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Appendix A

1. Summary of report recommendations

Chapter 1 – The Prosecution System – its objectives and the scope of this report

Te ao Mäori

A1 IT IS CLEAR THAT MANY MäORI believe that the criminal justice

system as a whole is defective because it does not take account of Mäori values nor meet Mäori needs. They perceive criminal justice processes as monocultural and therefore unfair and hostile to Mäori. However, a broad analysis of the issues relating to Mäori and the criminal justice system was beyond the scope of this paper. The Ministry of Justice has recently undertaken a project entitled ‘Mäori Perspectives on Justice’ that should address some of these issues. In the meantime, we reiterate the following modest but useful proposals first made in our Discussion Paper:

• Police prosecutors should be trained in tikanga Mäori, with a view to improved understanding of and sensitivity to Mäori cultural values.

• The recruitment of more Mäori police and police prosecutors should be encouraged.

• The appointment of Mäori within the Crown prosecution system should be encouraged.

• All Crown Solicitors should receive training in tikanga Mäori, with a view to improved understanding of, and sensitivity to, Mäori cultural values.

• Court staff and lawyers should emulate the initiatives of judges to improve their understanding of, and sensitivity to, Mäori cultural values. Training should be ongoing.

• Judges, counsel and court officials should be able to pronounce Mäori words and names properly.

• The involvement of more Mäori personnel in court processes as judges, Justices of the Peace, lawyers and court staff should be encouraged.

Chapter 2 – The structure of the prosecution system in New Zealand

A2 The present prosecution system is not fundamentally flawed and the best model for reform is to build on its existing strengths. An entirely new model is not required.

A3 The constitutional roles of the Attorney-general and the Solicitor-General do not require amendment. The current system works well and does not require alteration.

A4 Where the Attorney-General issues prosecution policy guidelines, or makes a decision in an individual case (for example, a stay of proceedings or immunity from prosecution) the policy guidelines or decision in an individual case should be publicly disclosed.

A5 No change should be made to the discretion to prosecute.

A6 The conduct of prosecutions should not be further privatised. It is not necessary to introduce a Crown Prosecution Service.

Chapter 3 – Control and accountability

A7 The Solicitor-General’s Prosecution Guidelines (‘Guidelines’) should reiterate the fact that all prosecutors bound by the Guidelines are ultimately responsible to the Attorney-General for the exercise of their prosecution function.

A8 There is no need for the power to prosecute to be formally delegated by the Attorney-General to the Solicitor-General and then down to the Commissioner for Police and the chief executive officers of government prosecuting agencies. The present position is satisfactory.

A9 Summary prosecutions should be brought in the name of the agency (eg, the police) rather than in the name of an individual swearing the information, although the information should still contain the name of the individual who made the decision to prosecute.

A10 Indictable proceedings should continue to be brought in the name of the Crown.

A11 The Commission recommends no change to the power of the Police Complaints Authority to review prosecution decisions of the police.

A12 The law relating to judicial review of decisions to prosecute does not require amendment. Section 20 of the Serious Fraud Act 1990, which exempts the prosecution decisions of the SFO from judicial review, does not require amendment.

A13 The Crown Law Office, through whatever means the Solicitor-General thinks appropriate, should develop mechanisms that allow it to:

• assist all prosecuting agencies with the development of compliance and prosecuting guidelines and to ensure that their practices are consistent with the Guidelines; and

• review the Guidelines to ensure their relevance to summary prosecutions.

A14 Section 48(3) of the Serious Fraud Office Act 1990 should be amended to read:

No proceedings relating to serious or complex fraud shall be conducted on behalf of the Director except by a member of that panel selected by the Solicitor-General after consultation with the Director.

Chapter 4 – Prosecutors’ powers

A15 The current method of appointment and nature of tenure of Crown Solicitors does not require amendment.

A16 Crown Solicitors should have oversight of all indictable prosecutions once a plea is entered or the defendant has elected trial by jury. Crown Solicitors should review prosecution files to confirm that the original charges are appropriate, and to give guidance to police on evidential issues. Responsibility for conducting the preliminary hearing itself would remain with the police, except in cases where they elect to instruct the Crown Solicitor (as is the present practice in relation to particularly serious or complex cases).

A17 Crown Solicitors should remain responsible for all indictable prosecutions brought by public prosecuting agencies.

A18 The initial decision to charge is part of the investigative function and therefore as a general rule should remain the function of the police rather than a Crown Solicitor.

A19 Crown Solicitors should not have the power to divert offenders.

A20 Crown Solicitors should not be given an express power to discontinue a prosecution. The existing practice of seeking the leave of the court to discontinue proceedings or not calling evidence, is preferable because it is done publicly. The power to veto or stay a prosecution should remain reserved exclusively to the Law Officers of the Crown.

A21 The Law Officers of the Crown should retain the residual power, in exceptional circumstances, to direct that a prosecution take place.

