Police Prosecution Service - Statement of policy and
practice
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Table of Contents
Table of Contents
2
The Police Prosecution Service
4
Overview
5
Application of this Statement of Policy and Practice
5
Executive summary
5
Introduction
5
Purpose
5
Solicitor-General's Prosecution Guidelines
6
General principles and practices
7
Prosecution in practice
7
Prosecutorial independence
7
Prosecutors' operating framework
7
Protecting a defendant's right to a fair trial
8
Ethical considerations
8
Prosecution decisions
8
Prosecutorial ethics
8
Prosecutors admitted to the bar
8
Professional conduct
9
Ethnic and cultural factors
9
PPS function
10
Police role
10
PPS role
10
Key responsibilities
10
Court based prosecution and advocacy services
10
Other responsibilities
11
Obtaining external help
11
Reasons for external advice and help
11
PPS working relationships
13
Relationship between prosecutor and O/C case
13
Consultation with O/C case on changes to charges or diversion
13
Differences of opinion
13
Providing pre-charge advice
14
Prosecutions requiring the Attorney-General's Consent
14
Relationship with victims
14
Responsibility to victims
14
Prosecutor's obligations to victims
15
Relationship with courts
15
Police prosecution process
16
Case review
16
Is there sufficient evidence to prosecute?
16
Is prosecution in the public interest?
17
Factors which must NOT be considered in the public interest test
18
Determining charges
18
Diversion for adults
18
Disclosure
18
Case management discussions
19
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Prosecutor's role in sentencing
19
Appeals
19
Glossary of Terms
21
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Police Prosecution Service - Statement of policy and practice
The Police Prosecution Service
The Police Prosecution Service (PPS) is an autonomous, national prosecution service within the New Zealand Police (Police).
Established in 1999, PPS is the principal prosecuting body within the criminal jurisdiction of New Zealand's District Court,
which includes advocacy in the Youth Court. PPS provides a supporting role for coronial inquests and other regulatory
oriented hearings. Responsibilities also include managing the Police Adult Diversion Scheme.
PPS is administratively separate from the criminal investigation and uniform branches of Police and has responsibility for
managing all post-charge prosecution processes. This includes:
objectively assessing the quality of investigations and reviewing charging decisions in terms of the Solicitor-General's
Prosecution Guidelines
identifying and resolving case deficiencies
providing guidance and advice to the O/C case throughout the investigative and prosecution processes
conducting case management discussions with defence counsel
withdrawing or modifying charges where appropriate
receiving and modifying statements, liaising with witnesses, advising on court process and procedure
prosecuting cases in court.
PPS aims to provide timely and professional case resolution in the public interest. The objective is to ensure justice is done
by making principled prosecution decisions and prosecuting cases firmly, fairly and effectively. Through these principles
PPS contributes to the strategic vision, mission and values of the Police (refer New Zealand Police: Strategic Plan 2011 -
2015) and the wider Justice Sector Outcomes (refer New Zealand Police Statement of Intent 20013/2014 - 2015/2016).
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Police Prosecution Service - Statement of policy and practice
Overview
This section contains these topics:
Appication of this Statement of Policy and Practice
Executive summary
Introduction
Purpose
Solicitor-General's Prosecution Guidelines
Application of this Statement of Policy and Practice
This Police Prosecution Service (PPS) Statement of Policy and Practice applies to proceedings commenced under the
Criminal Procedure Act 2011.
Executive summary
Key things to note in this 'Statement of Policy and Practice' are:
Operational staff initiate prosecutions by charging suspects with offences and filing charging documents. The Police
Prosecution Service is responsible for managing all post-charge prosecution processes, including deciding whether to
proceed with a prosecution.
PPS prosecutors are expected to abide by the rules, principles and policies established by the Crown's Law Officers
and those reflected in this statement. However, prosecutors retain individual discretion (in accordance with specific
legal tests and principles) in the way individual cases are managed.
PPS prosecutors must act:
with impartiality and objectivity, independent of outside influences and in accordance with the New Zealand Bill
of Rights Act 1990, and
on behalf of Police, but should always serve the interests of justice first and assist the court wherever possible.
Prosecutors should develop strong working relationships within Police (particularly the O/C case) and with victims,
non-government agencies and the wider justice sector.
Only the PPS National Manager or Operations Manager may issue a statement to the media giving reasons why a
decision to prosecute or not to prosecute was made.
Introduction
The decision to prosecute is a serious step; so too is the decision whether or not to continue a prosecution. Considerable
care must always be taken to ensure those decisions are fairly and consistently made because they have serious
implications for the victims, witnesses and defendants involved. Prosecutors have a duty to ensure that prosecutions
continue only when it is in the public interest to do so.
PPS prosecutors play a crucial role in the administration of criminal justice in New Zealand. This role has significant
responsibilities and obligations. Prosecutors' effectiveness lies in combining independence with sound judgment and a
principled commitment to consistency, integrity and fairness.
Purpose
The Police Prosecution Service Statement of Policy and Practice is the PPS foundation document. It is designed to ensure
the principles applied when carrying out PPS work are transparent to all and help to treat victims, witnesses and
defendants fairly, while prosecuting cases effectively.
The statement:
explains the way PPS operates within the criminal justice system
provides clear general guidance to prosecutors
informs all other detailed prosecution policies and guidance
is designed to create greater understanding between PPS, other Police groups, justice sector agencies and the general
public.
