if there is a material change in the circumstances of the case or
the defendant, such as where the defendant suffers from significant mental or physical ill
health (see
MPI Prosecution Policy at p 5). Note this advice on reassessment should be given
by the Prosecutor whether or not it is sought. In the event that there is a disagreement as to
whether the prosecution remains in the public interest, the matter should be escalated as
above.
Page
18 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 4 – SOME ALTERNATIVES TO PROSECUTION
In accordance with the
SG Guidelines, prosecution is only one outcome in prosecution
decision making. There is a range of other outcomes to respond to non-compliance.
4.1 Education and guidance Education and guidance may be appropriate in some cases. For example, education may be
appropriate when no offence has been committed or there is insufficient evidence of offending
to warn or prosecute, but it is likely that the person’s conduct would have been different if they
1982
had understood legal requirements or best practice; and education may be appropriate if there
has been a technical and unintended breach of the law that is not sufficiently serious to warrant
a warning.
Act
4.2 Written warnings
A written warning is an official communication from MPI to an offender stating MPI considers
they have committed an offence but in this case the public interest does not warrant
prosecution (or issuing an infringement notice where that is an option).
A warning must only be issued to a person (including a body corporate) where there is
sufficient evidence in respect of which MPI could prove the offence against that person to the
Information
criminal standard of beyond reasonable doubt. A warning must not be issued where there is
a mere suspicion of offending without sufficient evidence by which to prove the offence. A
warning must also never be issued where there has been undesirable conduct that
nevertheless does not amount to a criminal offence.
Official
A warning is an informal alternative to a prosecution where the public interest in a prosecution
is not met. The public interest test must be considered.
the
It is imperative that warnings are grounded in consistency, transparency and integrity.
A warning must be approved and issued by a Prosecution Decision-maker and provided in
writing to the offender using the appropriate template letter. (Template to be included) MPI
does not issue “verbal warnings”. The Prosecution Decision-maker must consider any sector
under
specific MPI policy or guidance relating to the decision whether to issue a warning. The
warning must be recorded in the relevant MPI compliance system with a brief reason for the
decision to warn.
Particular care must be given in the case of offending that may involve breaches of other
legislation, to avoid the Ministry issuing a written warning where another agency may intend
to prosecute arising from the same incident. (See Part 5 below on “charging strategy”)
Released
Care must also be taken in cases where there may be multiple parties in an operation, to
ensure consistency and calibration in decision making. Issuing a warning to one offender may
indicate, for example, that a co-offender should receive a discharge without conviction.
Care should also be taken where an offence may involve a victim and reparation may be in
issue or there may be other related advantages that may flow from a conviction. The
Independent Police Complaints Authority has recommended that victims should be consulted
about the possibility of a pre-charge warning in cases where a prosecution may result in an
order for reparation. Where the factors weighing for or against prosecution are relatively
Page
19 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
evenly balanced, the victim’s views wil carry some weight. Where the victim has suffered
financial loss through or by means of the offence and is seeking reparation, a warning should
not be given unless the victim agrees to that course of action or enforceable and realistic
arrangements for the payment of reparation are made. (See section 8.3 below about victims).
Specific advice must be sought concerning cases that raise these factors.
4.3 Infringement proceedings by charging document
In some cases, MPI may decide to proceed with an infringement commenced by way of a
charging document as an alternative to a prosecution. This type of proceeding is a category 1
prosecution under the Criminal Procedure Act 2011, but cannot result in a conviction. (So, for
1982
example, section 252(7) Fisheries Act 1996 relating to community-based sentences does not
apply to infringement proceedings.) The same procedure is followed as for other prosecutions.
Act
Further guidance on infringements and processes will be developed in separate Infringement
Procedures and Guidelines. Other sector specific guidance is also relevant in terms of when
to infringe, or prefer charging.
4.4 Diversion, restitution, donations and the like
While offers of reparation or to make amends are relevant, money cannot be seen to “stifle”
an otherwise appropriate prosecution.
Information
MPI does not currently have a diversion programme, nor an enforceable undertakings regime
under the legislation it administers.
MPI does not enter into arrangements such as donations in lieu of prosecution, or negotiate
restitution on behalf of victims.
MPI must never receive funds or services as part of
Official
resolution of a prosecution without a court order.
In cases in which these or like considerations arise, specific advice should be sought. MPI’s
the
general position is that outcomes should be determined under the supervision of the Court.
See also para 6.5 “Plea discussions and arrangements”.
under
Released
Page
20 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 5 – CHARGING STRATEGY – CHOICE OF
CHARGE(S) AND DEFENDANT(S)
If the recommendation is to prosecute, the Legal Review must include advice on the charges
considered to be most appropriate.
No charging document shall be filed unless:
there is agreement between the Prosecution Decision-maker and the Prosecutor on
the persons to be charged and the charges to be filed; or
in any case where the Prosecution Decision-maker and the Prosecutor are unable to
1982
agree, the matter has been referred for resolution between the Chief Legal Adviser and
the Director Compliance Services and a decision is made.
For guidance on the filing of charging documents electronically, refer to the Ministry of
Act
Justice’s
Guidelines to practitioners for filing criminal documents via email.
5.1 General guidance on choice of charges
A key factor to be considered in terms of charging strategy is the intended outcome. For
example, the intended outcome may be both specific and general deterrence that is,
improving behaviour both in terms of the individual defendant or defendants and others in
that sector or the general public.
Information
Guidance on choosing the appropriate charges and defendants can be found in the following:
Section 17 of the Criminal Procedure Act 2011, which states requirements for the
content of charges.
The
MPI Prosecution Policy (p 7) sets out the matters which must be taken into account
Official
when making decisions on charges, including as to corporate entities and officers. If
a particularly complex or serious case is likely to result in a Crown prosecution, the
the
Crown Solicitor should be consulted.
MPI charging standards such as those for animal welfare, which provide guidance on
the level of charge appropriate for use in cases of ill-treatment
The
Prosecutor’s Handbook summarises the different offence categories and
discusses jurisdiction. It also provides guidance on the choice and content of charges
under
(
Commencement Stage chapter).
The
SG Guidelines provide broad guidance about choosing charges and choice of
defendants at pp 11-12. Critically, the number and nature of charges filed should
adequately and truly reflect the criminality of the defendant’s alleged conduct. The
number or seriousness should not be inflated to increase the likelihood of a plea
resolution. (SG Guidelines at 8.2).
Charges may be representative where the criteria set out at s 20 of the Criminal
Released
Procedure Act 2011 are met, and MPI’s policy is that these should be considered for
repeated or ongoing conduct.
The SG Guidelines at 8.6 require that in both cases, “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”.
In addition:
Page
21 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
The charging strategy needs to bear in mind whether any orders or consequent
exercise of statutory powers are necessary or desirable subsequent to any conviction.
Charges against multiple defendants should only be filed where that is necessary to
fully present the facts, or the person charged has played a more than minor role.
The charging strategy should consider the different offence categories under the
Criminal Procedure Act 2011, the consequences of those, and any benefits in common
categorisation.
The number and level of charges selected should reflect the nature and seriousness
of the offending, enable the evidence to be presented in a clear and cohesive way and
should give the court sufficient powers of sentence.
The charging strategy should consider the cost of the prosecution, the impact on MPI’s
1982
resources, and the impact on the Court’s resources: could fewer or different charges
achieve the same outcome but have less impact on resources.
