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How we make prosecution decisions (PDF 193 KB)

01 This policy’s purpose

This policy sets out our approach to prosecution, including our decision-making process. It applies to all criminal prosecutions we take under the legislation we enforce.^[1]

The policy should be read alongside these policies:

02 Our approach to prosecution

We follow the Solicitor-General’s Prosecution Guidelines(external link) when we make decisions about prosecutions.

In general, we’re guided by our regulatory approach. This approach is set out in our policy How we make enforcement decisions. The exception to this is the initial decision to prosecute. The decision maker doesn’t consider regulatory risk as a factor in this decision.^[2] This protects the independence of the prosecutor.

We may take ‘no harm’ prosecutions, where although no one was harmed, the risk’s seriousness means it should be addressed by prosecution.

Our prosecution decisions:

comply with legislation
are made by a delegated decision maker
are made independently and free from improper influence and undue pressure from any source^[3]
take relevant policies and guidance into account
are consistent
are fair and reasonable
are evidence-based and proportionate
are timely, and
are documented and transparent.

03 Specific public interest considerations

When we consider the public interest, we include our enforcement priorities and specific public interest considerations that relate to our regulatory role. Our enforcement priorities are set out separately as they change over time.

Our specific public interest considerations are:

where noncompliance has resulted in serious harm or death
reckless and/or negligent disregard for health and safety requirements
work carried out, or supply or use of a product, without appropriate authorisation or licence or in serious noncompliance with a safety case
a duty holder’s standard of managing health and safety is found to be far below what’s required by legislation and creates significant risk
adverse conduct(external link) for a prohibited health and safety reason(external link) under Part 3 of HSWA
a provisional improvement notice, which an inspector hasn’t been required to review and hasn’t been complied with
a breach of a worker participation or engagement duty is considered to have contributed to a death or serious injury, or the risk of death or serious injury
failure to comply with a notice, direction, instruction, or requirement given by WorkSafe operational staff, especially where the risk that was subject to it:
- still exists, or
- wasn’t remedied until a significant time after the date specified in the notice, direction, instruction, or requirement
coercion or inducement in breach of s92 of HSWA(external link)
contravention of an enforceable undertaking
obstruction of operational staff while exercising their statutory powers.

Where the evidential test is met, we weigh the relevant public interest factors and then decide whether or not the public interest is met.

04 How we make decisions about prosecutions

When we describe the decision-making process we refer to ‘operational staff’ and the ‘operational decision maker’.

Operational staff include inspectors, investigators, technical officers, kaiarawhiti, those in principal and management roles, and subject matter experts.

The operational decision maker is in a role that has the delegation to make the appropriate decision and it is standard practice for someone in that role to use the delegation. In cases of public significance, it may be more appropriate for a delegated manager above the usual operational decision maker to make that decision. The operational decision maker may change during the prosecution process, depending on availability and requirements.

4.1 Operational staff make decisions about prosecution recommendations

When deciding whether to recommend prosecution, operational staff consider the evidential test, the public interest test, and WorkSafe’s additional public interest factors. If they think prosecution is justified, they recommend this to the operational decision maker.

If there is sufficient evidence, but it might not be in the public interest to prosecute, operational staff may ask the operational decision maker for advice. Operational staff may also seek a legal opinion.

If the operational decision maker endorses the recommendation, the report and case file are referred to WorkSafe Legal. If the operational decision maker doesn’t endorse the recommendation, they may send the file back for further work or for a different kind of intervention.

4.2 Legal decides whether the test for prosecution is met

Legal provides an independent view on whether the test for prosecution is met.

A lawyer carries out a written legal review of all investigation files being considered for prosecution to decide whether the test for prosecution is met. This includes the evidential test and the public interest test. A Legal manager or the Principal Legal Advisor (Litigation) reviews the advice. When the advice is finalised it is provided to operational staff, including the operational decision maker. Sometimes the legal review is carried out by an external lawyer.

4.3 Outcomes from the legal review on the test for prosecution

There are three possible outcomes after Legal provides advice about the test for prosecution, depending on whether operational staff agree with the legal advice. These are that Legal finds the test for prosecution:

is met and the operational decision maker decides whether to take a prosecution
isn’t met and the operational decision maker agrees, and the file is closed, or
isn’t met but the operational decision maker doesn’t agree.

