Preliminary Paper No 28 C RIMINAL PROSECUTION A discussion paper The Law Commission welcomes comments on this paper and seeks responses to the questions raised. These should be forwarded to: The Director, Law Commission, PO Box 2590, DX SP23534, Wellington E-mail: [email protected] by Friday, 2 May 1997 March 1997 Wellington, New Zealand The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: Hon Justice David Baragwanath – President Leslie H Atkins QC Joanne R Morris OBE Judge Margaret Lee The Director of the Law Commission is Robert Buchanan The office is at 89 The Terrace, Wellington Postal address: PO Box 2590, Wellington, New Zealand Document Exchange Number SP23534 Telephone: (04) 473 3453 Facsimile: (04) 471 0959 E-mail: [email protected] Use of submissions The Law Commission’s processes are essentially public, and it is subject to the Official Information Act 1982. Thus copies of submissions made to the Commission will normally be made available on request, and the Commission may mention submissions in its reports. Any request for the withholding of information on the grounds of confidentiality or for any other reason will be determined in accordance with the Official Information Act 1982. Preliminary Paper / Law Commission Wellington 1997 ISSN 0113–2245 ISBN 1–877187–01–1 This preliminary paper may be cited as: NZLC PP28 Summary of Contents Page Preface xi PART I INTRODUCTION 1 1 Review of the prosecution system 3 2 Glossary 7 3 Objectives of the prosecution system 9 4 Summary of proposals and questions 14 PART II THE PROSECUTION SYSTEM 19 5 History and development of the prosecution system 21 6 Prosecutors 26 7 Police discretion to prosecute 35 8 Plea negotiation 44 9 The prosecution in court 50 10 Control and accountability 59 PART III WIDER ISSUES 73 11 Te ao Mäori and the Treaty of Waitangi 75 12 Victims’ interests 79 13 Restorative justice 92 PART IV OPTIONS FOR REFORM 95 14 Verdict on the prosecution system 97 15 Proposals on the structure of the prosecution system 102 16 Proposals on prosecutors’ powers 114 17 Proposals on charge negotiation 120 18 Proposals to meet victims’ interests 127 19 Proposals to increase control and accountability 131 20 Proposals on private prosecutions 136 21 Proposals on preliminary hearings 139 22 Proposals on minor offences and infringement notice procedures 142 23 The costs and benefits 144 APPENDICES 147 Bibliography 193 Index 202 Contents Page Para Preface xi PART I INTRODUCTION 1 1 REVIEW OF THE PROSECUTION SYSTEM 3 Overview of the paper 3 1 The scope of the review 3 6 Matters outside the review 4 10 Alternatives to prosecution 4 10 Related aspects of criminal procedure 5 11 Assumptions of the review 5 12 The division into summary and indictable offences 5 13 The adversarial nature of prosecution 5 14 Discretion to prosecute 6 16 Reform proposals 6 17 2 GLOSSARY 7 3 OBJECTIVES OF THE PROSECUTION SYSTEM 9 18 The goals of criminal justice 9 19 The prosecution system 10 23 Offenders 11 24 Te ao Mäori and the Treaty of Waitangi 11 25 The rights of suspects and defendants 11 26 The interests of victims 12 28 Limiting the use of formal prosecution 12 30 Fairness, consistency, transparency and accountability 12 31 Efficiency and economy 13 32 The aspirations of New Zealanders 13 34 4 SUMMARY OF PROPOSALS AND QUESTIONS 14 36 Proposals 14 36 Structure of the prosecution system 14 Prosecutors’ powers 14 Charge negotiation 15 Victims 15 Control and accountability 15 Te ao Mäori 15 Private prosecutions 15 Preliminary hearings 16 Minor offence and infringement notices 16 Questions 16 PART II THE PROSECUTION SYSTEM 19 5 HISTORY AND DEVELOPMENT OF THE PROSECUTION SYSTEM 21 37 Developments in England 21 38 The grand jury 21 38 Justices of the peace 22 40 iv CRIMINAL PROSECUTION Page Para The preliminary examination 22 43 The police 23 44 The Director of Public Prosecutions 23 45 Developments in New Zealand 23 46 The grand jury and the preliminary examination 23 47 The police 24 50 Crown solicitors and prosecutors 24 51 6 PROSECUTORS 26 56 Police 26 58 Investigative and prosecution functions 26 58 Administrative organisation 27 61 Serious Fraud Office 28 65 Other government prosecuting agencies 29 70 Private prosecutions 30 76 Crown solicitors 30 79 Appointments and conduct of cases 30 79 Prosecution functions 31 83 The Attorney-General and Solicitor-General 32 89 7 POLICE DISCRETION TO PROSECUTE 35 97 Reported offences 36 99 Early elimination of cases 36 101 The decision to prosecute 37 106 The Solicitor-General’s Prosecution Guidelines 37 108 Pre-requisites for prosecution 38 109 Evidential sufficiency 38 109 Public