1
Q
Solicitor General’s prosecution guidelines
what are the two tests for prosectution
A
- The evidential test
- The public interest test
2
Q
Prosecution
What is ‘the evidential test’?
A
- a reasonable prospect of conviction exists if, in relation to an identifiable individual, there is credible evidence the prosecution can bring before a court and upon which evidence a jury (or judge) could reasonably be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence.
3
Q
Prosecution
What is ‘the public interest test’?
A
- 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.
- Prosecutors must exercise discretion as to whether a prosecution is required in the public interest
4
Q
Prosecution
examples of Public interest considerations for prosecution
A
- seriousness of the offence
- defendant in a position of authority or trust and the offence is an abuse of that position
- premeditation of an offence
- ringleader or an organiser of the offence
- organised crime or group offending
- motivated by hostility against a person (race/ethnicity/sexual orientation etc)
- serious financial loss
- offence committed against a person serving the public
- marked difference between the actual or mental ages of defendant and victim
- element of corruption
5
Q
Prosecution
examples of Public interest considerations against prosecution
A
- small/nominal penalty imposed
- loss/harm described as ‘minor’
- where prosectution likely to have a detrrimental effect on wellbeing of victim/witness (physical/mental)
- defendant elderly/youth
- no previous convictions
- defendant suffering from significant mental or physical health issues
- where proper alternatives to prosecution are available
6
Q
Dealing with the suspect
Methods of resolving alleged offences: Options available to you?
A
- formal warning
- report the matter
- arrest the suspect
- written traffic warning
- Te Pae Oranga
- Adult diversion
- for young suspects - Youth Aid (alternative actions), or Family Group Conference
- Prosecution
- Take no action
7
Q
Dealing with the suspect
alleged offending: when would you ‘take no action’
A
this option applies to very trivial incidents where there is no victim to consider
This course of action is permissible for only the most minor incidents, and it doesnt get reported.
*for example during a visit to a crowded bar you hear someone say behind your back ‘fucking pig’, you are sure there is no chance of finding out who said this, it’s more prudent to ignore the behaviour and act as though you didn’t hear it. *
8
Q
Dealing with the suspect
alleged offending: when would you give a ‘formal warning’
A
- suspect must be over 18 years or over
- they must admit responsibility for the offending
- they must provide informed consent to take part in the warning process
9
Q
Dealing with the suspect
what is a formal warning?
A
a lawful alternative to prosecution when certain requirements are met
10
Q
Dealing with the suspect
where can a formal warning be issued from?
A
- a scene, or
- at a Police Station
11
Q
Dealing with the suspect
a formal warning must…?
A
- record how the evidence collected meets all the required elements of the alleged offence
a formal warning is an alernative to prosecution, rather than a method to be used where a prosecution would not reasonably succeed.
12
Q
Dealing with the suspect
Before a formal warning is issued approval is needed from who?
A
- a Supervisor, this approval must be obtained and recorded
13
Q
Dealing with the suspect
Reporting an offence may include the following:
A
- further enquiries required
- issuing an infringement notice
- prosecution
- report with a view to a warning
- report with a view to summons
14
Q
Dealing with the suspect
What is Te Pae Oranga?
A
a way Police & iwi/Maori partners deal with crime and prevent reoffending
it’s an approach to hold suspects accountable while also helping them address problems they’re facing.
15
Q
Dealing with the suspect
Who is Te Pae Oranga for?
A
It’s for people who have underlying issues and need help to get their lives back on track.
Includes helping them overcome problems like:
* addiction
* abuse
* financial stress
* difficulties getting employment or education
Available to people of all ethnicities and from all walks of life. Victims are encouraged to take part.
16
Q
Dealing with the suspect
Te Pae Oranga criteria?
A
The offence is supported by evidential sufficiency (elements)
Participant must:
* be 18 years or over
* admit responsibility for the offence and agree to participate
The offence must carry a sentence of less than 6 months imprisonment, or be a non-qualifying offence approved for exemption
(excludes FV-related offending, driving charges with mandatory disqualification, firearm charge, second-hand dealer offences)
The participant must not have active charges being pursued through the court.
17
Q
Dealing with the suspect
What is ‘Diversion’?
A
The Police Adult Diversion Scheme is an alternative to prosecution
- Enables suspects to complete a plan within a given timeframe to avoid receiving a conviction
- Enables community groups to actively participate in an approach which has early intervention at its core
18
Q
Dealing with the suspect
What are the purposes of diversion?
A
- prevent re-offending
- encourage suspect(s) to reflect on the impact on the victim
- enable reparation
- enable restorative justice
- address factors that put the suspect at risk of re-offending
- avoid the suspect’s first conviction and give them another chance
19
Q
Dealing with the suspect
For diversion the suspect must accept full responsibility for the offences by..?
A
- admitting they committed the offence
- showing remorse for their actions
- indicating a guilty plea (optional)
20
Q
Diversion
what two tests must you consider for offence-based criteria?
A
- the offence seriousness by offence type and case circumstances
- views of the OC case and victims so that all information can be evaluated
21
Q
Diversion
Offence types you may consider for diversion?