4.4 When the test for prosecution is met

If the test for prosecution is met, the operational decision maker makes the final decision about whether to start a prosecution. The decision must be made by an operational decision maker who has the appropriate delegation.

The operational decision maker needs to consider whether taking this prosecution fits with current enforcement priorities.

4.5 Cases of public significance

At WorkSafe cases that are of public significance include fatalities. They may also include:

offending against vulnerable victims, including children, the elderly, disabled people, and pregnant people
cases where the prosecution decision is likely to be challenged by a victim or representative, a union, or employer organisation
a notification of interest in knowing of enforcement action taken has been received, and
cases with a high likelihood of media attention.

In cases of public significance, it may be more appropriate for a delegated manager above the usual operational decision maker to make the decision to start a prosecution.

4.6 When the legal advice is the test for prosecution isn’t met but operational staff disagree

When operational staff disagree that the test for prosecution isn’t met, they should work with Legal to try to find a resolution. If they can’t resolve it together, operational staff may request a referral to the Principal Legal Advisor (Litigation) or an external lawyer for binding legal advice.

4.7 Legal and operational staff agree the charges

Legal and operational staff decide which charges to file as part of the decision to prosecute. They decide which legislation to file a charge under by considering the alleged conduct’s nature and the charge that best reflects that conduct. Before a charge can be filed its content must be approved by the Chief Legal Advisor or delegate.

If Legal and operational staff can’t agree on the charges, they follow the same process as disagreement on the test for prosecution.

4.8 Continuous review of the charges

Charges should be periodically reviewed by the prosecuting lawyer to determine whether they should continue, be amended, added, or withdrawn. Charges can be withdrawn if, for example, they are no longer supported by the evidence or are no longer considered to be in the public interest. A decision to withdraw or add charges must be made by the operational decision maker.

Amendments to the wording of a charge must be approved by the Chief Legal Adviser or delegate.

Decisions to amend a charge provision must be made by the operational decision maker and approved by the Chief Legal Advisor or delegate.

4.9 Legal and the operational decision maker offer or agree to a plea arrangement

All decisions to offer or agree to a plea arrangement must be approved by the Chief Legal Advisor or delegate. If approved, the decision to offer or agree to the arrangement is made by the operational decision maker.

4.10 Legal and the operational decision maker decide to seek or agree to withdrawal of charges

If the test for prosecution is no longer met the prosecution can’t continue and the charges must be withdrawn. A decision to seek or agree to a withdrawal of charges must be approved by the Chief Legal Advisor or delegate. If this is approved, the decision to seek or agree to a withdrawal must be made by the operational decision maker. If the operational staff don’t agree that the test for prosecution is no longer met, the matter must be referred to the Principal Legal Advisor (Litigation) or an external lawyer for a binding decision.

4.11 WorkSafe may assist the sentencing courts to assess sentencing options

We assist the sentencing court by providing information relevant to the Court’s assessment of the appropriate sentencing outcome, when invited to do so. When making submissions we consider the case’s circumstances and support a sentence that’s consistent with the principles and purposes of sentencing. This includes:

promoting accountability, responsibility and deterrence in the offender, and
providing for victims’ interests, including reparation.

If we submit reparations is an available sentence, we are acting as a prosecutor and not as an advocate for the victim or their whānau. This is distinct from our obligations under the Victims’ Rights Act 2002, which we will meet.

We may also apply for other orders, such as name suppression or regulator’s costs orders.

4.12 WorkSafe may decide to appeal

WorkSafe can appeal a:

pre-trial ruling (with leave of the court)
sentence imposed, and
ruling by the trial court (on a question of law, with leave of the court).

As a public prosecutor, we must obtain the Solicitor- General’s consent to bring an appeal. A decision to seek consent to appeal must be made by the Chief Legal Advisor.

05 Private prosecutions

We acknowledge private prosecutions are an important tool in the work health and safety system. They provide an opportunity for victims, their whānau, or other parties to take a prosecution when we do not. Our website has more information about private prosecutions. People are entitled to bring a private prosecution under HSWA in relation to an offence if:

they have given us notice of their interest in knowing about any enforcement or prosecution action taken for a particular incident, situation, or set of circumstances
neither WorkSafe nor any other regulatory agency has taken or intends to take any action, and
we have notified them of this.

