A number of private prosecutions under the Health and Safety in Employment Act 1992 (HSEA) have been signalled in recent months. Having recently been counsel in a HSEA private prosecution,1
Tim Mackenzie outlines the issues that practitioners considering an HSEA prosecution should take into account.
Registering an interest
Any party interested in a potential prosecution must first formally notify Worksafe New Zealand (Worksafe) of an interest in any enforcement action being taken.2
Worksafe must then advise the interested party of any decisions taken including a decision not to prosecute.
If Worksafe declines to prosecute it is sensible for your client to consider their reasons and give weight to them.
Extension of time
If Worksafe has declined to take a prosecution, and no other enforcement agency is going to, then a HSEA private prosecution charging document can in theory be filed.
However, the six month timeframe to lay a charge will often have expired at this stage. The HSEA therefore allows that within one month of receiving notification from Worksafe that no enforcement action will be taken, a party can apply for an extension of time to file a charge.3
This is an application made in the civil District Court. The Court must be satisfied that it was unreasonable, having regard to the time taken by Worksafe to respond to the incident, to expect the party to decide whether to bring a prosecution before the six month prosecution period expired.4
In practice, the test would usually be met in circumstances where Worksafe investigated through the six months and then declined to prosecute. If Worksafe did not investigate and had communicated that position from the outset, permission may be harder to obtain.5
However a good reason to explain delay, as occurred in the extension application in Creeggan,6
might be the injuries of the prospective prosecutor.
If your client (whom I will now refer to as "the prosecutor") wishes and is able to proceed, the next step is to consider whether two tests are met (although in practice it would be wise to consider these from the outset).
The first is the "Test for Prosecution" found in the Solicitor General’s Prosecution Guidelines (the "Guidelines").7
Whilst the Guidelines were intended for public prosecutions they will still be applied by the Solicitor-General to private prosecutions in any stay application.8
The Test for Prosecution is divided into two questions:
Is the evidence which can be adduced in Court sufficient to provide a reasonable prospect of conviction? (the Evidential test); and
Is the prosecution required in the public interest? (the Public Interest test).
The Public Interest test will most often be met in the case of a serious injury or worse. However, particularly in higher profile incidents, a practitioner should bear in mind that there is a difference between a public interest and an interested public.
Meeting the evidential test is likely to be where the real focus and work falls. To a large extent this will depend on what investigation has been undertaken already by Worksafe and what material the prosecutor has the benefit of (discussed further below).
The second test is found in the Criminal Procedure Act 2011 (the CPA).9
When a private prosecution charging document is laid in a District Court registry, invariably the Registrar will place the charge before a presiding Judge for consideration. The Judge will usually direct the filing of formal statements and exhibits at that stage and will consider:
Is the evidence proposed sufficient to justify a trial?; or
Is the proposed prosecution an abuse of process?
To meet that test, the evidence will need to show there is a case to answer so that, if all of the evidence provided was accepted by the Judge, the charge could in theory be proven. Essentially this is a very early application of the discharge principles at s 147 of the CPA.
Whilst the tests contained in the Guidelines and CPA might call for the same considerations to be applied, there are significant differences. The Guidelines involve consideration of whatever state your file might be in or could be in. The CPA however requires that your evidence be briefed and your exhibits ready from the outset, as if the trial were tomorrow. Further, the CPA assessment will be undertaken by a Judge and one should not assume that the Judge will agree with your assessment.
Aside from the CPA test, there are two more good reasons for early preparation and briefing. First, you will need to be ready for any discharge applications a defendant might bring, particularly if they sense a vulnerability in the prosecution case.
The second reason is the costs test found in the Costs in Criminal Cases Act 1967 (the "Costs Act"). An ill prepared prosecution may result in significant costs orders being made – lack of evidence at commencement is a specific consideration in the Costs Act. 
The obvious practical difficulty a prosecutor faces is that to meet these various considerations, the prosecutor will need to have gathered similar evidence (or more) than Worksafe had gathered.11
But whilst Worksafe has statutory powers to investigate, the layman does not.
However, evidence (i.e. an investigation file, hopefully full of admissible statements and exhibits) may be able to be obtained from Worksafe utilising the Official Information Act 1982 (OIA). The potential prosecutor will at this stage already have formally notified Worksafe of an interest. Further, an extension of time may have been sought. Between both of those commitments, any OIA request may be looked upon favourably by Worksafe.
