This Prosecution Appears to have been Driven by Ulterior Motives
& should not have proceeded according to these Guidelines.
A decision to prosecute will be made by the Director MNZ In reaching this decision,
will be considered an analysis of the application of the
Solicitor-General’s Prosecution Guidelines whether to prosecute.
Decison to prosecute
1: The evidence which can be adduced in court is sufficient to provide
a reasonable prospect of conviction (the Evidential Test);
2: and Prosecution is required in the public interest (the Public Interest Test).
All MNZ staff involved in managing a prosecution will maintain a high standard of professional and ethical conduct and manage the case in a way that is consistent with the defendant’s right to a fair trial.
In particular, those involved in the prosecution should –
1: Act in a manner that is fundamentally fair, performing their obligations in a detached, impartial and objective manner.
2: MNZ lawyers should conduct themselves in accordance with their ethical obligations and the rules of professional conduct;
3: Each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken.
4: The Evidential Test must be satisfied before the Public Interest Test is considered.
5: The prosecutor must analyse and evaluate all of the evidence and information in a thorough and critical manner.
The Evidential Test
1: A reasonable prospect of conviction exists if, there is credible evidence which the prosecution can adduce
before a court and upon which evidence an impartial 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.
2: Prosecutors may be required to make an assessment of the quality of the evidence. Where there are substantial
concerns as to the creditability of essential evidence, criminal proceedings may not be appropriate as the
evidential test may not be capable of being met.
3: Where there are credibility issues, prosecutors must look closely at the evidence when deciding if there is a
reasonable prospect of conviction.
4: The evidence available to the prosecutor must be capable of reaching the high standard of proof required
by the criminal law.
The Public Interest Test
1: 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.
2: It is not the rule that all offences for which there is sufficient evidence must be prosecuted.
3: Prosecutors must exercise their discretion as to whether a prosecution is required in the public interest.
The presumption is that the public interest requires prosecution where there has been a contravention of the criminal law. 1: This presumption provides the starting point for consideration of each individual case.
2: There will be circumstances in which, although the evidence is sufficient to provide a reasonable prospect of conviction, the offence is not serious and prosecution is not required in the public interest.
3: The predominant consideration is the seriousness of the offence.
4: Where the defendant has relevant previous convictions
5: Where the offence was premeditated
6: Where the offence was motivated by hostility against a person
The following section lists some public interest considerations against prosecution which may be relevant and require consideration by a prosecutor when determining where the public interest lies in any particular case
1: Where the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by an error of judgement or a genuine mistake
2: Where the offence is not on any test of a serious nature, and is unlikely to be repeated
3: Where the defendant is elderly
4: Where the defendant has no previous convictions
5: Where any proper alternatives to prosecution are available (including disciplinary or other proceedings)