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Endnotes

[2] In 1989 and 1990, 70 per cent of all prosecutions resulted in conviction. This proportion has gradually decreased, reaching 63 per cent in 1998. The decrease is probably due to the increased use of police diversion: Spier Conviction and Sentencing of Offenders in New Zealand: 1989 to 1998 (Ministry of Justice, Wellington, 1999) 6.

[3] See generally Joseph Constitutional and Administrative Law in New Zealand (The Law Book Company Limited, Sydney, 1993) chapter 7; Finnis (ed) Natural Law (Vol II) (Dartmouth, Aldershot, 1991).

[4] New Zealand Law Commission Justice: The Experiences of Mäori Women: Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei, NZLC R53 (Wellington, 1999) [Justice: The Experiences of Mäori Women].

[5] Justice: The Experiences of Mäori Women, above n 4, chapter 3.

[6] Ministry of Justice 1999 Ministry of Justice Post Election Briefing for Incoming Ministers, appendix 2.

[7] New Zealand Law Commission Juries in Criminal Trials: Part One: NZLC PP32 (Wellington, 1998) para 150.

[8] Section 9 of the Crimes Act 1961 provides:

No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom:

Provided that—

(a) Nothing in this section shall limit or affect the power or authority of the House of Representatives or of any Court to punish for contempt:

(b) Nothing in this section shall limit or affect the jurisdiction or powers of any Court Martial, or of any officer in any of the New Zealand forces.

[09] Solicitor-General's Prosecution Guidelines, para 1.2.

[10] The Review of the Crown Prosecution Service: A Report (Chairman: Rt Hon Sire Iain Glidewell, The Stationery Office, London, 1998).

[11] Crown Law Office, Crown Law Practice in New Zealand (Government Printer, Wellington, 1961), 15.

[12] At paras 247_248 and 418_429.

[13] J McGrath QC "Principles for Sharing Law Officer Power _ the Role of the New Zealand Solicitor-General" (1998) 18 NZULR 197, 198.

[14] [1998] Ch 439, 460. The case went on appeal to the House of Lords: Attorney-General (respondent) v Blake (appellant) and Anor [2000] 1 WLR 625.

[15] Huscroft "The Attorney-General, the Bill of Rights, and the Public Interest" in Huscroft and Rishworth (eds) Rights and Freedoms (Brookers, Wellington, 1995) 135.

[16] Letter from the Solicitor-General to the Attorney-General, 16 December 1996, 4. But see McGrath QC, above n 13, 207 for three examples of Attorneys-General making decisions themselves.

[17] The Hon Paul East "The Role of the Attorney-General" P Joseph (ed) in Essays on the Constitution (Brooker's, Wellington, 1995) 207.

[18] For a dissenting view, see Hon LJ King AC, QC "The Attorney-General, Politics and the Judiciary" (2000) 74 ALJ 444.

[19] We note that the Canadian Law Reform Commission made the same recommendation in 1990. We agree entirely and are grateful for that agency's thorough consideration of the issue: Law Reform Commission of Canada Controlling Criminal Prosecutions: The Attorney-General and the Crown Prosecutor: Working Paper 62 (Ottawa, 1990) 53.

[20] Unlike most legislation that constitutes government departments, the Police Act 1958 contains no provision making the Commissioner of Police subject to control or direction by the Minister of Police in relation to prosecution policies or prosecution of individual cases or any other decision. The Commissioner of Police, and every police constable, is independent of the executive. No Minister can instruct him to do, or not do, any thing. In particular, no Minister can direct that a prosecution must or must not take place: R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118, 135_136. The Minister of Police does not accept responsibility in Parliament for prosecution decisions of the police. On occasions where parliamentary questions have been asked about individual prosecution decisions the Minister has stated that such decisions are made by the police independently of the government (see Criminal Prosecutions NZLC PP28, para 241 and footnote 162). The Attorney-General has the ultimate responsibility for the Crown's prosecution processes, including those of the police. However, by convention and in practice, the Attorney-General takes an approach similar to that of the Minister of Police. Like the police, the SFO is not subject to any political control. Under the Serious Fraud Office Act 1990 (ss 29 and 30) the Director exercises power independently of the Attorney-General.

