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Prosecution Policy
DOL 12591 Oct 13
Ministry of Business,
Innovation and Employment (MBIE)
Hīkina Whakatutuki Lifting to make successful
MBIE develops and delivers policy, services, advice and regulation to support economic growth
and the prosperity and wellbeing of New Zealanders.
MBIE combines the former Ministries of Economic Development, Science + Innovation, and the
Departments of Labour and Building and Housing.
ISBN 978-0-478-41726-5 (Online)
Published October 20136QEBUFE+BOVBSZ
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The Ministry of Business, Innovation and Employment Prosecution Policy
About the Ministry
The Ministry of Business, Innovation and Employment (‘The Ministry’) is helping the Government
work towards a stronger economy in which businesses have more confidence to invest and expand,
and New Zealanders have more opportunity to succeed.
The Ministry is contributing to building a more competitive and productive economy, supporting the
Christchurch rebuild, delivering better public services and responsibly managing the government’s
finances.
The Ministry develops and delivers policy, services, advice and regulation to support business growth
and the prosperity and wellbeing of all New Zealanders. It does this across a wide range of areas,
including Building and Housing, Companies and Insolvency, Research and Innovation, Immigration,
Intellectual Property, Employment and Health and Safety.
In regulating many of these areas, the Ministry may use its enforcement tools, which include civil
enforcement (for example by the Labour Inspectorate) and prosecutions.
Introduction
Prosecution action is one of a number of possible responses that may be used by the Ministry in
respect of criminal conduct within the areas that it regulates.
The Ministry recognises that prosecution action is a significant enforcement measure and
accordingly should be used in a deliberate and targeted manner. Decisions to prosecute, and
whether or not to continue with prosecutions, must be made fairly and consistently. They have
serious implications for victims, witnesses and defendants. The New Zealand public is entitled to rely
on the Ministry to ensure that its prosecutions are carried out in such a manner.
This prosecution policy establishes a structured approach for all prosecution activity conducted by
the Ministry or on its behalf. Because the Ministry’s areas of regulation are broad, this framework is
an umbrella under which specific enforcement/prosecution policies for individual business units of
the Ministry, may sit. These specific enforcement/prosecution polices can be found in Schedule 1 of
this document. Any specific enforcement/prosecution policy/guidelines for an individual business
will provide detail on the making of prosecution decisions in that particular area of regulation, but
must be read consistently with this prosecution policy.
All prosecutions undertaken by the Ministry or on its behalf should be conducted in accordance with
this prosecution policy, or any specific enforcement/prosecution policy that is relevant.
Solicitor General’s Prosecution Guidelines
On 1 July 2013, the Crown Law Office published the Solicitor-General’s Prosecution Guidelines (‘SG’s
Prosecution Guidelines’) to assist state agency prosecutors in exercising their discretion to prosecute
criminal cases. The Ministry’s prosecution policy should be read consistently with the SG’s
Prosecution Guidelines.
As a government agency, any criminal prosecution action brought by the Ministry must be in
accordance with the ‘Test for Prosecution’ set out in the SG’s Prosecution Guidelines. There are two
limbs to that test; the Evidential Test and the Public Interest Test. Both of these tests must be met
before a prosecution can be brought.
The Ministry’s Prosecution Decision Making Framework
The Ministry will consider each case on its own merits when making the decision to prosecute. We
will take into account the factors set out in the SG’s Prosecution Guidelines (including the facts of
each case, the relevant legislation, the evidence and the public interest) as well as any specific
internal enforcement/prosecution policies.
The key factors and non-compliant behaviours that would contribute towards a decision to
prosecute will of course vary, and may be set out in detail in specific enforcement/prosecution
policies published by individual business units of the Ministry. Generally however (and without
limiting the Ministry’s discretion to prosecute in any individual case), key factors and non-compliant
behaviours will include:
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Where there is strong evidence of non-compliance
Where the loss or harm (or risk thereof) caused by the non-compliance is significant
Where the non-compliance is intentional or calculated
Where there is a history or pattern of non-compliance
Where there are no proper alternatives to prosecution.
