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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.
  • What is the replacement cost of the domestic animal owned by A? Are we talking about a cat here? Most cats (unless they're a special breed) are not expensive at all. – Stephan Branczyk Aug 19 '18 at 9:44
  • @StephanBranczyk I don't think the cost is relevant here. There was a crime, and the question is how to prosecute for it, not how to recover damages. – Greendrake Aug 19 '18 at 9:52
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    It's not something that I personally agree with either, but nevertheless, the replacement cost of the animal is usually extremely relevant when seeing the crime as a property crime. If you don't want to go down that path, I'd suggest that you look at the issue as an animal cruelty issue, or if this behavior is part of a larger pattern of harassment against his neighbors, then perhaps, that behavior could be reframed as part of a harassment campaign. Otherwise, pursuing the crime as a property crime probably won't give you the kind of justice that you're looking for. – Stephan Branczyk Aug 19 '18 at 17:02
  • @StephanBranczyk but if the replacement cost is that relevant, why would property damage be a crime in the first place? I thought it was exactly because destructing property is an evil and shameful action against society on its own — on top of the actual cost to the property owner. – Greendrake Aug 19 '18 at 21:25
  • Property crime is a crime, not just a question of civil restitution, because many times, vandals/thieves never get caught/convicted. In any case, like I said, I do not agree with the idea that pets are just property. So do not expect me to justify our current state of laws. If you ask me, I think that that those laws are outdated. – Stephan Branczyk Aug 19 '18 at 21:41
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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.

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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)

  • What "claim of right"? Are people allowed to kill somebody else's domestic animals that happened to walk on their land? Nevertheless I agree with @user6726 that the best chances are probably under Section 28 of the Animal Welfare Act 1999. – Greendrake Aug 20 '18 at 10:16
  • @greendrake - I don't like my answer either (As it happens I live on a lifestyle block and have had attachments to other peoples animals), but Section 28 of Animal Welfare Act is unlikely to work as you would need to show "Will fill mistreatment", which I expect would be difficult here. Claim of right means he has a claim he is right, not that he actually is - and this started on his property. Indeed he could argue he was protecting his property. – davidgo Aug 20 '18 at 10:22
  • Please don't use codeblock for content which is not actual code. Quoteblock should be used for direct quoted material. – Nij Aug 20 '18 at 19:59
  • @davidgo If wilful ill-treatment can't be proven then Section 28A (Reckless ill-treatment) would probably work I guess? Up to 3 years in prison. – Greendrake Aug 20 '18 at 23:32
  • @greendrake - I doubt it - The Interpretation section defines ill-treat as "in relation to an animal, means causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary". In a criminal action you would have a fairly high bar to prove the suffering caused was unreasonable (or unneccessary) - but really, until we know what animal this was we can't provide meaningful advice. – davidgo Aug 21 '18 at 2:47
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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

  • The question is specifically about one country which is definitely not in Europe. – Nij Aug 20 '18 at 20:00
  • Nevertheless, the court used human rights arguments, that should be universal. – MikiRaven Aug 21 '18 at 18:17
  • Except human rights law is not universal, so this still isn't answering the question as asked. – Nij Aug 21 '18 at 18:46
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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.

  • The question is about a specific country and a specific situation, this doesn't answer it at all. – Nij Aug 20 '18 at 20:00

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