Say a District Court in New Zealand considers a proposed private prosecution and makes a ruling R that it will not go ahead because of insufficient evidence under s26(3)(a) of the Criminal Procedure Act 2011.
In the meantime, a new witness comes forward with a very strong evidence. In fact, ruling R is based on the lack of this particular evidence that the new witness now provides.
What would be the right way to get the court (or the next level court) to give the prosecution a go, i.e. accept the charging document for filing and issue summons to the defendant? Does it need to be:
- An application to the first level court to review ruling R based on the new evidence? This seems to be the most sensible, but it does not seem to be provided by the Criminal Procedure Act 2011 (UPDATE: this has now been rejected by the court which said that ruling R stands as the new evidence was not available when the charges were proposed); OR
- A new charging document, even though exactly the same as attempted before but now accompanied by the new evidence? Seems perfectly possible, though rather nonsensical as the charges, evidence and exhibits are all the same but plus just one witness; OR
- An appeal to the next level court against ruling R? But this kind of pre-trial decision is not on the list of ones allowed to appeal against. Also, this option would only seem to be suitable if R was seen incorrect in isolation — without the new evidence; OR
- A Judicial Review of the refusal to take the new evidence in account and review ruling R?; OR
- Something else?