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CRO\N LA\ OllICL

PROSLCU1ION GUIDLLINLS









.. at 0 Marcb 12






















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INDLX


1. Introduction
2. \ho may Institute Prosecutions
3. 1he Decision to Prosecute
4. Consents to Prosecutions
5. Indictments
6. Stay o Proceedings
7. \ithdrawal o Charges and Arrangements as to Charges
8. 1he Role o the Prosecutor in Sentencing
9. \itness Immunities
10. Disclosure and Discoery
11. Victims o Oences
12. Crown Appeals against Sentence
13. Case Stated Appeals












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1. Introduction
1.1 Almost inariably it is the responsibility o oicers and agencies o the State
to inestigate oences and prosecute oenders. It is the Attorney-General
and Solicitor-General, as the Law Oicers o the Crown, whose
responsibility it is to ensure that those oicers and agencies behae with
propriety and in accordance with principle in carrying out their unctions.
1.2 1he State bears a dual responsibility in its administration o the criminal
law. Behaiour classiied as criminal has been deemed so harmul to society
generally that the State, on behal o all its citizens, accepts the responsibility
to inestigate, prosecute and punish those behaing in that way.
1.3 1he State also accepts the responsibility o ensuring, through institutions
and procedures it establishes, that those suspected or accused o criminal
conduct are aorded the right o air and proper process at all stages o
inestigation and trial.
1.4 1hose dual responsibilities are oten in tension. 1he indiidual subjected to
the criminal justice process will rarely beliee that it is working in his or her
aour, the inestigating and prosecuting agencies will not wish to see
someone they beliee guilty elude coniction.
1.5 1he decision to begin a prosecution against an indiidual has proound
consequences. 1he indiidual is no longer a suspect, but is ormally and
publicly accused o an oence. Len i eentually acquitted, he or she will
be subjected to the stresses o public opprobrium, court appearances and,
possibly, a loss o liberty while awaiting trial.
1.6 It is o great importance thereore that decisions to commence and to
continue prosecutions be made on a principled and publicly known basis.
1he purpose o these guidelines is to indicate, in a general way, the bases on
which the Law Oicers expect those decisions to be made.
2. Who may Institute Prosecutions
2.1 Any person may institute a prosecution or an oence against the general
criminal law and, with some speciic exceptions, or regulatory oences.
Some prosecutions require the prior consent o the Attorney-General, the
procedure or obtaining that consent is outlined in section 4. Lery
prosecution is commenced by way o an Inormation laid under the
proisions o the Summary Proceedings Act 195 and the person bringing
the prosecution is known as the inormant`. In practice almost all
prosecutions or oences against the general criminal law are brought by
the Police and those or regulatory oences by oicers o Goernment
Departments or Local Authorities.
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2.2 In the case o prosecutions brought by Crown agencies or oences triable
only on Indictment, or those on which the accused has exercised a right o
electing trial by jury, the inormant ceases to be the prosecutor rom the
point at which the accused is committed or trial. At that point the
prosecution becomes a Crown` matter and only the Attorney-General,
Solicitor-General or a Crown Solicitor may lay an Indictment. 1he laying o
Indictments is dealt with in section 5.
2.3 1he Attorney-General as the Senior Law Oicer o the Crown has ultimate
responsibility or the Crown`s prosecution processes. Successie Attorneys-
General howeer hae taken the iew that it is inappropriate or them, as
Ministers in the Goernment o the day, to become inoled in decision
making about the prosecution o indiiduals.
2.4 In New Zealand the Attorney-General and Solicitor-General hae co-
extensie original powers. \ith some speciied exceptions the Solicitor-
General may perorm any unction gien to the Attorney-General. In
practice the Solicitor-General exercises all o the Law Oicer unctions
relating to the prosecution process.