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Police Prosecution Service - Statement of policy and practice
Solicitor-General's Prosecution Guidelines
On 1 July 2013, the Crown Law Office (CLO) published the updated
Solicitor-General's Prosecution Guidelines (the "SGPG") to
assist government agency prosecutors in exercising their discretion to prosecute criminal cases.
A clear statement is included establishing that there is an expectation of compliance with the Guidelines in respect of all
Police prosecutions (see guideline 2). Prosecutors should always serve and protect the public interest according to the
SGPG. This statement has been developed to be read consistently with those guidelines.
This statement will be amended to reflect any changes that may be made to the SGPG from time to time, as they relate to
prosecutions conducted by the Police.
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Police Prosecution Service - Statement of policy and practice
General principles and practices
Each case forwarded to PPS is unique and should be considered on its own facts and merits. However, general principles,
outlined below, apply to the way prosecutors should approach every case.
Prosecution in practice
Prosecutorial independence
The universally central tenet of a prosecution system under the rule of law in a democratic society is the independence of
the prosecutor from persons or agencies that
are not properly part of the prosecution decision-making process (see
guideline 4, SGPG).
It is PPS's responsibility, on behalf of the Commissioner of Police, to resolve prosecution cases (including advising whether
to prosecute) consistently in accordance with the principles outlined in this statement. The Attorney-General and Solicitor-
General (the Crown's Law Officers) are responsible for ensuring that we behave with propriety and according to accepted
principles in carrying out our functions.
PPS prosecutors are expected to abide by the rules, principles and policies established by the Crown's Law Officers and
those reflected in this statement. However, prosecutors retain individual discretion (in accordance with specific legal tests
and principles) in the way individual cases are managed.
Prosecutors' operating framework
Prosecutors exercise their discretion within a framework of legislation, policies and guidance ensuring the criminal justice
system operates with fairness and efficiency.
Key procedural legislation
There are many Acts that have an impact on how Police prosecutors operate but the following legislation forms the basis of
our prosecutors' operating environment:
Criminal Procedure Act 2011: governs criminal procedure from the commencement of proceedings through to
disposition and appeal
Criminal Disclosure Act 2008: codifies the rules governing the disclosure of information by Police and third parties to
defendants
Children, Young Persons and Their Families Act 1989: provides additional prosecution processes applicable in the
Youth Court
New Zealand Bill of Rights Act 1990: codifies procedural rights and requirements for defendants and Police
Bail Act 2000: determines procedures for the granting and opposing of bail
Sentencing Act 2002: sets out sentencing options and procedures relevant to sentencing considerations
Victims Rights Act 2002: sets out government agency interaction requirements with victims including victim impact
statements
Evidence Act 2006: sets out the requirements for the preparation and delivery of evidence at court
Key policy and guidance documents
There are also a variety of policy and guidance documents that impact on prosecutors' operation. The following list
includes documents and categories of documents that provide the leading guidance for PPS prosecutors:
Police policies and practice notes: including the
Police Code of Conduct and PPS practice notes relating to specific
legal matters
Crown Law Office,
Solicitor-General's Prosecution Guidelines (SGPG): clear guidance from Solicitor-General on the
roles and requirements of a prosecutor
Practice notes from Chief Justices and Judges: clear guidance from the judiciary on
requirements of the court in relation to specific legal matters
Cabinet Manual,
Appendix C: Cabinet directions for conduct of Crown legal business, Cabinet Office: advice on
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engaging Crown prosecutors
Protecting a defendant's right to a fair trial
Prosecutors must always act in a manner consistent with a defendant's right to fair proceedings, including:
complying with all relevant legal obligations and principles
ensuring all relevant evidence (including evidence favourable to the defendant) is disclosed, presented (if
appropriate) and tested according to law.
Prosecutions are adversarial and it is appropriate for prosecutors to be robust and resistant to pressure. However, they
should not strive to obtain a conviction at all costs, allow prejudice to sway their judgment or turn a blind eye to serious
deficiencies in a prosecution case. This would be inconsistent with the obligation to prosecute in the public interest fairly
and dispassionately.
Achieving a fair trial includes ensuring flawed prosecutions are not commenced or pursued, for example where a
prosecutor, considering the prosecution of a case, concludes that the SGPG Test for Prosecution (the Evidential Test and
the Public Interest test) is not met.
Ethical considerations
Prosecution decisions
A prosecution should only be brought or continued for good cause. Fair and effective prosecution is essential to the
maintenance of law and order.
An inappropriate decision has the potential to undermine public confidence in the prosecution service and the criminal
justice system more generally. Accordingly great care should be taken in each case to ensure that sound, justifiable
decisions are made.
Prosecutorial ethics
PPS prosecutors must act:
with impartiality and objectivity, independent of outside influences and in accordance with the New Zealand Bill of
Rights Act 1990 (i.e. not let any personal views about ethnic or national origin, disability, sex, religion, political views
or sexual orientation of the suspect, victim or witness influence their decisions)
on behalf of Police, but should always serve the interests of justice first and assist the court wherever possible.
Prosecutors admitted to the bar
PPS prosecutors may be:
qualified lawyers (admitted to the bar) who may or may not be police officers
police officers with law degrees (not admitted to the bar)
police officers without formal legal qualifications but with specialist training.