A private prosecution may also be taken with leave of the Court.

06 Working with victims

We keep victims informed about our decisions in line with:

the Victims’ Rights Act
the Victims Code, and
and the Solicitor-General’s protocol Victims of Crime – Guidance for Prosecutors.

We’re also guided by our policy How we work with victims

07 Media and publicity

We will publicise the outcome of a prosecution when appropriate. The delegated operational decision maker will lead this, working with Legal and communications staff.

For further information about the approach to media and publicity during and at the conclusion of a prosecution see our Prosecutions publishing policy, and the Crown Law Media Protocol for Prosecutors(external link)

08 Decision maker summary

Decision	Decision maker
Recommend prosecution	Operational decision maker
Test for prosecution is met	Legal^[4]
Start prosecution	Operational decision maker
Agree the charges	Legal and operational decision maker
Approve the charges	Chief Legal Advisor or delegate
Withdraw or add charges	Operational decision maker
Amend charge wording	Chief Legal Advisor
Amend a charge provision	Operational decision maker
Approve amendment to charge provision	Chief Legal Advisor or delegate
Approve decision to offer or agree to plea arrangement	Chief Legal Advisor or delegate
Offer or agree to a plea arrangement	Operational decision maker
Approval to seek or agree to withdrawal of charges	Chief Legal Advisor or delegate
Seek or agree to withdrawal of charges	Operational decision maker^[4]
Decision to seek consent to appeal	Chief Legal Advisor

09 Footnotes

Footnotes

[1] Our legislation includes Health and Safety at Work Act 2015 (HSWA), Hazardous Substances and New Organisms Act 1996, Electricity Act 1992, Gas Act 1992, and associated regulations.

[2] Regulatory risk is the risk to us in failing to achieve our regulatory objectives. This is also known as ‘political risk’ because if we fail to achieve our regulatory objectives people will lose confidence in us as a regulator.

[3] Independence in this context means “freedom from undue or improper pressure from any source, political or otherwise” (Solicitor-General’s Prosecution Guidelines p.6(external link)).

[4] See policy for next steps if the operational decision maker disagrees with Legal.

JACINTA – NEW POLICY STOPS HERE

01 Background

WorkSafe was established as a Crown Entity under the WorkSafe New Zealand Act 2013. It is New Zealand’s primary health and safety regulator.

New Zealand has high rates of workplace fatalities, serious harm injuries, and work related illness compared to other OECD countries. WorkSafe will lead the achievement of the Government targets of reducing workplace fatalities and serious injuries by 25 percent in 2020; and reduce the incidence of pleural cancer (mesothelioma), asbestos related lung cancer and asbestosis by 50 percent by 2040.

The Health and Safety at Work Act (HSWA) will assist WorkSafe to achieve these targets. HSWA provides a range of enforcement tools, including prosecution, and compliance mechanisms for the use by the regulator, inspector and District Court.

1.1 WorkSafe's approach to enforcement

WorkSafe’s enforcement approach is designed so that all duty holders take their health and safety responsibilities seriously. An enforcement response should be credible and proportionate to the situation it is addressing.

Enforcement decisions may not necessarily be scalable in response (moving from a low level approach initially through to the use of stronger enforcement action later). For example: WorkSafe may make a decision that its first response is prosecuting an otherwise well performing PCBU based on the seriousness of the behaviour and severity of consequence.

02 Purpose

WorkSafe’s purpose in prosecuting is to deter non- compliance with the laws it is responsible for enforcing, and hold persons who breach those laws to account.

Prosecution action may be taken whether or not a breach has resulted in death, injury, illness or disease. By deterring non-compliance with health and safety law, prosecution encourages^[1] the sort of positive health and safety behaviour required in the workplace that is needed to ensure compliance; prevent harm; manage risks; and supports effective health and safety management.

Footnote

^[1] R v Radich [1954](external link) NZLR 86 (CA)

03 Scope

This policy describes how WorkSafe decides to initiate a prosecution following an investigation, inspection or assessment.