2.5 1he initial decision to prosecute rests with the Police in the case o the
general criminal law, or an oicer o some other central or local
goernment agency charged with administering the legislation creating the
oence. It is requently the case that the Police or agency will consult a
Crown Solicitor or the Solicitor-General or adice as to whether a
prosecution would be well ounded. It is howeer neer or the Solicitor-
General or the Crown Solicitor to make the initial decision to prosecute, it
is their unction to adise.
3. 1he Decision to Prosecute
In making the decision to initiate a prosecution there are two major actors to be
considered, eidential suiciency and the public interest.
3.1 Lidential Suiciency
1he irst question always to be considered under this head is whether the
prosecutor is satisied that there is admissible and reliable eidence that an
oence has been committed by an identiiable person.
1he second question is whether that eidence is suiciently strong to
establish a prima acie case, that is, i that eidence is accepted as credible
by a properly directed jury it could ind guilt proed beyond reasonable
doubt.
3.2 ,in the original there is no paragraph 3.2,
3.3 1he Public Interest
3.3.1 1he second major consideration is whether, gien that an
eidential basis or the prosecution exists, the public interest
requires the prosecution to proceed. lactors which can lead to a
decision to prosecute or not, will ary ininitely and rom case to
case. Generally, the more serious the charge and the stronger the
eidence to support it, the less likely it will be that it can properly
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be disposed o other than by prosecution. A dominant actor is
that ordinarily the public interest will not require a prosecution to
proceed unless it is more likely than not that it will result in a
coniction. 1his assessment will oten be a diicult one to make
and in some cases it may not be possible to say with any
conidence that either a coniction or an acquittal is the more
likely result. In cases o such doubt it may be appropriate to
proceed with the prosecution as, i the balance is so een, it could
probably be said that the inal arbiter should be a Court. It needs
to be said also that the public interest may indicate that some
classes o oending, eg driing with excess breath or blood
alcohol leels, may require that prosecution will almost inariably
ollow i the necessary eidence is aailable.
3.3.2 Other actors which may arise or consideration in determining
whether the public interest requires a prosecution include:
,a, the seriousness or, conersely, the triiality o the alleged
oence, ie whether the conduct really warrants the
interention o the criminal law,
,b, all mitigating or aggraating circumstances,
,c, he youth, old age, physical or mental health o the alleged
oender,
,d, the staleness o the alleged oence,
,e, the degree o culpability o the alleged oender,
,, the eect o a decision not to prosecute on public
opinion,
,g, the obsolescence or obscurity o the law,
,h, whether the prosecution might be counter-productie,
or example by enabling an accused to be seen as a
martyr,
,i, the aailability o any proper alternaties to prosecution,
,j, the prealence o the alleged oence and the need or
deterrence,
,k, whether the consequences o any resulting coniction
would be unduly harsh and oppressie,
,l, the entitlement o the Crown or any other person to
compensation, reparation or oreiture as a consequence
o coniction,
,m, the attitude o the ictim o the alleged oence to a
prosecution,
,n, the likely length and expense o the trial,
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,o, whether the accused is willing to co-operate in the
inestigation or prosecution o others or the extent to
which the accused has already done so,
,p, the likely sentence imposed in the eent o coniction
haing regard to the sentencing options aailable to the
Court.
3.3.3 None o these actors, or indeed any others which may arise in
particular cases, will necessarily be determinatie in themseles, all
releant actors must be balanced.
3.3.4 A decision whether or not to prosecute must clearly not be
inluenced by:
,a, the colour, race, ethnic or national origins, sex, marital
status or religious, ethical or political belies o the
accused,
,b, the prosecutor`s personal iews concerning the accused
or the ictim,
,c, possible political adantage or disadantage to the
Goernment or any political organisation,
,d, the possible eect on the personal or proessional
reputation or prospects o those responsible or the
prosecution decision.
4. Consent to Prosecutions
4.1 A number o statutory proisions creating oences require that, beore a
prosecution is commenced, the consent o the Attorney-General is to be
obtained. 1his is a unction carried out in practice by the Solicitor-General
,see section 2,. 1he consent, i gien, is signiied by way o endorsement on
the Inormation. Requests or consent should be directed to the Solicitor-
General with ull details o the alleged oence and the eidence aailable to
be called.