Those who are qualified lawyers have dual responsibilities. While acting for Police they are also bound by the Lawyers and
Conveyancers Act (Conveyancing Practitioners: Conduct and Client Care) Rules 2008, in particular Rule 13.12:
A prosecuting lawyer must act fairly and impartially at all times and in doing this must:
a. comply with all obligations concerning disclosure to the defence of evidence material to the prosecution and the
defence; and
b. present the prosecution case fully and fairly with professional detachment; and
c. avoid unduly emotive language and inflaming bias or prejudice against an accused person; and
d. act in accordance with any ethical obligations that apply specifically to prosecutors acting for the Crown.
While the Rules only apply to qualified lawyers, they serve as a useful guide as to the ethical standards required of
prosecutors generally.
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Prosecutors who are qualified lawyers must also be careful to avoid any potential conflict of interest arising from
prosecuting a former client. The conflict of interest only becomes a breach of professional obligation when a prosecutor
uses prior knowledge (gained as former counsel for the defendant) during a prosecution. However, in practice, the
perception of a conflict of interest will be hard to refute even if the prosecutor studiously refrains from using prior
knowledge. This means prosecutors should avoid prosecuting former clients.
Professional conduct
Prosecutors should ensure they:
represent the Police in court professionally and strictly apply the sub judice rule in criminal cases (which restricts
what a prosecutor can say publicly about a prosecution in process) - see note, below
have a competent working knowledge of existing and new legislation and common law relevant to their area of
operation
work to maintain public trust and contribute to an efficient criminal justice system
are open, honest, courteous and helpful when explaining our role and decisions to victims, defendants, investigators
and counsel
respond positively to criticism
consider victims' views and concerns when their personal interests are affected and ensure they are informed of their
rights.
Note: In accordance with guideline 6,
SGPG only the PPS National Manager or Operations Manager may issue a statement
to the media giving reasons why a decision to prosecute or not to prosecute was made.
Ethnic and cultural factors
The principles above outline requirements for the prosecution process to be fair and to provide offenders with the
opportunity to be equal before the law when their guilt is being determined.
Once guilt has been determined or admitted by the offender, ethnic and cultural factors can be considered as part of the
sentencing, reparative and rehabilitative aspects of case resolution.
Victims and witnesses of crime can often be confused or intimidated by prosecution and court processes. This may be
exacerbated for victims and witnesses from Maori, Pacific or ethnic communities where English may not be their first
language or they find it difficult to express their culture within the court's processes. The nature and extent of any PPS
liaison with victims and witnesses must be assessed in relation to each victim's and witness's needs, taking into account
their ethnicity and cultural requirements.
This table outlines some opportunities for recognising ethnic and cultural factors.
Process stage
Opportunities
Alternatives to
Consider culturally relevant conditions for the offender during diversion, for example:
prosecution
restorative justice processes
involving the offender's extended family in setting and/or administering conditions.
Sentencing
Under section
10 Sentencing Act, an offender's attendance at or agreement to attend a culturally
relevant restorative justice process can be considered as a mitigating factor at sentencing.
Assistance during Prosecutors working with district staff (O/C case and Iwi, Pacific or Ethnic Liaison Officers) to
court processes appropriately manage ethnic and/or cultural requirements when dealing with a victim and/or witness.
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Police Prosecution Service - Statement of policy and practice
PPS function
Police role
The Police contribution to the justice sector outcome of a safe and just society is achieved most directly through these
outcome areas:
impact of crime and crashes reduced
offenders held to account
crime and road trauma reduced
a trusted justice system
accessible justice services.
The basic formula for achieving these outcomes lies in the proper function of the preventative, investigative and
prosecutorial arms of the Police.
PPS role
Operational staff initiate prosecutions by charging suspects with offences and filing charging documents. PPS provides a
specialist prosecution focus within Police. Separated from operational governance at district level, PPS is responsible to
the Commissioner but acts independently when discharging prosecutorial discretion, i.e. PPS decides how to deal with
cases once a prosecution has been commenced.
PPS prosecutors should:
review, advise on and prosecute cases, liaising appropriately with defence counsel
ensure the law is properly applied and all relevant evidence is put before the court
comply with obligations of disclosure according to legislation and the principles set out in this statement
be proactive in identifying evidential deficiencies and, where possible, ensuring they are rectified in cases they
prosecute
appropriately conclude cases that cannot be strengthened by further investigation.
Key responsibilities
Court based prosecution and advocacy services
This table outlines the services PPS provides.
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In these situations. .
PPS. .
Judge-alone prosecutions (except Crown prosecutions)
Undertakes all Police prosecutions (including traffic cases) in
the Judge-alone jurisdiction of the District Court (i.e. offence
categories 1 to 3) except where the Crown assumes
responsibility.
Crown prosecutions before the Crown assumes
Prosecutes most Crown prosecutions before the Crown assumes
responsibility (see
reg 4 of the Crown Prosecution
responsibility (see reg 5 of the Crown Prosecution Regulations
Regulations 2013 for the list of proceedings that are
2013 for when the Crown must assume responsibility).
Crown prosecutions)
Externally generated prosecutions
Continues prosecutions investigated and/or commenced by
other government agencies, e.g. offensive publications offences
investigated by Department of Internal Affairs.