It applies to all WorkSafe staff involved in prosecutions within WorkSafe’s jurisdiction. The Enforcement Policy describes WorkSafe’s approach to enforcement and the range of available enforcement tools. It guides the regulator and inspectorate on the use of the appropriate enforcement tool for the circumstances. Prosecution action is one of the potential enforcement tools that may be used by WorkSafe and, where it is, must be used in accordance with this policy.

Other supporting policy documents can be found here.

04 WorkSafe's approach to prosecution

WorkSafe will prosecute in a deliberate and targeted manner

Decisions to prosecute and whether or not to continue with prosecutions will be made fairly and consistently, and proportionately to the seriousness of the behaviour. This is consistent with the principles in WorkSafe’s Intervention Approach^[4]. Prosecutions have serious implications for victims, witnesses and defendants. The New Zealand public should have confidence in the way WorkSafe conducts its prosecutions.

WorkSafe’s prosecution decisions are made in accordance with the Solicitor General’s Prosecution Guidelines^[5] (SG’s Prosecution Guidelines).This prosecution policy builds on the requirements of the SG’s Prosecution Guidelines, and establishes a structured approach for all prosecution activity conducted by WorkSafe.

WorkSafe may publish specific enforcement policies or guidelines that apply to particular sectors, industries or issues. WorkSafe may also provide detailed guidance on the making of prosecution decisions, but any such guidance must be read in conjunction with this prosecution policy.

Footnotes

^[4] WorkSafe's Intervention Approach

^[^5] Solicitor General’s Prosecution Guidelines www.crownlaw.govt.nz(external link), and including the supplementary documents Victims of Crime – Guidance for Prosecutors (1 July 2013) and Media Protocol for Prosecutors (1 July 2013).

05 WorkSafe's prosecution decision-making framework

WorkSafe will consider each case on its own merits when considering whether or not to prosecute

It must consider the following:

the factors set out in the SG’s Prosecution Guidelines
the facts of each case
the relevant legislation
WorkSafe’s Enforcement Policy and any relevant internal operational policies/guidelines.

The process that will be followed by WorkSafe when making a prosecution decision is set out below.

06 Prosecution recommendations

WorkSafe’s enquiries into health and safety matters are conducted by:

Health and safety inspectors under HSWA and regulations, and Health and Safety in Employment Act 1992 (to be repealed)
Energy safety investigators (under the Gas Act, Electricity Act and regulations).
Enforcement officers under the Hazardous Substances and New Organisms Act and regulations.

Where, following investigation, these staff consider that prosecution action is warranted, they will make a recommendation to their manager. If their manager (or Energy Safety Compliance Officer) is satisfied that evidential and enforcement criteria have been met, the recommendation will be referred to the National Manager - Investigations, or the relevant Chief Inspector (or delegate)^[6] who will decide whether or not to endorse it.

If the recommendation is endorsed by the National Manager - Investigations or Chief Inspector, the report and case file will be referred to WorkSafe’s Legal Services Group in the first instance for consideration. If the recommendation is not endorsed by the National Manager - Investigations or Chief Inspector, the file may be referred back for further work to support the recommendation.

In cases of public significance, all recommendations (ie to prosecute or not) will be reviewed by the National Manager - Investigations or the relevant Chief Inspector. Cases of public significance include where:

it involves a fatality or risk of harm to multiple people
it involves offending against a vulnerable victim(s)
the decision is contentious: perhaps perceived as contrary to a stated government policy or priority
multiple agencies are involved in the investigation which may result in disagreement
the prosecution decision is likely to be queried or challenged by a victim or their representative, union, or employer organisation
a ‘Notification of interest in knowing of enforcement action taken’ has been received
there is a high likelihood of media attention.

Footnote

^[6] Or the Manager, Energy Safety, in the case of investigations by Energy Safety staff

07 Review by prosecutor

Each prosecution recommendation will be reviewed by a prosecutor, either within WorkSafe or externally, to ensure that the ‘test for prosecution’ set out in the SG’s Prosecution Guidelines is met.

This review is an integral independent check within the process.

The test for prosecution is a two part test, made up of:

the evidential test
the public interest test.

Both parts of the test for prosecution must be met in order for a prosecution to be commenced.

