Is criminal prosecution up to the police/state or can an individual push it?

Question

What can an individual do to get someone prosecuted (apart from reporting the matter to the police and giving testimony)? What if the police is reluctant to give traction?

If this question is too general, let's scope it down to intentional damage to property in New Zealand (up to 7 years, S269(2)(a) Crimes Act 1961) and/or reckless ill-treatment of animals (up to 3 years, S28A Animal Welfare Act 1999).

Important thing to note that the individual wishing to prosecute is not the owner of the damaged property, therefore civil claim probably cannot work here.

Use-case scenario

1. There is a domestic animal owned by A, living on B's property and wandering in the neighbourhood;
2. B loves/feeds the animal, so does his neighbour C and many other neighbours except for D;
3. One day the animal enjoys sunshine at D's property which is a huge empty paddock — quite far away from D's house but very close to B's and C's;
4. D arrives in his car bringing over his hunting dog to where the animal is;
5. The dog starts pursuing the animal (still on D's property) and, just as the animal runs on the street, kills it there;
6. D leaves the animal dead, gets his dog back in the car and drives away;
7. B and C, frustrated by what happened and grieving for the animal, want to prosecute D. The actual owner (A) does not care.

Answer 1

Private prosecution is allowed in New Zealand, so one possibility would be to conduct the prosecution yourself. You could either do that as a case of destruction of property, or under the Animal Welfare Act. It is not guaranteed that your charging document will be accepted (for example, if your document lacks the required content). An alternative would be to apply political pressure to the Crown Law Office, to persuade them to pursue the matter.

Answer 2

As @user6726 said, in New Zealand, in theory, anyone can bring a private prosecution.

Criminal Procedure Act 2011, section 26 states:

If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a) accept the charging document for filing; or
(b) refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2) The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3) A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
(a)    the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)   the proposed prosecution is otherwise an abuse of process.

(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a) notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b)retain a copy of the proposed charging document.

(5) Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.

Unfortunately, bringing a private prosecution is not easy and could become costly. Pressuring the police to investigate may be the most practical course of action, although not likely to proceed. I can vouch that courts do not like non-qualified people bringing private prosecutions (they can't easily stop it, but can make life difficult and expensive)

I suspect you would have difficulty winning an action bought under 269(2)(a) because that person has a "claim of right" as this started on his land. I wonder if 269(3) might give you a slightly better chance of prevailing - although again, I suspect you might have difficulty proving intent.

Note that the kind of animal, and the date this happened may also be relevant to an action taken by (b) or (c), and you may want to mention it. (Some birds are protected, others sometimes, others not at all for example) for thoughts on how to proceed.

You might want to get in touch with NZALA - They have an interesting article here. The unfortunate upshot is that its unlikely you can do much (as its unlikely that this was a companion animal)

Answer 3

In the Czech republic (european continental law system, close to German or Austrian), it was long believed, that there is no enforceable "right" of the victim for criminal prosecution of the perpetrator. Criminal law, it was long believed, is a relationship solely between the state and the perpetrator. Victims have substantial rights in the criminal process IF IT COMMENCES. But the decision was on the prosecutor. There was no legal remedy against non-prosecuting (you could file a complaint to the superior prosecuting office, but not to court).

Until recently. In its recent case-law, the court keeps the opinion, that there is no "right to criminal prosecution," but in some cases, namely in cases where human rights are breached, the state has a positive obligation to protect them. This includes obligation of the state to investigate and prosecute a crime.

The point is, there is no "right to prosecute" certain person, but there is a right to be protected against human right breaches. If the most effective form of protection is criminal prosecution, then, there is an enforceable right to criminal prosecution.

This is currently the opinion of the European Court of Human Rights (whose case-law was heavily cited in those decisions), so this principle should be valid in the whole Europe.

Here you can find the summary and citations of ECHR cases on right to effective investigation: https://academic.oup.com/ejil/article/21/3/701/508624

Answer 4

In most countries, crimes fall in two categories: On one hand, crimes that will be prosecuted if the police finds out about them, without the victim having to do something about it, sometimes even against the wishes of the victim. On the other hand, crimes that will only be prosecuted if the victim complains about them.