A
There is no hard and fast rule on particular offence types, every case must be examined individually.
You can consider diversion if the effect of a conviction it out of proportion to the offence committed.
- All Category 2 & 3 offences would be considered to be less serious and eligible
- Category 4 would usually be considered too serious to be eligible…
22
Q
Diversion
Restorative Justice is defined as?
A
- a way of thinking about crime
- a process for responding to crime
23
Q
Dealing with the suspect
Restorative Justice forms part of what process?
A
Diversion
24
Q
Diversion
Restorative Justice provides an…?
A
alternative framework for thinking about wrongdoing which suggests new ways of responding to offending and victimisation.
25
**Diversion**
Restorative Justice is focused on who?
the victim
26
**Diversion**
Restorative Justice
What are the 3 prerequisites to diversion referral?
1. approved restorative justice provider available in the diversion area
2. victim participation
3. diversion interview must have occured with approved diversion officer
27
**Prosecution**
Usually a suspect will be notified of a prosecution and the charges in one of three ways:
* arrest followed by filing a charge document and taking the suspect to court
* arrest followed by Police bail with or without conditions
* summons to appear in court
28
**Prosecution**
Bail definition
a Notice of Bail is given to the suspect to ensure their appearance in court at an appointed time and place
29
**Prosecution**
Released on bail definition
The suspect is released subject to the terms appearing on the Notice of Bail
30
**Prosecution**
Summons definition
It's an instruction given by the Police, or the court to attend court at an appointed time and place.
No conditions can be placed on a summons.
31
**Police Bail**
The Police have authority to bail prisoners in the following circumstances:
* when the prisoner is charged with any offence except for:
murder, treason, espionage, drug dealing offence *(in relation to Class A or B controlled drugs)*
* when the person is arrested without warrant
* when the person cannot be brought before the court immediately
* where other Bail Act 2000 provisions do not apply
32
**Police Bail**
Bail conditions must be:
* relevant
* reasonable
* enforceable
33
**Police Bail**
maximum bail time for Police bail **without conditions**
14 days from the date bail granted
34
**Police Bail**
maximum bail time for Police bail **with conditions**
no later than 7 days from the date bail was granted
*an exception to this rule applies if the court at which the defendant is to be bailed will be closed for more than 7 consecutive days following the arrest, then it must not be later than 14 days from the grant of bail*
35
**Police Bail**
Recommended bail conditions to consider:
* court location, time and date the person must attend
* reside at a specific address
* curfew to remain at address during certain hours
* not to consume drugs and/or alcohol and to complete a breath test on request
* not to associate or contact directly/indirectly with victim/witnesses/co-suspects
* not to go or be found within a certain distance of a specified location
* not to drive any motor vehicle
* not to threaten or use violence against any person or property
* report to a Police Station between certain hours and on certain days of the week
* surrender passport
36
**Police Bail Breach**
If a suspect is released on police bail, they can be arrested if Police believe...
on reasonable ground the suspect:
* has absconded or is about to abscond for the purpose of evading justice, or
* has contravened or failed to comply with any condition of bail
37
**Police Bail Breach**
Consequences
once the suspect is located following a breach
* they are arrested
* held in police custody
* taken to court as soon as practicable
* the court will then decide if they can get court bail
38
**Court Bail**
What is this?
prisoners who cannot be bailed by Police *(or whose bail is opposed)* must appear in court and apply for bail.
This is known as Court Bail
39
**Summons**
An advantage to a summons is that a person can be summonsed:
* whether or not they have been arrested without warrant, and
* to a date up to two months in the future
40
**Summons**
When serving a summons...
* It's delivered by giving it to the person named on the summons
*if the person does not accept it, it is served by reading the notice to them and putting it at their feet*
* A person can only be summoned if they are of or over the age of 18 years
41
**Police Bail**
Failure to appear consequences
the court will issue a WTA
often the defendant will also be charged with Failing to Answer Police Bail
42
**Court Bail**
Failure to appear consequences
the court will issue a WTA
43
**Court Bail Breach**
Consequences
once the suspect is located following a breach
* they are arrested
* held in police custody
* taken to court as soon as practicable
* the court will then decide if they can get court bail
44
**The judicial system**
what is the Doctrine of Precedent?
Lower courts are bound by decsions made by higher courts
45
**The judicial system**
What is the Hierachy of the courts *(from lowest to highest)*?