4.2 1he reasons or requiring that consent ary. In general terms howeer the
consent requirement is imposed to preent the riolous, engeul or
political` use o the oence proisions.
4.3 A list o the proisions creating oences or which the Attorney-General`s
consent is required is gien in Appendix 1.
5. Indictments
5.1 1he power o the Attorney-General and Crown Solicitors to present an
Indictment is recognised in s 345 o the Crimes Act 1961. Almost
inariably it is a Crown Solicitor who does so. In exercising that power, the
Crown Solicitor acts entirely independently o the Police or other
inestigating agency and is not subject to their instructions.
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5.2 A Crown Solicitor may present an Indictment . or any charge or charges
ounded on the eidence disclosed in any depositions taken against such
person.`. A Crown Solicitor may thereore present an Indictment
containing a charge dierent rom, or additional to, that originally contained
in the Inormation, so long as it is ounded on eidence contained in the
depositions. In exercising that power a Crown Solicitor is exercising, de
noo, the discretion to prosecute. All actors aecting that discretion arise
again or consideration.
5.3 \here the District Court has committed on some charges only, the
prosecution has a number o options aailable i it wishes neertheless to
proceed to trial on the charges in respect o which there has been no
committal:
,a, the Crown Solicitor may exercise the power o laying an
indictment under s 345 notwithstanding the lack o a
committal on those charges,
,b, an application may be made to a ligh Court Judge or
written consent to present an Indictment notwithstanding
the lack o a committal on that or those charges,
,c, the Attorney-General ,in practice the Solicitor-General,
may present an Indictment ,known as an ex oicio
Indictment`, or gie written consent to the presentation
o an Indictment notwithstanding the lack o a committal
on that or those charges,
,d, the Inormation or Inormations on which there has been
no committal may be re-laid and taken to depositions
again.
5.4 1he use o an ex oicio indictment or the giing o consent by the
Attorney-General has been ery rare and is likely to remain so.
6. Stay of Proceedings
6.1 1he common law right o the Attorney-General to interene in the
prosecution process and to stay any prosecution rom proceeding urther is
recognised in ss A and 13 o the Summary Proceedings Act 195 and s
38 o the Crimes Act 1961.
6.2 In New Zealand the power o stay has been sparingly exercised. 1hat
conseratie approach is likely to continue.
6.3 Generally speaking the power o entering a stay will be exercised in three
types o situation:
,a, \here a jury has been unable to agree in two trials. Ater
a second disagreement the Crown Solicitor must reer the
matter to the Solicitor-General or consideration o a
stay. Unless the Solicitor-General is satisied that some
eent not relating to the strength o the Crown`s case
brought about one or both o the disagreements, or that
new and persuasie eidence would be aailable on a
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third trial, or that there is some other exceptional
circumstance making a third trial desirable in the interests
o justice, a stay will be directed.
,b, I the Solicitor-General is satisied that the prosecution
was commenced wrongly, or that circumstances hae so
altered since it was commenced as to make its
continuation oppressie or otherwise unjust, a stay will be
directed.
,c, A stay will be directed to clear outstanding or stale
charges or otherwise to conclude an untidy situation, eg
where or instance an accused has been conicted on
serious charges but a jury had disagreed on others less
serious, or a conicted person is sering a substantial
sentence and continuing with urther charges would sere
no worthwhile purpose.
6.4 1he possible circumstances which may justiy a stay under heads ,b, and ,c,
aboe are almost ininitely ariable. In general terms howeer the same
considerations will apply as are inoled in the original decision to
prosecute, always with the oerriding concern that a prosecution not be
continued when its continuance would be oppressie or otherwise not in
the interests o justice.
7. Withdrawal of Charges and Arrangements as to Charges
.1 Circumstances can change, or new acts come to light, which make it
necessary to reconsider the appropriateness o the charges originally laid.
.2 I ater a reiew against the releant criteria it is clear that a charge should
not be pursued, it should be discontinued at the irst opportunity. 1he
mode o discontinuance will depend on the court beore which the charge is
pending and the stage the proceedings hae reached. Similarly, i it is plain
that a charge should be amended, that should be done at the irst
opportunity.