In the case of corporate offending, any charging should reflect the purpose of the
Act
relevant legislation, and the relative culpability of that corporate entity and or its officers
and employees. For example, in cases of commercial offending, consideration needs
to be given to who is charged, and the timing of that charging, so that the role others
may have in offending (such as owners, or corporates) is not overlooked in charging.
Where any charge is to be filed, the wording of the charge must first be approved by the
Prosecutor.
5.1.1 Charges under legislation MPI administers or has enforcement
Information
functions under
The decision maker may bring charges under the legislation that MPI administers or other
legislation under which it has an enforcement role, including the Trade in Endangered Species
Act and Hazardous Substances and New Organisms Act. 6 When deciding which Act to file a
Official
charge under, the decision maker will consider the nature of the alleged conduct and the
charge that would most appropriately mark that conduct.
the
5.1.2 Charges under legislation for which MPI is not responsible and has
no enforcement functions
No MPI employee may file a charging document or conduct a prosecution in respect of any
offence against legislation for which MPI is not responsible (for example, the Crimes Act 1961)
under
or under which MPI has no enforcement function
unless:
the prior written approval of the Prosecutions Manager or Chief Legal Adviser has been
obtained; and
approval has been given by the Director Compliance Services.
No approval is needed for charges that include reference to ss 66 (parties to offences) or 72
(attempts) Crimes Act 1961.
Released
As a matter of courtesy, where MPI intends to file charges under legislation it does not
administer but under which it has enforcement functions, the OIC should advise the relevant
6 For example, the Ministry for the Environment administers the Hazardous Substances and New Organisms
Act 1996 (HSNO) but MPI has HSNO warranted officers who may exercise enforcement powers in respect of
New Organisms. Likewise, the Department of Conservation administers the Trade in Endangered Species Act
1989 but an Inspector appointed under the Biosecurity Act 1993 is deemed to be an Endangered Species
Officer.
Page
22 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
government department or agency of the charges at an early stage, preferably prior to filing
the charging document.
5.2 Co-ordinated enforcement and prosecution decision-
making
In some cases, another agency may be taking or intending to take prosecutions or other
proceedings that involve the offender(s). The
MPI Prosecution Policy sets out the relevant
considerations and responsibilities for co-ordinated enforcement/prosecution (see p 7).
This point needs active consideration, as the fact of another prosecution, proceeding, or
1982
sentence may well reduce the public interest in MPI commencing or continuing with a
prosecution in some cases. Or, it may be appropriate for the other agency to prosecute an
additional charge under MPI’s legislation. MPI’s policy states:
Act
Government agencies should respond to criminal behaviour in a coordinated way. When
determining whether to prosecute, the decision-maker should consider any existing or likely
prosecution or other proceedings involving the defendant by another government agency, and
the likely outcome.
In the case of a decision not to prosecute on public interest grounds, where there is non-
compliance with legislation administered by another agency, MPI shall consider referring that
matter to that other agency for decision to ensure a coordinated government response, prior
to any formal warning being issued.
Information
It is the responsibility of the Prosecutions Team Leader to consult with the Police or other
agency responsible for enforcing the legislation concerned before a decision to prosecute is
made and to provide reasonable notification as to progress and outcome of any prosecution
commenced.
Official
5.3 Statutory consents to prosecutions
the
5.3.1 Charges for which the consent of the Attorney-General or Solicitor
General is required
Charges for offences which may touch on matters of security or involve foreign relations or
international treaty obligations require the prior consent of the Attorney-General. In practice
under
this function tends to be undertaken by the Solicitor-General. The offences are set out in the
2013 document
Statutory Offences requiring the consent of the Attorney-General. Within the
scope of MPI’s legislation, this relates only to the charges set out below:
113ZE Fisheries Act 1996 - to prosecute for offences against:
o section 113A Fisheries Act 1996 (Illegal fishing or transportation in a
Released
fisheries jurisdiction of a foreign country)
o section 113E Fisheries Act 1996 (Unlawful use of a foreign vessel on
high seas by New Zealand nationals)
The Director Compliance Services is the decision-maker in respect of any such charges.
Before making a decision, the Director Compliance Services shall refer the case file to the
Manager Prosecutions, who must also consult the Chief Legal Adviser, Ministry of Foreign
Affairs and Trade, and the Deputy Solicitor-General (Criminal) in the Crown Law Office, before
advising the Director Compliance Services.
Page
23 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
5.3.2 Solicitor-General Consent - Filing of charging document for
category 1, 2 or 3 offences out of time
The consent of the Solicitor-General is required for filing charging documents out of time for
certain category 1, 2 or 3 offences as provided for in section 25 Criminal Procedure Act 2011.
No MPI employee may seek such a consent unless:
the prior written approval of the Prosecutions Manager or Chief Legal Adviser has been
obtained; and
approval has been given by the Director Compliance Services.
The process for obtaining consent to prosecute from the Attorney-General or the Solicitor-
1982
General is set out in the Prosecutors Handbook at 2.3, and 11.2 of the SG’s Guidelines.
Prosecutors seeking consent must provide Crown Law Office with the information and
Act
documents required, including draft charging documents. If consent is granted, Crown Law
will provide a memorandum setting out the consent which is to be filed with the charging
document.
Information
Official
the
under
Released
Page
24 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 6 CONDUCT OF THE PROSECUTION
This Part should be read in conjunction with section 9 of the MPI Prosecution Policy.
The
Prosecutors’ Handbook is a useful source which sets out the different stages of a
prosecution, from when a prosecution is initiated through to appeals.
Note: Guidance for infringements will be located in a separate document
Infringements Guidelines.
6.1 Who will conduct the prosecution?
Once the decision to prosecute is made, the decision as to who will conduct the case will be
1982
made within the Legal Services Directorate. Decisions will also need to be made from time to
time about individual appearances, or at certain stages of the prosecution. Act
The relevant Prosecutions Team Leader, in consultation with the Manager Prosecutions or
the Chief Legal Adviser as appropriate, may instruct external Crown counsel, including
Crown Solicitors, for any prosecution. There may also be other options including other
Departmental lawyers, or non-Legal MPI staff, as set out below. With the agreement of the
Chief Legal Adviser, the relevant Team Leader may withdraw instructions to external Crown
counsel.
6.1.1 MPI Prosecutors
Information
MPI prosecutors may carry out non-Crown prosecutions.
Prosecution Team Leaders are responsible for allocation or re-allocation of prosecutions
across their teams. When making allocation decisions Team Leaders will consider and comply
with the Public Prosecutions Unit framework for classification of counsel. In the absence of
any other allocation decision, the MPI Prosecutor who completed the Legal Review will initially
Official
be responsible for conduct of the prosecution.
6.1.2 MPI staff outside Legal Services may conduct minor appearances
the
If agreed by the Chief Legal Adviser, Director Compliance Services and Director Border
Clearance Services, a MPI prosecutor may instruct an appropriately trained staff member
outside of the Legal Services Directorate to conduct a minor appearance.7 Those staff
members have the same responsibilities as an MPI prosecutor in relation to the appearance.
under
6.1.3 Crown Solicitors Crown Solicitors may be instructed in the circumstances set out at section 9.1 of the
MPI
Prosecution Policy. The Solicitor-General may also direct that a prosecution be conducted
by a Crown Solicitor as a Crown Prosecution as set out in the
SG Guidelines (section 13).
