3. Decision to prosecute – procedures

3.1 Introduction

The decision to indict, the form of the indictment, the decision to discharge and the extent of the discharge are the most important decisions in the prosecution process.

Such decisions should be logical, principled, explicable and defensible. Written memoranda and consultation with and between senior, experienced prosecutors are the best methods of achieving those aims and are those to be followed in the Office in all cases.

The prosecutor with conduct of the case must first decide if the file needs completion, and if so should return it to the investigator with a particularised request as to what remains to be done. Of course, in some cases it might appear that there is no point in completion, the matter might be irredeemably incapable of giving rise to a proper charge, or should clearly proceed as a summary charge or charges only. In those cases, discussion should be had with the investigator to alert them to those views as they may know of some further matter which may change the conclusion.

If the crime(s) charged have a victim, some discussion with the victim should also take place to ascertain their views and forewarn them of the possibility that there might be a discharge or reduction in number and/or severity of the charges, and the reasons that might be so. If the Witness Assistance Service (WAS) has not been involved already, its involvement should be recommended to the victim.

When the file is satisfactorily complete, or ought not be completed further because it will remain unviable as an indictable charge, the prosecutor must prepare a memorandum recommending that an indictment be filed and, if so, include a draft indictment, or that the accused be discharged. In this memorandum, a 'discharge' or 'discharged' means when the accused is:

• discharged entirely from charges,
• discharged from the indictable charges to face summary charges, or
• when the nature and severity of the indictable charges with which the accused has been charged are significantly changed.

3.2 The memorandum

The memorandum needs to set out the facts essential to the charges to be considered which can or cannot be established to the requisite degree, strengths or difficulties with the evidence including with witnesses, possible legal arguments and the author's thoughts on their likely resolution. Where it is recommended that a matter should not proceed or that it should be substantially downgraded due to an assessment of the credit of a complainant or a witness, the complainant or witness should be interviewed to assess his or her credit. Assessments of credit should be clearly stated in objective terms. It should also be remembered that what is to be assessed is not the credit of a person generally but the credibility of the allegation made which is the subject of the charge.

In respect of important witnesses whose credibility is likely to be in issue, any prior or pending charges of those witnesses will need to be obtained and the impact of those prior convictions discussed in the memorandum.

If recommending an indictment, the best memoranda serve as an outline of the case and even a reliable aid to an opening address. Memoranda recommending a discharge (absolute or to summary charges) are likely to be read by the investigators, and also need to convey sufficient information for prosecutors, WAS officers and/or police to explain the reasons for discharge or reduction to properly interested parties. Needlessly offensive characterisations of the investigation or witnesses should be avoided, although frankness and identification of deficiencies are required.

Please note the memorandum constitutes legal advice and as such it is subject to legal professional privilege. It should not be released without the approval of the Director.

3.3 The Committee

The file with the attached memorandum is to be forwarded to the Director or the Committee. The Committee is comprised of the Deputy Director and Principal Crown Counsel. However, in cases of murder, attempted murder and manslaughter where there is a recommendation to discharge, those matters should be forwarded to the Director to decide whether a prosecution should proceed. It is also an important step in the process that a complainant understands the reasons why a decision to discontinue is made.

The Director’s agreement to a discharge or substantial downgrading of the charges is final.

The following rules apply to every indictment or discharge forwarded to the Committee:

• If an indictment of practically the same or similar charges for which the accused has been charged and/or committed is sought, the agreement of only one member of the Committee is required. In the case of any member of the Committee making the recommendation, the agreement of another member is required.
• If a discharge (as defined above) is recommended, the agreement of two Committee members is required unless the recommendation is that of a Committee member, in which case the agreement of another Committee member is required.
• * If the recommendation to the Committee is to prosecute on the same or similar charges but one member of the Committee recommends a discharge or a substantial downgrading of the charges then two other Committee members must also agree with such a discharge or downgrading of the charges.
• Where the Director has personally authorised a prosecution only the Director has authority to discontinue the prosecution.
• Only the Director has the authority to authorise the prosecution or the discontinuance of a prosecution of a police officer.

Where the Committee cannot agree in the above terms, the matter is to be forwarded to the Director.

The same procedure will apply if an indictment has been filed but the prosecutor with conduct of the case believes proceedings should be discontinued and a nolle prosequi entered because there has been some change in circumstances since the indictment was filed which render the prosecution no longer viable.

When forwarding a memorandum to or from the Launceston or Burnie office it is usually not necessary to accompany it with the police file; the memorandum should be sufficiently comprehensive. A Committee member or the Director may subsequently seek the file to clarify or consider any point.

The memorandum is to be saved electronically, as well as the Committee members' responses.

3.4 Decision to discharge or substantially downgrade charges

3.4.1 General

In the event that it is determined that an indictment should not be filed, that proceedings should be discontinued, or the charges substantially downgraded, the complainant will be informed of that decision as early as possible.  Where practicable, the complainant should be informed of any proposed discharge or substantial reduction in charges before the accused, police and court are informed.

