What does the Prosecution consider when deciding whether or not to Prosecute a Criminal Case?

The Office of the Director of Public Prosecutions (‘the ODPP’) is the independent prosecuting authority for the State of New South Wales.

The ODPP Prosecution Guidelines states that a prosecutor is a ‘Minister of Justice’.

A Prosecutor’s central role is to help the court arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness – NOT to obtain a conviction at all costs.

Once charges have been laid, it is for the ODPP to decide if they should proceed with the prosecution.

A prosecution is to be continued if it is in the ‘public interest’ to do so.

The question of whether or not the public interest requires that a matter be prosecuted is resolved by asking the following questions:

  1. Is the admissible evidence available capable of establishing each element of the offence?
  2. Can it be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law? And if not
  3. Are there discretionary factors that dictate that the matter should not proceed in the public interest?

The first requirement is called the ‘prima facie‘ test; in other words, whether a reasonable jury properly instructed about the law could find the defendant guilty.

The second question requires the prosecution to evaluate the available admissible evidence and the persuasive strength of the case in light of the anticipated course of proceedings.

The third requirement requires consideration of many factors which may include:

  • The seriousness of the alleged offence or how trivial it may be.
  • How obsolete or obscure the law.
  • Whether the prosecution would be perceived counter-productive.
  • Circumstances that would not allow for a fair trial.
  • Whether the alleged offence considerably concerns the general public.
  • The need to maintain public confidence in the Parliament and courts.
  • The staleness of the alleged offence.
  • The prevalence of the alleged offence and the need for deterrence.
  • The availability of any alternatives to prosecution.
  • Whether the alleged offence is triable only on indictment (in the presence of a jury).
  • The likely length and expense of a trial.
  • If the conviction would be regarded as unsafe and unsatisfactory.
  • If found guilty, the taking into account sentencing options available to the court.
  • Would the conviction be unduly harsh or oppressive?
  • The degree of responsibility of the alleged offender in connection with the offence.
  • Any mitigating or aggravating circumstances.
  • The youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the alleged offender, a witness or a victim.
  • The alleged offender’s antecedents and background, including culture and language ability.
  • If the alleged offender is willing to cooperate in the investigation or the prosecution of others, or the extent to which the alleged offender has assisted.
  • The attitude of a victim or sometimes a material witness to a prosecution.
  • Whether it is likely that a confiscation order will be made against the offender’s property.
  • Any entitlement or liability of a victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken.
  • Whether or not the Attorney General’s or Director’s consent is required to prosecute.

This list is contained in the Prosecution Guidelines.

The appropriateness and weight given to each of these factors will depend on individual circumstances and would vary widely in your case.

But what it means is that prosecutors CAN withdraw a case EVEN THOUGH the evidence is strong.

The Guidelines also state that prosecutors are not allowed to proceed or be influenced by the following considerations:

  • Race, religion, sex, national origin, social affiliation or political associations, activities or beliefs of the alleged offender or any other person involved (unless they have special significance to the commission of the particular offence or should otherwise be taken into account objectively).
  • The prosecutor’s personal feelings about the offence, the alleged offender or the victim.
  • Possible political advantage or disadvantage to the government or any political group or individual.
  • The possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution or otherwise involved in its conduct.
  • Possible media or community reaction to the decision.

However, in the real world certain people (including prosecutors) may not be able to put prejudice or media attention out of their heads when making prosecutorial decisions.

Prosecution resources should not be wasted on cases that should never have gone to court in the first place, whether that is due to the lack of evidence or other (discretionary) matters. In fact, Magistrates or Judges can order the prosecution to pay the defence’s legal costs in certain circumstances where the proceedings were unwarranted or unfair.

Alternatives to prosecution such as early intervention and diversion should always be considered.

If you are being charged with a criminal or traffic offence, you have the right to apply to have your charges dropped by making written representations (letter) to the body who is prosecuting you, whether that be the Police, the ODPP, the RMS (former RTA) or another body.

You can do this by arguing that there are significant flaws in the legal, evidential and factual aspects of the prosecution’s case.

The amazing team of Senior Lawyers at Sydney Criminal Lawyers are brilliant at getting cases dropped at an early stage, so you may not even have to go to a defended hearing (local court) or jury trial (district or supreme court).

Seeing our team could save you a lot of time, money and stress that might otherwise be involved in a criminal prosecution.

If you think this could apply to you, why not call or email us and take advantage of our first free consultation? It could be the best call you’ve made in a long time!

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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