Double trouble? The risk of private prosecutions

BY CHRIS RYAN

Private prosecutions are a rare feature of New Zealand’s criminal justice system. Private prosecutions are prosecutions started by private individuals, rather than the police or other prosecuting authorities. However, a Court decision in March 2016 has the potential to support an increased number of private prosecutions. The Court of Appeal upheld Tamsin Trainor’s private prosecution against Neihana Rangitonga. The Crown had originally charged Rangitonga with rape and wounding with intent after he had attacked Trainor in a park in 2010. During the trial the Crown dropped the wounding charge so the jury could focus on the rape charge. However, the jury then acquitted Rangitonga on the rape charge. Trainor commenced private proceedings on the wounding with intent charge. Ultimately Trainor’s private prosecution was successful and Rangitonga pled guilty to wounding with intent.

However, the case raises some significant questions about the role of private prosecutions in the role of our criminal justice system.

One of the reasons why private prosecutions might not be desirable is because they increase the risk of double jeopardy occurring. The principle of double jeopardy prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction. Two sections of the Criminal Procedure Act 2011 relate to private prosecutions and both seek to prevent instances of double jeopardy:

The law seeks to prevent double jeopardy because it is desirable that the outcome of a properly conducted trial should provide finality to the accused. Ongoing re-litigation of the same facts could result in conflicting judicial decisions, eroding confidence in the justice system. For example, in this case, Rangitonga had been told that wounding with intent charges were withdrawn. It seems unfair for those charges to then be laid again given the facts were the same. The very nature of private prosecutions challenges the premise that the trial should be determinative.

While s 26 of the Criminal Procedure Act 2011 does provide a barrier to vexatious litigants, private prosecutions nevertheless raise issues associated with the ability to access justice irrespective of a party’s financial resources. For example, it would be unfair if a defendant who had already had the burden of defending themselves from a state prosecution was then also required to defend themselves against private prosecutions. Therefore, if private prosecutions has a greater role in the criminal justice system it would disadvantage defendants who had fewer financial resources and those defendants may be more likely to be found ‘guilty’ just because they are unable to fund a defence.

It would be unfair if a defendant who had already had the burden of defending themselves from a state prosecution was then also required to defend themselves against private prosecutions.

Private prosecutions also raise questions about access to justice from the perspective of the parties who might want to bring them. Given the immense cost of a private prosecution, Trainor’s case relied  on pro-bono support, which might not be available to other litigants whose cases are equally deserving. If Trainor’s private prosecution were necessary to attain justice then it is concerning that she was reliant on self-funding.

Private prosecutions might have a role in the criminal justice system because they might help victims to feel as if there has been justice. For example, Trainor likely felt that pursuing a private prosecution would help achieve justice for her. At Rangitonga’s sentencing Trainor said being able to pursue a private prosecution helped her have her voice heard. This suggests that private prosecutions might be important for the victims of crime. Similarly, the judge noted that the private prosecution helped to ensure that Rangitonga had to answer for his actions. It is important that victims of crime feel that there has been justice because that ensures their faith in the justice system. More broadly, private prosecutions can help wider community trust in the justice system because they see that as individuals their voices will be heard and that cases don’t ‘fall though the cracks’.

While private prosecutions are useful in certain situations, they also have some serious limitations including the risk of double jeopardy and the lack of universal access to this process. Despite this, private prosecutions likely have a role in the justice system because they allow litigants who feel as if justice has not been done to pursue justice, as Tasmin Trainor did. To limit the harms resulting from private prosecutions, the process is most useful if it plays a relatively rare role in the justice system. As such, judges should be reluctant to apply the precedent generated by the Trainor case.

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