A22 The police should retain the prosecution of summary offences, subject to appropriate guidelines and mechanisms of accountability being put into place.

A23 We welcome the establishment of the Police National Prosecution Service, which will ensure the full separation of investigation and prosecution functions and raise the standard of prosecuting at the summary level.

A24 The Solicitor-General should establish prosecution standards for all state prosecuting agencies. The standards should:

• apply to summary as well as indictable proceedings;

• suggest measures for ensuring an appropriate separation of investigation and prosecution functions; and

• reiterate that departmental prosecutors are responsible to the Attorney-General for prosecution decisions, not the Minister in charge of their department.

Chapter 5 – Prosecution decisions and the discretion to prosecute

A25 The discretion to prosecute should be retained. Mandatory formal prosecution is not in the public interest.

A26 The test to be used for deciding whether a case should be prosecuted (evidential sufficiency and public interest) should not be changed. However, the current public interest factors set out in the Solicitor-General’s Guidelines, while they are a useful, non-exhaustive list, should be reviewed to improve their relevance and utility. Specific changes that we recommend to the Guidelines are:

• the grounds of prohibited discrimination in paragraph 3.3.4 of the Guidelines should include the complainant;

• the prohibited grounds of discrimination (such as sexual orientation) should be the same as those in section 21 of the Human Rights Act 1993.

Chapter 6 – Court review and supervision of the discretion to prosecute

A27 Section 347 of the Crimes Act 1961 should be and is legitimately used in two ways:

• to filter out cases where there is insufficient evidence to continue with the prosecution. The proper test to be applied is whether there is sufficient evidence that a properly directed jury could convict;

• to ensure that the continuation of prosecutions conforms with the public interest.

A28 Section 347 of the Crimes Act 1961 should be amended to provide the Crown with the right to reserve a point of law so that the discharge is conditional upon the ultimate determination of that reservation.

A29 The Summary Proceedings Act 1957 should be amended to provide that:

(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 call.

(b) Once that information has been provided, a procedure equivalent to section 347 of the Crimes Act 1961 shall be available to the accused.

A30 Sections 345(5) and (6) of the Crimes Act 1961 serve no practical function that cannot be achieved by the broader section 347 provision, and are seldom used in practice. Therefore they should be revoked.

Chapter 7 – Preliminary hearings

A31 Section 28C of the District Courts Act 1947, which forbids a judge who has conducted the preliminary hearing of an offence from also conducting the trial of that offence, should be abolished.

A32 A preliminary hearings Bill should be introduced to require that, in preliminary hearings, prosecution evidence should be presented in written form, and that an application to hear the oral evidence of a witness, and to cross-examine, may be granted to either party only if:

(a) the witness is to give evidence concerning identification of the defendant; or

(b) the witness is to give evidence of an alleged confession of the defendant; or

(c) the witness is alleged to have been an accomplice of the defendant; or

(d) the witness has made an apparently inconsistent statement; or

(e) it is in the interests of justice for the witness to be required to give oral evidence.

AND in each of (a)–(e) the evidence of the witness is required to establish a prima facie case.

A33 Applications to hear oral evidence in preliminary hearings should be heard by a District Court judge, but that oral evidence should continue to be heard by Justices of the Peace or Community Magistrates, except where the complexity of the case requires a District Court judge. The same District Court judge should be permitted to hear both the application to have oral evidence presented and also the preliminary hearing itself.

A34 Any amendments to the conduct of preliminary hearings should not affect the provisions of Part VA of the Summary Proceedings Act 1957, which gives explicit special protection to complainants of serious sexual offending.

A35 Preliminary hearings should not be amended without also introducing a statutory disclosure regime.

Chapter 8 – Criminal disclosure

A36 In the Commission’s 1990 report Criminal Procedure: Part One: Disclosure and Committal NZLC R14, we recommended that a comprehensive disclosure regime be introduced. We repeat that recommendation. The regime should apply to both summary and indictable cases, and to prosecutions both by the State and by private prosecutors.

A37 We also endorse the previous recommendation that defence disclosure of alibi evidence should occur in summary cases.

A38 There should be two types of disclosure:

• Initial disclosure of the charge, its statutory authority, the maximum (and any minimum) penalties upon conviction, a summary of facts, the original complaint (for example a constable’s notebook entry, or a complainant’s written statement), and information relevant to sentence, should be required as soon as possible before a defendant is asked to enter a plea; or as soon as practicable and in no cases beyond 14 days after service of a summons.

• Full disclosure of all relevant information, being that which tends to support or rebut or have a bearing on the prosecution case, should be an ongoing obligation from the time of initial disclosure until the trial is over, and should be an automatic obligation on the person in charge of prosecuting a case at any given time.

A39 The prosecutor should be entitled to withhold information if that is necessary in the public interest, but should disclose to the defendant the existence of such information, a description of its nature, and the grounds on which it is claimed to be properly withheld.

