Posted by DeAnne Brabant on July 18 2023 in News

A private prosecution can be taken under s.144 of HSWA when:

  1. the regulator cannot or chooses not to prosecute a work health and safety incident or breach. In addition, if no investigation is initiated, then private prosecution is still open;
  2. the coroner completes and signs a certificate of findings and indicates a health and safety breach.

Successful private prosecutions

The most common charges filed are under s.36(1) or (2) of HSWA. Examples of private prosecutions that were successful are:

  • New Zealand Meat Workers Union v South Pacific Meats Limited [2012] DCR 877
  • Creeggan v New Zealand Defence Force [2014] DCR 244
  • Kelly v Puketi Logging Ltd [2015] NZDC 15206;
  • Kelly v M&A Cross Ltd, DC Rotorua CRI-2014-063-000784, 21 May 2014 ; 
  • Casey v The University of Otago [2015] NZDC 17543.

WorkSafe’s view on private prosecutions

WorkSafe’s website states: “We value private prosecutions as an important tool in the work health and safety system. They provide an opportunity for victims, their families or other parties to take a prosecution when WorkSafe does not.”

Who can bring a private prosecution?

Anyone can bring a private prosecution. Firstly, you are required to register your interest through the WorkSafe website. From there, WorkSafe will notify you if they, or any other regulatory body, are not taking action. You must receive this notification to bring a private prosecution.

Once you have received notification that no action is being taken, you must apply for leave to the District Court to file charges.

When do you have to file charges by?

Charges must be filed within the following timeframes:

  • Two years after the date on which the incident, situation or set of circumstances to which the offence relates first became known to WorkSafe or ought reasonably to have become known to WorkSafe.
  • Six months after the date on which a Coroner completes and signs a Certificate of Findings if it appears from the Certificate of Findings – or the proceeding of an inquiry – that an offence has been committed under the Act.
  • Three months after the expiry date of an extension granted to WorkSafe to make a decision to prosecute.
  • If an enforceable undertaking has been given in relation to the offence, six months after either:
    • the enforceable undertaking was contravened, or it comes to WorkSafe’s notice that the enforceable undertaking has been contravened or;
    • WorkSafe has agreed to withdraw the enforceable undertaking under section 128 of the Act.

How do you get information regarding WorkSafe’s investigation or evidence that was obtained?

Requests can be made under the Official Information Act. In addition, Inspectors can be summonsed to give evidence in a prosecution. WorkSafe’s policy is clear that Inspectors will be available before and during a trial.

How must prosecutions be conducted?

Private Prosecutions must be commenced and conducted in accordance with the Criminal Procedure Act and Rules, Evidence Act, and the Criminal Disclosure Act. For the charges to be successful, they must be proven beyond reasonable doubt.

Reasons for taking a private prosecution

The majority of private prosecutions are motivated by the need for denunciation and deterrence and to bring about changes in health and safety behaviour in the PCBU. 

In the Otago University case, the victim had fallen in an area where multiple persons had slipped over previously and suffered significant injury. Otago University had failed to address the issues relating to the slippery concrete. So the victim initiated her own prosecution and was successful and at sentencing was awarded reparation. The declaration of the practicable steps available at sentencing, based on the Summary of Facts, formed a checklist for compliance for Otago University.

However, given that reparation is payable to victims (which includes the family of a deceased person) there are strong reasons, providing there is evidential sufficiency, for a private prosecution to be taken.

If you are thinking of taking a private prosecution, please contact DeAnne Brabant. She will be able to assist and provide advice regarding the merits of your case.

DeAnne Brabant | Special Counsel |

This paper gives a general overview of the topics covered and is not intended to be relied upon as legal advice.