If the Crown Solicitor is instructed, they should generally be the Crown Solicitor who holds the
warrant for the area in which the matter will be prosecuted. In some cases, however, it may
Released
be appropriate to engage the Crown Solicitor from another area (for example, where that office
has particular specialist expertise in the relevant area of law, or a conflict exists). The
agreement of the Deputy Solicitor-General (Criminal) is required. Further guidance can be
7 The legal authority is section 10(1) of the Criminal Procedure Act 2011, which allows other officers or
employees of a prosecuting department to appear and conduct the proceeding on behalf of the informant.
Page
25 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
found in the document
Guidance on the Conduct of Crown Prosecutions Commenced by a
Prosecuting Agency.8
It is good practice to engage the Crown Solicitor early, for example in establishing major
investigations that are likely to become Crown Prosecutions.
6.1.3.1
Crown prosecutions9
The Crown Prosecutions Regulations 2013 (the Regulations) provide that certain
prosecutions must be conducted by the Crown Solicitor. These are:
a) a proceeding for a category 4 offence;10
1982
b) a proceeding for an offence listed in the Schedule to the Regulations;11
c) a proceeding for an offence not listed in the Schedule, if the defendant elects to be
tried by a jury;
Act
d) a proceeding that is transferred to the High Court if none of paragraphs (a) to (c)
apply; or
e) any other proceeding, if the Solicitor-General directs that, having regard to the
particular features of the proceeding, it is appropriate that it be conducted as a Crown
prosecution.
The Crown Solicitor makes all decisions relating to the prosecution once the Crown has
assumed responsibility. Those decisions are to be made in consultation with MPI through
Information
the instructing MPI Prosecutor.
An MPI Prosecutor should maintain good contact with the Crown Solicitor conducting the
prosecution and may assist or junior on the matter as appropriate. Unless otherwise agreed,
the MPI prosecutor will be responsible for reporting on progress on the prosecution and the
Official
outcome of all hearings.
Costs
the
Crown Prosecutions are funded by the Crown from the point at which the Crown Solicitor
assumes responsibility for the file (as set out in regulation 5 of the Regulations).12
6.1.3.2
Departmental (non-Crown) prosecutions
under
Prosecutions which are not Crown Prosecutions may be prosecuted by an MPI Prosecutor or
instructed to the Crown Solicitor or (rarely) other external counsel.
Circumstances in which it may be appropriate to instruct a non-Crown prosecution to the
Crown Solicitor include:
Released
8 This document outlines the general roles and responsibilities of prosecuting agencies and Crown Solicitors in
the conduct of Crown prosecutions commenced by the prosecuting agency.
9 See the
Prosecutors’ Handbook – Crown Prosecutions chapter for more information on Crown prosecutions.
10 No offences which MPI may prosecute are category 4 offences
11 None of the offences in the Schedule are offences for which MPI prosecutes
12 Generally, this will be at the point the proceeding is adjourned following the defendant's first appearance:
Page
26 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
where there is an actual or potential conflict of interest involving the Prosecutor, an
MPI witness or otherwise such that the greater independence afforded by the Crown
Solicitor (or other external counsel) is prudent;
where there are insufficient resources within MPI to conduct the prosecution (for
example, if a hearing will take a number of weeks);
where the matter requires expertise the Crown Solicitor (or other external counsel) is
better placed to provide;
where to do so will be more cost effective (such as for brief appearances in locations
where there is not an MPI prosecutor);
where no MPI prosecutor is (practicably) available to appear.13
1982
An MPI prosecutor should maintain good contact with the Crown Solicitor or external counsel
conducting the prosecution and may assist or junior on the matter as appropriate.
Act
Costs
If a non-Crown prosecution is instructed to the Crown Solicitor or other external counsel, MPI
is responsible for all costs associated with the conduct of the prosecution. The instructing MPI
prosecutor should seek an estimate of cost, except for short one-off appearances.
The instructing prosecutor should endeavour to ensure invoices are received in a timely
manner and provided without delay to the Prosecutions Manager.
Information
6.1.4 Departmental lawyers
Some appearances on MPI prosecutions can now be conducted by other Departmental
prosecutors.14 A decision as to whether or not another Departmental prosecutor should be
instructed is to be made by Team Leaders, in consultation with the OIC.
Official
Situations where this may be appropriate include:
the
where workflows need to be managed;s part of secondment arrangements;
where expertise in speciality areas of law is sought.
Other relevant factors include the nature, complexity and importance of the appearance, and
costs. At this stage appearances by prosecutors from other departments will likely be
under
appropriate only for procedural list appearances (including sentencing following a guilty plea
on first call).
An MPI prosecutor shall brief the Departmental prosecutor as to the file.
If engaging another Departmental prosecutor is being considered, refer to the
Solicitor-
General’s Guidance on Provision of Legal Services by Crown Organisations to Each Other for
Released
assistance, and any memorandum of understanding between MPI and that department.
Likewise, with the approval of their Team Leader, MPI prosecutors may be instructed by other
government departments. The prosecutor appearing must be adequately briefed on the
prosecution and must comply with all applicable professional obligations, including
responsibilities under any MOU with the other department.
13 For example, where travel time/costs would be uneconomic compared to instructing the matter externally
14 For further detail see Rule 15.2, Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules
2008 and the SG’s Guidance on Provision of Legal Services (yet to be published).
Page
27 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
6.1.5 External (non-Crown) lawyers
In rare cases it may be necessary to instruct external counsel who is not a member of the
Crown Solicitor network to provide advice or conduct a prosecution on behalf of MPI. This is
likely to be a rare occurrence and would generally only occur where there is a requirement for
specific expertise and on the recommendation, or with the concurrence of, the Crown Solicitor
or the Crown Law Office.
6.2 Significant Cases
Prosecutors should identify in file reviews and on the fortnightly prosecution report cases
which may present significant risk or opportunity to MPI or to the wider Crown. These shall
1982
include cases that:
raise legal issues that will likely have impacts beyond the particular prosecution;
Act
are large and/or technically complex;
will involve significant internal/Crown/Court resources and costs;
involve or touch on international fisheries prosecutions;
involve a major commercial enterprise;
involve or require a well-resourced defence team, or
have other features that may present significant risk or opportunity (such as a test case
or to re-set sentencing levels for a particular offence).
Information
Note the “risk reporting” framework also identifies other factors, such as sustained media
interest, legal risk, novelty, sensitive relationships and resourcing.
In such cases the Manager Prosecutions, in consultation with the Chief Legal Adviser, shall
ensure an appropriate level of legal representation including, if necessary, the use of external
Official
Crown counsel supported by a competent MPI legal and operational team.
Such cases also require ongoing oversight, reporting and case management.
the
In accordance with clause 3.5 of the
SG Guidelines, the Chief Legal Adviser will keep the
Solicitor General or Deputy Solicitor General informed of appropriate matters, including
matters of general public or legal importance, or matters which give rise to substantial or new
under
forms of legal risk.
6.3 Hearings on marae
Criminal proceedings may be conducted on marae in some circumstances, including
emergencies or to hold specialist courts.
Outside of those situations, the District Court may transfer criminal proceedings to a marae
Released
(or any other place) pursuant to s4A of the District Courts Act 1947. That empowers the
Court to transfer proceedings to “any other convenient place”.