[21] For instance, the Review of Police Administration and Management Structures: Report of Independent Reviewer (unpublished, Wellington, August 1998, para 91) stated:

It is clear that the Minister cannot direct the Commissioner [of Police] in criminal law enforcement, either in particular cases, or in classes of cases. The Minister can, however, impose binding requirements in respect of administration and resources.

[22] See paras 103_108 that outline the importance of the Attorney-General's oversight of the criminal prosecution system.

[23] Submission of Grant Huscroft, Senior Lecturer, Auckland University Faculty of Law has been of great assistance with these issues.

[24] Criminal Prosecution NZLC PP28 (Wellington, 1997), paras 423_429 [the Discussion Paper].

[25] See Discussion Paper above n 24, paras 428_429. We identified potential problems with identifying agencies connected with the Crown which should have powers delegated to them. Another potential difficulty noted was that Crown solicitors do not appear to come within the sub-delegation framework envisaged by the State Sector Act 1988.

[26] For example, the Ministry of Justice submission commented:

... it appears that holders of the office of Attorney-General have generally exercised the powers, to the extent that they have done so, in accordance with constitutional conventions. There has been little controversy surrounding the role of the office. There was criticism of two interventions by the Attorney-General in prosecutions in the late 1970s (the staying of proceedings in relation to alleged breaches of the New Zealand Superannuation Act 1974 and the staying of prosecution of 170 Bastion point protesters). The Crown Law Office consequently published guidelines on prosecution to give guidance to the Attorney-General on the exercise of these powers.

[27] Although, note, that there are also a number of statutory and prerogative powers that can be exercised by the Attorney-General alone. Others with responsibility for prosecutions, such as the Commissioner of Police and chief executive officers of prosecuting agencies, are already responsible either by statute or by convention to the Attorney-General for the exercise of prosecution functions within their mandates. The Director of the SFO, however, is an important exception (see the discussion in para 43).

[28] Thanks to Grant Huscroft, Senior Lecturer, Auckland University Faculty of Law.

[29] Summary Proceedings Act 1957, forms 1 and 2 of the Second Schedule.

[30] Unpublished paper, New Zealand Police, 1998, 28.

[31] The sheer volume of prosecutions instituted by the police indicates the practical advantages of electronically generated informations that are not sworn in front of a judicial officer. The Commission encourages the police to continue their research and development of this proposal, which could be introduced once separation of the prosecution and investigation functions is complete. However, we stress again that each document instituting a prosecution should set out clearly the name of the person who made the decision to prosecute. This would facilitate accountability even if the document is unsworn. While the Commission can see the advantages for other prosecuting agencies of a similar procedure, we do not presently recommend that these changes extend beyond the police. However, a process allowing other agencies to be exempted from s 15 of the Summary Proceedings Act 1957, could be developed. In practice, this might mean that if the prosecuting agency meets specified criteria, including an acceptable separation of investigation and prosecution functions within the agency and the naming of the person responsible for the decision to prosecute, it is added to a list of bodies with this power by Order in Council.

[32] Police Complaints Authority Annual Report [1997], AJHR G. 51, 30.

[33] Police Complaints Authority Annual Report [1997], above n 32, 30.

[34] Police Complaints Authority Annual Report [1997], above n 32, 14_16.

[35] C v Wellington District Court [1996] 2 NZLR 395.

[36] R v Bedwllty Justices, ex parte Williams [1997] AC 225, [1996] 3 All ER 737 (HL).

[37] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB223.

[38] The Crown Law Office pointed out that to an extent it already carries out this function in relation to Crown solicitors through the office of Deputy Solicitor-General.

[39] Section 30, Serious Fraud Office Act 1990.

[40] Section 48, Serious Fraud Office Act 1990.

[41] This power exists both as a matter of convention, and under reg 9 of the Crown Solicitors Regulations 1994, which empowers the Solicitor-General to take any matter or business out of the hands of any Crown solicitor.

