New Zealand Law Commission
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255 IN THIS CHAPTER we make our final recommendations on the
role of private prosecutions within the criminal prosecution system. In essence, we have concluded that the important constitutional and theoretical place of private prosecutions within our system warrants their retention. However, we have also identified dangers that exist with the current system for such prosecutions. To a large extent those dangers arise out of a lack of independent review or supervision of a private prosecution once commenced, and the consequent absence of protections for a defendant. Our proposals (see paragraph 224 above) that the disclosure requirements currently on the police be formally extended to private prosecutors, and that a section 347-type power to discharge be extended to the summary jurisdiction, will ensure that there is an acceptable level of safeguards for defendants in private prosecutions, whilst maintaining the independence that these prosecutions preserve.
256 In writing the Discussion Paper, the Commission envisaged four classes of private prosecutors (usually of summary offences, although in theory indictable offences may also be prosecuted privately). Those prosecutors are:
• local and quasi-public bodies, including state-owned enterprises;
• private agencies recognised or established by statute that either have the responsibility for the enforcement of particular enactments, or have assumed it, such as the Licensed Motor Vehicle Dealers Institute and the Real Estate Institute of
• organisations accepted as having an interest in enforcing particular statutes, such as the Society for the Prevention of Cruelty to Animals (SPCA); and
• individuals or commercial enterprises (such as insurance companies) acting in their own cause.
257 Since the Discussion Paper was published an Auckland company, Private Prosecutions Ltd, has begun to undertake prosecutions. This introduces a fifth category of private prosecutions – private prosecutions undertaken as a business.
258 Although in favour of retaining private prosecutions for their constitutional significance, the Discussion Paper pointed out that they lack many of the present safeguards in the prosecution system and fall outside the reforms suggested in other parts of that paper. The main problems are:
• a private prosecutor is not bound by the Guidelines, which are designed to ensure that no prosecution is brought without an impartial and rigorous consideration of reasons for and against prosecution based on an objective assessment of the facts, and consideration of whether the public interest requires the prosecution to proceed;
• it is most unlikely that there will be the separation of the investigation and prosecution functions which is vital to the integrity of the prosecution system;
• there is no provision for disclosure of relevant information to defendants. The Official Information Act 1982 regime for disclosure does not apply, nor does the Privacy Act 1993 necessarily apply; and
• some private prosecutions are unduly vengeful or vexatious.
259 An example of the risk of vengeful or vexatious motives for private prosecution is the case of Glenn Holden. Holden was accused of stalking two women, both of whom had protection orders against him under the Domestic Violence Act 1995. He mounted private prosecutions against both women, alleging they obtained the protection orders on perjured evidence. He forged the signature of a Justice of the Peace on the informations to commence the
private prosecutions, and forged notes from one of the women to him, which he attached to an affidavit. He was convicted of
forgery and uttering forged documents, and sentenced to
18 months imprisonment.
260 In its submission to the Commission, Private Prosecutions Ltd stated that private prosecutions not only provide a safeguard against misuse of state power but “satisfy State deficiencies existing not through negligence or abuse but rather through economic limitations”. It cites “the failure by the State systems to adequately provide basic criminal justice services” and suggests that the police are too busy and too under-resourced to give priority to complaints from “corporate and business entities” of offences such as employee theft and insurance fraud.
261 Private Prosecutions Ltd proposes to deal only with property cases, and to use the following process:
• accept cases that may have been privately investigated, or to investigate them itself;
• notify the police of the offence and the alleged offender, and to continue only with cases that the police do not pursue;
• submit files to a review panel of retired police officers independent from the investigation, who would assess each file and draft charges bearing in mind police general instructions and the Guidelines;
• pass files to a lawyer or law firm to review and either confirm or change the charge/s, draft informations or veto a prosecution;
• the information would then be laid by the complainant;
• if the matter is to be dealt with indictably, pass to a Crown Solicitor. In Private Prosecution Ltd’s ideal scenario a Crown Solicitor would be handling the case as a member of the law firm that had advised on the file. However, this is unlikely to happen because in July 1997 the Solicitor-General directed Crown Solicitors not to accept instructions from private prosecutors;
• clients/complainants would be contractually bound to accept the prosecution decision of the company and its legal advisors.
262 In addition to the concerns set out in paragraph 258 above, there are other problems specifically related to private prosecution as a business. There have been a number of public objections to the commercialisation of prosecutions:
... the development paves the way to a two-tier criminal justice system. There will be one law for the rich, another for the poor. The system patronised by the rich will result in complaints being promptly investigated and offenders brought to book. For the rest – too bad. Like varicose veins surgery and a host of other medical complaints, maybe the state can deliver its service in three years. Or four. Or never.