Such applications in MPI’s context have been very rare to date. The test is one of
convenience. Crown Law’s advice on a previous occasion (
Te Pania) was that the
prosecution should generally take a neutral stance on applications in which it is a
respondent, with the key issue – convenience and logistics - a matter for the Court to
determine. The prosecutor should notify their Team Leader promptly of any application so
MPI’s stance can be decided.
Page
28 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
6.4 Ongoing review of charges
After filing charges, Prosecutors are responsible for periodically reviewing them to determine
whether they should continue to be prosecuted under both the evidential and public interest
tests, or whether any charges should be amended, added, or withdrawn. Refer to the
SG
Guidelines (clause 9) for assistance.
A review by the Prosecutor should occur:
prior to a matter proceeding to trial; and
whenever a prosecutor becomes aware of a material change in circumstances relevant
to the prosecution.
1982
6.5 Plea discussions and arrangements
Act
The SG Guidelines recognise that principled plea discussions and arrangements have a
significant value for the administration of the criminal justice system. These discussions may
be initiated by the prosecutor or defence counsel.
In undertaking plea discussions and arrangements, prosecutors must adhere to the principles
set out in the
SG’s Prosecution Guidelines (clause 18).
Particular care must be taken in cases where there are offers of payment whether by way of
redemption fees, reparation or payments of other descriptions. Specific written advice should
Information
be provided in these circumstances and the prosecutor should consult their Team Leader.
MPI
must never receive funds or services as part of resolution of a prosecution without a
court order.
Special care is also required in cases that involve a victim. The SG Guidelines require that a
victim or complainant is informed of any plea discussions and given sufficient opportunity to
Official
make his or her position as to any proposed plea arrangement known to the prosecutor, albeit
their view is not determinative.
the
Clause 18.4 of the SG Guidelines sets out recording requirements. Any plea arrangement
should be properly recorded in a form capable of being placed before the Court. MPI will be
bound by any such arrangement unless it has been materially misled. MPI prosecutors must
ensure that such discussions are scrupulously accurate and fair.
under
The overarching consideration is the interests of justice. While plea discussions may be
contemplated in cases where the charges filed are clearly supported by the evidence, the SG
Guidelines note two relevant considerations:
whether the charges agreed to adequately reflect the essential criminality of the
conduct; and
whether the charges agreed to provide sufficient scope for sentencing to reflect that
Released
criminality.
Decisions to offer or agree to a plea arrangement that meets these two criteria in the interests
of justice must first be approved by the Manager Prosecutions or relevant Team Leader. The
final decision to offer or agree to the arrangement, if approved, will be made by the Prosecution
Decision-maker. Those parts of the MPI Prosecution Policy and these Guidelines that concern
independence also apply at this stage.
This applies to prosecutions being conducted by MPI or by external counsel, including
Crown Solicitors where they are prosecuting non-Crown prosecutions on behalf of MPI. It
Page
29 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
does not apply to Crown prosecutions where, in accordance with clause 28.9 of the
SG
Guidelines and the document
Guidance on the Conduct of Crown Prosecutions Commenced
by a Prosecuting Agency, once the Crown assumes responsibility for a prosecution, all
decisions in relation to the conduct of the prosecution, are a matter for the Crown Solicitor to
decide.
6.6 Withdrawal of charges
This section must be read with the preceding section on plea discussions and arrangements.
A Prosecutor may withdraw a charge before trial with the leave of the Court. Because
withdrawal does not prevent a prosecutor later filing a charge in relation to the same matter,
1982
in very rare cases this may be most appropriate to allow the prosecution a second chance to
cure evidential deficiencies. More commonly, it may be appropriate in order to:
Act
remove duplicate charges;
remove charges as part of a plea negotiation;
remove included charges where the prosecutor wishes to proceed on the most serious
charge only.
Withdrawal of a charge must have the approval of the Prosecution Decision-maker.
Other than in a Crown prosecution, decisions to withdraw or agree to a plea arrangement
including withdrawal of charges must ideally first be approved by the Manager Prosecutions
Information
or relevant Prosecutions Team Leader. Given the practicalities of the Court environment and
the likely availability of others, prosecutors should seek approval prior to Court when
withdrawal may become an issue.
The final decision will be made by the Prosecution Decision-maker. Those parts of the MPI
Prosecution Policy and these Guidelines that concern independence also apply at this stage,
Official
and reasons for the decision to withdraw the charges must be recorded
the
6.7 Dismissal of charges
The Court may dismiss a charge at any time before or during a trial, but prior to the defendant
being found guilty or entering a plea of guilty. This may occur when:
a) the prosecutor has not offered evidence at trial; or
under
b) in relation to a charge for which the trial procedure is the Judge-alone procedure, the
Court is satisfied that there is no case to answer; or
c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that,
as a matter of law, a properly directed jury could not reasonably convict the defendant.
A dismissal is deemed to be an acquittal and therefore precludes subsequent proceedings.
Given the significance of this course of action, any decision to seek or consent to a dismissal
Released
will be made by the Prosecution Decision-maker, but only if:
a) the Test for Prosecution is no longer met; and
b) the decision has first been approved by the Chief Legal Adviser or Manager
Prosecutions.
Dismissal may incur costs.
Page
30 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
6.8 Records and Reporting
Accurate and timely recording and reporting is an important obligation for prosecutors. It
cannot be assumed that a transcript of evidence/submissions or the Judge’s decision wil be
available in time to guide actions that follow sentencing or conviction, such as media releases
or considering whether or not to appeal. Thus the importance of the prosecutor taking good
notes during the hearing.
Prosecutors should take as full a note as possible of any judicial decisions (including reasons).
Prosecutors should also take as full a note as possible of submissions for the defendant that
depart from any written submissions, including concessions, as well as any evidence on
1982
disputed facts.
Prosecutors shall report back on outcomes that same day to their team leader and OIC, as
Act
well as Communications (if appropriate). The OIC is responsible for further circulation within
Compliance Services. This report back is not intended to onerous, except in significant cases
a brief update will suffice in most cases, pending the completion of a fuller prosecution report.
The Prosecutor shall, within five working days of the completion of a prosecution, provide a
full prosecution report on the result. The prosecution report shall be in the Ministry standard
format .and the result will also be entered into the Prosecutions Activity Report”.
In the case of prosecutions briefed to external Crown or other counsel, the instructing MPI
Information
Prosecutor is responsible for advising counsel of MPI’s reporting requirements. External
counsel should supply the result to the instructing MPI Prosecutor. The instructing MPI
Prosecutor shall provide the result to the OIC, the Prosecution Decision-maker and the
Prosecutions Team Leader.
Official
The MPI Prosecutor is responsible for the updating of the Compliance databases.
Where any oral decision has precedent value or contains a contentious ruling relating to the
the
determination of a point of law that may be subject to appeal, the Prosecutor should request
the Court to have the decision transcribed (or ask external counsel to request it).
under
Released
Page
31 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 7 CRIMINAL DISCLOSURE
7.1 Criminal Disclosure Act 2008
The Criminal Disclosure Act 2008 (CDA) codifies how disclosure is to occur for all criminal
proceedings. Note this also includes infringements in circumstances where a defendant has
requested a hearing pursuant to s 21(6) of the Summary Proceedings Act 1957.