.3 I a charge is not to be proceeded with because a witness declines to gie
eidence and there are acceptable reasons why he or she should not be
orced to do so, it will generally be preerable to ask the Court to dismiss
the charge or want o prosecution. 1hat course should be ollowed, rather
than seeking a stay rom the Solicitor-General, to ensure that the reasons
or the discontinuance are publicly stated.
.4 Arrangements between the prosecutor and the accused person as to the
laying or proceeding with charges to which the accused is prepared to enter
a plea o guilty can be consistent with the requirements o justice, subject to
constraints which must be clearly understood and ollowed by prosecutors.
.5 1hose constraints are:
,a, No such arrangement is to be initiated by the prosecutor.
,b, No proposal to come to such an arrangement is to be
entertained by a prosecutor unless:
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,i, there is a proper eidential base or the charges
to be laid or proceeded with and, conersely,
there is not eidence which would clearly
support a more serious charge,
,ii, the charges to be proceeded with airly represent
the criminal conduct o the accused and proide
a proper basis or the Court to assess an
appropriate sentence,
,iii, the accused clearly admits guilt o those charges
which are to be proceeded with.
,c, 1he prosecutor must not agree to promote or support
any particular sentencing option. In eery case the
inormant or the Solicitor-General will resere the
possibility o an appeal against sentence i the sentence
imposed is considered maniestly inadequate or wrong in
principle.
,d, A prosecutor must not lay charges or retain them ater it
is clear that they should not be proceeded with or the
purpose o promoting or assisting in any discussions
about such an arrangement.
,e, In the case o summary prosecutions, eery such
arrangement must be approed by the Oicer in Charge
o the releant Police prosecution section or, in the case
o another Crown prosecuting agency, the senior legal
oicer o that agency. Ater committal or trial approal
must be gien by the releant Crown Solicitor personally.
In cases inoling homicide, sexual iolation or drug
dealing oences inoling class A drugs the approal o
the Solicitor-General must also be obtained.
.6 In addition to the matters outlined aboe a decision to enter into such an
arrangement should be based on the ollowing considerations:
,a, whether the accused is willing to co-operate in the
inestigation or prosecution o others or the extent to
which the accused has already done so,
,b, whether the sentence that is likely to be imposed i the
charges are pursued as proposed would be appropriate
or the criminal conduct inoled,
,c, the desirability o prompt and certain despatch o the
case,
,d, the strength o the prosecution case,
,e, the likely aects on witnesses o being required to gie
eidence,
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,, in cases where there has been a inancial loss, whether the
accused has made restitution or arrangements or
restitution,
,g, the need to aoid delay in the despatch o other pending
cases.
8. 1he Role of the Prosecutor in Sentencing
8.1 Until relatiely recently the traditional` iew o the prosecutors role at
sentencing preailed, ie the prosecutor should maintain disinterest in the
sentence imposed. 1hat iew cannot surie in the ace o the Crown`s
right to appeal against a sentence considered to be maniestly inadequate or
wrong in principle.
8.2 At sentencing, counsel or the prosecution should be prepared to assist the
Court, to the degree the Judge indicates is appropriate, with submissions on
the ollowing matters:
,a, the Crown`s ersion o the acts,
,b, comment upon or, i necessary, contradiction o the
matters put orward in mitigation by the accused,
,c, the accused`s criminal history, i any,
,d, the releant sentencing principles and guideline
judgments.
8.3 Counsel or the prosecution should not press or a particular term or leel
o sentence. It is the Crown`s duty to assist the sentencing Court to aoid
errors o principle or sentences which are totally at odds with preailing
leels or comparable oences and oenders.
9. Witness Immunities
9.1 It is sometimes the case that the Crown will need to rely upon the eidence
o a minor accomplice or participant in an oence in order to proceed
against an accused considered to be o greater signiicance in the oending.
