Contents

Chapter 7
Standard of proof

Submissions

7.3Submitters generally supported the need for consistency across pecuniary penalty statutes. However, views differed on what the standard of proof should be.

7.4The majority of submitters favoured retention of the civil standard.118 Some of these expressly argued against the introduction of an intermediate or criminal standard of proof.119 One submitter thought it was worth exploring the option of an intermediate standard as is currently employed in some United States statutes, such as a requirement to have “clear and convincing” evidence of a contravention.120

7.5In contrast, the Law Society and one individual submitted that statutes should provide that no pecuniary penalty may be imposed unless the elements of the breach have been established beyond reasonable doubt. The Institute of Directors thought that pecuniary penalties with an element of intent or knowledge, or those carrying large penalties, should require proof beyond reasonable doubt.

118Financial Markets Authority, Donald Mathieson QC, Parliamentary Counsel Office (Commercial Team), Ministry for Primary Industries, Meredith Connell, New Zealand Bar Association, Commerce Commission, Federated Farmers and Air New Zealand.
119See in particular, submissions of Ministry for Primary Industries and Meredith Connell.
120Bell Gully.