A40 Disclosure should be enforced by way of timetabling orders. If orders are not complied with, the sanctions should be: further timetabling orders, orders for costs to be paid by the prosecuting agency, and, as a last resort, dismissal of the case. Any provision for costs in a disclosure statute should contain a provision analogous to section 7 of the Costs in Criminal Cases Act 1967. If the prosecution seeks to adduce undisclosed evidence at trial the court should have the power to exclude or accept it, to adjourn and/or order costs.

A41 It is not necessary for a statutory disclosure regime to deal specifically with material held by third parties. That is better left to the general law of evidence, counter-balanced by the third parties’ rights to privacy of third parties.

A42 The disclosure regime should operate alongside the Official Information Act 1982 and the Privacy Act 1993. Any conflict between those Acts and the disclosure statute would be resolved under section 52 of the Official Information Act 1982 and section 7 of the Privacy Act 1993, both of which provide that neither Act derogates from other provisions that require or authorise the disclosure of information.

A43 Section 31 of the Privacy Act 1993, which has not yet come into effect, and which denies inmates access to personal information related to their conviction, should be repealed.

Chapter 9 – Charge negotiation

A44 We do not recommend the use of legislation to regulate charge negotiation as there is no demonstrable need for it and legislation would be premature while there is a developing situation with sentence indication in summary matters that requires further study. However, clear principles should be articulated. The Guidelines do not currently regulate charge negotiation in sufficient depth, and the following features need to be addressed:

• All public prosecution agencies should be bound by charge negotiation guidelines. The Guidelines should be the benchmark for all prosecution conduct.

• Prosecutors should endeavour to ensure, in the course of negotiations, that suspects in similar circumstances receive equal treatment.

• Charge negotiations are not relevant to the sentencing judge’s duty and details should not be mentioned in open court, unless raised by the defence.

• To ensure transparency and accountability in the exercise of charge negotiation discretions, prosecutors should be required to record the outcome of charge negotiations on the file.

• To ensure that the human rights and dignity of suspects are respected, there should be:

– an express prohibition on prosecutors initially laying more charges or more serious charges than the circumstances warrant so as to obtain leverage in charge negotiations;

– an express prohibition on prosecutors making any offer, threat or promise, the fulfilment of which is not a function of his or her office;

– an express prohibition on misrepresentation;

– a requirement that prosecutors offer suspects entering charge negotiations a reasonable opportunity to seek legal advice and to have their counsel present;

– guidance should be given to prosecutors regarding their obligations when entering charge negotiations with an unrepresented defendant. When suspects are represented, prosecutors should not enter charge negotiations except when counsel is present or a written waiver of counsel is given;

– where reasonably practicable, an entitlement for suspects to be present at charge negotiations concerning them, should they so wish (based on an informed decision on advice from counsel); and

• To ensure that the interests of victims are appropriately considered in the process, prosecutors should be required:

– to take into account the victim’s views and interests (as far as they are appropriate) in considering whether and on what terms charge negotiations should be conducted;[171] and

– without compromising the confidentiality obligation to a defendant or the safety of any person, to inform the victim of the outcome of any charge negotiations made and the justification for those negotiations.

A45 Guidance for defence counsel undertaking sentence negotiation needs to be developed and could be included in the Rules of Professional Conduct or a litigation best practice manual.

A46 The current prohibition on prosecutors initiating charge negotiation in indictable matters should remain. In summary matters, it appears that police prosecutors do initiate charge negotiations. Although it may be inevitable with unrepresented defendants that police prosecutors will have to raise the issue, apart from that the practice should be stopped. The extension of the duty Solicitor scheme to status hearings, or the provision of limited grants of legal aid for status hearings, would mean that more defendants would have counsel to assist them with charge negotiations at status hearings.

A47 The development of status hearings in the summary jurisdiction is administratively expedient but raises concerns, particularly in relation to charge negotiation and sentence indication, and the role of the judiciary. The conduct of status hearings is not consistent across the country. The suggested extension of status hearings to the indictable jurisdiction would be a major change to criminal procedure. Before it happens, an evaluation of the practice and potential of status hearings in both the summary and indictable jurisdictions should be carried out. If status hearings are to continue, they should be established and regulated by legislation. The Commission has invited the Minister of Justice to give it a reference to review status hearings and propose such legislation.

Chapter 10 – Private prosecutions

A48 Private prosecutions have an important constitutional and theoretical place in the criminal justice system and should be retained. Currently, problems arise because there is no independent or impartial review of the decision to prosecute, no separation of investigation and prosecution functions and no provision for disclosure of relevant information to defendants.

A49 Defendants should have the right to an independent review of a private prosecution as soon as one is initiated. The recommendation in chapter 6 above, namely that the Summary Proceedings Act 1957 be amended to provide that:

(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 call.

(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 a defendant can obtain this independent review.