As the SG Guidelines reiterate, “(p)roper disclosure is central to preventing wrongful
convictions”. Proper and timely disclosure is also essential to ensure the fair and efficient
progress of a prosecution, and failure to comply may lead to delays, adverse comment, costs
or mistrials.
1982
Disclosure ensures that a defendant is able to review all relevant information relating to the
prosecution, with the exception of information that is able to be withheld. The grounds for
Act
withholding information are primarily contained in s 16 CDA. “Relevance” is broadly defined
and means information or an exhibit as the case may be that “tends to support or rebut, or has
a material bearing on” the case against the defendant.
Under the CDA.
“prosecutor” means the person who is for the time being in charge of the
file or files relating to a criminal proceeding; and includes—
(a)
any other employee of the person or agency by whom the prosecutor is
employed who has responsibilities for any matter directly connected with the
Information
proceedings; and
(b)
any counsel representing the person who filed the charging document in the
proceedings; and
(c)
in the case of a private prosecution, the person who filed the charging
Official
document and any counsel representing that person
the
The “prosecutor” under the CDA is responsible for disclosure and ensuring that it occurs within
statutory timeframes.
It is important to note that the SG Guidelines state as fol ows: “(t)he Crown Prosecutor should
not be considered the “prosecutor” for the purposes of the Act. In any other prosecution
under
(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.” (16.1)
Due to the wide definition of “prosecutor” in the CDA, roles and responsibilities are set out
below
Enabling disclosure is an enforcement agencies responsibility. The
SG Guidelines at 16.4
Released
require that enforcement agencies shall “ensure that the prosecutor has access to al relevant
information relating to the charges in the possession of that agency”. Given this Ministry’s
breadth of operations, it is important to recognise that relevant information may initially be held
in other systems, operated outside of the Operations Branch.
It is also important to identify, locate and disclose information witnesses may have (such as
exhibits or personal notes), that they do not immediately produce at the investigation stage,
but they may wish to refer to at trial or is otherwise subject to disclosure obligations. This
needs to be explored at first instance by the OIC to ensure witnesses understand their
obligations, and that any additional disclosure is identified early.
Page
32 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
7.2 Roles and responsibilities
Within MPI, primary responsibility for preparing disclosure and securing relevant information
lies with the OIC of the file. A dedicated OIC Disclosure may be appointed for larger files.
Their role includes ensuring that there is a list of the material disclosed and a copy of all
disclosed documents. The
Guidelines require that agencies are able to verify this, and when
disclosure has been made (16.3).
The Prosecutor for the file (or the instructing MPI Prosecutor where external Crown counsel
is instructed) is responsible for reviewing disclosure (including what is withheld) and advising
as required. It is the responsibility of the Prosecutor to ensure MPI complies with all disclosure
obligations. The OIC is to provide all necessary assistance.
1982
The SG Guidelines at 16.2 note as follows:
Disclosure obligations will not be carried into effect merely by seeking assurances from the person
Act
in charge of the file that the trial file contains all necessary disclosure material and that any other
material disclosed represents full disclosure.
Final decisions on withholding or disclosing information in non-straightforward cases should
be made jointly between the Prosecutor, the OIC and the Prosecution Decision-maker. The
Prosecutor’s Team Leader and/or Manager Prosecutions should be consulted in the following
instances:
there is a dispute between the OIC, the Prosecutor and/or the Prosecution Decision-
Information
maker;
where the information to be withheld or disclosed could be regarded as controversial,
or have serious ramifications outside the prosecution in question; and/or
where the information is of a novel form.
Official
7.3 Disclosure File Index and filing copies of disclosed
materials
the
A Disclosure File Index should be created for every Prosecution file, and kept up to date by
the OIC. A hard copy of the Disclosure File Index should be placed on the case file.
For larger or more complex files, a live disclosure index should be created at the earliest
under
practicable stage and updated as the matter progresses.
Any documents to be withheld must be listed in the Disclosure File Index along with the
reasons for the non-disclosure. See section 4.7.7 below in relation to decisions not to disclose
relevant information.
It is good practice to also keep an exact copy of the disclosure that was sent out. This may
not be possible where large amounts of paper are involved, but it is important to keep an exact
Released
copy of any partially disclosed documents that were sent out.
7.4 Specific disclosure steps
See the Prosecutor’s Handbook – Administration Stage chapter for further information on
meeting disclosure obligations.
Page
33 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
7.4.1 Standard form letters and disclosure file indices
At each point when disclosure is required, the OIC should send a copy of the materials to be
disclosed to the defendant, with the relevant standard form letter as noted below. A copy of
the letter should be saved in the relevant document management system.15
Standard form letters and Disclosure File Indices should be used wherever possible:
Disclosure File Index
standard initial disclosure letter
standard letter for further initial disclosure
standard letter for full disclosure
standard letter for ongoing further disclosure
1982
standard letter for additional particular disclosure
Act
7.4.2 Initial disclosure
Initial disclosure should be effected when the summons is served, but in any event must be
done within 21 days from the service of the summons.
The OIC is responsible for preparing and sending the initial disclosure, following the
Prosecutor’s review.
Infringement notices do not require disclosure unless they end up going to court for hearing.
The initial disclosure required to be provided includes: Information
caption sheet (with penalties for the offence included);
summary of facts;
a copy of the defendant’s criminal history and offences under the relevant legislation
(e.g. prior fisheries offending or biosecurity offending) if one has been obtained;
Official
a standard initial disclosure letter giving advice as to the defendant’s entitlement to
further information.
the
7.4.3 Further initial disclosure
Defendants may request further information at an early stage in the prosecution process. The
defendant or counsel acting for the defendant should request this information in writing, but
an oral request should be accepted.
under
The types of information that defendants may request is set out in the CDA. It is possible to
withhold some of this information should grounds exist.
The CDA requires further initial disclosure to be provided as soon as reasonably practicable
and at least 7 days before the next substantive hearing date. In practice, MPI should aim to
respond to further initial disclosure requests within 14 days of receiving a request, although
longer periods are permissible for larger requests. The OIC should consult the Prosecutor if
Released
more than 14 days may be required.
All further disclosure should be checked by a Prosecutor before it is sent out and be
accompanied by a standard letter for further initial disclosure and updated Disclosure File
Index.
15 Currently for example, FOCUS for fisheries matters, Information Leader for food-related matters (food, APA,
wine) and Animal Welfare.
Page
34 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
7.4.4 Full disclosure
Full disclosure must be supplied as soon as reasonably practicable after a not guilty plea is
entered (this is implicit where trial by jury is elected).
The defendant does not need to request full disclosure. The Prosecutor will advise the OIC if
full disclosure is required.
Full disclosure includes
any relevant information. Relevance is defined by s8 of the Act as
follows: “
relevant, in relation to information or an exhibit, means information or an exhibit, as
the case may be, that tends to support or rebut, or has a material bearing on, the case against
the defendant”
1982
If any relevant information is withheld, a list must be given to the defendant specifying the
documents/exhibits being withheld and the reasons for the withholding.
Act
The full disclosure must be checked by the Prosecutor before it is sent out and should be
accompanied by a standard letter for full disclosure and updated Disclosure File Index.
7.4.5 On-going further disclosure
Disclosure is a continuing obligation.
