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The prosecution discretion and official corruption

  • January 28th, 2009

Graeme Edgeler’s thoughtful piece on the prosecution discretion is well worth a read.

Graeme says:

I can see a role for grand juries in New Zealand. I think specifically about the recent death of Halatau Naitoko.

In the ordinary course of events following a shooting death, a ranking police officer will look at all the photos and video from the scene, read all the statements, watch or listen to all the interviews, take legal advice (internal and crown solicitor), and then decide the appropriate charge, taking account of the Solicitor-General’s Prosecution Guidelines.

I can see substantial advantage to removing that final call from the police in cases like this. Place all that evidence before a grand jury, and allow them to accept, reject, or amend the prosecution’s proposed course of action. It is how we used to do it; it is how much of the United States still does.

But his post covers much more including the risks in New Zealand from:

  •  last year’s weakening of our double jeopardy rule;
  • our lack of a  mechanism for independent public blessing in investigation of official wrong-doing; and
  • the changes to our law governing Coroners.

I was particularly interested that last issue. Nobody picked up on my Parliamentary warnings that the new law, by turning Coroners into officials who may be centrally removed as easily as they are appointed, removed the age-old assurance of obvioulsy independent investigation of official responsibility in deaths.

Graeme does not mention another area where grand jury independence could be helpful, in relation to electoral fraud, where our Police are no longer trusted to be immune to political influence.


  • Eric Crampton
  • January 28th, 2009
  • 1:15 pm

Radley Balko’s work chronicling the abuses of justice in Mississippi under prosecution-friendly state forensic examiner Steve Hayne, available here, shows how important it is that coroners really be independent. Worth reading.


[…] to havign the Police and Crown Law decide unilaterally whether to lay charges or not lay charges. Stephen Franks blogs on the issue […]

  • sean
  • January 30th, 2009
  • 12:33 pm

“electoral fraud, where our Police are no longer trusted to be immune to political influence.”

That’s a remarkably gentle way of expressing things. The Police have for years now repeatedly declined prosecute the cases that the Electoral Commission has referred to them.

  • Sarai
  • October 2nd, 2009
  • 9:08 am

As a relative of Mr. O’Brien, convicted of the manslaughter charge (road rage death of Mr. Patel), I experienced the disgusting state of the NZ legal system. The Police Summary of Facts was confined to “evidence”, that were provided by the eye witnesses that Mr OBrien had repeately punched Mr Patel with closed fists, denying the existence of both pathhologists’ reports that there were no marks/injuries on the victim to prove this. The offender had no other avenue but to plead guilty (he wanted to anyway). I’ve concluded that NZ is probably the only country that will prioritize subjective accouunts over objective scientific forensic accounts in our legal system, and that prosecutional discretions must be scrutinised by an external body (read Nigel Hampton’s QC article (2009! I am pursuing this matter further, but has lost faith in the justice system of this country!

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