9.2 Unless that potential witness has already been charged and sentenced he or
she will be justiied in declining to gie eidence on the grounds o sel-
incrimination.
9.3 In such a case it will be necessary or the Crown to consider giing the
witness an immunity rom prosecution. An immunity takes the orm o a
written undertaking rom the Solicitor-General to exercise the power o stay
i the witness is prosecuted or nominated oences. It thus protects the
witness rom both Crown and priate prosecutions.
9.4 It is to be noted that the only person able to gie such an undertaking is the
Solicitor-General.
9.5 1he purpose o giing an immunity must clearly be borne in mind. 1hat
purpose is to enable the Crown to use otherwise unaailable eidence. In
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exchange or that it will, with reluctance and as a last resort, grant immunity
on speciied oences. In particular, the giing o an immunity is not to be
seen as an opportunity or an inormer to wipe the slate clean.
9.6 Immunities are gien reluctantly and only as a last resort in cases where it
would not otherwise be possible to prosecute an accused or a serious
oence.
9. Beore agreeing to gie an immunity the Solicitor-General will almost
inariably require to be satisied o at least the ollowing matters:
,a, that the oence in respect o which the eidence is to be
gien is serious both as to its nature and circumstances,
,b, that all aenues o gaining suicient eidence to
prosecute, other than relying upon the eidence to be
gien under immunity, hae been exhausted,
,c, that the eidence to be gien under immunity is
admissible, releant and signiicantly strengthens the
Crown`s case,
,d, that the witness, while haing himsel or hersel
committed some identiiable oence, was a minor
participant only,
,e, that the eidence to be gien under immunity is
apparently credible and, preerably, corroborated by other
admissible material,
,, that no inducement, other than the possibility o an
immunity, has been suggested to the witness,
,g, that admissible eidence exists, suicient to charge the
witness with the oences he or she is belieed to hae
committed.
9.8 In order to presere the integrity o the eidence to be gien under
immunity it will almost always be desirable or the witness to hae
independent legal adice. Preerably that adice should be obtained beore
the witness signs a brie o eidence or depositions statement. Counsel or
the witness should, i the witness wishes to seek an immunity, obtain
instructions to write to the oicer in charge o the case or, i the Solicitor-
General is already inoled, to the Solicitor-General direct. 1he letter
should set out in ull detail the eidence able to be gien by the witness but
without naming him or her. I satisied that an immunity is justiied the
Solicitor-General can then adise the witness`s counsel that an immunity
will be gien. Counsel will then be able to name the witness in the
knowledge that a ormal immunity will be orthcoming.
10. Disclosure and Discovery
10.1 1he aim o the prosecution is to proe its charge beyond reasonable doubt
and it is thereore clearly in the interests o justice that accused persons are
ully inormed o the case against them. At present, oluntary pre-trial
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disclosure o inormation relating to the Crown case is largely a matter or
the prosecutors discretion to be exercised in accordance with the guiding
principle o airness to the accused. Neertheless there are a minimal
number o legal obligations with which the prosecution must comply.
10.2 1rial on Indictment
10.2.1 Beore trial on indictment an accused person is entitled to peruse
depositions taken on his committal or trial or the written
statements o witnesses admitted instead o depositions. Section
183 Summary Proceedings Act 195.
10.2.2 1he prosecutor does not hae to put orward all the eidence at
depositions. loweer s 368,1, o the Crimes Act 1961 proides
that the trial may be adjourned or the jury discharged i the
accused has been prejudiced by the surprise production o a
witness who has not made a deposition. 1hereore in practice the
prosecutor should proide adequate notice o intention to call any
additional witness and proide the deence with a brie o the
eidence that witness will gie.
10.3 Inormation which the Prosecutor does not Intend to Produce in Lidence
10.3.1 1he prosecutor must make aailable to the deence the names and
addresses o all those who hae been interiewed who are able to
gie eidence on a material subject but whom the prosecution
does not intend to call, irrespectie o the prosecutor`s iew o
credibility ,R r Ma.ov |195| 2 NZLR 289,. It is or the prosecutor
to decide whether the eidence is material` ,R r Qvivv |1991| 3
NZLR 146, but that decision must be reached with complete
airness to the deence.
