2. Decision to prosecute – considerations

2.1 Introduction

The decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken to consider the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, tends to undermine the confidence of the community in the criminal justice system.

In deciding whether or not a matter should be prosecuted any views put forward by Tasmania Police or other investigating agencies are carefully taken into account. Ultimately, however, the decision is to be made having regard to the following:

1. Is there sufficient evidence to justify a prosecution?
2. Is the prosecution in the public interest

2.2 Sufficiency of evidence

The initial consideration in the exercise of the discretion to prosecute is whether the evidence is sufficient to justify the institution or continuation of a prosecution (s310(4) of the Criminal Code). A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by an identifiable person. That is, that there is a reasonable prospect of conviction on the available and admissible evidence. This test requires, quite obviously, the assumption that the prosecution will be conducted before a reasonable jury not subject to any bias or undue influence and one which is properly directed to assess the issue of guilt.

In Tasmania almost all charges involving indictable crime (those crimes dealt with in the Supreme Court) are laid by police officers on complaint in the Magistrates Court who undertake the investigation and gather the evidence relevant to the prosecution. These officers are trained investigators; they are not qualified lawyers and do not undertake a formal course of training in the prosecution of indictable matters in the Supreme Court of this State. Police prosecutions are commenced on obtaining a prima facie case but, as these guidelines indicate, a mere prima facie case is an insufficient level of proof for the Office to be satisfied that an indictment should be filed.

In addition, the case presented to the Office for prosecution after a preliminary proceeding has been conducted will often have undergone an evidentiary change due to the effect of cross-examination upon witnesses, the addition of forensic evidence (some of which may not be available at the time of charging) and the response to any request from the Office for additional evidence or investigation.

Given the existence of a prima facie case, it must be understood that a prosecution should not proceed if there is no reasonable prospect of a conviction being secured before a hypothetical reasonable jury properly instructed (i.e. an impartial jury) or a magistrate in the case of summary offences.

This decision requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence.

The prosecutor should also have regard to any lines of defence which are plainly open to, or have been indicated by, the alleged offender and any other factors which in the view of the prosecutor could affect the likelihood or otherwise of a conviction. This assessment may be a difficult one to make, and of course there can never be an assurance that a prosecution will succeed.

Indeed, it is inevitable that some will fail. It should be borne in mind that the test is not whether there is a reasonable prospect of an acquittal but whether there is a reasonable prospect of conviction. Both can exist simultaneously. However, application of the reasonable prospect of conviction test dispassionately, after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds.

When evaluating the evidence, regard should be had to the following matters:

• Are there grounds for believing the evidence may be excluded bearing in mind the principles of admissibility at common law and under statute?
• If the case depends in part on admissions by the accused, are there any grounds for believing that they are of doubtful reliability having regard to the age, intelligence and apparent understanding of the accused?
• Does it appear that a witness is exaggerating, or that his or her memory is faulty or contaminated, or that the witness is either hostile or friendly to the accused, or may be otherwise unreliable?
• Has a witness any apparent motive for telling less than the whole truth?
• Are there matters which might properly be put to a witness by the defence to attack his or her credibility?
• If identity is likely to be an issue, how cogent and reliable is the evidence of those who purport to identify the accused?
• Is there is anything which causes suspicion that a false story may have been concocted?
• Are all the necessary witnesses available and competent to give evidence pursuant to s18 of the Evidence Act 2001?
• Where child witnesses are involved, are they competent to give evidence pursuant to the Evidence Act 2001?

This list is not exhaustive and, of course, the matters to be considered will depend upon the circumstances of each individual case. None of the above matters should be viewed in isolation but rather in the context of the entire case.

2.3 Public interest

Having satisfied himself or herself that the evidence is sufficient to justify the institution or continuation of a prosecution, the prosecutor must then consider whether, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued.

It is not the rule that all offences brought to the attention of the authorities must be prosecuted. Public interest does not equate to the level of public interest in an individual person or a particular matter.The resources available for prosecution action are finite, particularly judicial resources, and should not be wasted pursuing inappropriate cases; a corollary of which is that available resources are employed on those cases worthy of prosecution.

It requires a balancing exercise that includes the interests of the complainant, the community and fairness to the accused. It follows that the objectives of fairness and consistency are of particular importance. However, fairness need not mean weakness and consistency need not mean rigidity. The criteria for the exercise of this discretion cannot be reduced to something akin to a mathematical formula; indeed it would be undesirable to attempt to do so.

The factors which can properly be taken into account in deciding whether the public interest requires a prosecution will vary from case to case.

While many public interest factors militate against a decision to proceed with a prosecution, there are public interest factors which operate in favour of proceeding with a prosecution (e.g. the seriousness of the offence, the need for deterrence). In this regard, generally speaking, the more serious the offence the less likely it will be that the public interest will not require that a prosecution be pursued.