When relevant information comes into the possession or control of the OIC or Prosecutor after
full disclosure has occurred, it must be disclosed to the defendant (unless there is a reason
for withholding, in which case an updated Disclosure File Index should be sent detailing the
Information
document/exhibit and reason for withholding).
This obligation continues until the period for lodging any appeal has expired. The OIC should
consult with the Prosecutor if potentially relevant information comes to light during this time.
Any further disclosure must be checked by the Prosecutor before it is sent out.
Official
Further, another important aspect is that reasons for withholding information may change.
Section 16(3) of the CDA requires that the prosecutor must disclose such information if the
the
criminal proceedings are not yet complete “if the prosecutor becomes aware that there has
ceased to be any justification for withholding all or part of any information that has been
withheld under this Act”.
For example, the status of a person may change throughout an investigation and prosecution,
under
and that change may impact on the continued justification of any initial decision to withhold
information.
7.4.6 Additional particular disclosure
Occasionally, a defendant or their counsel may request a specific particular piece of
information that was not included in full disclosure. The requests should be handled in the
same way as full disclosure, with reasons given for any information not provided.
Released
The additional particular disclosure must be checked by the Prosecutor before it is sent out.
7.5 Service of disclosure
Documents can be hand-delivered to the defendant or their counsel by any MPI employee, or
posted. Electronic copies should be made available if requested. Prosecutors may also hand-
deliver disclosure at court to the defendant or counsel. In the case of electronic disclosure,
particular care is required to ensure a new, unused storage device is used, and that any
redactions made are fully protected.
Page
35 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
7.6 Decision not to disclose relevant information
All relevant information must be disclosed unless it falls within a specified exception in ss 15,
16, 17, or 18 of the CDA. The OIC must act on the advice of the Prosecutor when considering
whether to disclose information. Special care must be taken not to disclose any information
that may lead to the identification of the place where an informant or witness lives.
If information is not to be disclosed, the document/exhibit must still be listed in the Disclosure
File Index with the level of disclosure (full, partial or not disclosed), and reasons for non-
disclosure identified (mentioning the specific section of the CDA). This is then sent to the
defendant, who may challenge the decision in court if they wish. If that happens, a Judge will
make the final decision.
1982
Documents that should
never be disclosed without the agreement of both the Prosecution
Decision-maker and Manager Prosecutions include
Act
operations orders;
information relating to operational plans for surveillance, covert operations or other
information that discloses a similar type of content;
ministerial briefings or similar documents;
internal emails or communications relating to the prosecution; and
legally privileged information.
The following should only be disclosed pursuant to order of the Court:
Information
informant names (for non-witnesses), the real names of undercover officers, or details
that could lead to their identification;
witness or informant residential addresses or any information that may lead to the
identification of the place where the witness or informant lives (such as postal address,
Official
residential address, email address, fax number, or phone number) (s 17 CDA).
7.7 Further guidance on disclosure
the
The SG Guidelines provide further guidance in relation to disclosure obligations (clause 16),
including guidance on:
evidence that is not disclosed until trial (paragraph 16.6);
under
information which the prosecutor does not intend to produce in evidence (paragraph
16.7);
previous convictions of proposed witnesses (paragraphs 16.8 and 16.9);
disclosure of any inducement or immunity given to a witness (paragraph 16.10);
identity of informers (paragraphs 16.11 and 16.12);
obligations or requests under Official Information Act 1982/Privacy Act 1993
(paragraphs 16.13 to 16.15). See also the document
Competing interests – Criminal
Released
Disclosure Act and Privacy which provides practical guidance for prosecutors, as well
discussing a case which looked at balancing the competing interests in the two Acts;
‘third party’ disclosure (paragraphs 16.16 and 16.17); and
contempt applications (paragraph 16.18).
Page
36 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 8 WITNESSES AND VICTIMS
8.1 Roles and responsibilities
The OIC will be the primary point of contact for witnesses and ensure that witnesses are kept
informed and treated with courtesy throughout the prosecution process.
The OIC shall also be responsible for ensuring the witness’ manager is notified of a request
to give evidence (if the witness is an MPI staff member) and that the witness is informed of
any applicable allowances.
Responsibility for preparing and serving the witness summons, and organising payment of
1982
witness expenses, lies with the OIC. See the
MPI Prosecution Policy for more on witnesses
(section 7).
Act
8.2 Code of Conduct for Expert Witnesses
All expert witnesses to give evidence in MPI prosecutions must be provided with a copy of the
Code of Conduct for Expert Witnesses, including any MPI employees who act as expert
witnesses in any prosecution. Those employees must comply with the required standards of
conduct applicable to expert witnesses, including the Code of Conduct for Expert Witnesses.
The Prosecutor must ensure a witness understands their obligations as an expert witness. It
is good practice for the OIC to ensure written acknowledgement is obtained from the expert
Information
witness confirming they have been provided with the Code and agree to adhere to it. The
document
The Role of the Expert Witness prepared by Crown Law provides assistance.
8.3 Victims
Official
It is rare that an MPI prosecution wil involve identifiable “victims” as defined by the Victims’
Rights Act 2002. However, prosecutors should always be alert to the possibility of there being
a “victim” in any prosecution.
the
The definition of ‘victim’ in the Victims’ Rights Act 2002 is set out in s 4 and is extensive.
Examples of cases that might include “victims” include:
under
a person injured by consuming food or drink
an officer who has been threatened or assaulted
the owner of land, or a forest, whose property is stolen
the owner of a farm whose stock are ill-treated by a third party and require
veterinary treatment.
MPI will ensure that victims of crime are treated at all times with courtesy and compassion and
with respect for their dignity and privacy.
Released
The Victims’ Rights Act requires that victims are informed as to proceedings, including
investigation progress, and the laying of charges, including “reasons for not laying charges”,
and all changes (see s 12).The OIC will be responsible for keeping a victim informed.
The Prosecutor shall prepare any victim impact statements.
MPI will comply with the Crown Law protocol
Victims of Crime – Guidance for Prosecutors,
the
Victims Code and the Victims’ Rights Act 2002.
See the
SG Guidelines for further guidance in relation to victims (section 29).
Page
37 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
8.4 Others disadvantaged by an offence
The Victims’ Rights Act also enables the prosecutor to treat someone else outside of this
definition as a “victim” where they were disadvantaged by an offence – see s20.
This is an important provision which enables such a person to provide a victim impact
statement as part of the sentencing process, and triggers sections 17 to 19, and 21 to 27 of
the Victims’ Rights Act. The prosecutor may do so if the statutory criteria are met, and it is
considered appropriate to do so. The sections may be applied to a person:
a. who was disadvantaged by an offence; and
1982
b. from whom information on the effects of the offence has been, or could be,
ascertained by or on behalf of the prosecutor, and
Act
c. who is not a victim of the offence, a person accused of the offence, or the
offender”.
It is important that these decisions are made consistently and transparently across
prosecutions.
Prosecutors should actively consider whether s20 is available. This provision has been used
to provide impact statements from iwi and affected industry in appropriate cases. Note this
provision does not extend to the restorative justice process.
Information
Official
the
under
Released
Page
38 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 9 SENTENCING
9.1 Prosecutors, sentencing, and associated orders post-
conviction
The
SG Guidelines set out expectations as to how Prosecutors should approach sentencing
or sentence indications. Refer to 21 of the
SG Guidelines.