10.3.2 In the absence o an Oicial Inormation Act request there is no
general common law duty placed on the prosecution to make
aailable to the deence written statements obtained by the Police
rom persons the prosecution does not intend to call as witnesses
at the trial. loweer in truly exceptional circumstances` the
Court may exercise its discretion to order production i it
considers that a reusal to do so might result in unairness to the
accused and perhaps a miscarriage o justice. R r Ma.ov |196| 2
NZLR 122.
10.3.3 A statutory exception to the general principle against production
o written statements is contained in s 344C Crimes Act 1961
which deals with identiication o witnesses.
10.4 Statements made by \itnesses to be called by the Prosecution
10.4.1 In the absence o an Oicial Inormation Act request there is no
general rule o law requiring the prosecution to supply deence
counsel with copies o all statements made by persons who are to
be called to gie eidence. An exception to this general rule is
where the witness has made a preious inconsistent statement.
\here there is any conlict that may be material between the
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eidence o a witness and other statements made by the witness,
the deence is entitled to see those other statements. R r !ic/tiffe
|1986| 1 NZLR 4, Re .etgrev |1991| 1 NZLR 431, R r ^av/erritt
,CA 342,89 4 May 1990,.
10.4.2 A second exception is where a statement is speciically shown to
an accused or the precise purpose o noting his reaction thereto,
in such cases the accused is entitled to obtain production o the
statement. R r Cbvrcb |194| 2 NZLR 11.
10.5 Character o \itness
10.5.1 Beore all deended trials the prosecution has a duty to disclose
any preious conictions o a proposed witness where credibility is
likely to be in issue and the coniction could reasonably be said to
aect credibility. !it.ov r Potice ava ttiot ,CA 90,91 20 December
1991,.
10.5.2 lor trials on indictment a prosecuting agency entitled to access to
the \anganui computer should make a computer check as a
matter o course. lor summary trials the agency should make such
a check i requested by the deence. I the prosecuting agency is in
doubt about whether a coniction should be disclosed, counsel`s
adice should be taken. Any list o conictions should be supplied
a reasonable time beore trial ,normally at least a week,. I the
prosecuting agency intends to withhold details o conictions, the
deence should be notiied in suicient time to enable rulings to be
sought rom the trial court.
10.6 Disclosure o any Inducement or Immunity gien to a \itness
1he deence must always be adised o the terms o any immunity rom
prosecution gien to any witness. Likewise the existence o any other actor
which might operate as an inducement to a witness to gie eidence should
be disclosed to the deence. 1his includes the act that the witness is a paid
Police inormer. R r Cbigvett |1991| 2 NZLR 25.
10. Identity o Inormer
1here will be good reason or restricting disclosure where the identity o an
inormer is at stake. 1he general principle is that the identity o an inormer
may not be disclosed unless the Judge is o the opinion that the disclosure
o the name o the inormer, or o the nature o the inormation is
necessary or desirable in order to establish the innocence o the accused. R
r vgbe. |1986| 2 NZLR 129, 133.
10..1 A statutory restriction on disclosure o the true identity o
undercoer police oicers is contained in s 13A Lidence Act
1908.
10.8 Preliminary learings
Special proisions or preliminary hearings in cases o a sexual nature are set
out in Part VA Summary Proceedings Act 195. Section 185C,4, requires
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the prosecutor to gie the complainant`s written statement to the deence at
least days beore the hearing.
10.9 Minor Oences
In the case o minor as opposed to summary oences, deined in s 20A
Summary Proceedings Act 195, the prosecution must sere on the deence
a notice o prosecution which will proide inormation in a brie orm as to
the essential nature o the charge and other releant matters outlined in the
section.
10.10 DSIR Lxaminations
As a matter o ethical obligation the prosecutor is required to proide access
to the deence to orensic eidence prepared by the DSIR. ,New Zealand
Law Society, Rules o Proessional Conduct, Appendix 2.,
10.11 Obligations on Request under Oicial Inormation Act 1982
10.11.1 Crown Solicitors are not part o a department or organisation` and
are not thereore subject to the Oicial Inormation Act 1982.