Youth Court
Prosecutes preliminary and defended hearings, and makes
submissions regarding jurisdiction issues in the Youth Court.
Inquests
Provides advocacy (on a case-by-case basis) supporting Police
at coroners inquests - e.g. where the matter is difficult or
complex.
Miscellaneous
Provides advocacy (on a case-by-case basis) supporting Police
responsibilities at various hearings, including:
liquor and other licensing cases
Arms Act appeals
appeals against impoundment of vehicles
Other responsibilities
PPS also administers services to improve the smooth running of the criminal justice system including:
Police
Adult Diversion Scheme - an alternative to full court prosecution for defendants who have committed less
serious offences
Prosecutions advice to districts - timely and objective advice to district staff about laying correct charges, briefing
files, evidential sufficiency and disclosure
Supporting the flow of information between courts and districts - e.g. making the appropriate representations from
districts on court administrative decisions and procedures and ensuring the outcomes and court responses are
communicated back to districts.
Obtaining external help
At times PPS will need to seek outside help with prosecutions. Under the Cabinet Directions for the Conduct of Crown Legal
Business PPS may:
instruct a Crown solicitor in a Judge-alone prosecution without reference to the CLO
in other cases, approach the CLO for assistance (CLO may deal with the case itself or direct it to lawyers outside).
Reasons for external advice and help
PPS is never precluded from asking for prosecution assistance from the CLO or Crown Solicitors. The nature and
circumstances of requests will differ from case to case. This table outlines some situations when prosecution assistance
may be appropriate.
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Police Prosecution Service - Statement of policy and practice
Reason
Examples
To support
Insufficient staff within a PPS district to meet the needs of local court(s) - e.g. resulting from a
PPS capacity to
sudden and fleeting upsurge in the number of cases or because PPS district prosecutors are
provide services
temporarily off work.
Complex legal issues Prosecutions requiring specialist advocacy with national implications or the Crown is required to
appear in High Court pre-trial applications.
High profile
Case is high profile with considerable media interest. This may be because of the defendant's
identity, international aspects, circumstances surrounding the case, or the victim's identity.
Independence from The case calls for independent advice or advocacy, e.g. when the defendant is a Police employee.
Police
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PPS working relationships
Prosecutors should develop strong working relationships within Police (particularly the O/C case) and with victims, non-
government agencies and the wider justice sector. These relationships are an essential part of the way prosecutors gain
support for the key tasks they undertake in discharging their duties.
Relationship between prosecutor and O/C case
PPS prosecutors will work collaboratively with O/C cases, respecting their separate responsibilities thereby ensuring the
right mix of checks and balances exist in bringing a criminal case to justice.
Note: Due to the development of new
approaches to case management, "
O/C case" can include the arresting officer, another investigating officer appointed as
O/C case or an officer from a dedicated case management unit).
This table details the key separate functions and responsibilities of O/C cases and prosecutors.
O/C case responsibilities
Prosecutor responsibilities
Gathering information and evidence required to make
Making decisions affecting the resolution of the
prosecution decisions.
case (once the charging document has been filed).
Initiating prosecution process by deciding which and how
Assessing whether charges are appropriate and
many charges to file (in consultation with a supervisor and,
there is sufficient evidence and public interest to
possibly, a prosecutor).
continue the prosecution.
Preparing prosecution file contents to the required
Advising investigators throughout the investigation
standard.
Conducting case management discussions with
Preparing:
defence counsel including charge negotiation.
initial disclosure for delivery to defence counsel by
Amending, adding, withdrawing charges or agreeing
prosecutors and
to diversion.
delivering ongoing full disclosure to defence counsel.
Dealing with any court bail matters.
Submitting prosecution file to the prosecutor in a timely
Providing initial disclosure to the defence counsel
manner allowing for case review and delivery of initial
and ensuring ongoing full disclosure is completed
disclosure.
by the O/C case.
Controlling post-charge investigations subject to the
Receiving statements and requesting further
prosecutor's directions regarding procedure and evidence.
enquiries be made (where required).
Maintaining victim liaison and a close relationship with
Advising on court process and procedure and
other witnesses.
presenting the case in court.
Providing sentencing submissions when requested
by the court or as required.
Consultation with O/C case on changes to charges or diversion
Where the prosecutor is considering modifying, adding, withdrawing charges or agreeing to diversion they should
(whenever practicable) consult with the O/C case or that person's supervisor. If the prosecutor makes any of these
decisions without consulting with the O/C case or their supervisor, they should note the background to and reasons for the
decision on the file and (where appropriate) discuss it with the O/C case at the next opportunity.
Differences of opinion
From time to time there may be fundamental differences of opinion between a prosecutor and an O/C case in respect of a
prosecution matter. The PPS will manage disagreements professionally and where appropriate, seek direction from
supervisors (PPS and operational).
The level to which a matter is escalated within the PPS will depend on the nature and circumstances of the individual case.
However, typically issues will initially be directed to the relevant District Prosecution Manager. If that process does not
resolve the matter, liaison with the PPS can be escalated to the appropriate Regional Prosecution Manager. Should the
matter still be unresolved it can be escalated to the PPS National Operations Manager and ultimately the PPS National
Manager.
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These dispute resolution mechanisms reflect the need for prosecuting and district staff to work together collaboratively, so
that the Police organisation can function effectively. However, these solutions do not supplant the final responsibility of
prosecutors in making decisions on whether or how a case should proceed.
