Chapter 3
The existing court process for sexual violence cases

Initial record of complaint and filing of charges

3.9Police are responsible for receiving and investigating allegations of criminality and for gathering evidence relating to those allegations. If Police receive an allegation of sexual violence, they will, as in other cases of alleged criminal offending, investigate before deciding what action should be taken.

3.10Police investigations into allegations of sexual violence may be undertaken by specialist investigators or general duty staff and are conducted in accordance with the Adult Sexual Assault Investigation Policy and Procedures (the “ASAI Guidelines”).135 Police will speak with the person who has made the complaint (the complainant) and with any witnesses. Given that sexual violence often occurs in private, there are seldom witnesses to the alleged offending other than the complainant.
3.11A Police officer trained in cognitive behavioural interviewing will conduct an interview with the complainant, at the time the complaint is made. The interview is video-recorded, and in order for it to be played at trial, the recording must be in accordance with regulations that govern the video-recording of evidence.136 These videos are sometimes played at trial as the complainant’s evidence in chief, as discussed below.
3.12If the investigation discloses evidence to support a prosecution, Police exercise the initial discretion to file criminal charges. The exercise of discretion is governed by the ASAI Guidelines and by the Solicitor-General’s Prosecution Guidelines (that apply to all criminal prosecutions).137 The Solicitor-General’s Prosecution Guidelines require there to be sufficient evidence to provide a reasonable prospect of conviction and, in addition, that prosecution would be required in the public interest.138

Filing of charge

3.13Criminal proceedings commence once a charging document is filed.139 In the vast majority of cases, the charging document is filed by Police with the assistance of the Police Prosecution Service (PPS). The PPS sits within Police but is administratively separate from the investigation and uniform branches.
3.14At this initial stage, the PPS has responsibility for prosecuting criminal proceedings. However, responsibility for the majority of sexual violence cases will subsequently be transferred to a Crown prosecutor, because of the seriousness of the offences in question (see “Transfer of the case to Crown prosecutor” below).140
135New Zealand Police Adult sexual assault investigation (ASAI) policy and procedures (2013).
136Evidence Regulations 2007, pt 1.
137Crown Law Solicitor-General’s Prosecution Guidelines (1 July 2013).
138At 6.
139Criminal Procedure Act 2011, s 14.
140Crown prosecutors must assume responsibility for prosecuting all Crown prosecutions, the definition of which is set out in the Crown Prosecution Regulations 2013, reg 4. All but the most minor sexual offences are included in this definition.