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:

  1. 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
  2. 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
  3. 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
  4. A Judicial Review of the refusal to take the new evidence in account and review ruling R?; OR
  5. Something else?
  • The law and legal process often don't make sense to those not experienced with them (and sometimes even those who are). You already say yourself that neither 1 nor 3 are options provided by the law. – Nij Oct 19 '18 at 2:29

You would apply again.

The court has not accepted the filing, it has not issued a judgement of any kind. Since no filing has been made, no filing has been made i.e. the process never commenced.

  • The court has issued a 10-page document called "Ruling of Judge *** ***" explaining why the charges are not accepted based on the old evidence (which itself looks like a devious attempt to stall the prosecution but that's a separate topic). Moreover, when questioned if new (even though the same) charges should be applied for, the court replied that "I have rights of appeal" (which is not true as, as you have pointed, the criminal proceeding has not technically commenced so there's nothing to appeal against). It's probably worth trying to just file the charges again, indeed! – Greendrake Oct 31 '18 at 6:05
  • A "ruling" is not a judgement – Dale M Nov 1 '18 at 0:50

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