interest factors 38 112 The discretion to prosecute in practice 39 114 The choice of summary or indictable charges 40 119 Alternatives to prosecution 41 121 Police pre-trial diversion 41 122 Family group conferences 42 125 Minor offences and infringment notices 42 128 Discretion not to proceed 43 130 8 PLEA NEGOTIATION 44 131 Different forms of plea negotiation 45 134 Charge negotiation 45 134 Sentence negotiation 46 141 Differential sentencing 47 144 Sentence indication 47 146 Guidelines on plea negotiation 48 149 Prosecutors 48 149 Defence counsel 49 151 9 THE PROSECUTION IN COURT 50 152 Initiating proceedings 50 153 “Laying” the information 50 153 The form of proceedings 51 159 Summary proceedings 52 160 Withdrawal of the prosecution in summary cases 52 162 CONTENTS v Page Para Indictable proceedings 52 163 The preliminary hearing 53 164 Committal for trial 54 168 Filing the indictment 54 170 Section 347 directions 55 172 Abuse of trial process 56 177 Management of proceedings 57 180 10 CONTROL AND ACCOUNTABILITY 59 189 Access to information 59 191 Internal review 60 198 Police 60 198 Serious Fraud Office 61 201 Other government prosecuting agencies 62 203 Crown solicitors 62 204 External review 63 208 The Police Complaints Authority 63 208 The Ombudsmen 64 212 Crown solicitors 65 216 The Attorney-General and the Solicitor-General 65 217 Judicial control 65 218 Control of the trial 65 218 Judicial review 65 219 The conduct of prosecutions 65 219 Non-prosecution policies 67 223 Police prosecution decisions 67 224 Crown solicitor prosecution decisions 68 227 Attorney-General and Solicitor-General prosecution decisions 68 229 Conclusion 69 232 The tort of misfeasance in a public office – police 69 233 Cause of action under the New Zealand Bill of Rights Act 1990 69 234 Award of costs in a criminal prosecution 70 235 Political accountability 70 239 Police 70 240 Serious Fraud Office 71 244 Other government prosecuting agencies 71 245 Crown solicitors 71 246 Prosecution policies 72 247 PART III WIDER ISSUES 73 11 TE AO MÄORI AND THE TREATY OF WAITANGI 75 249 Conclusion 78 258 12 VICTIMS’ INTERESTS 79 Introduction 79 259 Who is a victim? 81 270 Victims of Offences Act 1987 82 272 vi CRIMINAL PROSECUTION Page Para What do victims need? 83 274 Different victim – different needs 83 274 Five categories of need 84 276 Information 84 277 Involvement and participation 85 282 Protection and privacy 85 284 Support 86 286 Reparation and compensation 87 288 Victims’ needs and the prosecution process 87 289 Statutory responsibilities 87 290 Prosecution Guidelines 88 297 Police practice 89 298 Police Pre-trial Diversion Guidelines 89 299 Police policy on family violence 89 300 Draft police policy on victims of crime 90 301 13 RESTORATIVE JUSTICE 92 304 PART IV OPTIONS FOR REFORM 95 14 VERDICT ON THE PROSECUTION SYSTEM 97 313 Strengths of the current system 97 314 Defects in the current system 98 315 Conclusion 101 316 15 PROPOSALS ON THE STRUCTURE OF THE PROSECUTION SYSTEM 102 318 The need for a discretion to prosecute 102 320 Separating investigation and prosecution functions 103 323 The difference between investigation and prosecution decisions 103 323 The reasons for separating investigation and prosecution functions 104 325 What options for reform should be considered? 105 329 A privatised prosecution system 105 331 An independent Crown prosecution service 106 337 Improving the present structure 108 342 Crown solicitors as independent public prosecutors 108 343 An autonomous national police prosecution service 110 352 Prosecutions by other agencies 111 360 Expanding the role of the Crown Law Office 112 362 16 PROPOSALS ON PROSECUTORS’ POWERS 114 364 A power to amend charges or change the form of the information 114 365 A power to discontinue prosecutions 115 367 A power to divert offenders 115 370 A power to direct or veto prosecutions 116 371 When would prosecutors’ powers be exercised? 116 374 CONTENTS vii Page Para The decision to prosecute 117 376 A reasonable prospect of conviction 117 378 Whether the public interest requires prosecution 118 380 Prosecution policies 119 385 17 PROPOSALS ON CHARGE NEGOTIATION 120 386 Consistency with the prosecution system’s objectives 120 387 Efficiency and economy 120 388 Rights of the defendant 121 389 The interests of the victim 121 391 Fairness, consistency, transparency and accountability 122 393 Conclusion 122 394 Statutory regulation or administrative guidelines? 122 395 Expanding the Prosecution Guidelines 124 402 Guidelines for defence counsel 126 408 18 PROPOSALS TO MEET VICTIMS’ INTERESTS 127 Introduction 127 409 Victims of