Prosecution Policy

The Prosecution Policy of the Commonwealth (Prosecution Policy) underpins all of the decisions made by the Office of the Director of Public Prosecutions (Cth) (CDPP) throughout the prosecution process and promotes consistency in decision making. It is a public document and applies to all Commonwealth prosecutions conducted by the CDPP and other federal agencies.

The Prosecution Policy outlines the relevant factors and considerations which are taken into account when prosecutors exercise their discretion in the making of various decisions. It also serves to inform the public and practitioners of the principles which guide the decisions made by the CDPP.

The Prosecution Policy provides a two-stage test that must be satisfied before a prosecution is commenced or continued:

• 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 that it cannot be said there is no reasonable prospect of obtaining a conviction.

In making this decision, prosecutors must evaluate how strong the case is likely to be when presented in court. They must take into account matters such as the availability, competence and credibility of witnesses, 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.

Where satisfied 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. In determining whether this is the case, prosecutors should consider all of the facts and all surrounding circumstances. The public interest 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 youth, age, intelligence, physical health, mental health or special vulnerability of the alleged offender, witness or victim;
• the alleged offender’s antecedents and background;
• the passage of time since the alleged offence;
• the availability and efficacy of any alternatives to prosecution;
• the prevalence of the alleged offence and the need for general and personal deterrence;
• the attitude of any victim;
• the need to give effect to regulatory or punitive imperatives; and
• the likely outcome in the event of a finding of guilt.

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 perceived political advantage or disadvantage to the Government.

The Prosecution Policy also contains guidance to prosecutors on other key processes and decisions in the prosecution process, including the choice of charges, plea negotiations, undertakings and ex officio indictments.