Maritime New Zealand’s Prosecution Policy
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Introduction
MNZ’s Compliance Operating Model describes how MNZ manages compliance to achieve the best outcomes in its role as guardian of the maritime environment. Prosecution is one of the compliance interventions available to MNZ.
Our approach will be tailored to the circumstances of any non-compliant behaviour. We will undertake a prosecution where we consider it will have the most impact on achieving our outcomes, taking into account risk, attitude and capability, plus the likely consequences of an incident or harm occurring.
As a regulator, MNZ’s role is to maximise compliance with the regulatory framework that applies in the maritime environment. Achieving maximum compliance is a major factor in advancing the MNZ aim of a maritime environment that is “safe, secure and clean”.
MNZ has a Compliance Operating Model to support this aim. The key documents making up the MNZ Compliance Operating Model are:
- Compliance Strategy – which sets out the rationale for MNZ’s approach to compliance;
- Compliance Intervention Guidelines – which explains how to use the Model in practice; and
- Compliance Intervention Panel Standard Operating Procedures – the Compliance Intervention Panel is a made up of staff from across MNZ aims to ensure consistent decision-making on compliance issues.
MNZ has compliance functions under a number of statutes. The primary enforcement powers are to be found in the Maritime Transport Act 1994 (MTA) and the Health and Safety at Work Act (HSWA) 2015 in relation to work on board ships and ships as places of work. Both of these statutes contain a number of offence provisions. In addition, in appropriate cases, MNZ may decide to prosecute in relation to offences under other legislation (for example, the Resource Management Act 1991). Other enforcement bodies (including local authorities and the Police) may also seek to prosecute under the MTA in some cases.
Key statutes that apply to the prosecution process are the Criminal Procedure Act 2011, the Criminal Disclosure Act 2008, the Evidence Act 2006, and the Victim’s Rights Act 2002. Under the Criminal Procedure Act 2011, the Solicitor-General has responsibility to maintain general oversight of the conduct of public prosecutions, including prosecutions taken by MNZ.
Decison to prosecute
A decision to prosecute will be made by the Director or the General Manager Maritime Compliance (acting under delegated authority).
In reaching this decision, the decision-maker will consider the recommendations of the Compliance Intervention Panel and an analysis of the application of the Solicitor-General’s Prosecution Guidelines1.
Solicitor General’s Prosecution Guidelines
The Solicitor-General’s Prosecution Guidelines apply to MNZ and provide guidance on the conduct of public prosecutions and assist decisions on:
- Whether prosecutions should be commenced;
- What charges should be filed; and
- Once criminal proceedings are commenced, whether they should be continued or discontinued.
Test for prosecution
Pursuant to the Prosecution Guidelines, MNZ will initiate prosecutions only where the Test for Prosecution is considered to be met. This is where:
- The evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction (the Evidential Test); and
- Prosecution is required in the public interest (the Public Interest Test).
Each aspect of the test is separately considered and must be satisfied before a decision is taken to prosecute. The Evidential Test is considered before the Public Interest Test is considered.
The Prosecution Guidelines set out indicative matters to be taken into account for determining whether a prosecution will be in the Public Interest.
Even if a matter meets the test for prosecution in terms of the Prosecution Guidelines, the decision whether MNZ will undertake a prosecution in a specific case will be made in accordance with MNZ’s Compliance Operating Model. In some cases, while prosecution is possible, it may be considered that a different compliance response is more appropriate. For example, a decision may be made to impose conditions on an operator’s maritime document.
MNZ will endeavour to co-ordinate enforcement action with other agencies that operate in the maritime environment. These include the New Zealand Police, Environmental Protection Authority (EPA), regional or local authorities, Ministry for Primary Industries (MPI) and in health and safety cases, WorkSafe New Zealand. In any situation where MNZ proposes to file charges under a statute administered by another agency, MNZ will consult with the relevant agency before doing so.
The Attorney-General’s consent is required before charges may be laid under the MTA Parts 19 – 282 against a natural person (not a company) who is not a New Zealand citizen or resident in New Zealand where the acts allegedly done have occurred beyond the territorial sea of New Zealand.
The Crown Law Office (on behalf of the Solicitor-General) takes over responsibility for all ‘Crown prosecutions’3 in accordance with the Crown Prosecution Regulations 2013. In such a case, while MNZ would no longer be managing the prosecution, it would provide any assistance required by Crown Law.
As a matter of practice, MNZ will ensure that the Solicitor-General is informed of any matter relating to a MNZ investigation or prosecution that is of general public or legal importance or which gives rise to substantial or new forms of legal risk.