7.1 The evidential test

The first stage of the test for prosecution is the evidential test. If this test is not met, then no charges may be filed, no matter how important or serious the matter may be. To meet the evidential test, the prosecutor must be satisfied that the evidence to be given in court is sufficient to provide a reasonable prospect of conviction.

A reasonable prospect of conviction will exist if in relation to an identifiable individual, there is credible evidence:

which could be given before a court
upon which a judge or jury could reasonably be expected to be satisfied beyond a reasonable doubt that the individual has committed a criminal offence.

7.2 The public interest test

If the evidential test is met, the next step is the public interest test. Not all offences for which there is sufficient evidence must be prosecuted. WorkSafe will exercise its discretion as to whether a prosecution is required in the public interest.

There are multiple factors that may be considered in determining whether prosecution is in the public interest. A non-exhaustive list of such factors is contained in the SG’s Prosecution Guidelines.
The SG’s Prosecution Guidelines also make clear that, in regulatory prosecutions, an agency’s statutory objectives and enforcement priorities will be relevant public interest considerations.

Whilst the key factors and non-compliant behaviours that would contribute towards a decision by WorkSafe to prosecute will vary, WorkSafe expects that prosecution would normally be recommended when one or more of the following circumstances apply:

where non-compliance resulted in death
the gravity of the offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it
where there has been a reckless and/or negligent disregard of health and safety requirements
where work has been carried out without an appropriate authorisation or license or in serious non-compliance with a safety case
where a duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk
where there has been adverse conduct for a prohibited health and safety reason under Part 3 of HSWA
where a provisional improvement notice (which an inspector has not been required to review) has not been complied with
where a breach of a worker participation or engagement duty is considered to have contributed to the occurrence of death or serious injury or the risk of death or serious injury
where there has been a failure to comply with a notice or direction given by an inspector or WorkSafe, especially where the risk that was subject to the notice or direction:
- still exists
- was not remedied until a significant time after the date specified in the notice or direction;
where there has been coercion or inducement in breach of s92 of HSWA
where there has been a contravention of an enforceable undertaking
where there has been an obstruction of an inspector while exercising their statutory powers
where there is offending within an identified focus areas for WorkSafe.

Where the evidential test has been met, the prosecutor will then weigh the relevant public interest factors that are applicable. The prosecutor will then determine whether or not the public interest requires prosecution.

Generally, the expectation of prosecution in these circumstances should align with decisions made using WorkSafe’s Enforcement Decision Making Model (EDM). Where they do not align, careful consideration must be given at Step 6 of the EDM process to ensure that the level, focus and overall impact of the proposed enforcement decision is appropriate.

7.3 The decision

The SG’s Prosecution Guidelines highlight the importance of independence in the prosecution decision making process. WorkSafe’s Intervention Approach principles of transparency and consistency align with this directive. WorkSafe’s Board has delegated its prosecution decision making powers to the chief executive of WorkSafe, who has in turn delegated these powers to certain staff (‘decision makers’). The WorkSafe Board will monitor the making of prosecution decisions over time.

In most cases, the decision maker will be the investigator’s manager, though in cases of public significance, the decision maker will be a chief inspector, the national manager - investigations, general manager or the chief executive (and in accordance with any internal procedures). In cases of public significance, the decision maker may convene an internal panel to discuss the prosecution decision, though the prosecution decision ultimately remains one for the decision maker.

If the prosecutor is satisfied that the test for prosecution has been met, they will document and confirm this to the decision maker who will make the ultimate decision whether to initiate prosecution.

If the prosecutor is not satisfied that the test for prosecution has been met, they will provide written advice to the decision maker that a decision of ‘no prosecution’ be made. This advice will be in a form to be determined by WorkSafe, but at a minimum should include:

an outline of the facts of the case
the evidence considered by the prosecutor
any possible issues of admissibility that have been identified
the advice on whether the evidential and public interests tests have been met
the reasons for that advice.

The decision maker’s decision will conform to the legal advice provided, but there are internal procedures for escalation where the advice is not agreed with.

A decision of ‘no prosecution’ does not preclude any further consideration of a case by the prosecutor if new and additional information becomes available, or if a review of the original decision is required.

7.4 Choice of charges

If a decision to prosecute is made, consideration will be given to the charges that are most appropriate. Sections 17-20 of the Criminal Procedure Act 2011^[7] set out the requirements on the content and choice of charges.