[42] Laurenson and Taylor Review of the Crown Solicitor's Structure for the Solicitor-General (Ernst and Young, Wellington, 1992).

[43] Section 66(1) of the Summary Proceedings Act 1957 provides that when charged with an offence punishable by more than three months imprisonment, a defendant may elect trial by jury. This right is also enshrined in s 24(e) of the New Zealand Bill of Rights Act 1990.

[44] Note our proposals for streamlining preliminary hearings in chapter 7 should result in considerable cost savings for the police.

[45] Because no proceedings relating to serious or complex fraud can be conducted on behalf of the SFO except by a member of the Serious Fraud Prosecutors Panel: s 48(3), Serious Fraud Office Act 1990.

[46] Cabinet Directions for the Conduct of Crown Legal Business 1993, appendix to the Cabinet Office Manual (1996).

[47] Letter of Solicitor-General to Attorney-General, 17 December 1997.

[48] Cabinet Directions for the Conduct of Crown Legal Business 1993, above n 46, 2.

[49] Except the Serious Fraud Office; see chapter 3 of this report.

[50] See para 349 of the Discussion Paper, above n 24.

[51] Discussion Paper, above n 24, para 372.

[52] Discussion Paper, above n 24, 67_70.

[53] Discussion Paper, above n 24, para 370.

[54] Discussion Paper, above n 24, paras 371_373.

[55] A variety of views emerged from the submissions. Crown solicitors thought that a power of discontinuance should be available to all prosecutors (including police and departmental prosecutors), subject to the Guidelines, and always formally exercised (ie, notified to the Solicitor-General). However, they thought there should be a number of serious offences (such as murder and Class A drug dealing) for which the power was limited to the Solicitor-General. Crown solicitors thought that in summary cases prosecutors should be able to exercise the power of discontinuance otherwise than by seeking leave to withdraw the information or simply offering no evidence, and that a formal discontinuance should be a bar to further prosecution on the same incident. It would thus be equivalent to a stay. The New Zealand Customs Service favoured a power of discontinuance. The police pointed out that they already have some authority to seek an amendment to a summary charge (s 43 Summary Proceedings Act 1957), to seek the leave of the court to withdraw a charge (s 36), or to offer no evidence. The police suggest the authority could be more clearly spelled out and standard guidelines developed. Currently, the possibility of a s 347 Crimes Act 1961 discharge may be raised by a prosecutor, and accepted by a judge. The Crown Law Office was opposed to prosecutors having a formal power to discontinue prosecutions because it thought the court should continue to deal with such matters in an open and public way. The Ministry of Fisheries was also opposed _ on the ground that no problem had emerged to make it necessary. The Police Association suggested caution in any widening of powers, which it saw as complicating the prosecution process. The National Collective of Rape Crisis thought that any discontinuance should always be in consultation with the victim, and must occur before the preliminary hearing.

[56] Discussion Paper, above n 24, paras 371_373.

[57] For example, where the prosecution concerns a person in high public office, or where there are international ramifications. See also paras 35_40 above, in relation to the parallel power of the Law Officers to grant a stay.

[58] Discussion Paper, above n 24, paras 353 to 357.

[59] See generally: unpublished paper on National Police Prosecution Service presented to Police Executive Committee meeting on 16 December 1997, by Assistant Commissioner NB Trendle.

[60] New Zealand Police Court Based Resolution Project: Process Design, above n30, 3.

[61] See Trendle, above n 59.

[62] Discussion Paper, above n 24, para 363.

[63] The Solicitor-General's Prosecution Guidelines, above n 9, are reproduced in appendix C.

[64] Guidelines, above n 63, 3.

[65] Discussion Paper, above n 24, para 110.

[66] Guidelines, above n 63, 3.3.1.

[67] Discussion Paper, above n 24, paras 378 and 379.

[68] Some departments favoured the `reasonable prospect of conviction' test. The police thought the reasonable prospect of conviction test would be more difficult to apply than the current test(s) and would have no practical advantage.