Providing pre-charge advice
Police Legal Services has the role of providing pre-charge advice to the O/C case. It may be appropriate for PPS to provide
pre-charge advice in cases where there is an existing related prosecution and the prosecutor is already familiar with the
facts of the offending, and/or where the advice relates directly to the prosecution of the matter, and it is impractical for
Legal Services to provide that advice.
Where PPS prosecutors are asked to provide pre-charge advice relevant to particular investigations, they must give advice
consistent with the principled approach (refer
General Principles section) described in this document. This advice may
include-
what criminal charges are appropriate, including:
whether there is sufficient evidence to support a charge
the admissibility of evidence
the most appropriate charge in the circumstances
the present state of the law
the institution of appeals or reviews of sentence
the disclosure of evidence.
Prosecutions requiring the Attorney-General's Consent
Certain offences require the consent of the Attorney-General before a charging document may be filed (see, generally,
s24
Criminal Procedure Act 2011 and guideline 11 of the
SGPG for procedural guidance). It is the O/C case's responsibility to
obtain the Attorney-General's consent prior to filing the charging document. Consent must be obtained through Police
Legal Services.
The Crown Law Office publishes a list of
Statutory Offences Requiring the Consent of the Attorney-General.
Relationship with victims
The strength of the relationship between the prosecutor, the O/C case and victims of crime significantly impacts on the
case's outcome. Victims are often the primary witness to the offence and provide much of the evidence or the leads for
collecting evidence supporting successful case resolution. Prosecutors will acknowledge the victim's key role by:
treating them with courtesy and compassion
respecting their dignity and privacy
working cooperatively with the O/C case to ensure they are appropriately involved in the prosecution process.
The prosecutor does not act for victims in the same way as solicitors act for their clients. Prosecutors should consider the
views of the victim when discharging their duty, balancing those views with their obligation to act in the public interest.
Responsibility to victims
Under the
Victims' Rights Act 2002 and the
Victims Code (both aimed at improving the treatment and rights of victims)
Police must:
determine who should be treated as a victim for the purposes of the Act
provide the victim with information about programmes, remedies and/or services available to the victim through the
Police
inform the victim of the charges laid or the reasons for not laying charges
keep victims informed of progress with the case and advise on proceedings and any changes to charges
advise victims of bail conditions or issues surrounding bail
ensure victims appear at court for hearings and that there are emergency contact details available for the victim
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make all reasonable efforts to encourage a victim to complete a victim impact statement and ensure the statement is
no older than 28 days at the time of sentencing.
provide the victim with information as to the victim's role as a witness
advise the victim of the date and place of all court appearances
inform the victim of the final disposition of every charge (including on appeal, if any)
Most of these obligations are managed by the O/C case on behalf of Police.
Prosecutor's obligations to victims
Prosecutors should:
check the O/C case has followed correct procedure
liaise with the O/C case and advise of any changes to charges or other aspects relevant to the case's progress,
including any changes to the defendant's bail
if the offence is one of sexual violation, serious assault (that resulted in serious injury or death), or of another kind
that has led the victim to have ongoing fears for their physical safety or the physical safety of a member of their
family, ensure that all reasonable efforts to ensure that the victim's views concerning the defendant's release on bail
are ascertained and must inform the court of those views and comply with the notice requirements in
Part 3 of the
Act.
ensure that any plea discussions are communicated to the victim with sufficient time to allow them to respond with
their views
ensure key documents required to be disclosed to the defence do not contain the victim's address and contact details
(unless that information is necessary to ensure the defendant is fully and fairly informed of the nature of the charge)
make all reasonable efforts to inform the victim of their rights and obligations in respect of making a victim impact
statement
make all reasonable efforts to ensure that a victim impact statement is submitted to the court at sentencing
show a copy of the victim impact statement to the offender (i.e. a defendant who has pleaded or been found guilty)
unless a judicial officer orders the document withheld, but must not let the offender keep a copy
make all reasonable efforts to ascertain the victim's views in respect of a defendant's application for name
suppression and inform the court of those views
manage the victim's expectations, consistent with the principle that while victims' rights are an integral part of the
criminal justice system, ultimately the prosecutor must make decisions based on the public interest and interests of
justice.
These obligations are managed by the prosecutor but may be met through the O/C case.
Relationship with courts
Maintaining an effective relationship between PPS and the courts is important for the efficient operation of the criminal
justice system. PPS will work actively with the Chief District Court Judge on:
relevant policy, procedures, planning and resourcing at the national level
court rostering and scheduling to match judicial and prosecution resources with PPS's overall business demands at
the local level.
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Police prosecution process
PPS prosecutors are responsible for deciding whether to proceed with a prosecution. Their decision is made in accordance
with this statement (and any other related PPS policy or practice note) and the
SGPG. These are the necessary decision
making steps.
Case review
Each case received from an O/C case will be reviewed by a prosecutor to make sure it meets the 'test for prosecution'. This
case review is an integral independent check conducted within the Police prosecution process. It is significant not only in
respect of reviewing the technical aspects of individual cases but also in terms of ensuring the efficient, effective and
timely management of cases generally.