The process that will be followed by the Ministry when making a prosecution decision is set out
below:
Review by Prosecutor
Each prosecution recommendation will be reviewed by a prosecutor, either within the Ministry or
externally, to ensure that the Test for Prosecution set out in the SG’s Prosecution Guidelines is met.
This review is an integral independent check within the process. The prosecutor is the lawyer
representing the person who commenced the proceeding. It is significant, not only in respect of
reviewing the technical aspects of individual cases, but also in ensuring the efficient, effective and
timely management of cases generally.
Review is a continuing process and all prosecutors are required to take account of any change in
circumstances in any prosecution. Accordingly there needs to be a close and effective liaison
between prosecutors and the relevant investigator(s) to reach the right decisions in managing
prosecutions, particularly when deciding to change or withdraw charges.
Evidential Test
The first limb of the test for prosecution is the Evidential Test. If this limb of the test is not met, then
no charge may be laid, no matter how important or serious the matter may be. If this limb of the test
is met, then the prosecutor should proceed to the second limb of the test (the Public Interest Test)
and decide if a prosecution is required.
To meet the Evidential Test, Prosecutors must be satisfied that the evidence to be given in Court is
sufficient to provide a reasonable prospect of conviction.
A reasonable prospect of conviction will exist if, in relation to an identifiable individual, there is
credible evidence which could be given before a Court and upon which a Judge or jury could
reasonably be expected to be satisfied beyond a reasonable doubt that the individual has committed
a criminal offence.
The Public Interest Test
If the Evidential Test is met, the next consideration is whether the public interest requires the
prosecution to proceed. It is not the case that all offences for which there is sufficient evidence must
be prosecuted. The Ministry will exercise its discretion as to whether a prosecution is required in the
public interest.
There are a multitude of factors that may be considered in determining whether prosecution is in
the public interest. A non-exhaustive list of such factors is contained in the SG’s Prosecution
Guidelines.
In each case where the Evidential Test has been met, the prosecutor will weigh the relevant public
interest factors that are applicable. The prosecutor will then determine whether or not the public
interest requires prosecution.
The Decision
If the prosecutor decides that either the Evidential Test or the Public Interest Test have not been
met, a decision of ‘no prosecution’ will be made. A decision of ‘no prosecution’ does not preclude
any further consideration of a case by the prosecutor, if new or additional information becomes
available, or if a review of the original decision is required. This decision will be recorded by the
prosecutor.
Choice of charges
If a decision to prosecute is made, consideration must then be given to the charges that are most
appropriate. The charges may be representative where the criteria under s 20 of the Criminal
Procedure Act 2011 are made out.
The SG’s Prosecution Guidelines provide broad guidance about choosing charges. Considerations
include:
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The number of charges must reflect the alleged conduct and the public interest in having
appropriate convictions entered against the defendant
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Ordinarily this will result in charges being brought in respect of all alleged crimes punishable
by seven or more years imprisonment
The decision will also be weighted towards the inclusion of charges where the alleged crimes
are to be laid against a member of an organised crime organisation
Neither the number nor seriousness of charges should be decided by having regard to the
impact of that decision on the likelihood of an offer by the defendant to plead guilty to
lesser charges.
The Ministry may bring charges under the legislation that it administers or other legislation,
including (most commonly) the Crimes Act. When deciding which legislation to lay a charge under,
the Ministry will have particular regard to the nature of the alleged conduct and the charge that
would most appropriately mark that conduct.
Some offences, due to their seriousness, require the consent of the Attorney-General before a
charge can be laid. Where these charges are contemplated by the Ministry, such consent will always
be obtained prior to the laying of charges.
