2 |
The Decision to Prosecute |
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| 2.1 |
The prosecution process should be initiated or continued whenever it appears that there is a reasonable prospect of conviction and it is in the public interest. There is a continuing obligation to review the decision to prosecute in light of relevant material and information as it becomes available. |
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| 2.2 |
The question whether or not the public interest requires that a matter be prosecuted is resolved by determining whether: |
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(1) |
the admissible evidence is capable of establishing each element of the offence; |
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(2) |
it can 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 |
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(3) |
discretionary factors dictate that the matter should or should not proceed. |
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| 2.3 |
The first matter requires no elaboration: it is the prima facie case test. |
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| 2.4 |
The second matter requires an exercise of dispassionate judgment which will depend in part upon an evaluation of the admissibility and weight of the available evidence and the persuasive strength of the Crown case. The resolution of disputed questions of fact is for the court and not the prosecutor. The assessment of prospects of conviction is not to be understood as usurping the role of the court but rather as an exercise of discretion in the public interest. It is a test appropriate for both indictable and summary charges. |
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| 2.5 |
The third matter requires consideration of many factors. The factors that can be properly taken into account will vary from case to case and may include the following: |
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(1) |
the seriousness or, conversely, the triviality of the alleged offence; or that it is of a “technical” nature only; |
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(2) |
whether or not the alleged offence is of considerable public concern; |
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(3) |
the obsolescence or obscurity of the law; |
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(4) |
whether or not the prosecution would be perceived as counterproductive for example, by bringing the law into disrepute; |
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(5) |
special circumstances that would prevent a fair trial from being conducted; |
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(6) |
the necessity to maintain public confidence in such basic institutions as the Parliament and the courts; |
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(7) |
the staleness of the alleged offence; |
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(8) |
the prevalence of the alleged offence and any need for deterrence, both personal and general; |
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(9) |
the availability and efficacy of any alternatives to prosecution; |
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(10) |
whether or not the alleged offence is triable only on indictment; |
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(11) |
the likely length and expense of a trial; |
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(12) |
whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory; |
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(13) |
the likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the court; |
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(14) |
whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive; |
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(15) |
the degree of culpability of the offender in connection with the offence; |
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(16) |
any mitigating or aggravating circumstances; |
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(17) |
the youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the offender, a witness or a victim; |
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(18) |
the offender’s antecedents and background; |
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(19) |
the circumstances in which the alleged offence was committed; |
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(20) |
whether or not the offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the offender has done so; |
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(21) |
the attitude of a victim or in some cases a material witness to a prosecution; |
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(22) |
any entitlement or liability of a victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken; and/or |
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(23) |
whether or not the Director’s consent is required to prosecute. |
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| 2.6 |
The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case. |
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| 2.7 |
A decision whether or not to proceed must not be influenced by: |
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(1) |
the race, religion, sex, national origin or political associations, activities or beliefs of the 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); |
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(2) |
the personal feelings of the prosecutor concerning the offence, the offender or a victim; |
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(3) |
the possible political advantage or disadvantage to the government or any political party, group or individual; |
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(4) |
the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution or otherwise involved in its conduct; or |
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(5) |
any possible media or community reaction to the decision. |
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| 2.8 |
It is recognised that the resources available for prosecuting are finite and should not be expended pursuing inappropriate cases. |