[69] Re an application by Fiso & Ors (1985) 1 CRNZ 689, see also para 151, where we outline our conclusions on the preferred judicial use of s 347 of the Crimes Act 1961.

[70] The Guidelines, above n 9, provide (at paragraph 3.3.4) that:

A decision whether or not to prosecute must clearly not be influenced by:

(a) the colour, race, ethnic or national origins, sex, marital status, or religious, ethical or political beliefs of the accused [emphasis added];

(b) the prosecutor's personal views concerning the accused or the victim.

[71] Section 347(3) Crimes Act 1961.

[72] Section 374(4) Crimes Act 1961.

[73] Since publication of the Discussion Paper, above n 24, s 2(1) of the English Act has been amended to delete the word `unsatisfactory', because there was seen to be no real difference between `unsafe' and `unsatisfactory'.

[74] R v Cooper [1969] 1 QB 267, 271.

[75] R v Gailbraith [1981] 2 All ER 1060.

[76] See Re an application by Fiso & Ors, above n 69, and R v H (1996) 13 CRNZ648.

[77] R v Myers [1963] NZLR 321.

[78] Long v R [1995] 2 NZLR 691.

[79] Long v R, above n 78, at 696. The accused was ultimately discharged on the ground that to proceed with a trial would have been against the public interest and unduly burdensome to the accused, although the judge also found the evidence to be inadequate to support a conviction.

[80] R v H, above n 76.

[81] R v Gailbraith, above n 75, 1061.

[82] R v E T E (1990) 6 CRNZ 176, 180.

[83] R v E T E, above n 82, 181_182.

[84] Robertson (ed) Adams on Criminal Law (Brooker's, Wellington, 1992) para CA347.04.

[85] Section 380(4), Crimes Act 1961.

[86] Section 347(4), Crimes Act 1961.

[87] R v Grime [1985] 2 NZLR 265.

[88] R v Grime, above n 87, 269, per Richardson J.

[89] In Auckland District Court v Attorney-General [1993] 2 NZLR 129, 133_136 the Court of Appeal concluded that because, in the exercise of its criminal jurisdiction, the District Court is a court of limited jurisdiction, it is in the public interest that it be subject to judicial review. Therefore, the decision of a District Court judge under s 347 is amenable to judicial review by the High Court. The Court of Appeal stressed that the power to review the decision of a District Court judge under s 347 must be sparingly exercised, and only when, because of the nature of the error of jurisdictional law in the District Court, the intervention of the High Court is imperative.

[90] We note that the Law Commission for England and Wales has recently published a consultation paper Prosecution Appeals Against Judges' Rulings (Consultation Paper 158, June 2000).

[91] Commissioner of Police v Ombudsman [1988] 1 NZLR 385

[92] Per Lord Diplock in Haw Tua Tau v Public Prosecutor and other appeals [1982] AC 136, 151 (PC).

[93] For a detailed discussion see Garrow and Turkington Criminal Law (Butterworths, Wellington [looseleaf]) pages 601/2_603.

[94] R v Grime, above n 87, 267.

[95] W v Attorney-General [1993] 1 NZLR 1, 6 (CA).

[96] Section 173A, Summary Proceedings Act 1957.

[97] Section 160A, Summary Proceedings Act 1957.

[98] Phillips v Drain [1995] 1 NZLR 513.

[99] R v Haig [1996] 1 NZLR 184, 190.

[100] The hearing of which is conducted on the papers without oral evidence. However, applications are often only made after hearing oral evidence at the preliminary hearing.

[101] Section 145(2), Summary Proceedings Act 1957.

[102] Section 185C, Summary Proceedings Act 1957.

[103] Garry and Sutton Preliminary Hearings: Processes, Outcomes and Discharges (unpublished paper prepared for Department for Courts, Wellington, 1997)7.

[104] Discussion Paper, above n 24, chapter 21.

[105] New Zealand Law Commission Criminal Procedure: Part One: Disclosure and Committal: NZLC R14 (Wellington, 1990) [1990 Report].