WorkSafe may bring charges under the legislation that it administers or other legislation, including the Crimes Act. When deciding which legislation to file a charge under, WorkSafe will consider the nature of the alleged conduct and the charge that would most appropriately reflect that conduct.

Some offences, due to their seriousness, require the consent of the Attorney-General before a charge can be filed. Where these charges are contemplated by WorkSafe, such consent will always be obtained prior to the filing of charges.

Where any charge is to be filed, the content of the charge must first be approved by WorkSafe’s Chief Legal Advisor or delegate.

Footnote

^[7]Criminal Procedure Act 2011(external link)

7.5 Ongoing review of charges

After filing charges, prosecutors are responsible for periodically reviewing them to determine whether they should continue to be prosecuted, or whether any charges:

should be amended
should be added
should be withdrawn (if, for example, they are no longer supported by the evidence, or are not considered necessary in the public interest).

7.6 Disclosure

Disclosure in prosecutions is governed by the Criminal Disclosure Act 2008.^[8]Under the Criminal Disclosure Act, a ‘prosecutor’ is the person in charge of a file or files relating to a criminal prosecution. The prosecutor is responsible for disclosure and ensuring that it occurs within statutory timeframes.

Footnote:

^[8] Criminal Disclosure Act 2008(external link)

7.7 Plea discussions and arrangements

The SG’s Prosecution Guidelines recognise that principled plea discussions and arrangements have a significant value for the administration of the criminal justice system. These discussions may be initiated by the prosecutor or defence counsel.

All decisions to offer or agree to a plea arrangement must first be approved by the chief legal advisor or delegate. The decision to offer or agree to the arrangement, if approved, will be made by the decision maker.

7.8 Withdrawal and dismissal of charges

A prosecutor may withdraw a charge before trial with the leave of the court. The court may dismiss a charge at any time before or during a trial, but prior to the defendant being found guilty or entering a plea of guilty.

A dismissal is deemed to be an acquittal and therefore precludes subsequent proceedings. Given the significance of this course of action, any decision to seek or consent to a dismissal will be made at chief inspector and national manager - investigations level or above, and must:

be made only if the test for prosecution is no longer met
first be approved by WorkSafe’s Chief Legal Advisor.

7.9 Sentencing options

Where a prosecution results in a finding of guilt, a range of sentencing options are available to the court. WorkSafe will seek sentencing options that take into account the circumstances of each case, are proportionate to the offending, consistent with precedent and aimed at reducing reoffending.

Where appropriate, WorkSafe may also apply for other orders (eg restoration orders, reparation orders, cost orders).

WorkSafe will, consistent with the provisions of the Sentencing Act 2002, seek sentences of reparation and will request such information as may be necessary to assist the Court in quantifying reparation. In seeking reparation, WorkSafe is fulfilling its role as a prosecutor and is not acting as an advocate for the victim(s). Where the victim(s) or their representatives wish to volunteer information to assist the Court in determining reparation, WorkSafe will receive this, consider it and, where relevant, provide it to the Court.

Should a victim(s) seek the Court’s permission to be separately represented at sentencing, this will not be opposed by WorkSafe.

7.10 Appeals

WorkSafe may appeal the following decisions of a court:

A pre-trial ruling (with leave of the court).
A sentence imposed.
A ruling by the trial court (on a question of law, with leave of the court).

In accordance with section 246 of the Criminal Procedure Act 2011, WorkSafe must obtain the leave of the Solicitor-General to appeal against a sentence imposed. Before seeking leave from the Solicitor-General, WorkSafe will first review the matter and obtain legal advice as to whether an appeal is warranted.

Any decision by WorkSafe to appeal must be made only by either the relevant general manager, or chief executive, on advice from the Chief Legal Advisor.

7.11 Other agencies

It is not uncommon that more than one agency may investigate a particular matter, in circumstances where prosecution by any one of those agencies could result. Depending on the circumstances, this may result in one of those agencies being designated a ‘lead agency’ for the purposes of the investigation.

WorkSafe will work collaboratively with those other agencies to ensure that investigations are carried out in the most expedient and robust manner.

