Preparing File for Prosecution of Not Guilty Hearings

Information to lay before the court

If the offender pleads 'not guilty' to the breach charge, the following information should be ready to be laid before the court in order to prosecute and prove the charge:

• the original sentence/release, signed as certified
• proof of identity that the person sentenced/released is the person charged (usually evidence given orally)
• if the offender made initial report in, evidence that the offender was:
  • inducted as required
  • identified as the person stated on the order by staff (usually evidence given orally)
  • instructed regarding the requirements of the order, and
  • issued with a (written or verbal) direction to report (as required for the order)
• all relevant evidence to support that the offender failed to comply with the conditions, and
• if required, evidence of the appropriate delegations of staff to:
  • administer the order, and
  • lay breach charge
• further evidence from the EM company, if the breach relates to the electronic monitoring of the sentence (see below for  information about requesting further evidence from the EM company).  

Full disclosure

If the offender pleads not guilty to the breach then CPPS must disclose the following information (if available) to the offender:

• any information laid before the court
• statements made by any prosecution witnesses
• brief of evidence
• the name of any person interviewed by the prosecutor
• a written account any interviews with the offender
• any statement made to the prosecutor
• any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness
• a list of exhibits
• any information supplied to the prosecutor.

Note: Full disclosure must occur as soon as reasonably practicable after the defendant has pleaded not guilty.  Full disclosure is not required if the offender enters a guilty plea.

The legislation contains more information and must be consulted before disclosure takes place.

Legislative reference: Criminal Disclosure Act 2008.

What not to disclose

Information that may be withheld from disclosure by the prosecutor includes (but is not limited to):

• information compiled by the probation officer to assist them at the hearing such as notes on cross examination
• communication between the probation officer and other staff or the crown solicitor.

Legislative reference: Criminal Disclosure Act 2008.

Inform service manager

The information should be made available to the service manager in consultation with the court servicing and/or prosecution teams.

Calling witnesses for defended hearing

Witnesses giving evidence must appear at the hearing. A brief of evidence should be prepared for each witness.

Note: It may be necessary to subpoena witnesses.

Trial by jury

An offender may elect a trial by jury for a breach of:

• parole
• HD
• extended supervision
• intensive supervision
• release on conditions, and
• post detention conditions.

Legislative reference: Section 66(1) Summary Proceedings Act 1957.

Note: The service manager should consult with the CPPS operations help desk as to whether legal counsel should be briefed to prosecute the case.

Further evidence from the EM company

Further evidence will be required from the EM company to substantiate the breach if:

• the breach of CD relates to the electronic monitoring of the sentence, and
• the only other evidence available to substantiate the breach is the EM report received from the EM company, and
• an offender is pleading not guilty to the breach.

The evidence provided by the EM company will usually be in the form of an affidavit signed by a staff member from the EM company.

If the offender or their defence counsel disputes any CPPS evidence related to the electronic monitoring of the sentence, then the EM company staff member may also need to be available to give evidence at the defended hearing as an expert witness.

All queries regarding EM company staff appearing as expert witnesses at a defended hearing, including requesting an expert witness, should be directed to the CPPS operations helpdesk.

Requesting an affidavit from the EM company

All requests for affidavits from the EM company should be made using the CD/EM15 Request for Affidavit from EM Company form on Corrnet. The form should be filled out and emailed directly to Chubb at homedetention@chubb.co.nz 

The type of information required in the affidavit must be specified. This will usually be related to the accuracy of the information recorded in the EM report that details the non-compliance or related to a guard completing a door knock at the offender's residence to determine if they are not present when they should be.

This form must be filled in and forwarded to the EM company at least 7 working days before the date the affidavit is required.