[106] 1990 Report, above n105, para 161.

[107] Ministry of Justice and Department for Courts Consultation Paper Regarding Preliminary Hearings and Criminal Disclosure (unpublished, Wellington, 27October 1997) [Disclosure Consultation Paper].

[108] In 1998, the Ministry of Justice and the Department for Courts made a joint bid for legislative time to reform preliminary hearings and criminal disclosure, but were not successful for that parliamentary year. They were also unable to secure parliamentary time in 1999.

[109] The Ministry of Justice is taking responsibility for changes to criminal disclosure while the Department for Courts is dealing with changes to preliminary hearings.

[110] See para 176 above.

[111] In particular, the interests of justice category will ensure that, where there is a demonstrable need, both prosecution and defence have all relevant information to assist in considering a guilty plea, a s 347 Crimes Act 1961 application, or whether to proffer different charges.

[112] Disclosure Consultation Paper, above n107, para 29.

[113] 1990 Report, above n105, paras 65_66.

[114] 1990 Report, above n105, para 64.

[115] Disclosure Consultation Paper, above n 107, 26.

[116] New Zealand Police, above n30, 12.

[117] Allen v Police [1999] 1 NZLR 356. We also note the recent text by Janet November Disclosure In Criminal Cases (Butterworths, Wellington, 1999), which sets out the current law in this area.

[118] Allen v Police, above n 117, 364.

[119] See paras 176_179 above.

[120] New Zealand Law Commission Evidence Code and Commentary: NZLC R55, Vol 2 (Wellington, 1999) [Evidence Code and Commentary].

[121] 1990 Report, above n105, para 90.

[122] 1990 Report, above n105, para 81.

[123] 1990 Report, above n105, para 82.

[124] See further, paras 219_220 below.

[125] See further, chapter 10 below.

[126] Allen v Police, see paras 198_200 above; see also Commissioner of Police v Ombudsman [1998] 1 NZLR 385.

[127] New Zealand Law Commission, Costs in Criminal Cases: R60 (Wellington, 2000) [Costs in Criminal Cases].

[128] Costs in Criminal Cases, above n 127, paras 69_75.

[129] Section 116 Crimes Act 1961.

[130] Evidence Code and Commentary, above n 120.

[131] We have suggested that the division of offences into summary and indictable is no longer meaningful to determine the court and mode of trial for an offence and should be abolished (see para 10 of this report, first bullet point) but we have assumed that the distinction will continue, at least in the short term.

[132] Solicitor General's Prosecution Guidelines, above n63, 7.5(c).

[133] Discussion Paper, above n24, chapter 17.

[134] Discussion Paper, above n24, para 401.

[135] Discussion Paper, above n24, para 406.

[136] Solicitor General's Prosecution Guidelines, above n63, para 8.3.

[137] Solicitor General's Prosecution Guidelines, above n63, para 7.5(b)(i).

[138] Solicitor General's Prosecution Guidelines, above n63, para 3.3.

[139] Solicitor General's Prosecution Guidelines, above n63, para 7.5(b)(i).

[140] Solicitor General's Prosecution Guidelines, above n63, para 3.3.

[141] Solicitor General's Prosecution Guidelines, above n63, para 7.5a.

[142] Mack and Anleu Pleading Guilty: Issues and Practices (Australian Institute of Judicial Administration Inc, Carlton South, 1995) 176.

[143] Discussion Paper, above n24, para 406.

[144] In closely balanced situations where a decision either way is appropriate.

[145] Mack and Anleu, above n 142, 177.

[146] Jakob-Hoff, Millard and Cropper Evaluation of the Status Hearing Pilot at the Auckland District Court (unpublished paper prepared for the Department for Courts, 1996) 15 [Evaluation of the Status Hearing Pilot].

[147] Evaluation of the Status Hearing Pilot, above n 146, 10.

[148] R v Reece & Ors (22 May 1995) unreported, CA 74_78/95, 3_4.

[149] Pickering v Police (1999) 16 CRNZ 386.

[150] R v Gemmell [2000] 1 NZLR 695.