7.12 Victims and witnesses

WorkSafe will ensure that victims of crime are treated at all times with courtesy and compassion and with respect for their dignity and privacy. The inspector will be the primary point of contact with victims and will 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. WorkSafe will comply with the Crown Law protocol Victims of Crime – Guidance for Prosecutors^[9], and the Victims’ Rights Act 2002.^[10] Upon request by or on behalf of a victim, WorkSafe will seek the Court’s permission for Victim Impact Statements (or parts of) to be read to the Court.

Where there is a victim of offending, the Court is obliged to consider whether restorative justice (RJ) is appropriate as a part of the sentencing process. The RJ process involves the victim and the offender coming face to face at a meeting (called a restorative justice conference) which allows the victim to express how the offending has affected them, and allows all the people present to acknowledge the harm that has been caused. Participation in the RJ process is voluntary. Prior to sentencing, the inspector will contact the victim(s) to discuss whether they wish to participate in such a process.

WorkSafe employees who act as expert witnesses in any prosecution must comply with the required standards of conduct applicable to expert witnesses, including the Code of Conduct for Expert Witnesses.^[11]

Footnotes:

^[9] Victims of Crime – Guidance for Prosecutors(external link)

^[10] Victims’ Rights Act 2002(external link)

^[11] Code of Conduct for Expert Witnesses, Schedule 4, High Court Rules 2016(external link)

7.13 Private prosecutions

There is provision under both the Health and Safety in Employment Act 1992 and Health and Safety at Work Act 2015 for private prosecutions. Whilst the provisions of these Acts differ, generally a private prosecution may be brought where:

a person has given notice to WorkSafe of their interest in knowing of any enforcement action or prosecution action taken in respect of a particular incident, situation or set of circumstances
that person is notified that neither WorkSafe nor a regulatory agency (eg the Police) has taken or intends to take enforcement action in respect of that incident, situation or set of circumstances.

Outside of these circumstances, a private prosecution may be brought with leave of the Court.

7.14 Use of external prosecutors

Prosecutions for WorkSafe are undertaken using a mix of in-house and external prosecutors. Some prosecutions must be undertaken by Crown prosecutors and are set out in the Crown Prosecution Regulations 2013 made under the Criminal Procedure Act 2011.

For all other prosecutions, the decision whether to use an internal or external prosecutor is made by WorkSafe, but the table below sets out some situations in which an external prosecutor may be instructed to lead or support a prosecution.

Reason	Example
To support WorkSafe’s capacity to provide services	Where there are insufficient staff within a particular district or area of regulation to meet needs
Complex legal issues	Likely to require complex advocacy with national implications
High profile	Case is high profile with considerable media interest. This may be because of the defendant’s identity, international aspects, or circumstances surrounding the case or the victims’ identity.
Independence from WorkSafe required	When the case calls for independent advice or advocacy – for example when there is a perceived or actual conflict of interest.

7.15 Media and publicity

Publishing the nature and outcome of enforcement actions draws attention to the consequences of violating the law. It is a valuable tool for both educating duty holders and deterring non- compliance.

WorkSafe will publish and use information and enforcement data in accordance with its Publishing Policy^[12] to maximise the outcome of its assessment, inspection, investigation and enforcement activity.

WorkSafe may:

Publish information as to the nature and outcome of prosecutions and where appropriate, other enforcement measures to support specific and general deterrence.
Inform duty holders in the same or similar industries of the nature and outcome of prosecutions (and, where appropriate, other enforcement measures) and provide advice as to how to prevent similar breaches.
Use information resulting from assessments, inspections, investigations and enforcement, to inform its targeting.

In communicating with the public through the media in relation to a prosecution, WorkSafe staff will act in accordance with the Crown Law Media Protocol for Prosecutors^[13], and will act in a way:

that does not prejudice the right to a fair trial
that supports the administration of justice and the integrity of the criminal justice system
that respects the principle of open justice
that treats victims of crime with courtesy and compassion, and respects their privacy.

WorkSafe will publicise the outcome of a prosecution where it considers it appropriate. This will be managed by the National Manager - Investigations, or relevant Chief Inspector, together with the communications and legal teams.

Footnotes:

^[12] WorkSafe's Publishing Policy

^[13] Crown Law Media Protocol for Prosecutors www.crownlaw.govt.nz(external link)