This includes:
drawing the attention of the Court to proven or accepted facts
1982
assisting the Court by providing any applicable principles including guideline
judgments
Act
al proven aggravating factors including the convicted person’s criminal record
(if any)
the impact on any victims of the offending, and
the Prosecutors view as to the appropriate sentence range or tariff.
Prosecutors should take into account any relevant Compliance sector strategies, policies
and our statutory objectives in considering and adopting the sentencing approach, including
as to disqualifications. In significant or novel prosecutions, sentencing approach and
Information
submissions should be subject to senior peer review. Except in the most routine cases, it is
expected that sentencing approach will have been discussed with the OIC.
Prosecutors should have a clear idea of the reasonable range within which the sentence
might fall, both so as to fulfil their obligations as above, but also so a potentially manifestly
inadequate decision can be readily identified and prompt decisions can be made as to
Official
whether or not to seek to appeal.
Sentencing submissions must be fair, but must also set out clearly what starting point MPI
the
considers appropriate, what mitigating and aggravating factors the court should consider,
and what ultimate penalty MPI considers should be imposed. The submissions should also
assist the court with a clear statement of MPI’s position on other orders that the court might
make, e.g. disqualification from being in charge of animals.
under
Prosecutors must be familiar with the Sentencing Act 2011, and other relevant requirements
such as Part 5A of the Criminal Procedure Rules 2012, and other legislation as appropriate
from time to time (such as those that govern forfeiture or disqualification).
Note: Guidance on seizure and forfeiture will be located in a separate Policy at a later stage.
Released
9.2 Restorative justice
Restorative justice is an important component of the sentencing process in appropriate cases,
Under s24A of the Sentencing Act 2011, where there is a “victim” to offending the Court must
adjourn proceedings to enable enquiries to be made as to whether a restorative justice
process is appropriate. Proceedings may also be adjourned under s 25 for such a process to
take place. Prosecutors can be expected to be the contact at the outset, and need to be
prepared to address that question.
Page
39 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
Many MPI prosecutions will not obviously trigger this process, given the current applicable
definition of a “victim”. Some District Court Judges have interpreted the definition of “victim”
widely and have ordered a restorative justice conference. In such cases, MPI will generally
comply with the court’s direction instead of considering an appeal against it, but the prosecutor
should consult their Prosecutions Team Leader about the appropriate course in each case.
While s 20 of the Victims’ Rights Act 2012 gives the prosecution the option to present
statements by others disadvantaged by an offence, there is currently no equivalent in the
restorative justice context. The current Crown Law “Victims of Crime – Guidance for
Prosecutors” require prosecutors to be aware of the statutory requirements and to be able to
assist victims who wish to participate in such processes to access them. However the prime
1982
contact should be the officer in charge.
Act
Information
Official
the
under
Released
Page
40 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 10 APPEALS
10.1 Appeals by the defendant
Any MPI Prosecutor who conducted or instructed on a prosecution and receives notice of an
appeal filed by a defendant shall immediately inform their Team Leader and the Manager
Prosecutions.
The prosecutor should advise the OIC and the Communications team. Any media responses
need to reflect the fact of an appeal, and that the matter remains before the Court.
For further guidance, refer to the
Prosecutor’s Handbook - Appeals Stage chapter. 1982
10.2 Appeal by the Crown
Act
No appeal shall be commenced on behalf of MPI, whether by a MPI Prosecutor or by
external Crown counsel, unless authorisation has been given in accordance with the
MPI
Prosecution Policy (section 10.2) if appropriate, and the prior written consent of the Solicitor
General has been obtained.
10.3 Guidelines for obtaining consent to appeal from
Solicitor-General
Information
MPI must obtain the consent of the Solicitor-General to appeal any decision (refer section 26
of the
SG Guidelines and the
Cabinet Directions on the Conduct of Crown Legal Business
2012). See also the
Prosecutors’ Handbook – Appeals Stage chapter for further guidance
and
“How to request an appeal: a guide for prosecuting agencies”.
Official
There are two stages to this process. Given the short timeframes for filing appeals, it is
imperative that requests are made as soon as possible, and are sent to the right place with
the
the right information as soon as possible. In practice, this requires us to make a request to
Crown Law Office within about five working days of the decision, so this prospect needs to
be raised as soon as possible post decision, ideally within the first 48 hours. This puts a
premium on the quality of the prosecutor’s notes from the hearing, as transcripts wil usual y
under
be unavailable. Speed, rather than accuracy, is more important at this stage given the
statutory time frames for appeal and Crown Law’s requirements.
First, the Director Compliance Services, Prosecution Decision-maker, the Prosecutor or a
legal manager, may initiate a request for approval to appeal. When a request is made, the
Prosecutor is responsible for forwarding urgently to the Manager Prosecutions the following
material:16
Released
the decision to be appealed (or, in the case of an oral decision that has not been
transcribed: the Prosecutor’s full notes of the decision, to be followed by a typed
transcript of the notes as soon as possible).
a statement of the proposed ground(s) of appeal and details of the alleged errors
in the judgment.
any written submissions for MPI or the defendant.
16 Note that the appeal period for lodging a sentence appeal from the District Court is 20 working days (s 248
CPA); and the Solicitor-General’s consent must have been obtained within that time.
Page
41 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
an outline of the importance to MPI of conducting an appeal and any risks in doing
so.
The decision on whether to request the Solicitor-General’s consent to appeal wil be made
by the Manager Prosecutions or the Chief Legal Adviser in consultation with appropriate
Legal and Compliance Services staff, including the Director Compliance Services.
Secondly, where the decision is that an appeal is appropriate, the Manager Prosecutions will
prepare the request and email it for approval to the Solicitor General, with the assistance of
the Prosecutor who appeared on the prosecution.17 The material to be sent to the Solicitor-
General is set out in the
Prosecutors’ Handbook – Appeals Stage chapter at page 8, and in
the supplementary guidance “
1982
How to request an appeal: A guide for prosecuting agencies”.
10.4 Conduct of appeal
Act
The Team Leader or Manager Prosecutions will instruct external counsel to conduct the
appeal, and to file the notice of appeal if MPI is the appellant. Generally, counsel instructed
will be the Crown Solicitor responsible for the area where the prosecution occurred.
A prosecution Team Leader will allocate responsibility for supporting external counsel to an
MPI prosecutor, who should maintain good contact with counsel conducting the appeal and
should assist or junior on the matter as appropriate. The MPI prosecutor is responsible for all
of the usual MPI reporting throughout and at the conclusion of the appeal, including risk
Information
reporting. Appeals should general y be identified as “significant” on the fortnightly
prosecutions report.
The supporting MPI Prosecutor should try to maximise MPI’s timely input into the appeal
process, which requires expectation setting at the outset. The supporting MPI Prosecutor
Official
should request counsel on the appeal to provide:
a copy of the submissions for the opposing party as soon as possible after they are
the
received; and
a draft of the submissions for MPI sufficiently in advance of the time for filing
submissions to allow any comments to be considered (preferably at least three
days).
under
The supporting MPI Prosecutor is responsible for coordinating such MPI feedback on the
submissions and the conduct of the appeal as required. The supporting MPI prosecutor will
generally prepare a first draft of MPI’s submissions for counsel.
10.5 Reporting of the appeal judgment On receipt or delivery of the appeal judgment, counsel appearing on the appeal shall
Released
immediately forward a copy or note of any oral judgment to the MPI Prosecutor assisting
(where it is external counsel appearing).