Disclosure
Disclosure in prosecutions is governed by the Criminal Disclosure Act 2008. Under the Criminal
Disclosure Act, a “prosecutor” is the person in charge of a file or files relating to a criminal
prosecution. The prosecutor is responsible for disclosure and ensuring that it occurs within statutory
timeframes.
Under the Criminal Disclosure Act, the prosecutor must disclose certain information to the
defendant (initial disclosure) within 21 days of the commencement of proceedings. If requested by
the defendant in writing, the prosecutor must provide additional information from the investigation
file, as soon as is reasonably practicable. The remaining information (full disclosure) must be
disclosed as soon as is reasonably practicable after a defendant has pleaded not guilty.
Disclosure ensures that a defendant is able to review all relevant information relating to the
prosecution, with the exception of information that is able to be withheld. The grounds for
withholding information are contained in s 16 of the Criminal Disclosure Act 2008.
Appeals
The Ministry may appeal the following decisions of a Court:
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A pre-trial ruling (with leave of the Court)
A sentence imposed
A ruling by the trial Court (on a question of law, with leave of the Court)
Bail
Suppression
Costs order.
However, under the Cabinet Directions on the Conduct of Crown Legal Business 2012 and the
Solicitor General’s (SG) Prosecution Guidelines, the Ministry (or a Crown Prosecutor) must obtain the
Solicitor-General’s consent to appeal any decision of a court.
Before the Ministry requests the Solicitor General’s consent to an appeal in any given case, it will
first review the matter and obtain legal advice (whether internally or from a Crown Prosecutor) on
whether an appeal is in accordance with the SG’s Prosecution Guidelines.
Use of Crown Prosecutors
Prosecutions for the Ministry are conducted by a mix of in-house and Crown prosecutors.
Some prosecutions cannot be undertaken by in-house prosecutors and so must be taken by Crown
Prosecutors. These are ‘Crown prosecutions’ and are set out in the Crown Prosecution Regulations
2013.
For all other prosecutions, the decision as to which prosecutor to use is made at the Ministry’s
discretion, but the table below sets out some situations when a Crown Prosecutor may be instructed
to lead or support a prosecution.
Reason
Examples
To support the Ministry’s capacity to provide Insufficient staff within a particular district or
services
area of regulation to meet needs
Complex legal issues
Likely to require complex advocacy with national
implications
High Profile
Case is high profile with considerable media
interest. This may be because of the defendant’s
identity, international aspects, circumstances
surrounding the case or the victims’ identity.
Independence from Ministry required
When the case calls for independent advice or
advocacy – for example; when there is a
perceived or actual conflict of interest.
Other agencies
It is not uncommon that more than one agency may investigate a particular matter, in circumstances
where prosecution by any of those agencies could result.
Wherever possible, the Ministry will work collaboratively with those other agencies to ensure that
investigations are carried out in the most expedient and robust manner. For example, in some cases
it may be possible for agencies to share information, such as witness statements, to ensure that
witnesses are not subjected to multiple interviews by different agencies. Care will always be
required however to ensure that the sharing of information does not compromise the
investigation(s).
Where reasonably practicable, the Ministry will consult with other agencies prior to the laying of any
charge, in order to satisfy itself that the commencement of a prosecution by the Ministry will be in
the public interest. Those consultations may, at the Ministry’s discretion, impact on its decision to
bring a charge(s), or the timing of any charges being brought (e.g.: to await a prosecution decision in
respect of more serious offending).
Policy Owner
This prosecution policy is the responsibility of the Ministry’s Chief Legal Adviser.
Schedule 1
Enforcement/Prosecution Polices for Individual Business Units of the Ministry
Business Unit
Insolvency and Trustee Service
Companies Office
Intellectual Property Office of New Zealand
Immigration Advisors Authority
Radio Spectrum Management
Document Title
Insolvency and Trustee Service
Prosecution Strategy
Companies Office Enforcement Policy
Guidelines
Intellectual Property Rights Prosecution
Policy
Enforcement Policy and Principles
Radio Spectrum Management Compliance
Guide
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
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