Published:  

March 2016

Our policy for deciding whether to initiate criminal proceedings, and considering appeals against court decisions arising from our prosecutions.

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Full text of the policy

Purpose

1. The purpose of this Policy is to set out principles and guidelines which relevant Departmental managers and staff will follow when considering, advising, or deciding whether or not to initiate criminal proceedings (including infringement notices), and when considering appeals against Court decisions arising from the Department’s prosecutions. 

Accountability

2. This Policy must be adhered to by all Departmental staff involved in prosecution matters including decisions about whether or not to commence a prosecution as well as the preparation and conduct of all prosecutions undertaken by the Department.

Scope

3. This Policy applies to all work associated with prosecutions and arising from an investigation by the Department under:

  • Any legislation or regulations administered by the Department;
  • Any other legislation or regulations relevant to the Department’s role.1

Conflicts of interest

4.  All staff with duties or accountability under this Policy must act fairly, promptly, without any actual, potential or perceived conflict of interest, and in accordance with the law. This is in recognition of the significant impact prosecution-related decisions may have on members of the community..

5. Any person involved in the investigation, preparation, or conduct of a prosecution who may have any actual, potential or perceived conflict of interest whatsoever must disclose that conflict immediately to the Chief Legal Adviser.

6. Where a person has disclosed a conflict of interest in accordance with clause 5 (including disclosing a prior relationship with a person who or an organisation that is the subject of an investigation or possible prosecution-related decision), that person must cease further involvement in the process.  

Prosecution decisions

7. The decision to prosecute (or to not prosecute) will be based on the following factors:

  • The Solicitor-General’s Prosecution Guidelines.2 This Policy adopts the Solicitor-General’s Prosecution Guidelines and it must be read in conjunction with those Guidelines;
  • The purposes of the legislation which the Department is seeking to enforce by a proposed prosecution;
  • The principles of the Treaty of Waitangi3;
  • The resources available to the Department relative to the public interest in a prosecution proceeding;
  • Whether another prosecuting agency has or will bring criminal proceedings in relation to the same subject matter as the Department’s potential prosecution.

Test for prosecution

8. Prosecutions will be initiated only if:

  • The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction; and
  • Prosecution is required in the public interest.

9. All staff with accountabilities under this Policy must separately consider and be satisfied that each aspect of the above test is met before a decision to prosecute is made. The evidential sufficiency of a proposed prosecution must first be satisfied before the public interest is considered.

Decision-making procedures

10. In accordance with the Solicitor-General’s Prosecution Guidelines, a preliminary decision by a Manager to commence or not commence a prosecution must first be independently reviewed by an experienced Solicitor.  To achieve this, the Department’s decision-making procedures are as follows:

Recommendation to prosecute/not prosecute

11. When warranted officers of the Department investigate a suspected breach of any Act, regulation, bylaw, or other legal instrument, they must produce a file containing all relevant evidence and a covering report and recommendation on what action, if any, may be appropriate. The file must be forwarded to one of the following managers for consideration:

  • Any Director;
  • The National Compliance Manager (Operations Group);
  • Any level 4 Manager authorised jointly by a Director, and the National Compliance Manager, to make decisions under this Policy.

12. The Manager receiving the file, report, and recommendation must promptly assess and consider the matter in accordance with this Policy. The Manager may seek legal advice on any aspect of the file and must refer the matter back to the investigating officer if s/he considers further inquiries are necessary or requires further work to be carried out to bring the file to a satisfactory standard for prosecution.

13. If the Manager determines that prosecution action should or should not be taken he/she must note the file with the reasons for the decision, and forward the file to the Legal Services Team (Corporate Services Group) for review in accordance with paragraph 14. 

Legal review

14. The review will be carried out by:

  • The Solicitor (Compliance and Law Enforcement); or
  • Any other Department Solicitor approved by the Chief Legal Adviser to review a preliminary decision by a Manager to prosecute or not prosecute; 
  • With the prior consent of the Chief Legal Adviser, a Crown prosecutor.