[151] R v Gemmell, above n 150, 698.

[152] R v Edwards (28 June 2000) unreported, CA74/00.

[153] R v Edwards, above n 152, para 14.

[154] Discussion Paper, above n24, para 77.

[155] Prosecution by such entities may be characterised in another sense as public not private, despite not using the police or Crown solicitors, as their overall function is public (see generally Butler "Is This a Public Law Case?" in New Zealand Law Society Public Law Update on Administrative Law and Judicial Review, (1998) 98.

[156] "Go private to fight fraud, prosecutor group says" National Business Review, Auckland, New Zealand, 28 August 1998, 15.

[157] The Discussion Paper asked whether private prosecutions should be retained, and whether there are currently problems with prosecutions by private agencies. Those who commented agreed that for historical and constitutional reasons private prosecutions should be retained. Views differed on the degree to which they create problems at present. The Criminal Bar Association considered that present controls are insufficient to safeguard a potential defendant. The police believe there is currently a real problem with private prosecutions brought against individual police officers by people convicted of serious offences. The police see such prosecutions as vexatious and inappropriate, and as an attempt to influence prosecution policies.

[158] Although, see para 224 above, which recommends that disclosure responsibilities should apply equally to private prosecutors. Also, perhaps the courts might extend, by analogy, the Crown's common law duty to disclose relevant information to the defence in the interests of justice: R v Hall [1987] 1 NZLR 616, 628.

[159] R v Holden (4 September 1998), unreported, High Court, Auckland, T981504; "Forgery Counts Earn Stalker 18 months Jail" New Zealand Herald, Auckland, New Zealand, 3_4 October 1998. Note also, the police proposal that informations should not be sworn (see para 55 above) would have meant that the signature of a Justice of the Peace was necessary for Holden to bring the prosecutions.

[160] It is questionable whether such a contractual term would be upheld on public policy grounds if the constitutional right of a citizen to bring a private prosecution remains. Also, in practical terms, presumably a client/complainant could not be prevented either from contracting another private prosecution firm, or laying their own information and engaging a lawyer to prosecute the case.

[161] Editorial, The Independent, Auckland, New Zealand, 18 July 1997, 8.

[162] "Whose Job Is It To Prosecute?" New Zealand Herald, Auckland, New Zealand, 15 July 1997.

[163] Letter to Attorney-General, above n 47, 4.

[164] Section 378 Crimes Act 1961 (indictable cases after committal), Summary Proceedings Act 1957 s 173 (indictable cases before committal) and s 77A (summary cases).

[165] Huscroft, above n 15, 134.

[166] Moevao v Department of Labour [1980] 1 NZLR 464.

[167] See generally Turner "Civil Procedure" [2000] NZ Law Rev 155, 162_163.

[168] Watson v Clarke [1990] 1 NZLR 715, 719_720.

[169] The general view from submissions was that security for costs was either unnecessary, or would be ineffective. The police considered that private prosecutors should be required to give security for costs and that those who could not afford it should be legally aided. The Crown Law Office supported the idea of security for costs, but also thought that leave of the court should be sought.

[170] Most submissions did not favour this option. However, the Crown Solicitors thought that it should be introduced for private prosecutions of public officers (such as Crown Solicitors and judges). They did not favour its introduction more widely, especially in respect of prosecutions by entities such as Private Prosecutions Ltd, because if that work develops the volume of such applications could well clog up an already over-burdened court system. The Crown Law Office supported the requirement of leave. The police also supported it because private prosecutors are not bound by the Guidelines. The Ministry of Justice was equivocal; it questioned how leave would interact with, or add anything to, the Attorney-General's power to stay a prosecution and the Court's power to stay proceedings to prevent an abuse of process. It suggested the stress and expense for a potential defendant in dealing with a leave application may be the same as if proceedings were commenced. None of the submissions thought a leave requirement appropriate for local or quasi-public bodies, private statutory agencies or organisations accepted as having an interest in enforcing particular statutes, such as the SPCA.

[171] In closely balanced situations where a decision either way is appropriate.