Management and oversight of MNZ prosecutions
Once a decision to prosecute has been made, the Legal Services Team has responsibility for managing the conduct of the prosecution. The file will be referred to the relevant Crown Solicitor, who will review the file and the recommended charges.
Once this review is complete, the Crown Solicitor will prepare charging documents which will be filed by the Specialist Investigator or Maritime Officer in charge of the file. Where the charge is under the HSWA, the charges must be filed by an appointed Health and Safety Inspector.
The relevant MNZ solicitor works with the Crown Solicitor conducting the prosecution on MNZ’s behalf and the MNZ investigator or Maritime Officer in charge of the file and informs and seeks key decisions from the General Manager Maritime Compliance and the Director. The Communications and Education Team are also involved from the commencement of the prosecution, managing media interest and any proactive publicity by MNZ.
The MNZ instructing solicitor will ensure that MNZ will promptly provide all information and assistance required by the Crown Solicitor.
All MNZ staff involved in managing a prosecution will maintain a high standard of professional and ethical conduct and manage the case in a way that is consistent with the defendant’s right to a fair trial. In particular, those involved in the prosecution should -
- Act in a manner that is fundamentally fair, performing their obligations in a detached and objective manner, impartially and without delay;
- MNZ lawyers should conduct themselves in accordance with their ethical obligations and the rules of professional conduct;
- Comply with the disclosure obligations contained in the Criminal Disclosure Act 2008; and
- Be aware of the needs of victims and ensure that in accordance with the law and the requirements of a fair trial, victims and witnesses are treated with care and respect.
Interaction with defendants
Once charges are filed, no MNZ staff members involved with the prosecution will have any communication with the defendant, or the defendant’s legal representative, in relation to the prosecution, unless this has first been discussed and agreed to by the Crown Solicitor acting for MNZ.
Because defendants may have other dealings with MNZ staff during the course of the prosecution process, the relevant regional manager will ensure that relevant staff are aware of any prosecutions underway. MNZ staff must ensure that they do not interact with defendants during the course of the prosecution in a manner that could jeopardise the right to a fair trial or adversely affect the prosecution.
Media and publicity
In communicating with the public through the media in relation to a prosecution, MNZ staff will act in accordance with the Crown Law Media Protocol for Prosecutors, and will:
- Act in a way that does not prejudice the right to a fair trial;
- Supports the administration of justice and the integrity of the criminal justice system;
- Respects the principle of open justice;
- Treat victims of crime with courtesy and compassion and respect their dignity and privacy.
MNZ will publicise the outcome of a prosecution where appropriate. This will be managed by the General Manager Maritime Compliance and relevant regional manager in co-ordination with the Education and Communications Team.
Victims and witnesses
MNZ will ensure that victims of crime are treated at all times with courtesy and compassion and with respect for their dignity and privacy.
The relevant Maritime Officer will be the primary point of contact with victims and ensure that they are provided with information at each stage of the process to ensure that they understand the process and are aware of what is happening. MNZ will comply with the Crown Law protocol, Victims of Crime - Guidance for Prosecutors, and the Victims’ Rights Act 2002.
The relevant Investigator/Maritime Officer will also ensure that witnesses are kept informed and treated with courtesy throughout the prosecution process.
Where MNZ employees are witnesses in a prosecution the MNZ solicitor or Investigator/Maritime Officer in charge of the prosecution will inform their Manager. The employee will attend the Court and assist as requested.
MNZ employees who act as expert witnesses must comply with the required standards of conduct applicable to expert witnesses, including the Code of Conduct for Expert Witnesses4.
In the event that a MNZ employee is required to be a witness for the defence in a prosecution the employee should promptly inform their Manager and the Manager Legal of this requirement.
Appeals
Any decision by MNZ to appeal a prosecution decision must be made by the Director on advice from the MNZ Legal Services Team in consultation with the General Manager Maritime Compliance.
1 The analysis of the application of the Solicitor-General’s Prosecution Guidelines is a legal analysis and will be completed by a member of MNZ’s Legal Services Team or by a Crown Solicitor on instructions from MNZ Legal Services.
2 Relating to marine environment offences.
3 They include all category 4 offences (the most serious category of offence - listed in Schedule 1 to the Criminal Procedure Act - e.g. murder), High Court proceedings, jury trials and other proceedings where the Solicitor-General directs that it is appropriate for the proceeding to be treated as a Crown prosecution.
4 Schedule 4 of the High Court Rules (Schedule 2 to the Judicature Act 1908)