Charging decisions - SUSPECTS Flashcards
What is a good charging decision?
Is made when the charges chosen adequately reflect the nature and the extent of the criminal conduct (disclosed by the evidence) and provide the court with an appropriate basis for sentence.
What evidence do you have?
Once the initial investigation is complete, look objectively at all the information you have obtained. What can you prove the suspect has done? when contemplating charges you can only rely on admissible evidence. Suspicions and inadmissible evidence cannot be taken into account. If you are unsure whether something is likely to be admitted, seek guidance from PPS (Police prosecution services) or legal services team.
Has an offence been committed?
Consider whether the evidence you have obtained discloses an offence. Before filing a charge, you must be able to prove each element of the offence. If you need assistance identifying the elements of an offence, the legislation commentary will be useful or charge precedents.
Is a pre charge warning appropriate?
Once you have ascertained that an offence has been committed, consider what further action is required. See the pre charge warnings chapter to determine whether a warning is the most appropriate outcome for the offence committed by the suspect. If the suspect has committed multiple offences it may be appropriate to warn for some and not for other offences.
Have you considered current strategic policy?
Take into account any current strategic police policy promoting prosecution in particular areas of focus.
Is prosecution required?
If an offence has been committed and a warning is not appropriate, you must consider whether to commence prosecution (by filing charges). There are 2 steps required by the SOLICITOR GENERALS PROSECUTION GUIDELINES TO MAKE THIS DETERMINATION
1. The evidential test - Is admissible evidence sufficient to provide a reasonable prospect of conviction. If a court was presented with all the admissible evidence, could they reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed the offence alleged?
If the evidential test is not met the charge cannot be filed. If it is met then the public interest test must be considered.
2. The public interest - It is not necessary or appropriate to prosecute all offences for which there is sufficient evidence. Police must exercise their discretion as to whether a prosecution is required in the public interest.
Factors to be considered when determining public interest.
- Seriousness of the offence, the more serious the offence the more likely prosecution is required.
- Likely penalty upon conviction,if it is a significant penalty including any confiscation order or disqualification , then there is a strong public interest for a prosecution. or where a reparation order is required and prosecution is the only way to cover the costs.
- The circumstances of the defendant, if they have no previous convictions, are a child/young person or elderly, or were suffering a mental illness at the time of offence, there is a lesser public interest in prosecution.
If the defendant was in a position of authority or trust, or has breached a PO or non contact order or committed the offence whilst on bail etc this favours prosecution. - The likelihood of the offence being continued or repeated .
- The circumstances of the victim - Is a prosecution likely to have a detrimental effect on their physical or mental health? what is the extent of loss or harm they have suffered?
Which charge should be filed?
If prosecution is appropriate the next consideration is which charge or charges to file. First identify what type of offence has been committed eg. property or drug offence will help you to narrow the relevant legislation. Consider the following what did the suspect do?, what was the suspects intent?, what was the result of the suspects actions?
How many charges should be filed?
The selection of charges should seek to reflect the seriousness and the extent of the offending. It should also provide the court with adequate sentencing powers, and enable the case to be dealt with fairly and according to law.
Some charges should be carefully considered for inclusion as per the Prosecuting family violence policy, a breach of protection order should be filed where the evidence supports this charge. Another example is possession of an offensive weapon s202a crimes act which provides mandatory prison sentence for a second offence within 2 years.
Is the attorney-generals consent required?
Yes for these charges
- Summary offences act 1981, s20 False claim of qualifications, s20a Unauthorised disclosure of official information
- Flags, emblems and names protection act 1984 - s11 Offences involving NZ flag
- Films videos and publications classification act 1993, ss123-129 Offences involving restricted and objectionable publications
- Crimes act 1961, ss100-105d, Offences involving bribery and corruption
Should you arrest or summons the suspect?
Once you have decided to commence prosecution you must decide whether arrest or summons the suspect. Refer to the arrest and detention chapter for assistance.
Decision checked by supervisor?
If you need guidance, it is their responsibility to assist you and to check whether the number and types of charges you selected are appropriate. The PPS is also able to assist.
File reviewed by prosecutions.
The decision to prosecute and the charges you have filed will be independantly reviewed by PPS who have discretion to amend, withdraw and file additional charges. Where practicable prosecutors must talk to the OC first if they are amending or withdrawing the charges.
