Parameters determine cases for prosecution

A number of people are unsure of their ‘rights and abilities’ to seek prosecution of individuals or companies (both commercial and not-for-profit). Such prosecutions could be initiated by the Serious Fraud Office or the Solicitor General. The following guidelines, relating to the latter, specify a number of parameters that are applied in the process of prosecution and the attendant issues.

Unified Values

The purpose of the Guidelines of the Solicitor General is to ensure that the principles and practices as to prosecutions in New Zealand are underpinned by unified values. These values aim to achieve consistency in key decisions and trial practices.

If these values are adhered, New Zealand will continue to have prosecution processes that are open, fair to the defendant, witnesses and the victims of crime, and reflect the proper interests of society.

The vital tests

The Test for Prosecution is met if (a) the evidence, which can be adduced in Court is sufficient to provide a reasonable prospect of conviction, namely the Evidential Test; and (b) Prosecution is required in the public interest, namely, the Public Interest Test.

The Evidential Test must be satisfied before the Public Interest Test is considered. The prosecutor must analyse and evaluate all evidence and information in a thorough and critical manner.

Evidential Test

A reasonable prospect of conviction exists if, in relation to an identifiable individual, there is credible evidence, which the prosecution can adduce before a court and upon which evidence an impartial jury (or Judge), properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence.

Public Interest Test

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 are sufficient evidence must be prosecuted. Prosecutors must exercise their discretion as to whether a prosecution is required in the public interest.

Some considerations

The predominant consideration is the seriousness of the offence.

Where a conviction is likely to result in a significant penalty including any confiscation order or disqualification, then there is a strong public interest for a prosecution. Factors considered in this regard include (1) the defendant was in a position of authority or trust and the offence is an abuse of that position (2) the defendant was a ringleader or an organiser of the offence (3) the offence was premeditated (4) the offence was carried out by a group (5) offence resulted in serious financial loss to an individual, corporation, trust person or society (6) there is any element of corruption (7) the defendant has previous convictions, diversions or cautions which are relevant (8) 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.

Public interest considerations against prosecution include (1) the Court is likely to impose a very small or nominal penalty (2) Where the offence is not on any test of a serious nature, and is unlikely to be repeated (3) 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 (a) the offence is serious (b) delay has been caused in part by the defendant (c) the offence has only recently come to light (d) the complexity of the offence has resulted in a lengthy investigation.

Where a prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness (4) the defendant is elderly or a youth (5) the defendant has no previous convictions (6) the defendant was at the time of the offence or trial suffering from significant mental or physical ill-health (7) the victim accepts that the defendant has rectified the loss or harm that was caused (although defendants must not be able to avoid prosecution simply because they pay compensation) (8) the recovery of the proceeds of crime can more effectively be pursued by civil action (9) any proper alternatives to prosecution are available.

Source: Serious Fraud Office, Auckland

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