If Worksafe have not investigated however the prosecutor will face the tough task of commissioning their own investigation.
A criminal proceeding
Once evidence is to hand the prosecutor can consider whether the Guidelines and CPA tests are met and, if not, what needs to be done to investigate and gather further evidence. Tests being met, the charging document can be drafted and filed.12
If your CPA assessment is correct, a Judge will determine that it can be accepted for filing.
You are now underway. It is outside the ambit of this paper to work through an entire criminal proceeding however there are two further statutory considerations which you will need to discharge. First, the prosecutor and you as counsel will have immediately incurred the obligations of the Criminal Disclosure Act 2008. All of those requests you have made in the past for disclosure are now going to be made to you (!). Immediate and continuing disclosure requirements need to be complied with.
Secondly, the Victims Rights Act 2000 (VRA) will apply to the proceeding. Most practitioners will be familiar with victim impact statements. Counsel will discover however that your duties under the VRA have commenced much earlier than the actual laying of the charge.13
Counsel should also note the wide definition of victim in the VRA 14
and the discretion that vests in you to propose that others be treated as victims. 15
You are also not likely to have any intermediary to liaise with victims and so you will need to engage from the outset to discharge that duty.
Finally you will need to consider the Prosecution Duties contained in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules) 2008.16
Whilst Counsel will need to operate consistently with those duties, particularly careful dealings will be required to balance the nuances of private client instructions with your overriding prosecution duty of objective detachment. A client may have unrealistic expectations and counsel should be at pains to advise their client from the outset that your obligations may have to trump some instructions.
Private prosecutions were introduced to the HSEA in 2003.17
Reporting prior to that amendment, the Transport and Industrial Relations Select Committee stated:
"There are a number of reasons for removing the Crown’s monopoly on prosecutions. These include enhancing the deterrent effect of enabling a greater range of persons to enforce the Act; providing an alternative means of seeking justice for aggrieved parties where a case is not prosecuted by OSH; and providing a safeguard against potential inertia, incompetence or biased reasoning."
Concern had been expressed to the Select Committee that the right to prosecute might be used by trade unions as an industrial weapon. The Select Committee noted that private prosecutions could be taken only if the Department of Labour elected not to act:
"The Department of Labour advises that the safeguards surrounding private prosecution are robust and protect against inappropriate private litigation. Meanwhile, the provisions of the Sentencing Act reduce incentives to take private prosecutions for financial gain because victims can no longer be awarded part of a fine. ”
It is apparent that the concerns of employers have not been borne out. I am only aware of two successful HSEA private prosecutions since the amendment.18
This is probably a reflection on both the difficulty involved but also of the amount of cases taken up by Worksafe.
Where a private prosecution is warranted however it is a relevant mechanism to achieve a sense of justice where otherwise there may have been none. Reflecting on the private prosecution amendment, the Court in Creeggan stated:19
"You are proof that one person can make a difference. By dint of your tenacity and resolve, you have managed to create a silver lining from an unimaginable tragedy that has seared itself into the nation's psyche. You have demonstrated what the amendment legislation permitting private prosecutions set out to achieve."
1Creeggan v New Zealand Defence Force DC Wellington CRI 2014-085-007231, 18 July 2014. I must also pay credit where it is due to Charles McGuiness of Cullen Law, who began the proceedings and provided invaluable assistance throughout.
2Section 54 HSEA
3Section 54C HSEA
4Section 54C(4)(b) HSEA
5See the unsuccessful application for an extension of time in McVicar v Department of Corrections  DCR 479.
6Creeggan v New Zealand Defence Force DC Wellington CIV-2012-085-543, 22 October 2013.
8At 2.5 of the Guidelines.
9At s 26.
10Section 5(2)(b) Costs Act.
11References to Worksafe may also include other potential investigating agencies e.g. Police, Maritime New Zealand, Civil Aviation Authority.
12A precedent charging document is available at www.justice.govt.nz.
13Section 12 VRA.
14Section 4 VRA
15Section 20 VRA
17Health and Safety in Employment Amendment Act 2002.
18Creeggan being the second case, the first case being New Zealand Meat Workers Union v South Pacific Meats Limited  DCR 877 (DC).