\hile as a matter o practical conenience they may acilitate
responses to requests or inormation, they are not as a matter o
law obliged to do so. 1he responsibility to proide inormation
rests on the Police or other prosecuting agency, and requests made
o a Crown Solicitor should be reerred to them. 1he Crown
Solicitor should be adised o all inormation supplied to other
parties.
10.11.2 Personal inormation ie that particular category o oicial
inormation held about an identiiable person, is the subject o an
explicit right o access, upon request, gien to that person, unless it
comes within some limited exceptions. Releance is not the test
under the Oicial Inormation Act.
10.11.3 1he eect o the Court o Appeal decision in Commissioner o
Potice r Ovbva.vav |1988| 1 NZLR 385 is that the exercise o a
deendant`s right to personal inormation will not ordinarily
prejudice the maintenance o the law ,and air trials,, as shown by
the traditional disclosure prosecution inormation or indictable
trials. 1he practice should thereore be that there will be
disclosure on request o bries o eidence, witness statements or
notes o interiews containing inormation about the deendant.
\here bries, statements or job sheets do not exist, the
prosecution should as a matter o practice proide to the deence a
summary o the acts on which the prosecution will be based.
10.11.4 1he duty will generally apply only ater criminal proceedings hae
been commenced, and inormation may be withheld i a speciic
risk ,such as abrication o eidence or intimidation o a witness, is
shown. Any disputes should be determined as incidental or
preliminary matters by the trial court.
10.12 1he aim o pre-trial disclosure is to ensure airness to the accused and to
achiee eiciency in the prosecution process. Bearing those aims in mind,
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any doubt as to whether the balance is in aour o, or against disclosure
should be resoled in aour o disclosure.
11. Victims of Offences
11.1 Victims o oences are entitled to be treated by prosecutors with courtesy,
compassion and respect or their personal dignity and priacy. Section 3
Victims o Oences Act 198.
11.2 1he prosecuting authority or oicers o the court ,to use the language o
the Act, are required to make aailable to a ictim inormation about the
ollowing:
,a, progress o the inestigation o the oence,
,b, the charges laid or the reasons or not laying charges,
,c, the role o the ictim as a witness in the prosecution o
the oence,
,d, the date and place o the hearing o the proceedings, and
,e, the outcome o the proceedings including any
proceedings on appeal.
11.3 lor the purposes o the Victims o Oences Act, Crown Solicitors are not
prosecuting authorities`.
11.4 Responsibility or notiying the ictim o these matters has been allocated as
between the prosecuting authorities and the oicers o the court as ollows:
,a, 1he Police accept that all inormation about actions
beore a prosecution is commenced is within their ambit.
,b, Beore erdict:
In the case o a not guilty plea the prosecuting authorities
are normally in contact with the ictim until the erdict is
gien.
In the case o a guilty plea, the prosecuting authority
which is laying the charge must inorm the ictim o the
irst date o a court appearance. At the same time it is
required to hand to the ictim inormation about the
court process beyond that point, describing the processes
o appeal, remand, adjournment, etc and inorming the
ictim that it is his or her choice whether to ollow the
case through the court process. I the ictim is unable to
attend the hearing in person, he or she can obtain
inormation rom the court.
,c, Ater erdict:
Once a erdict has been reached the prosecuting
authority will inorm the ictim o the outcome o the
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case. 1he letter containing the inormation should gie
urther inormation about possible actions ater the
outcome eg appeal and rehearing.
,d, Ater sentence:
1he prosecuting authority should hand to the court
inormation about the ictim`s name and address so that
the court may notiy the ictim o any rehearing.
,e, Appeal:
In the case o an appeal ater trial on indictment, the
Crown Law Oice will notiy the ictim o the date on
which it will be heard, and ater the appeal send a copy o
the Judgment to the ictim.