Review is a continuing process and PPS prosecutors should take account of any change in circumstances. Accordingly there
must be effective liaison between prosecutors and O/C cases. Prosecutors should work closely with O/C cases to reach the
right decisions in managing prosecutions, particularly when considering whether to amend charges or discontinue a case.
This gives an O/C case the opportunity to be involved in the process including providing more information that may affect
the decision.
Prosecution cases (while with the PPS) will generally be dealt with by more than one prosecutor during the prosecution
process. It is therefore crucial that those conducting case review appreciate that their decisions will have an impact on
how cases will be managed in the future whether by them or their colleagues.
The first test for prosecution is consideration of the evidence. If the case does not pass the
evidential sufficiency test it will
not proceed no matter how important or serious it may be. If the case does pass the evidential sufficiency test, the
prosecutor should proceed to the second test and decide whether a prosecution is required in the
public interest.
Is there sufficient evidence to prosecute?
PPS prosecutors should first be satisfied that there is enough relevant and admissible evidence to establish that an offence
has been committed by a specific person.
When deciding whether there is enough evidence, prosecutors should consider whether the evidence is admissible and
reliable. In many cases the evidence will cause no concern, but in others the evidence may not be as strong as it first
appears. Prosecutors should ask these questions:
Does the evidence support the charge(s)? Do the charge(s) reflect the seriousness of the offending?
Is it likely the evidence will be excluded at court? For example, could evidence be inadmissible because of the way it
was gathered? If so, is there enough other evidence for a realistic prospect of conviction?
Is there evidence which might support or detract from the reliability of a confession? Is the reliability affected by
factors such as the defendant's age, intelligence or level of understanding?
What explanation has the defendant given? Is a court likely to find the positive defence credible in the light of the
evidence as a whole? Does it support the innocent explanation?
If the identity of the defendant is likely to be questioned, is the evidence about this strong enough?
Is the evidence creditable (capable of belief?)
Are there concerns over the accuracy or credibility (veracity) of a prosecution witness? Is there further evidence which
the O/C case should be asked to seek out which may support or detract from the witness's credibility.
If the current evidence is not adequate, is further admissible, more compelling evidence likely to be available at the
next court appearance?
After reviewing the quality of the evidence a prosecutor must decide whether a reasonable prospect of conviction exists. A
reasonable prospect of conviction exists where there is sufficient credible evidence upon which 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. This is a high standard and requires
prosecutors to analyse and evaluate all of the evidence and information thoroughly and critically before proceeding with
prosecution. Prosecutors have the ability to amend a charge if they consider (based on the evidence) that another charge
is more suitable.
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Is prosecution in the public interest?
After determining that there is sufficient evidence to support a prosecution, the prosecutor should then consider whether
the public interest requires the prosecution to proceed. It is not the rule that all offences for which there is sufficient
evidence must be prosecuted - prosecutors must exercise their discretion as to whether a prosecution is in the public
interest. This principle was most notably expressed in 1951 by the United Kingdom Attorney-General, Sir Hartley Shawcross
QC MP, who stated in relation to prosecutorial discretion:
It has never been the rule in this country . . that suspected criminal offences must automatically be the subject of
prosecution.
Prosecutors should balance all factors relevant to the individual case when making their decision. While these factors can
be infinitely variable, the primary consideration is the seriousness of the offence - generally, the more serious the charge
the more likely a prosecution. Other factors which may also be considered (not an exhaustive list) are:
Type
Considerations
About the
the offender's youth, age, physical or mental health
offender
whether the offender was in a position of authority or trust
whether the offender was a ringleader/organiser of the offence
the difference between the actual or mental ages of the offender and the victim (where the offender took
advantage of this)
the offender's relevant previous convictions, diversions or cautions
whether the offender committed the offence whilst on bail/probation/parole/subject to a suspended
sentence/subject to an order to keep the peace or other Court order
the likelihood of the offender continuing or repeating the offence
The
whether the offence was premeditated
offence
whether the offence was carried out by a group
whether the offence was carried out in pursuit of organised crime
whether the offence involved serious or significant violence
whether the offence was motivated by hostility against a person because of their race, ethnicity, sexual
orientation, disability, religion, political beliefs, age, the office they hold, or similar factors
whether the offence was committed against a person serving the public (e.g. doctor, nurse, member of the
ambulance service, fire service or police)
whether there is any element of corruption
the likely sentence having regard to the court's sentencing options (including whether any confiscation
order or disqualification is likely to be made)
the availability of any proper alternatives to prosecution
Social
whether the offence is prevalent
factors
the passage of time between an offence taking place and the likely date of trial
whether the prosecution is likely to have a detrimental effect on the physical/mental health of a
victim/witness
whether information may be made public that could disproportionately harm sources of information,
international relations or national security
whether the recovery of the proceeds of crime may be more effectively pursued by civil action
Victims
whether the offence resulted in serious financial loss
whether the victim (or their family) has been put in fear, or suffered personal attack, damage or
disturbance
whether the victim accepts that the defendant has made restitution for the loss or harm caused (although
defendants must not be able to avoid prosecution simply because they pay compensation)
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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 must weigh the relevant public interest factors that are applicable. The prosecutor will
then determine whether or not the public interest requires prosecution.
