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Safeguard Magazine

Legal viewpoint—Going private

A number of private prosecutions under the HSE Act have been signalled or completed in recent months. Based on his own experience TIM MACKENZIE outlines the issues – and the hurdles.

Earlier this year I acted in the private prosecution case of Creeggan v New Zealand Defence Force1. In considering a private prosecution the first step that must be taken is to formally notify Worksafe of an interest in knowing of any enforcement action being taken. Worksafe must then advise you of any decisions taken.

If Worksafe then declines to prosecute, the first question that should be asked is: why is a prosecution not being brought? There may be sensible reasons why this should not be considered. If unsatisfied, a potential prosecutor then needs to consider the evidence available and the Solicitor General’s Prosecution Guidelines, which provide for two questions:

  • • 
    Is the evidence which can be adduced in Court sufficient to provide a reasonable prospect of conviction? (the evidential test); and
  • • 
    Is the prosecution required in the public interest? (the public interest test).

The prosecutor should also consider a third and similar test found in the Criminal Procedure Act 2011. When a private prosecution is laid the Judge will usually direct the filing of formal statements and exhibits and will consider:

  • • 
    Is the evidence proposed sufficient to justify a trial?; or
  • • 
    Is the proposed prosecution an abuse of process?

To meet that test, the evidence will need to show there is a case to answer so that, if all of the evidence provided was accepted by the Judge, the charge could in theory be proven. The difficulty is that to meet the prosecution tests (and the defence disclosure requirements which will occur when the charge is laid) the prosecutor will need to have gathered the same or similar evidence that Worksafe would gather. But while Worksafe has statutory powers to investigate and gather evidence, the layman does not.

However, the prosecutor may be able to obtain Worksafe’s file under the Official Information Act (OIA) if formal steps are under way to prosecute. Firstly, the prosecutor will already have formally notified Worksafe of an interest, which will differentiate them when the OIA request is made.

Secondly, a potential prosecutor will most likely have had to apply for permission from the Court to prosecute outside of the six month timeframe in the Act.

Between both of these requirements, any OIA request may be looked upon favourably by Worksafe.

Once information is to hand the prosecutor can consider whether the prosecution tests are met and, if not, what needs to be done to investigate and gather further evidence. Evidence tests being met, if notification has been received that Worksafe has declined to take a prosecution, and no other enforcement agency is going to (eg the Police, Maritime NZ, Civil Aviation Authority), then a private prosecution can commence. However, the six month timeframe to lay a charge will often have expired at this stage. The Act therefore allows that within one month of receiving notification, a party can apply to the District Court for an extension of time to file a charge.

To grant permission, the Court must be satisfied that it was unreasonable, having regard to the time taken by Worksafe to respond to the incident, to expect the party to decide whether to bring a prosecution before the six month prosecution period expired.

In practice, the test would usually be met if the circumstances are that Worksafe investigated for several months and then declined to prosecute. If Worksafe did not investigate and communicated that from the outset, permission may be harder to obtain. However a good reason to explain delay, as occurred in the Creeggan case, could be the injuries of the proposed prosecutor.

The costs for the entire process could easily be tens of thousands of dollars, with little cost recovery at the conclusion (although reparation will often result if the prosecution succeeds). Many readers will be familiar with the process and cost of a normal Employment Relations Authority hearing. As a rough guide it would be safe to multiply the energy, cost and complexity of that two to three times to reflect a private criminal prosecution.

The ability to bring a private prosecution under the HSE Act might seem to be a useful mechanism for achieving justice, but the reality in practice is more difficult. Various legislation needs to be closely adhered to once you begin, including the Victims Rights Act. If not undertaken correctly from the outset, the private prosecutor could be liable for costs to the defendant. Anyone contemplating a private prosecution should ensure they have a sound basis for doing so and are aware of the entire process.

Tim Mackenzie is a senior associate at Wynn Williams. He was previously a Crown prosecutor with involvement in health and safety prosecutions.

Footnotes

  1. *Tim Mackenzie is a senior associate at Wynn Williams. He was previously a Crown prosecutor with involvement in health and safety prosecutions.
  2. 1I must also acknowledge Charles McGuinness of Cullen Law who began the case and assisted throughout, including obtaining permission to prosecute out of time.
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