Prosecution Policy of the Commonwealth
* above link is to the most current edition
The Prosecution Policy of the Commonwealth is a public document which sets out guidelines for the making of decisions in the prosecution process. It applies to all Commonwealth prosecutions whether or not conducted by the Commonwealth Director of Public Prosecutions. The Prosecution Policy has been tabled in Parliament, and is publicly available. A copy is available on this web-site.
The main purpose of the Prosecution Policy is to promote consistency in the making of the various decisions which arise in the institution and conduct of prosecutions. The Prosecution Policy outlines the relevant factors and considerations which are taken into account when a prosecutor is exercising the discretions relevant to his or her role and functions. The Policy also serves to inform the public and practitioners of the principles which guide the decisions made by the CDPP.
The decision to institute (or continue) criminal proceedings is an important one, and careful consideration is given to each matter. The Prosecution Policy sets out the relevant guidelines for determining whether it is appropriate to institute a prosecution (or continue that prosecution). All State and Territory Directors of Public Prosecutions have a prosecution policy which takes a consistent approach to the decision to prosecute.
Under the Prosecution Policy there is a two-stage test that must be satisfied:
- there must be sufficient evidence to prosecute the case; and
- it must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.
In determining whether there is sufficient evidence to prosecute a case, the CDPP must be satisfied that there is prima facie evidence of the elements of the offence, and a reasonable prospect of obtaining a conviction. The existence of a prima facie case is not sufficient.
In making this decision, the prosecutor must evaluate how strong the case is likely to be when presented in court. This is an important distinction as the decision can only be made based on admissible evidence, not necessarily all the information gathered during the course of the investigation.
The evaluation must take into account such matters as the availability, competence and credibility of witnesses and their likely effect on the arbiter of fact, and the admissibility of any alleged confession or other evidence. The prosecutor should also have regard to any lines of defence open to the alleged offender and any other factors that could affect the likelihood or otherwise of a conviction.
The possibility that any evidence might be excluded by a court should be taken into account and, if that evidence is crucial to the case, this may substantially affect the decision whether or not to institute or proceed with a prosecution. It is the prosecutor’s role to look beneath the surface of the evidence in a matter, particularly in borderline cases.
Having been satisfied that there is sufficient evidence to justify the initiation or continuation of a prosecution, the prosecutor must then consider whether the public interest requires a prosecution to be pursued. In determining whether this is the case, the prosecutor will consider all of the provable facts and all of the surrounding circumstances. The factors to be considered will vary from case to case, but may include:
- Whether the offence is serious or trivial;
- Any mitigating or aggravating circumstances;
- The age, intelligence, health or any special infirmity of the alleged offender, any witness or victim;
- The alleged offender’s antecedents;
- The staleness of the offence;
- The availability and efficacy of any alternatives to prosecution;
- The attitude of the victim;
- The likely outcome in the event of a finding of guilt; and
- The need for deterrence.
These are not the only factors, and other relevant factors are contained in the Prosecution Policy.
Generally, the more serious the alleged offence is, the more likely it will be that the public interest will require that a prosecution be pursued.
The decision to prosecute must be made impartially, and must not be influenced by any inappropriate reference to race, religion, sex, national origin or political association. The decision to prosecute must not be influenced by any political advantage or disadvantage to the Government.