Besides being responsible for deciding whether or not to press charges against a suspect, the prosecution can decide to drop charges any time after criminal proceedings have commenced.
Here, we examine the circumstances in which the police or DPP can decide to discontinue a prosecution before the case progresses to a defended hearing in the Local Court or jury trial in the District or Supreme Court.
Local Court (‘Summary’) Matters
As discussed in many of our previous blogs, experienced criminal lawyers can have cases dropped altogether, or reduced in seriousness, in summary matters by writing a document known as ‘representations’ to the relevant Local Area Commander of police.
Representations come in many shapes and forms, and good lawyers will know what to write to the prosecution, and also what not to write. However, these letters generally involve an outline of the elements of the offence/s and an argument to the effect that the evidence is insufficient or otherwise incapable of proving the charge/s.
Representations are a highly effective way of getting charges dropped before cases proceed to a defended hearing thereby saving the client a lot of money and stress.
Pre-Trial Conferences and Committal Hearings
Representations can be equally effective in more serious cases – called ‘indictable cases’ – that may proceed to the District or Supreme Court.
In such cases, there is the added opportunity of negotiating the withdrawal of reduction of charges at a ‘pre-trial conference’ – which is a conference that occurs between the prosecution and defence before the case reaches a ‘committal hearing’ – which is a hearing in the Local Court to decide whether there is enough evidence for a case to proceed to a higher court.
There are different types of committal hearings in NSW. The most popular ways of dealing with cases at this stage is to either have a ‘waiver of committal’ – where a defendant waives their right to have a committal hearing and allows the case to go straight to the higher court – or a ‘paper committal hearing’ – where the magistrate briefly reads over the prosecution’s papers and normally sends the case to the higher court for a trial date.
However, there is also the option of a ‘contest committal hearing’ – whereby an application is made for witnesses to testify and be cross-examined in the Local Court. The defendant does not have a right to call witnesses to a contested committal hearing; rather, the defence will firstly need to prove that there are ‘substantial reasons’ to require the attendance of particular witnesses, or establish the higher test of ‘special reasons’ if the person sought to be called is the complainant.
A committal hearing can be advantageous as it gives the defendant the opportunity to challenge the prosecution evidence before it proceeds to trial. In some cases, this may result in the Magistrate deciding that there is not enough evidence for the case to proceed to a trial – or alternatively, even if the Magistrate does decide to commit the matter for trial, the DPP may elect to discontinue the proceedings.
Discontinuing Proceedings after Committal
Even if a case is sent to a higher court for trial, information may come to hand that undermines the prosecution case. For example, a key witness may admit to lying about part or all of the evidence, or forensic evidence or other witnesses may weaken the prosecution case, or it may simply become apparent that it is not in the public interest to continue the proceedings.
Prosecution guidelines say that the prosecution must constantly review the strength of the evidence throughout the proceedings.
Where the prosecution case is weakened, the defence team can make further representations to the DPP.
The DPP solicitor in charge of the case may also independently apply to the Director to discontinue the proceedings if the evidence against the defendant is insufficient to establish the charge/s, or where it is otherwise no longer in the public interest to continue the proceedings.
Both the Attorney-General and the Director of Public Prosecutions have the power to discontinue proceedings, but it is usually the DPP who takes such action.
Section 7 of the Director of Public Prosecutions Act 1986 (NSW) says that the Director has the power to determine that ‘no further proceedings be taken against a person who has been committed for trial or sentence.’
Where a trial has commenced, the judge may direct the jury to return a verdict of not guilty if it becomes apparent that there is ‘a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’
The Value of a Good Criminal Lawyer
Lawyers have been criticised for allowing cases to go from adjournment to adjournment until they finally reach a defended hearing or jury trial, while doing very little in between.
Indeed, it may be in a lawyer’s short term financial interests to act in this unscrupulous manner – as they will make much more money if the case goes all the way to a hearing or trial, rather than being discontinued at an early stage.
For this reason, it is critical for clients to engage lawyers who have a strong track record of getting criminal cases dropped at an early stage.
Facing the prospect of a criminal conviction, or even a prison sentence, can leave defendants in a vulnerable position – trusting that their lawyer will do the right thing, and that they have the specialist knowledge and experience to get the best result as quickly as possible.
However, it is crucial for clients to openly ask their lawyers about how they propose to fight for the withdrawal of their charges, and the steps they will take to maximise the chances of this occurring. It is also a good idea to get this in writing, whether in the cost agreement or by way of email. After all, it’s your life and your future.