7. DISCONTINUING PROSECUTIONS

Discontinuing Court of Summary Jurisdiction Prosecutions

7.1 The prosecutor with carriage of a matter must advise the police officer-in-charge and the victim whenever the ODPP is considering whether or not to discontinue a charge in the Court of Summary Jurisdiction or to consent to an appeal in the Supreme Court. The police officer-in-charge should be consulted on any relevant matters, including perceived deficiencies in the evidence and any matters raised by the offender. One purpose of this consultation is to provide an opportunity for the police officer-in-charge and the victim to furnish additional information which may affect the decision.

7.2 Discontinuance reports must include:

(1) the charges laid by the informant and/or the charges on which the offender has been committed for trial;

(2) a summary of the facts of the case sufficient to permit a proper consideration of the application or request;

(3) a copy of the offender’s criminal history;

(4) the views of the police officer-in-charge and the victim and/or a note as to attempts made to obtain those views; and

(5) the prosecutor’s recommendation supported by reasons.

7.3 When it is sought by Summary Prosecutions to discontinue in the Court of Summary Jurisdiction, a report and recommendation must be referred to the officer-in-charge of Summary Prosecutions or the Director’s Chambers.

7.4 After a decision has been made, the prosecutor with carriage of the matter must notify the police officer-in-charge, the victim, the offender and the court of the decision as soon as practicable.

7.5 In the Court of Summary Jurisdiction where a decision has been made to discontinue then the matter should be withdrawn. Matters may be re-commenced if circumstances or evidence has changed and statutory limitation periods have not expired.

7.6 Occasionally magistrates may refuse to accept a withdrawal of a complaint. If a prosecutor is forced to offer no evidence then the charge will be dismissed. This precludes the complaint from being re-laid. Normally a prosecutor is entitled to withdraw an information. If a prosecutor is forced to offer no evidence, there may still be an opportunity to re-lay the information. Accordingly, prosecutors should be aware of the legislative provisions regarding jurisdiction for certain offences (for example section 131A Justices Act, section 22 Misuse of Drugs Act).

7.7 In the Court of Summary Jurisdiction costs may be ordered whether a matter is withdrawn, no evidence is offered, or the offender is found not guilty (section 77 Justices Act and reg 14 Justices Regulations). A determination should be made as quickly as possibly if proceedings are to be discontinued to avoid or minimise costs.

Discontinuing Justice Appeals

7.8 Where a prosecutor is of the view that a Justice Appeal should be conceded (or discontinued where the Crown has brought the appeal) then approval must first be obtained from the Director’s Chambers.

Discontinuing Trials

7.9 Offenders, their representatives or prosecutors may make application that a charge or charges be discontinued or varied or that a no true bill pursuant to section 297A of the Criminal Code be filed. If, after reviewing a case fully, the prosecutor considers that the proceedings should not continue and approval to discontinue is obtained from the Directors Chambers, then the case should be discontinued at the earliest possible opportunity.

7.10 In considering such applications regard is to be had principally to the three tests set out in Guideline 2: Decision to Prosecute, bearing in mind any additional considerations of fact or argument put forward by the defence.

7.11 In trials (and infrequently, pleas) it is the responsibility of the prosecutor, to prepare a report to the Director's Chambers. Discontinuance reports must include:

(1) the charges laid by the informant and/or the charges on which the offender has been committed for trial;

(2) a copy of the defence application or request;

(3) a summary of the facts of the case sufficient to permit a proper consideration of the application or request;

(4) a copy of the offender’s criminal history;

(5) the views of the police officer-in-charge and the victim and/or a note as to attempts made to obtain those views; and

(6) the prosecutor’s recommendation supported by reasons.

7.12 It is the responsibility of the prosecutor to ensure that consultations with the police officer-in-charge and victim have occurred. However, if the police officer-in-charge or victim is not able to be consulted within a reasonable time, the attempts made to contact him or her must be documented.

7.13 After a decision has been made, the prosecutor must notify the police officer-in-charge, the victim, the offender and the court of the decision as soon as practicable. Where appropriate, the police officer-in-charge and victim should also be reminded that bail conditions no longer apply.

7.14 Unless there are special circumstances, a submission to discontinue because of the triviality of the offence should be refused if the offender has elected trial on indictment for a charge that could have been dealt with in the Court of Summary Jurisdiction.

Generally

7.15 Where a direction has been given in a matter to proceed or to take no further proceedings, that direction will not be reversed unless:

(1) significant new facts warrant it;

(2) the direction was obtained by fraud or impropriety; or

(3) the direction was obtained or made on an erroneous basis, and the interests of justice require a reversal.

7.16 The procedure for discontinuing proceedings before an indictment is filed is by way of a no true bill: section 297A Criminal Code. The procedure for discontinuing proceedings after an indictment has been filed is by way of a nolle prosequi: section 302 Criminal Code.

7.17 In serious or potentially contentious cases, or cases involving the death of any person, no withdrawal shall occur without the consent of the Director.

7.18 Reasons for discontinuance will normally not be given. The Director’s consent is required before reasons are disclosed.