15. The Solicitor reviewing the file must:

  • Thoroughly assess the matter in accordance with this Policy and the Solicitor-General’s Prosecution Guidelines; 
  • Advise the relevant Manager(s) if further investigations, enquiries, or information are/is necessary, or if the file is not to a satisfactory standard; 
  • Provide written advice to the Manager(s) on whether the prosecution should or should not proceed in accordance with the test for prosecution in this Policy; 
  • Provide advice on the appropriate nature and number of charges to be filed; 
  • Identify whether the prosecution will be conducted by a Department solicitor or, with the prior consent of the Chief Legal Adviser, by a Crown prosecutor;

16. If the Solicitor reviewing the file, having regard to this Policy, supports the Manager’s preliminary decision, s/he must communicate this to the Manager in which event the Manager’s preliminary decision becomes final. 

17. If the Solicitor does not support a Manager’s preliminary decision, either to prosecute or not prosecute, the following procedures apply:

  • The Solicitor will discuss the matter with the Manager and other relevant staff in order to try and resolve any issues of concern or differences in view;
  • If the Solicitor and Manager are not able to resolve issues or differences, the responsible Manager must refer the matter to the Chief Legal Adviser for further review;
  • The Chief Legal Adviser, after consulting with the National Compliance Manager, the Solicitor conducting the original review and any other person s/he thinks fit will provide his/ advice to the Deputy-Director General Operations;
  • The decision of the Deputy-Director General Operations will be final.

Responsibility of prosecutors

18. Once a decision to prosecute is made accountability for the legal issues in connection with the prosecution passes to the Solicitor allocated the file. These responsibilities include:

  • Determining, in consultation with the Solicitor (Compliance and Law Enforcement) the correct nature, number and wording of charges;
  • Ensuring the prosecution file is to an appropriate evidential standard for Court;
  • Preparing a summary of facts document, in consultation with the investigating officer and the Solicitor (Compliance and Law Enforcement);
  • Complying with the Criminal Procedure Act 2011 and the Criminal Disclosure Act 2008;
  • Representing the Department with competency and to the ethical standards expected of prosecutors by the New Zealand Law Society and by the Solicitor-General;
  • Consulting with the Solicitor (Compliance and Law Enforcement) and other relevant staff about any developments, such as plea arrangements, withdrawal of charges, or diversion decisions, and sentencing considerations that may affect the conduct of the prosecution;
  • Advising relevant staff about any media interest in the prosecution;
  • Advising relevant staff on matters affecting resourcing for the prosecution;
  • Providing regular reporting and updating of internal databases.

Appeals

19. No appeal may be brought by the prosecutor from any Department prosecution unless:

  • The Manager who recommended that a prosecution be brought, and any other relevant staff, have been consulted;
  • The Chief Legal Adviser has agreed to the proposed appeal being referred to the Solicitor-General for consideration; and
  • The Solicitor-General has given approval in accordance with the Criminal Procedure Act 2011.

Infringement offences

20. If a warranted officer of the Department detects an infringement offence and a written warning is not appropriate, the officer may issue or cause to be issued an infringement notice to the offending person.4

21. If a person issued with an infringement notice disputes the offence and formally requests a hearing, then the test for prosecution must be satisfied and the procedures in paragraph 9 to 15 of this Policy must be complied with before the Department files a Notice of Hearing in Court.

Ammendments/review

22. This Policy may be amended from time to time by the Chief Legal Adviser in consultation with the National Compliance Manager.

23. This Policy will be reviewed jointly by the Chief Legal Adviser and the National Compliance Manager every 3 years or sooner if circumstances warrant it.

Signed by

Jonty Somers
Chief Legal Adviser

Martin Kessick
Director National Operations


  1. For example, DOC undertakes prosecutions from time to time under the Dog Control Act 1996, Animal Welfare Act 1999, Crimes Act 1961, Resource Management Act 1991.
  2. Prosecution guidelines on the Crown Law website.
  3. Refer s 4 Conservation Act 1987.
  4. Warranted Officers can currently issue infringement notices under the Freedom Camping Act 2011.

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