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					                 The role of the prosecutor in New Zealand criminal law

                   Simon Mount, Crown Prosecutor, Meredith Connell, Auckland

Anyone appearing in court charged with an offence in New Zealand will encounter a
“prosecutor”, who has the responsibility to advance the case on behalf of the institution
or person bringing the charge. The identity of the prosecutor will depend on the type of
charge, the court, the way the charge is brought, and the stage that the process has
reached. In each case, the fundamental role of the prosecutor is the same. This short
article summarises the role of prosecutors in New Zealand, and outlines the position of a
Crown prosecutor in New Zealand’s criminal justice system.

Three main types of prosecutors

The three most common types of prosecutor are:

      Crown prosecutors (appearing in most serious criminal cases including jury
      Police prosecutors (appearing in many of the less serious criminal charges in the
       District Court, and in preliminary hearings of some serious charges); and
      Departmental prosecutors (appearing on behalf of Government Departments or
       agencies such as the IRD, WINZ, or local councils).

In some cases the prosecutor will be a “private prosecutor” acting on behalf of an
individual in his or her private capacity, although this is uncommon in New Zealand.

The role of a Crown prosecutor

In New Zealand, most serious crime is prosecuted by Crown Solicitors and Crown
prosecutors. Prosecution in the name of the Crown signifies that it is undertaken on
behalf of the people of New Zealand or the community in general. In constitutional
terms, the ultimate responsibility for Crown prosecution in New Zealand lies with the
Attorney General. By convention, the Attorney General, as a Member of Parliament,
takes no active role in particular criminal prosecutions, and delegates his or her functions
to the Solicitor General, an independent and non-political figure. In practice, the day-to-
day work of Crown prosecution is the responsibility of the 16 Crown Solicitors,
appointed by the Governor General on the recommendation of the Attorney General.
Each Crown Solicitor holds a warrant for a particular region of New Zealand, and
oversees the Crown prosecution work within that region. Crown Solicitors in turn
delegate work to individual Crown prosecutors: lawyers working for or on behalf of a
Crown Solicitor.
Crown Solicitors and Crown prosecutors are independent of the police, and exercise their
own discretion in determining what charges will be pursued at trial. In most cases it is
the police who initially charge someone, but once a person is committed for trial at a
preliminary hearing (“depositions hearing”), the Crown Solicitor takes over the
prosecution and makes an independent assessment of the proper charge(s). This
independence preserves an important distance between the State’s investigative and
prosecutorial functions.

The Crown prosecutor’s role in court

The most public role of a Crown prosecutor is the conduct of jury trials. Jury trials occur
in both the High Court and District Court, and are the most common way of resolving
serious criminal charges when the accused person has pleaded not guilty. New Zealand’s
criminal law and procedure are based on the English common law, and our system is both
accusatorial and adversarial. In a jury trial, the Crown prosecutor appears on behalf of
the “accuser” (the Crown), in an adversarial process against the “accused” (the individual
charged). The trial is regulated by a judge, and the ultimate verdict is the responsibility
of a jury: 12 members of the public chosen at random. The process is not inquisitorial (as
in European systems), so the jury cannot call or question witnesses themselves. The jury
must decide the case on the evidence presented to them by the parties: the Crown and the

The adversarial system leaves the preparation and presentation of the prosecution’s case
almost entirely to the prosecutor and the police. It is for the Crown to determine what
charge(s) to bring at trial, what witnesses to call, what questions to ask, and how to
present the case to the jury. In a jury trial the charge or charges are presented in an
“indictment” – a formal document filed in advance by the Crown. In every case it is for
the Crown to prove the charges in the indictment beyond reasonable doubt. The
requirement for the Crown to prove the charge is referred to as the “burden of proof”, and
the test of beyond reasonable doubt is referred to as the “standard of proof”. Rules of
evidence govern the form and content of evidence that can be called by each party, to
help ensure accuracy, fairness, and efficiency.

Rules of procedure govern the activities of the police and others within the system, and
exist to ensure fairness to accused persons, and to the Crown. For example, procedural
rules require the Crown to disclose all relevant material to the defence in advance of trial,
so that an accused person is aware of the case he or she must face. There is currently no
corresponding duty on the defence to disclose anything to the prosecution, except for the
special case of alibi evidence. Trials must take place in “open court” – that is, in public,
although certain parts of a trial may be closed to the public. For example, the evidence of
victims in sexual cases must be given in private to protect the privacy of the victim.

Each trial begins with jury selection, where 12 members of the public are chosen at
random to constitute the jury. The Crown prosecutor then gives an opening address to
the jury, explaining the case for the Crown and the things the Crown must prove beyond
reasonable doubt in order to prove the charge(s). Defence counsel also has an
opportunity to give a brief statement identifying the issues in the trial from the defence
perspective. The prosecutor then calls evidence from individual witnesses, who may be
cross-examined by counsel for the accused. After the close of the Crown’s case, the
accused has the right (but is not compelled) to give or call evidence. The prosecutor then
gives a closing address, as does counsel for the accused. Finally, the Judge sums up the
case to the jury, who retire to consider their verdict.

The prosecutor’s ethics

Although the prosecutor is an advocate, he or she must prosecute “dispassionately and
with scrupulous fairness” (New Zealand Law Society Rules of Professional Conduct).
The Crown’s duty is to present its case fairly and completely, and to be as firm as the
circumstances warrant, but the Crown must never “struggle for a conviction”.1 It is
“quite impermissible” for a prosecutor to attempt to persuade the jury by factors of
prejudice or emotion.2 The prosecutor is not the lawyer for the victim; nor the lawyer for
the police. He or she acts on behalf of the community, and has a responsibility to ensure
that justice is done in a fair and balanced way. Crown prosecutors, like all lawyers, have
an overriding duty to the Court to ensure the Court is not misled and that Court processes
are not misused.

Prosecution guidelines

The conduct of Crown prosecutors in New Zealand is governed by the “Solicitor-
General’s Prosecution Guidelines”.3 These guidelines contain principles and rules

         Who may initiate prosecutions;
         How the decision to prosecute should be made;
         When charges may be withdrawn and arrangements as to charges may be made
          (this includes some decisions that might be labelled “plea bargaining”);
         When a witness may be granted immunity from prosecution;
         When a stay of prosecution will be granted; and
         the disclosure of information to the defence.

Police and Departmental prosecutors

As well as Crown prosecutors, there are a number of prosecutors who act for the police
and other government agencies. These prosecutors do not undertake jury trials, but carry
out the important work of prosecuting “summary” charges, which are generally less
serious than jury trial charges. Prosecutions for most traffic offences, regulatory

         R v Puddick (1865) 176 ER 622, 663. See R v Thomas (No 2) [1974] 1 NZLR
         658 (CA).
         R v Roulston [1976] 2 NZLR 644, 654.
         These are published as an appendix to the Law Commission’s Report No 66:
         “Criminal Prosecution”. See
offences, and low-level disorderly behaviour offences will normally be handled by a
Police or Departmental prosecutor. These prosecutors are subject to the same ethical,
evidential and procedural rules as Crown prosecutors. Although some Police prosecutors
are uniformed officers, the Police Prosecutions section is separate from the investigative
arm of the Police, and Police prosecutors exercise independent judgment in the conduct
of their prosecutions.

For more information

More information on prosecution in New Zealand, the criminal justice system, and the
criminal law can be found in the following sources:

      The Law Commission’s Report No 66, “Criminal Prosecution”, available at
      The Crown Law Office’s website:
      Robertson (ed), Adams on Criminal Law (Brookers).