Factors which may arise for consideration in determining whether the public interest requires a prosecution include:

• the seriousness or, conversely, the triviality of the alleged offence or that it is of a "technical" nature only
• any mitigating or aggravating circumstances
• the youth, age, intelligence, physical health, mental health or special infirmity of the alleged offender, a witness or victim
• the alleged offender's antecedents and background
• the staleness of the alleged offence
• the degree of culpability of the alleged offender in connection with the offence
• the obsolescence or obscurity of the law
• whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute
• the availability and efficacy of any alternatives to prosecution
• the prevalence of the alleged offence and the need for deterrence, both personal and general
• whether the consequences of any resulting conviction would be unduly harsh and oppressive
• whether the alleged offence is of considerable public concern
• the risk to the public in not proceeding
• any entitlement of the victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken
• the likelihood of a confiscation order being made against the alleged offender’s property upon conviction
• the attitude of the victim of the alleged offence to a prosecution
• where the victim does not wish to proceed, the likely effect on the victim in forcing him or her to give evidence. Also, conversely, the future risk to the victim, family members and the public in not proceeding.
• the likely length and expense of a trial
• whether the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so
• the likely outcome in the event of a finding of guilt having regard to the sentencing options available to the court * whether the alleged offence is triable only on indictment
• whether the alleged offender has already been sentenced for other offences and the likelihood of the imposition of an additional penalty having regard to the totality principle

The applicability of and weight to be given to these and other factors will depend on the particular circumstances of each case.

As a matter of practical reality, the proper decision in many cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution. Although there may be public interest factors present in a particular case, often the proper decision will be to proceed with a prosecution and for those factors to be put to the court at sentence in mitigation. Nevertheless, where the offence is not so serious as to plainly require prosecution, or where the victim does not wish to proceed, the prosecutor should always apply his or her mind to whether the public interest requires a prosecution to be pursued.

2.4 Young offenders

Special considerations apply to the prosecution of persons under the age of 18 years. Prosecution action against youthful offenders should be used sparingly and in making a decision whether to prosecute particular consideration should be given to available alternatives to prosecution, such as a caution or reprimand, as well as to the sentencing alternatives available to the relevant Youth Justice Court if the matter were to be prosecuted.

2.5 Factors not relevant to the prosecution decision

A decision whether or not to prosecute must clearly not be influenced by:

• the race, religion, sex, national origin or political associations, activities or beliefs of the alleged offender or any other person involved
• personal feelings concerning the offender or the complainant
• possible political advantage or disadvantage to the government or any political group or party
• the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision
• strong public opinion for or against a particular prosecution

2.6 Joint Commonwealth/State trials

On occasions it will be alleged that an accused person has committed both State and Commonwealth crimes arising out of the same factual circumstances. Also, a particular act could be both a State offence and a Commonwealth offence. This is particularly the case with drug offences and child exploitation material.

The Director has an authority to prosecute on indictment Commonwealth matters. Likewise, the Commonwealth Director has been appointed a Crown Law Officer under the Criminal Code. There is a memorandum of understanding between the two offices which sets out the protocol as to which office should prosecute in such circumstances. The protocol states each office should consult the other in such circumstances. In determining which office should prosecute a matter the prime considerations are efficiency and effectiveness. Some of the factors taken into account are:

• Which jurisdiction deals with the majority of that type of offence
• The seriousness of the offence in each jurisdiction
• Which jurisdiction investigated the offence
• The nature and extent of each office’s previous involvement in the case
• Where there are a number of offences, in which jurisdiction is the preponderance of the offences
• How much duplication of work would there be in handing over the prosecution to the other office

Where a prosecutor has a case in which there are possible Commonwealth offences he or she must consult with the Director in order for him to determine if it is necessary to consult with the Commonwealth Director and, if it is, to do so.

2.7 Retrials

Where a trial has ended without a verdict, consideration should be given as to whether a retrial is required. Factors to be considered include:

• Whether the jury were unable to agree or whether the trial ended for some other reason
• Whether another jury would be in a better or worse position to reach a verdict, i.e. was some evidence ruled inadmissible or has material become known affecting the credibility of witnesses thereby impacting on the initial assessment of a reasonable prospect of conviction, or has further evidence become available
• The views of the complainant including the likely impact a retrial would have on the wellbeing of the complainant or any vulnerable witnesses
• The views of the investigating police officer
• The seriousness of the matter and the public interest in pursuing the charges
• The cost of a retrial to the community and the accused person.

The same procedure that applies to indictments, nolles prosequi and discharges applied to the decision to retry an accused person.

Where two juries have been unable to agree upon a verdict, a third or additional trial will only be directed in exceptional circumstances. Any such direction must be given by the Director.