Factors which must NOT be considered in the public interest test
A decision whether or not to prosecute must not be influenced by the:
colour, race, ethnic or national origins, sex, marital status or religious, ethical or political beliefs of the defendant,
complainant or any victim
prosecutor's personal views about the defendant, complainant or any victim
possible political advantage or disadvantage to the government or any political organisation
possible effect on the personal or professional reputation or prospects of those responsible for the prosecution
decision
a person's social standing or status in any organisation or sphere.
Determining charges
Where the decision is made to proceed with a prosecution, prosecutors should ensure the charge(s):
reflect the seriousness and extent of the offending
give the court adequate powers to sentence and impose appropriate post-conviction orders
enable the case to be presented in a clear and simple way.
PPS prosecutors can continue with the original charges or change or withdraw the charges. This means they may not always
choose to continue with the most serious charge where there is a more appropriate choice.
Prosecutors should never go ahead with:
more charges than are necessary just to encourage a defendant to plead guilty to some
a more serious charge than can be justified on the available evidence, just to encourage a defendant to plead guilty
to a less serious one
filing multiple charges in respect of a single incident, which does not significantly add to either the culpability or the
expected sentence of the defendant.
Diversion for adults
Where it has been determined that there is evidential sufficiency, prosecutors should consider the alternatives to
prosecution when deciding whether a case should be prosecuted in the courts. Diversion can be considered for adult
defendants who have committed less serious offences (refer to the
Adult Diversion Scheme Policy for further information).
Disclosure
Police must disclose certain information to the defence (initial disclosure) within 15 working days of the commencement of
proceedings. The remaining information (full disclosure) must be disclosed as soon as is reasonably practicable after the
entry of a not guilty plea. Disclosure requirements arise particularly from the Criminal Disclosure Act 2008, while the
Official Information Act 1982, the
Privacy Act 1993, and the
New Zealand Bill of Rights Act 1990 are also relevant.
Disclosure allows the defendant to review all relevant evidence relating to the prosecution, subject to information which
can be withheld from them. The grounds for withholding information are contained in section 16 of the Criminal Disclosure
Act 2008.
The officer in charge is responsible for disclosure. Prosecutors are responsible for:
ensuring the O/C case actions disclosure requests within the statutory timeframes
providing notice of delays and estimates of time for disclosure delivery to the defence when necessary
checking whether previously withheld information has become disclosable after any change in circumstances
appealing court decisions re disclosure
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For more detailed information see the
'Criminal disclosure' Police Manual chapter.
Case management discussions
Case management discussions are held between prosecutors and defence counsel prior to the case review hearing. If
timely, these discussions can:
improve the judicial effectiveness of case review hearings
reduce the number of trials
provide more efficient case management for prosecutors and other PPS staff
offer victims the opportunity for more timely justice.
Prosecutors may indicate to defence counsel a willingness to consult concerning disposition of charges by plea.
Prosecutors must never agree to support a specific sentence as part of discussions. Discussions about charges, pleas and
sentences should not be held between a prosecutor and an unrepresented defendant. Where the defendant is
unrepresented by counsel, these issues should be dealt with in court, preferably by way of a case review or sentence
indication hearing.
While these discussions aim to promote efficiency, they should not be conducted in a way, and decisions should not be
made, that minimise the seriousness of the offending or the defendant's culpability.
These discussions should conclude with an agreement on the next stage for proceedings (i.e. negotiated outcome, trial or
withdrawal of charges). The outcome of these discussions must be recorded in the Case Management Memorandum and
must also be recorded on the prosecution file. The decisions recorded in the Case Management Memorandum are binding
on the PPS unless there are exceptional circumstances. Deviation from any agreement must be approved by the relevant
PPS District Manager.
For more information see
Criminal procedure - Review stage (CMM process)
Prosecutor's role in sentencing
At sentencing, PPS prosecutors should be prepared to assist the court to the extent required by law or to the extent the
judge indicates. This includes ensuring compliance with the obligations for sentencing submissions outlined in the
Sentencing Practice Note 2014 (see PDF below) and
Part 5A Criminal Procedure Rules 2012.
Sentencing_Practice_Note_2014.pdf
144.85 KB
PPS prosecutors have a duty to assist the sentencing court in setting the appropriate sentence and to avoid mistakes of
principle or sentence which are inconsistent with prevailing levels of comparable offences and defendants.
While prosecutors should not press for a particular term of imprisonment or any other sentence, the prosecutor should
ensure through submissions that the sentencing court is aware of:
any applicable principles from the courts
all proven aggravating factors including the convicted person's criminal record,
and
the impact on any victims of the offending.
Appeals
The Police may not initiate any appeal from the decision of a court or tribunal, or an application for judicial review, without
the approval of the Solicitor-General. That approval may be general or specific. See the
Cabinet Manual, Appendix C.
No appeal shall be commenced on behalf of the Police, whether by a Police prosecutor or by external Crown counsel,
unless the guidelines outlined below have been complied with and the written approval of the Solicitor-General or his
delegate has been obtained accordingly.
Any Police employee may initiate a request for approval to appeal. Prosecutors should clear a request with their District
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Manager before initiating. The initiator of the request is responsible for forwarding urgently to the PPS Legal Adviser or
Police Legal Services the following material:
The decision to be appealed (or, in the case of an oral decision that has not been transcribed, the prosecutor's 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 filed by the Police or the defendant.
Copies of any other information that was before the Court (e.g. pre-sentence reports, victim impact statements,
letters of support, etc)
An outline of the importance to the Police of conducting an appeal and any risks in doing so.
