Evidential Sufficiency and Public Interest Tests

Question 1

Under the NZ Solicitor-Generals Prosecution Guidelines 2013 - what two factors should be considered when making a decision to prosecute?

Answer 1

1. Evidential sufficiency

2. Public interest

Question 2

What does 5.1 and 5.2 of the NZ Solicitor-Generals Prosecution Guidelines relate to?

Answer 2

• The test for prosecutions.

Question 3

When does Prosecution ought to be initiated or continued?

Answer 3

• Only where the Prosecutor is SATISFIED that the TEST for Prosecution is met.

Question 4

The test for Prosecution is met when considering two factors. What are the two factors?

Answer 4

1. The evidence which can be adduced in Court is SUFFICIENT to provide a REASONABLE prospect of conviction (The Evidential test), and
2. Prosecution is required in the public interest (The Public Interest test)

Question 5

What must be SATISFIED before a decision to prosecute can be taken?

Answer 5

• Each aspect (Evidential and Public Interest tests) of the test MUST be separately considered and satisfied before a decision to prosecute can be taken.

Question 6

What test comes first?

Answer 6

The Evidential test must be satisfied before the Public Interest test is considered.

Question 7

What is the role of the Prosecutor?

Answer 7

• The Prosecutor must ANALYSE and EVALUATE all of the evidence and information in a THOROUGH and CRITICAL manner.

Question 8

5.3 and 5.4 of the NZ Solicitor-Generals Prosecution Guidelines relate to?

Answer 8

• The Evidential Test

Question 9

What elements are required for the Evidential Test?

Answer 9

• A reasonable prospect of CONVICTION exists if, in relation to an
  . IDENTIFIABLE PERSON (whether natural or legal)
  . There is CREDIBLE EVIDENCE which the Prosecution can adduce before a Court and
  . Upon which evidence an IMPARTIAL jury (or Judge), properly directed in accordance with the law,
  . Could reasonably be expected to be SATISFIED BEYOND REASONABLE DOUBT that the individual who is prosecuted has COMMITTED A CRIMINAL OFFENCE.

Question 10

Define “Identifiable Individual”?

Answer 10

• There will often be cases where it is clear that an offence has been committed but there is difficulty identifying who has committed it.
• A prosecution can ONLY take place where the evidence sufficiently identifies that a particular person is responsible.
• Where no such person can be identified, and the case cannot be presented as joint liability there can be no prosecution.

Question 11

Define “Credible Evidence”?

Answer 11

• This means evidence which is capable of BELIEF.
• It MAY be necessary to question a witness before coming to a decision as to whether the evidence of that witness could be accepted as CREDIBLE.
• It may be that a witness is plainly at risk of being so discredited that no Court could safely rely on his/her evidence. In such a case it may be concluded that there is, having regard to all the evidence, no reasonable prospect of obtaining a conviction. If, however, it is judged that a Court in all the circumstances of the case could reasonably rely on the evidence of a witness, notwithstanding any particular difficulties, then such evidence is credible and should be taken into account.
• Prosecutors may be required to make an assessment of the quality of the evidence. Where there are substantial concerns as to the creditability of essential evidence, criminal proceedings may not be appropriate as the evidential test may not be capable of being met.
• Where there are credibility issues, Prosecutors must look closely at the evidence when deciding if there is a reasonable prospect of conviction.

Question 12

Define “Evidence which the Prosecution can adduce”?

Answer 12

• Only evidence which is or reliably will be available, and legally admissible, can be taken into account in reaching a decision to prosecute.
• Prosecutors should seek to anticipate even without pre-trial matters being raised whether it is likely that evidence will be admitted or excluded by the Court.
• For example, is it foreseeable that the evidence will be excluded because of the way it was obtained? If so, Prosecutors must consider whether there is sufficient other evidence for a reasonable prospect of conviction.

Question 13

Define “Could reasonably be expected to be satisfied”?

Answer 13

• What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence.
• The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the Prosecutor.
• In forming his or her judgment the Prosecutor shall endeavor to anticipate and evaluate likely defences.

