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 trials); 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 defence. 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 regarding: 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 1 R v Puddick (1865) 176 ER 622, 663. See R v Thomas (No 2)  1 NZLR 658 (CA). 2 R v Roulston  2 NZLR 644, 654. 3 These are published as an appendix to the Law Commission’s Report No 66: “Criminal Prosecution”. See www.lawcom.govt.nz 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 www.lawcom.govt.nz The Crown Law Office’s website: www.crownlaw.govt.nz Robertson (ed), Adams on Criminal Law (Brookers).