NZ Solicitor General’s Prosecution Guidelines 2013

The New Zealand Solicitor General has issued guidelines for prosecutors to determine when a prosecution should proceed. These will be relevant to your case – see the “Test for prosecution” below. Most cannabis charges, especially involving medicinal or personal adult use, would fail the tests for prosecution. 

The Guidelines are intended to assist in determining:

Whether criminal proceedings should be commenced;
What charges should be filed;
Whether, if commenced, criminal proceedings should be continued or discontinued.
And to:
Provide guidance for the conduct of criminal prosecutions; and,
Establish standards of conduct and practice that the Law Officers expect from those whose duties include conducting prosecutions

The Guidelines include:

  • The “tests” of the decision to prosecute, including the the evidential test and the public interest test
  • Trying defendants or charges together
  • Immunities from Prosecution
  • Disclosure obligations including evidence that is not disclosed until trial, and evidence that the prosecution does not intend to present, disclosure of any inducement or immunity given to a witness, Identity of informers, and Obligations or requests under Official Information Act 1982/Privacy Act 1993
  • Plea Discussions and Arrangements
  • The Prosecutor and Trial Fairness
  • Jury Selection
  • Proceeding in the Defendant’s Absence
  • Appeals
  • Judicial Review

The Test for prosecution is met if:

The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and Prosecution is required in the public interest – the Public Interest Test.
The Evidential Test: A reasonable prospect of conviction exists if, in relation to an identifiable person (whether natural or legal), there is credible evidence which the prosecution can adduce before a court and upon which evidence an impartial jury (or 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. It is necessary that each element of this definition be fully examined when considering the evidential test in each particular case:
  • Identifiable individual
  • Credible evidence
  • Evidence which the prosecution can adduce
  • Could reasonably be expected to be satisfied
  • Beyond reasonable doubt
  • Commission of a criminal offence
The Public Interest Test: 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. It is not the rule that all offences for which there is sufficient evidence must be prosecuted. Prosecutors must exercise their discretion as to whether a prosecution is required in the public interest.
Public interest considerations for prosecution:
The predominant consideration is the seriousness of the offence. The gravity of the maximum sentence and the anticipated penalty is likely to be a strong factor in determining the seriousness of the offence;
Where the offence involved serious or significant violence;
Where there are grounds for believing that the offence is likely to be continued or repeated, for example, where there is a history of recurring conduct;
Where the defendant has relevant previous convictions, diversions or cautions;
Where the defendant is alleged to have committed an offence whilst on bail or subject to a sentence, or otherwise subject to a Court order;
Where the offence is prevalent;
Where the defendant was a ringleader or an organiser of the offence;
Where the offence was premeditated;
Where the offence was carried out by a group;
Where the offence was an incident of organised crime;
Where the victim of the offence, or their family, has been put in fear, or suffered personal attack, damage or disturbance. The more vulnerable the victim, the greater the aggravation;
Where the offender has created a serious risk of harm;
Where the offence has resulted in serious financial loss to an individual, corporation, trust person or society;
Where the defendant was in a position of authority or trust and the offence is an abuse of that position;
Where the offence was committed against a person serving the public, for example a doctor, nurse, member of the ambulance service, member of the fire service or a member of the police;
Where the defendant took advantage of a marked difference between the actual or developmental ages of the defendant and the victim;
Where the offence was motivated by hostility against a person because of their race, ethnicity, gender, sexual orientation, disability, religion, political beliefs, age, the office they hold, or similar factors;
Where there is any element of corruption.
Public interest considerations against prosecution:
Where the Court is likely to impose a very small or nominal penalty;
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;
Where the offence is not on any test of a serious nature, and is unlikely to be repeated;
Where there has been a long passage of time between an offence taking place and the likely date of trial such as to give rise to undue delay or an abuse of process unless:
• the offence is serious; or
• delay has been caused in part by the defendant; or
• the offence has only recently come to light; or
• the complexity of the offence has resulted in a lengthy investigation.
Where a prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness;
Where the defendant is elderly;
Where the defendant is a youth;
Where the defendant has no previous convictions;
Where the defendant was at the time of the offence or trial suffering from significant mental or physical ill-health;
Where the victim accepts that the defendant has rectified the loss or harm that was caused (although defendants should not be able to avoid prosecution simply because they pay compensation);
Where the recovery of the proceeds of crime can more effectively be pursued by civil action;
Where information may be made public that could disproportionately harm sources of information, international relations or national security;
Where any proper alternatives to prosecution are available (including disciplinary or other proceedings).

Read and download the prosecution guidelines here

Solicitor-General’s Prosecution Guidelines 2013

Prosecution Guidelines as at 1 July 2013. Published: Jun 28, 2013

Download PDF Version (307Kb)

Victims of Crime – Guidelines for Prosecutors

Victims of Crime – Guidelines for Prosecutors. Published: Dec 1, 2014

Download PDF Version (211Kb)

Guidelines for Using Digital CCTV Evidence in Law Enforcement

These digital CCTV evidence guidelines have been prepared by NZ Police and ESR Forensic at the request of the Solicitor-General and in consultation with other government departments involved with using CCTV evidence. Published: Oct 31, 2013

Download Word Doc Version (141Kb)

Statutory Offences Requiring the Consent of the Attorney-General

Statutory Offences Requiring the Consent of the Attorney-General. Published: Jul 1, 2013

Download PDF Version (154Kb)