This is the task of the prosecutor with conduct of the case. Where the complainant is under 18 years of age or has a disability, a parent, guardian or spokesperson of the complainant should be informed.  Where the alleged criminal conduct has caused the death of a person the next of kin or an immediate family member should be informed.

Informing the complainant of the proposed discharge or substantial reduction in charges is an important step in the process.  It is important that the complainant understands the reasons why the decision has been made.  It is preferable that the complainant be informed of the reasons in person.  However, if this is not possible, it should be done by telephone.  When informing a complainant of the decision the prosecutor should advise how decisions are made, provide a brief history of the matter and brief reasons for the decision.  The complainant should be given an opportunity to provide his or her views about the decision.

A complainant can request the Director review a decision to discharge or substantially downgrade charges (see Requests for review). Ordinarily, a letter should be sent confirming the decision and that the complainant has the right to request the Director to review the decision.

Where practicable the memorandum, together with a brief covering letter, should be emailed to the Assistant Commissioner (Operations). The police file should be returned to the Detective Inspector of the originating location, with a copy of the covering letter and memorandum sent to the Assistant Commissioner.

Once the complainant and police have been advised that a matter will not proceed and the prosecutor has confirmed that the complainant has not sought a review of the decision, one of the following steps should be taken to discharge the accused as soon as possible:

• Where the accused is before the court on complaint only, the court should be informed that an indictment will not be filed and the accused should be discharged in relation to that complaint
• Where an indictment has been filed, a nolle prosequi should be filed, or alternatively where instructed by a Crown Law Officer, a prosecutor can inform the court that the State will not proceed further on the indictment and the accused should be discharged (s350 of the Criminal Code).

The decision to discontinue a prosecution will often cause anger and distress to the victim or family of the victim of a crime. Whilst, in an emotional sense, victims of crime and the families of victims of crime may wish to see the alleged perpetrator of a wrong prosecuted for the most serious criminal offence possible there is always a need to ensure that a careful and objective assessment of the available and admissible evidence is made and a correct application of legal principle to that evidentiary material.

It is unfortunate that the role of an independent prosecutor is only the subject of consideration or discussion when issues such as this arise. It is to be hoped that the continued publication of these guidelines and, wherever necessary, public explanation will assist the community at large in understanding the careful consideration which is given to the decision to prosecute and the factors which are taken into account in exercising the discretion to prosecute or making the decision to discontinue a prosecution.

3.4.2 Requests for review

A complainant may apply to have a decision to discharge or substantially downgrade charges reviewed by the Director (unless the decision was approved by the Director).  Requests for review must be made within seven days of notification of the decision.

Once a final decision has been made to discharge an accused, the decision will not be changed unless it is plainly wrong, i.e. it was based on incorrect or irrelevant material, or a misunderstanding of the law, or was plainly unreasonable, or unless new evidence becomes available.

Complainants have the right to request written reasons for key decisions. Any requests for written reasons will be considered on a case by case basis, bearing in mind the considerable privacy issues, by the Director or Deputy Director.

Any decision made by the Director will not be reviewed. However, a complainant may request to meet with the Director or Deputy Director to have the reasons for the decision explained.

3.5 Providing reasons for discontinuance to the Court

A prosecutor must not inform the Court (whether it is the Supreme Court, Magistrates Court, or Coroners Court) of the reasons for a matter being discontinued without the express approval of the Director, even if asked to do so by the Court.

The Director will only give approval in exceptional circumstances. The reason for this is that there is an important constitutional division between the executive and the judiciary with respect to the bringing, maintenance and discontinuance of criminal charges, see DPP v Tutera [2023] VSCA 188.

In Maxwell v The Queen (1996) 184 CLR 501 Gaudron and Gummow JJ stated at [26]

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

In DPP v Tutera the Victorian Court of Criminal Appeal stated at [82]:

… [T]here was no duty upon the DPP to provide an explanation to the Court for discontinuing…….. Indeed the Director may have considered it inappropriate to do so as a matter of principle…… Far from displaying any inappropriate attitude towards the court, the absence of an explanation may be understood as the prosecution having regard to the well-recognised constitutional division between the Crown and the Court.

Further, privilege attaches to advice given to the Director outlining why a prosecution should be discharged, see DPP v Kinghorn [2020] NSWCCA 48 at [60]; DPP v Stanizzo [2019] NSWCA 12 at [26]; Hamilton v State of NSW [2016] NSWSC 1213; R v Bunting (2002) 84 SASR 378; and There are numerous reasons why reasons for discontinuance should only be published to the court in exceptional circumstances. They include (but are not limited to) the following:

1. It can have a tendency to undermine the presumption of innocence;
2. It can reveal matter of privacy, including witness credibility, medical and family circumstances;
3. It may interfere with an ongoing criminal investigation;
4. It may put the personal safety of a person at risk;
5. It may prejudice a future court case;
6. Often the reasons are complex, and cannot be explained briefly. The factors relevant to the decision require people with expert legal knowledge and experience to make a judgment about the reasonable prospects of conviction, and give consideration to whether the prosecution is in the public interest; and
7. It blurs the constitutional division between the prosecution and the Court.