Question 14

Define “Beyond reasonable doubt”?

Answer 14

• The evidence available to the Prosecutor must be capable of reaching the high standard of proof required by the criminal law.

Question 15

Define “Commission of a criminal offence”?

Answer 15

• This requires that careful analysis is made of the law in order to identify what offence or offences may have been committed and to consider the evidence against each of the ingredients which establish the particular offence.

Question 16

Explain the Public Interest Test 5.5-5.8?

Answer 16

• Once a Prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of conviction, the next consideration is whether the public interest requires a prosecution.
• It is not the rule that all offences for which there are sufficient evidence must be prosecuted.
• Prosecutors must exercise their discretion as to whether a prosecution is required in the public interest.
• Broadly, the presumption is that the public interest requires prosecution where there has been a contravention of the Criminal law. This presumption provides the starting point for consideration of each individual case. In some instances the serious nature of the case will make the presumption a very strong one.

Question 17

Explain the Public Interest considerations for prosecution 5.8.1-5.8.18?

Answer 17

1. The predominant consideration is the seriousness of the offence.
2. Where the offence involved serious or significant violence.
3. Where there are grounds for believing that the offence is likely to be continued or repeated.
4. Where the Defendant has relevant previous convictions, diversions or cautions.
5. Where the Defendant is alleged to have committed an offence whilst on bail or subject to a sentence, or otherwise subject to a Court order.
6. Where the offence is prevalent.
7. Where the Defendant was a ring-leader or an organizer of the offence.
8. Where the offence was premeditated.
9. Where the offence was carried out by a group.
10. Where the offence was an incident of organized crime.
11. Where the Victim of the offence, or their family, has been put in fear, or suffered personal attack, damage or disturbance. The more vulnerable the Victim, the greater the aggravation.
12. Where the Offender has created a serious risk of harm.
13. Where the offence has resulted in serious financial loss to an individual, corporation, trust person or society.
14. Where the Defendant was in a position of authority or trust and the offence is an abuse of that position.
15. Where the offence was committed against a person serving the public.
16. Where the Defendant took advantage of a marked difference between the actual or developmental ages of the Defendant and the Victim
17. Where the offence was motivated by hostility against a person because of their race, ethnicity, gender, sexual orientation, disability, religion, political beliefs, age, the office they hold, or similar factors.
18. Where there is any element of corruption.

Question 18

Explain the Public Interest considerations for prosecution 5.9.1-5.9.13?

Answer 18

1. Where the Court is likely to impose a very small or nominal penalty.
2. Where the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by an error of judgment or a genuine mistake.
3. Where the offence is not on any test of a serious nature, and is unlikely to be repeated.
4. Where there has been a long passage of time between an offence taking place and the likely date of trial such as to give rise to undue delay or an abuse of process unless
   . The offence is serious
   . Delay has been caused in part by the Defendant
   . The offence has only recently come to light
   . The complexity of the offence has resulted in a lengthy investigation.
5. Where a prosecution is likely to have a detrimental effect on the physical or mental health of a Victim or Witness.
6. Where the Defendant is elderly.
7. Where the Defendant is a Youth.
8. Where the Defendant has no previous convictions.
9. Where the Defendant was at the time of the offence or trial suffering from significant mental or physical ill-health.
10. Where the Victim accepts that the Defendant has rectified the loss or harm that was caused.
11. Where the recovery of the proceeds of crime can more effectively be pursued by civil action.
12. Where the information may be made public that could disproportionately harm sources of information, international relations or national security.
13. Where any proper alternatives to prosecution are available.

Question 19

Explain No prosecution 5.12-5.13?

Answer 19

• If the Prosecutor decides that there is insufficient evidence or that it is not in the public interest to prosecute, a decision of “no prosecution” will be taken.
• A decision of “no prosecution” does not preclude any further consideration of a case by the Prosecutor, if new and additional evidence becomes available, or a review of the original decision is required.