11.5 In addition to proiding inormation about the proceedings, a prosecutor
has responsibilities in relation to Victim Impact Statements. A sentencing
Judge is to be inormed about any physical or emotional harm, or any loss
o or damage to property, suered by the ictim through or by means o
the oence, and any other eects o the oence on the ictim. Such
inormation is to be coneyed to the Judge by the prosecutor, either orally
or by means o a written statement. 1he courts hae indicated that Crown
Solicitors hae a certain responsibility to ensure that Victim impact
Statements ulil their proper purpose ie a brie description o the impact on
the ictim and not a supplementary statement o acts adding additional
oences and circumstances o aggraation.
11.6 1he Victims o Oences Act also requires that in the case o a charge o
sexual iolation or other serious assault or injury the prosecutor should
coney to the judicial oicer any ears held by the ictim about the release
on bail o the alleged oender.
12. Crown Appeals against Sentence
12.1 It is or the Solicitor-General to determine in all cases whether an appeal
against sentence should be taken. In respect o sentences passed on
coniction on indictment, the appeal is taken in the name o the Solicitor-
General, in respect o sentences imposed under the summary jurisdiction o
the District Court the appeal is taken in the name o the inormant, with the
written consent o Solicitor-General.
12.2 1he guiding principles or prosecutors in deciding whether a matter should
be reerred to the Solicitor-General or consideration o a Crown appeal are
whether there are good grounds to argue that:
,a, the sentence is maniestly inadequate, or
,b, there has been a serious error in sentencing principle.
12.3 Maniestly Inadequate
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12.3.1 1he sentence imposed must be maniestly inadequate: - the
Crown`s right o appeal is not intended to be a correctie
procedure or eery sentence considered to be lenient.
12.3.2 1he considerations justiying an increase in sentence must be more
compelling than those which might justiy a reduction. Len
where a sentence is ound to be maniestly inadequate, the court
will increase it only to the minimum extent required in the interests
o justice.
12.3.3 A particular sentence, or sentences generally or a particular type
o crime, may be considered maniestly inadequate i they do not
ulil their deterrent or denunciatory unctions. A Crown appeal
may be considered where it is clear that the oence requires a
heaier sentence in the public interest or the purposes o general
or indiidual deterrence or to express community denunciation
because o the nature o the oence.
12.4 Lrror o Principle
12.4.1 \here a sentence is based upon a wrong principle, the error
inoled must be one that is important in a sense that it is likely to
hae implications beyond that particular case in which it has arisen.
12.4.2 1he court is reluctant to interere i this would cause some other
injustice to the oender, eg by changing what is generally deemed
a wholly inappropriate sentence to which the oender is
neertheless responding. 1he court is also reluctant to uphold a
Crown appeal i the prosecution did not do all that could
reasonably hae been expected o it to aoid the error at irst
instance. In no case shall any sentence be increased by reason o
or in consideration o any eidence that was not gien at trial.
Section 389 Crimes Act 1961.
12.5 1ime Limits
Appeals against sentences imposed in the indictable jurisdiction must be
iled within 28 days. 1he time limit or the summary jurisdiction is 28 days.
Gien the short time limits or iling an appeal, particularly to the Court o
Appeal ater trial on indictment, and the uncertainty which a Crown appeal
poses or the deendant in question, the need to reer materials speedily to
the Solicitor-General is paramount. lor the same reason it is only in
exceptional cases o unaoidable delay that the Solicitor-General will seek
leae to appeal out o time.
12.6 1he inormation required or consideration o appeals includes:
,a, Indictment or Inormation,
,b, notes o Lidence or Summary o lacts,
,c, copies o the Pre-Sentence Report, Victim Impact Report
and any other reports made aailable to the sentencing
Judge,
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,d, a list o any preious conictions,
,e, a note o the Judge`s or District Court Judge`s remarks on
sentence,
,, the comments and recommendations o the Crown
Solicitor or prosecutor.
12. In general the main purpose o a Crown appeal is to ensure that errors o
principle are corrected and not perpetuated, and that sentences or oences
o generally comparable culpability are reasonably uniorm and appropriate
haing regard to the seriousness and prealence o the oence.