263 Justice Baragwanath has expanded the argument by suggesting that basic principles of justice may be ignored for profit:
“If the Crown knows of warts in its case it has to disclose those, whether they are physical or legal warts, but in the market model a trader doesn’t tell his competitors about his defects ... At the moment the profit motive doesn’t come into it.” He added that New Zealand’s dozen or so Crown Solicitors must uphold the public interest and the need for justice rather than uphold a company’s desire to see a case succeed.
264 The former Solicitor-General has stated that:
Private prosecution has traditionally been a last resort for those victims or concerned citizens who believe the outcome of a criminal investigation should have been but is not a prosecution ... private prosecution has emerged instead as a process that substitutes for the perceived lack of police resources to investigate prosecution of certain types of white collar crime. In my view the Police should look to addressing themselves the outcome of private criminal investigation with a view to deciding objectively whether or not they the Police should prosecute. If a police prosecution follows then it should be taken over on indictment by the Crown Solicitor with police assistance in the normal way. If no prosecution follows a private prosecution should be permitted. The Crown Solicitor would however, on my policy, not be involved in it. I believe it damaging to the system of Crown prosecution to allow those who undertake it to prosecute also some cases in a Solicitor/counsel/client relativity.
265 The criminal prosecutor, acting for the State, is expected to present all evidence fairly and dispassionately, and not to strive to get a conviction at all costs. There is a risk that if prosecutors identify too closely with their client’s interest in achieving a conviction they may not act with the necessary balance (see also paragraphs 70–76 above in relation to the SFO). In commercial private prosecution there is a real risk of conflict of interest, with the client pressuring the prosecutor to proceed where it is inappropriate to do so, or to conceal information.
266 It is arguable that the criminal justice system already has enough safeguards. In both summary and indictable matters, the Solicitor-General has power to stay proceedings, or to take over prosecutions started privately. The High Court has an inherent jurisdiction to stay or dismiss a prosecution for abuse of process. The District Court, being a creature of statute, has no inherent jurisdiction, but it does have inherent power to prevent abuse of its own process. For indictable cases there is also the filter of preliminary hearings (or the proposed disclosure regime), Crown Solicitors’ ability not to present an indictment, and the section 347 Crimes Act 1961 procedure. It is therefore only in summary matters that additional protection is required.
267 In the Discussion Paper the Commission considered two options for reform designed to preserve the citizen’s right to prosecute privately, whilst ensuring adequate safeguards against vexatious and oppressive conduct by private prosecutors:
• requiring a prosecutor to provide security for costs. This was not favoured because it was felt that this might unfairly discriminate against private prosecutors who had a legitimate case but were without the means to provide security, or
• require the leave of a District Court judge, with a right of appeal to the High Court, to bring a private prosecution. It was considered that this approach would allow some consideration of the merits of the case, and also allow the motives of the private prosecutor to be examined by the judge. However, upon further reflection it appears to us that a simpler solution
would be to extend the section 347 discharge procedure to the summary jurisdiction.
Leave of the court or security for costs?
268 Despite some support in the submissions for security for costs, the Commission considers that it is not appropriate. Security for costs would unfairly discriminate against those without the means to provide security. The police suggestion that legal aid could be provided for those litigants without the means to provide such security is not a realistic option because the legal aid budget is already under considerable strain. Nor would requiring security
for costs solve the problem of an unjustified prosecution, unless the court also looked at the merits of the case at least in a preliminary way.
269 The Commission does not consider that the Crown Solicitors’ suggestion that leave of the court should be sought only for private prosecutions of public officers is compatible with the main reason for maintaining private prosecutions – that they are an important safeguard against misuse of state power, such as a failure or refusal to prosecute a state official.
270 On balance, we consider that there is a need for an accused person to be able to obtain an independent review of private prosecutions as soon as the prosecution is initiated. This is to ensure that the process of the court is not abused, and to protect defendants from vexatious or oppressive conduct by a private prosecutor. Practically, we consider the entity in the best position to review objectively the merits of a private prosecution is the court itself. The procedure described in paragraphs 161–166 above, namely that the Summary Proceedings Act 1957 be amended to provide:
(a) a District Court judge may require an informant to provide the accused, before a hearing date is set, with disclosure of all material in its possession relevant to the case and copies of briefs of evidence of all witnesses whom it proposes to
(b) once that information has been provided, a procedure equivalent to section 347 of the Crimes Act 1961 shall be available to the accused,
will ensure that that accused can obtain a prompt, independent review of a private prosecution.