Changes to New Zealand’s 2024 Prosecution Guidelines

The Solicitor-General released new Prosecution Guidelines on 1 October 2024. The Guidelines now provide significantly more guidance to prosecuting agencies, increasing from 31 to 208 pages. These 2024 Guidelines are intended to be easier to apply to the full spectrum of offending, from minor and regulatory offending to serious criminal offending.

Key changes

1. The Guidelines maintain the two-stage test for prosecutions, consisting of the evidential and public interest tests.

• The evidential test has been updated from: ‘The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction’ to ‘Is there sufficient evidence to prove the proposed charge beyond reasonable doubt?’ The evidence should be available, admissible, credible and reliable.
• The public interest test has been rearranged from: ‘Prosecution is required in the public interest’ to ‘Does the public interest require a prosecution to be brought?’

2. There is a new section on tikanga (the 2013 Guidelines were silent on tikanga). The 2024 Guidelines require that prosecutors develop a basic understanding of tikanga and build the relationships required to seek guidance on relevant issues of tikanga. The 2024 Guidelines note that in environmental prosecutions, tikanga may be especially relevant.

3. There is a new section on making unbiased decisions. The 2024 Guidelines recommend that prosecuting agencies adopt processes and policies to mitigate bias, which could include unconscious bias training and blind peer reviews of files. It suggests that prosecuting agencies could facilitate an organisational culture of self-reflection and open dialogue.

4. Further guidance on engagement with defendants, including diversions and plea arrangements. There is significantly expanded guidance on engaging with self-represented defendants. The 2024 Guidelines require prosecutors to take particular care when prosecuting a self-represented defendant, including confirmation that a prosecutor should not provide legal advice to such a defendant, and should avoid overly technical or legal language. There is also specific guidance in relation to engaging in plea discussions with self-represented defendants.

5. Expanded sections on engagement with victims, media, appeals, disclosure, case management and sentencing.

Next steps

Crown Law and Crown Solicitors will apply the Guidelines from 1 January 2025. Prosecuting agencies are expected to apply the new guidelines in a timeframe that is appropriate for them, including updating prosecution policies. The expectation is that these updated policies will be in place by 1 January 2026, although there is some flexibility.

If you would like to discuss further these revised Guidelines or their implications, please contact our team.