The MPI Prosecutor supporting must then update and provide a copy to the Manager
Prosecutions, the OIC, the Prosecution Decision-maker and otherwise as appropriate,
including the Communications team. The OIC will circulate the decision within Compliance
Services.
17 Email [email address].
Page
42 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
The MPI Prosecutor will complete a report on the case in the Ministry standard format and
enter it into the relevant MPI Compliance system within five days. The Prosecutor should also
provide a copy to the Team Leader and to the Manager Prosecutions.
On rare occasions it may be that a further appeal may be contemplated. Public
communications need to respect that prospect. In the event that a further appeal needs to be
contemplated, it will be for the Crown Solicitor conducting the first appeal to request leave for
any further appeal. The Crown Solicitor will also need to seek the consent of the Solicitor-
General for the second appeal.
1982
Act
Information
Official
the
under
Released
Page
43 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 11 COSTS
11.1 Costs against defence counsel
Section 364 of the Criminal Procedure Act 2011 was introduced to ensure that both
prosecutors and defence counsel abide by the requirements imposed by the Criminal
Procedure Act 2011 and Criminal Disclosure Act 2008. Failures to do so, when significant
and without reasonable excuse, can be punished by a costs order. This power is separate
from the Costs in Criminal Cases Act regime.
Prosecutors should actively consider such applications against defence counsel in cases
1982
where there has been a significant failure, for example where substantial witness expenses
such as airfares are needlessly incurred. Prosecutors should seek approval from their
Team Leader before making such an application.
Act
11.2 Costs of prosecution and associated expenses
The Costs in Criminal Cases Act 1967 enables the Court to order just and reasonable costs
towards the prosecution. There is authority (
Contour Roofing, District Court) that this does
not include “in house” counsel costs in the departmental context, given the limit to “barristers
and solicitors” in the associated regulations.
Information
As a consequence a number of major prosecuting agencies do not seek in –house legal
costs. The current guidance from Crown Law Office is to that effect.
All prosecutors should carefully consider the jurisdiction for seeking costs and associated
expenses in appropriate cases, as this may well vary depending on who the prosecution has
been conducted by throughout. Further, different types of costs associated with a
Official
prosecution may still be sought depending on the charging legislation (for example s 173 of
the Animal Welfare Act 1999 or s 270 of the Food Act 2014, both examples of provisions
the
enabling orders to pay expenses), relating to vets and the testing/storing of food
respectively. In addition, other costs such as vet costs, testing or forensic analysis costs, or
expert report costs may be recoverable under the Costs in Criminal Cases Act 1967.
under
11.3 Costs against the prosecution
Costs may be awarded against prosecuting agencies in certain circumstances under the
Costs in Criminal Cases Act. This includes not only a case where a defendant is acquitted,
but also where charges are dismissed and withdrawn.
In the usual course of events costs will be ordered against the Ministry of Justice but there is
an ability for the Court to award costs directly against the prosecuting agency in the event of
Released
negligence or bad faith.
In the event a costs application is received, the fact of the application needs to be raised with
the Manager Prosecutions, identified as “significant” for the purposes of reporting, and the
application must be given full and proper attention. Counsel need to be prepared to defend
the decision to prosecute, or to continue to prosecute and to address the matters identified
as relevant to the courts consideration in section 5(2) of the Costs in Criminal Cases Act,
namely:
(a) Whether the prosecution acted in good faith in bringing and continuing the proceedings;
Page
44 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
(b) Whether at the commencement of the proceedings the prosecution had sufficient evidence
to support the conviction of the defendant in the absence of contrary evidence;
(c) Whether the prosecution took proper steps to investigate any matter coming into its hands
which suggested that the defendant might not be guilty;
(d) Whether generally the investigation into the offence was conducted in a reasonable and
proper manner;
(e) Whether the evidence as a whole would support a finding of guilt but the information was
dismissed on a technical point;
(f) Whether the information was dismissed because the defendant established (either by the
1982
evidence of witnesses called by him or by the cross-examination of witnesses for the
prosecution or otherwise) that he was not guilty;
Act
(g) Whether the behaviour of the defendant in relation to the acts or omissions on which the
charge was based and to the investigation and proceedings was such that a sum should be
paid towards the costs of his defence.
Information
Official
the
under
Released
Page
45 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
PART 12 MEDIA
12.1 Media statements
Public statements of any form concerning alleged offending, an investigation or prosecution
must be made with particular care and in compliance with relevant guidelines.
In the prosecution context, the general expectation is that Compliance Services will be
responsible for any public statements and prosecutors will not make any public comment (refer
to section 11 of the
MPI Prosecution Policy).
For example, prosecutors are not to provide information in response to ‘in court’ approaches
1982
by media attending any stage of a court proceeding, for comment or supply of
information/material that is not already in the public arena. This includes but is not limited to
Act
distribution of the Summary of Facts.
In commenting in the media or using other channels, MPI must ensure not to make statements
suggesting predetermination of the outcome of any investigation or tending to prejudice the
right of a defendant (or defendants yet to have their cases resolved) to a fair trial.
If any public comment is to be made (whether by Compliance Services or prosecutors), the
Media Protocol for Prosecutors should always be followed. See also the
SG Guidelines section
30). Refer also to the
MPI Organisational Policy – Media Response Policy.
Information
Where a case is of significant public interest, the Director Compliance Services or the
relevant Crown Solicitor may issue a statement giving broad reasons why a particular
prosecution decision was made. The Director Compliance Services may also proactively
announce that MPI has initiated an investigation or has laid charges. An example is an
Official
announcement of a decision to prosecute over fishing-related albatross deaths .
Where media interest can be reasonably anticipated, the Prosecutor should ensure with the
the
OIC that the Communications team is aware of the matter, and that any strategy is pre-agreed
with Compliance Services and Communications, Engagement and Channels (contact Helene
Ambler).
under
12.2 Media applications
The Ministry of Justice has prepared guidelines for media in courts (see
In-Court Media
Coverage Guidelines 2016).
The guidelines set out principles that apply to the media, including filming exhibits,
photography and recording evidence. The guidelines also set out how media applications are
Released
to be made, including that an application (except one relating to a first appearance in a criminal
matter) should be lodged at least 10 working days before the trial is due to start (or if lodged
within five working days, must include an explanation for the delay and why the application
should still be granted).
If an application is filed, MPI can submit, in writing, whether the application is not opposed or
whether it is opposed and why. In practice, MPI will usually take a neutral stance on media
applications so long as suitable protection for witnesses will be provided.
Page
46 of
47
MPI Prosecution
Procedures and Guidelines
Owner: Chief Legal Adviser
The Judge can either determine the application on the papers or set a hearing date. The
matters the Judge may have regard to are set out in the
In-Court Media Coverage Guidelines
2016.
Those Guidelines also provide for witness protection in some circumstances, whether as of
right, or at the Judge’s discretion. The latter wil apply to “official witnesses”, such as MPI
employees or expert witnesses.
While these applications may be rare in MPI’s context, when they do arise, prosecutors should
be alert to the Media Guidelines, and in particular, to the guiding principles (including the
desirability of open justice), and to the protections that may be available to witnesses.
1982
Act
Information
Official
the
under
Released
Page
47 of
47