Where a jury has convicted on some charges but are undecided on others, in determining whether to proceed on the remaining charges in addition to the above factors the following considerations are relevant:

• The seriousness of the remaining charges
• The sentence the accused has received for the charges of which he has been convicted

2.8 Remittals pursuant to s308 of the Criminal Code

Section 308 of the Criminal Code allows for a judge to remit a matter to the Magistrates Court to be tried before a magistrate if the judge is of the opinion that an accused person shall receive adequate punishment (s308(1)).

The maximum penalty a magistrate can impose per charge is 12 months’ imprisonment or a fine not exceeding 20 penalty units (s308(4)).

The magistrate has the same powers and jurisdiction of a judge on the trial of an accused person upon indictment (s308(3)).

Practice Direction 2 of 2015 states that s308 remittals should be considered in the following circumstances:

• Cases in which a defendant has been charged with multiple summary offences, and a relatively small number of indictable offences
• Cannabis cases concerning 50 plants or fewer (trafficking or cultivating for sale)
• Charges of sexual intercourse with a young person under the age of 17 years contrary to s124(1) of the Criminal Code, where the accused is 25 years old or younger and the complainant is at least 15 years old
• Charges of being found prepared for the commission of a crime contrary to s248 of the Criminal Code
• Charges of unlawfully setting fire to vegetation contrary to s268A of the Criminal Code
• Charges of unlawfully setting fire to chattels (including motor vehicles) contrary to s269 of the Criminal Code
• Charges of indecent assault contrary to s127(1) of the Criminal Code, where the alleged assault appears to be relatively minor

In the event that a prosecutor is asked to consider whether a particular matter warrants consideration for remittal or believes that it should be, he or she should be properly appraised of the following:

The full circumstances of the crime, including whether there is a reasonable prospect of conviction

• The appropriate charge(s) and whether it differs from the committed charge
• Any aggravating or mitigating factors
• Consideration of s308(4) in light of the accused’s priors and the level of criminality, any summary alternative

If that determination cannot be made by the first CCML date, then they should ensure there is an explanatory file note for counsel appearing at the CCML listing. The person appearing at the CCML listing will then request an adjournment to a later CCML date to enable the police file to be sent for completion and/or further inquiries, and for a decision to be made regarding remittal.

Where the matter is a sexual offence then, unless there is express approval from the Director, or in his absence the Deputy Director, there is to be no agreement to remit pursuant to s308.

In all other instances, if, after consideration of all of the material, there is merit in the matter being remitted and such a decision can be made quickly, then a brief memorandum to the Committee for their consideration is required. The memorandum will need to cover the prospects of conviction and a conclusion as to whether the punishment as provided in s308(4) of the Criminal Code is sufficient. The agreement of a single member of the Committee is all that is required for a remission on the same charge. Written approval should be saved to the file. An indictment must be engrossed and filed with the Supreme Court prior to a matter being remitted pursuant to s308.

Conversely, if counsel considers the punishment provided in that sub-section does not adequately cover the nature and circumstances of the crime then please include that in the memorandum to the Committee.

Section 308 applies to trials thus prior to a remittal an indication in court should be sought from defence counsel that the matter will be a trial. If the matter is remitted an accused person can still plead guilty (s308(3)). However, it should be pointed out to the magistrate that it is a late plea.

Section 308 hearings in the Magistrates Court should be conducted by this Office and not Police Prosecution Services. A new summary file will need to be created.

Counsel should not consent to a sentence indication or concede a particular sentencing range is permissible as that would offend the principles in Barbaro and Zirilli v R [2014] HCA 2.

An appeal from a conviction or sentence of a magistrate is to the Court of Criminal Appeal.

2.9 Appellate court ordered retrials

Where a conviction is overturned by the Court of Criminal Appeal due to an error at the original trial and the court orders a retrial, consideration is required as to whether there should be a retrial. In determining this the following considerations apply:

• The first issue to be decided is whether there is still a reasonable prospect of conviction or has evidence from the original trial become unavailable or been ruled inadmissible by the Court of Criminal Appeal which would lead to the conclusion that there is no longer a reasonable prospect of conviction.
• If there is still a reasonable prospect of conviction, the following public interest factors apply:
  • Has the accused already served all or a substantial amount of the sentence. If so, the following public interest factors apply:
    • The importance of having a conviction for a serious offence
    • Is a conviction required for the accused to not be eligible for a particular licence
    • Is a conviction required for a mandatory reporting condition
    • Is a conviction required for a pecuniary penalty or forfeiture order to be made
  • The views of the complainant, including the likely impact a retrial would have on the well-being of the complainant or any vulnerable witnesses
  • The cost of a retrial to the community and the accused person
  • Any other public interest factors listed in the prosecution guidelines that may not have been present at the time of signing the original indictment

Where a retrial has been ordered by the Court of Criminal Appeal the same procedure applies to the decision to retry a person as those set out earlier in this section for indictments, nolles prosequi and discharges.