1. District Court *(Family Court, Judge alone trials, Jury trials, Youth Court)*
2. High Court
3. Court of Appeal
4. Supreme Court
46
**The judicial system**
Offence Categories
**Four categories**
2. infringement offences or offences **not punishable by imprisonment**
2. offence punishable by a term of imprisonment of **less than 2 years**
3. offence punishable by a term of imprisonment for **2 years or more, including life**
4. offences listed in **schedule 1 of the Criminal Procedure Act 2011**
47
**Court Jurisdiction**
District Court description
* presided over by District Court Judge or two or more Justices of the Peace
* Category 1 & 2 offences
*(fine only, less than 2 years imprisonment, community-based sentences)*
* Category 3 offences
*(that have penalties of 2 years imprisonment or more where the defendant has elected to be tried by jury)*
Appeals from this court are heard in the High Court an then the Court of Appeal
* Jury trials are presided over by a District Court Trial Judge accompanied by a jury of 12 adults
* tries offences other than those listed in Schedule 1 that are punishable by more than 2 years imprisonment up to life imprisonment
* a District Court Judge may sentence up to the maximum penalty for the offence, sentencing for serious offences *may occur in the High Court.*
48
**Court Jurisdiction**
High Court description
* presided over by a High Court Judge accompanied by a jury of 12 adults
* handles Category 4 offences
* sometimes Categor 2 & 3 offences if the District Court orders the proceeding to be transferred to that court
* the penalties that can be imposed are the maximum as prescribed for the offence committed, such as life imprisonment for murder.
49
**Court Jurisdiction**
The Court of Appeal description
* presided over by a bench of judges appointed to the Court of Appeal
* hears appeals against decisions made in the High Court *(civil & criminal appeals)* & District Court *(criminal appeals from jury trials, if leave is granted it can also hear criminal appeals against pre-trial rulings, such as admissibility of evidence)*
Appeals from this court are heard in the Supreme Court
This court is very important in:
* developing legal principle
* correcting errors
* ensuring the law is applied consistently
50
**Court Jurisdiction**
The Supreme Court description
* highest and final appeal court in the NZ judicial system
* five most senior judges of NZ currently appointed to the court
* only hears cases when the Supreme Court judges grant leave to appeal
* only where it involves a matter of general importance / general commercial significance / significant issue relating to Treaty of Waitingi / substantial miscarriage of justice may have occurred
51
**Introduction to rules of evidence**
three types of evidence:
* Hearsay
* Opinion
* Propensity
52
**Introduction to rules of evidence**
Hearsay evidence is:
* the oral or written statement of a person who is not produced as a witness in court **and**
* the statement given to the court by another person, or in a document **and**
* the purpose of the evidence is to prove the truth of what has been stated
53
**Introduction to rules of evidence**
the rule against hearsay evidence?
attempts to prevent inaccurate info being given as evidence in court
generally a hearsay statement is inadmissable as they are believed to be unreliable
54
**Introduction to rules of evidence**
general admissibility of hearsay evidence would be when:
a statement can be admissable if the statement is reliable and either:
* the person is unavailable, or
* if it would cause undue expense or delay in obtaining the witness
55
**Introduction to rules of evidence**
Opinion evidence is:
an inference from observed facts
usually a personal opinion
56
**Introduction to rules of evidence**
Opinion evidence
exceptions to the rule:
Expert opinion evidence:
* witness can give expert opinion evidence if they are an expert or skilled by special study or experience in a particular field
Non-expert opinion evidence:
* Identification *(of a person)*
* Handwriting *(regularly received written documents from someone)*
* Mental of physical condition *(their own only)*
* Age *(someone can give their opinion on someone's age)*
57
**Introduction to rules of evidence**
Propensity evidence is:
evidence to show a person's propensity (tendency) to act in a particular way or to have a particular state of mind
| previous convictions cannot be given as propensity evidence
58
**Admissability of evidence**
In criminal cases the Prosecution has the...
responsibility, or onus, of establishing the defendant's guilt, beyond reasonable doubt
59
**Admissability of evidence**
Evidence divisions:
**Direct evidence**
* the testimony of a witness to a given fact
**Documentary evidence**
* documents produced for the court or judge to inspect
**Real evidence**
* material objects directly presented for inspection
**Circumstantial evidence**
* something that infers a fact in issue
60
**Admissability of evidence**
Admissable evidence
Evidence is admissable when the court is legally able to receive it.
The evidence must have been obtained and given under accepted legal requirements and rules
61
**Admissability of evidence**
Relevant evidence
to be admissable, evidence must also be relevant.
For evidence to be relevant, there must be a connection between a fact given as evidence and the facts in issue.
The judge will decide whether the connection is close enough to be relevant
62
**Admissability of evidence**
evidence
to be admissable, evidence must...
always be relevant; however, relevant evidence can be inadmissable
63
**Admissability of evidence**
Competent witness
a witness is competent if they are allowed by law to give evidence
| age, health issues
64
**Admissability of evidence**
Compellable witness
in a civil or criminal proceeding the definition of 'compellable' is:
* any person is eligible to give evidence, *and*
* a person who is eligible to give evidence must give that evidence
| summons a witness
65
**Admissability of evidence**
what is a Non-Compellable witness
a witness that does not have to give evidence, for instance the accused is never compellable by the prosecution.
Police College
flashcards
Decks in class (14)
# Cards
-
Iwi & Community2
-
Defensive Tactics28
-
Initial Investigation70
-
Offences156
-
Our Business30
-
Understanding Diversity8
-
Our Communities92
-
Family Harm69
-
Search & Surveillance Act 2012163
-
Custodial Management Health Risk Awareness12
-
Taser4
-
Investigative Interviewing6
-
Resolution Pathways65
-
Road Policing & Driver Training125