The above information must be submitted to the PPS Legal Adviser or Legal Services in an email.
The PPS Legal Adviser or Legal Services may be approached informally to assess the prospects of a potential appeal in the
first instance if it is not possible to immediately obtain the information. In such a case, the Legal Adviser may seek the
Solicitor- General's provisional consent on the basis of the prosecutor's instructions, pending the delivery of the relevant
information.
The decision on requests for the Solicitor-General's consent to appeal will be made by the PPS Legal Adviser or Legal
Services in consultation with the prosecutor who appeared on the prosecution.
Where the PPS Legal Adviser or Legal Services lawyer agree an appeal is appropriate, they prepare the request and email it
for approval to the Solicitor-General, with the assistance of the prosecutor who appeared on the prosecution
The material sent to the Solicitor General must contain at least:
the decision to be appealed (if it is available) or a summary of the decision
a statement of the proposed ground(s) of appeal and details of the alleged errors in the judgment, and
an outline of the importance to the Police of conducting an appeal.
The same process applies to requests to appeal decisions by Justices of the Peace and Community Magistrates where the
appeal is to be heard before a Judge in the District Court.
Any Police prosecutor receiving a notice of appeal filed by a defendant in a case where the PPS could appear on the appeal
(i.e. appeals to the District Court from decisions of Community Magistrates and Justices of the Peace) must immediately
inform the PPS Legal Adviser. The PPS Legal Adviser must advise the prosecutor, as soon as practicable after receiving
notice of the appeal, whether or not the Police wish to oppose the appeal. The PPS Legal Adviser will discuss the appeal
with the prosecutor who appeared on the prosecution. If the PPS Legal Adviser considers that the opposition is likely to
succeed, they will approve the opposition and decide who should appear on the appeal in consultation with the PPS
Operations Manager.
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Glossary of Terms
A Attorney
The Attorney-General is the senior Law Officer of the Crown with principal responsibility for the
General
Government's administration of the law. This function is exercised in conjunction with the Solicitor-General,
who is the junior Law Officer. The Attorney-General is also a Minister of the Crown with ministerial
responsibility for the Crown Law Office, the Serious Fraud Office and the Parliamentary Counsel Office.
B Brief of
A document prepared by Police which contains the evidence a witness is going to give at court. The use of
evidence
briefs of evidence has been largely superseded by the use of Formal Statements.
C Case
Refers to the way a case is resolved and may include full prosecution or an alternative to prosecution such
resolution
as diversion.
Charge(s)
The formal allegation of an offence for which a person is arrested or summonsed to appear before a court,
and on which he or she may be tried in court.
Common
Law contained in cases as opposed to statutes.
Law
Coronial or This is a judicial hearing convened by a Coroner into a sudden and unexplained death, or a death in special
Coroner's
circumstances. It can be more informal than some court hearings. It is an inquisitorial process to discover
inquest
what happened rather than to assign criminal responsibility.
Crown Law The Crown Law Office provides legal advice and representation services to the government in matters
Office or
affecting the executive government, particularly in the areas of criminal, public and administrative law. The
"CLO"
CLO also has responsibility for the operational oversight of Crown Prosecutors.
Crown
Crown Solicitors are private legal practitioners appointed on the recommendation of the Attorney-General
Solicitor
and by warrant of the Governor- General. Crown Solicitors are appointed for a particular district, usually in
a High Court centre, and are responsible for the conduct of jury trials in the High Court and District Court on
behalf of the Crown.
D "Diversion" A process which allows a criminal case to be concluded without a conviction being entered on a person's
or "Police
record.
Adult
Diversion
Scheme"
F Formal
The usual format in which a statement, setting out a potential witness' evidence, is recorded on a file, and
Statement which forms the basis of disclosure of that evidence.
I Iwi, Pacific These are police officers located in Police districts who have the responsibility for liaising with specific
or Ethnic
population groups.
Liaison
Officers
N New
This is the national professional body for lawyers. This society sets general conduct and client rules for
Zealand Law lawyers practising in New Zealand.
Society
Non-
A punishment determined by the court that does not involve the defendant serving a term of imprisonment.
custodial
Intensive supervision, community detention and home detention are all considered to be non-custodial
sentence
sentences.
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Non-
A non-public sector organisation established for the purposes of furthering a public goal. Examples of some
government organisations Police engage with include Victim Support and the National Collective of Independent
organisation Women's Refuges.
or "NGO"
P Proceedings A general term used to describe the processes involved to preparing and resolving a case including bringing
a case to court.
S Solicitor-
The Solicitor-General is an official of government and is also the Chief Executive of the Crown Law Office.
General
Subject only to the Attorney-General, the Solicitor-General is the government's chief legal adviser and
advocate in the courts. The Solicitor- General also has overall responsibility for the supervision of Crown
Solicitors.
Sentencing A specific court session dedicated to determining sentences (punishments) for defendants that have
court
already admitted guilt or had their guilt established in court.
Sub judice A rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge the issue
or influence the jury.
Version number:
3
Owner:
NM:
Prosecutions
Publication date:
21/11/2016
Last modified:
16/04/2018
Review date:
21/11/2018
Printed on : 14/08/2020
Printed from :
http://tenone.police.govt.nz/pi/police-prosecution-service-statement-policy-and-practice
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Document Outline