Statutory Function Statistics for 2022-2023 | Commonwealth Director of Public Prosecutions

Discontinuance of a prosecution following commitment to trial or the filing of an indictment

After a defendant has been committed for trial, there may be a question about whether the prosecution should continue. This can arise because of an application by the defendant or on the CDPP’s initiative.

The Director’s power to discontinue a prosecution is derived from section 9(4) of the DPP Act. A submission made to the Director to discontinue such a matter is known as a ‘no bill’ application. The Director’s power to discontinue is delegated to the Commonwealth Solicitor for Public Prosecutions, practice group leaders and branch heads who make these decisions in certain circumstances.

In 2022–23, a total of 36 prosecutions the CDPP had carriage of were discontinued following commitment for trial or the filing of an indictment because there was either insufficient evidence to proceed or for compelling public interest reasons. Five matters were discontinued for other reasons, for example death of an accused. In addition, one prosecution was discontinued by the Attorney-General pursuant to section 71 of the Judiciary Act 1903.

Taking matters over and discontinuing – private prosecutions

Section 13 of the Crimes Act 1914 protects the right for any person to bring a private prosecution in a Commonwealth matter. This right is expressly preserved under section 10(2) of the DPP Act.

Under section 9(5) of the DPP Act, the Director has the power to take over a prosecution for a Commonwealth offence that has been instituted by another person. The Director is empowered to either carry on the prosecution or, if appropriate, to discontinue it. The Director did not exercise this power during the reporting period.

Discontinuances in the summary jurisdiction

Apart from the cases that were discontinued in the circumstances outlined above, the CDPP also discontinued 171 in accordance with the Prosecution Policy of the Commonwealth.

Indemnities

The DPP Act empowers the Director to give an undertaking referred to as an indemnity to a potential witness in three circumstances:

section 9(6) authorises the Director to give an indemnity to a potential witness in Commonwealth proceedings that any evidence the person may give, and anything derived from that evidence, will not be used in evidence against the person, other than in proceedings for perjury
section 9(6B) empowers the Director to give an indemnity to a person that any evidence he or she may give in proceedings under state or territory law will not be used in evidence against them in a Commonwealth matter
section 9(6D) empowers the Director to give an indemnity to a person that he or she will not be prosecuted under Commonwealth law in respect of a specified offence.

During the reporting period the Director provided 20 indemnities under section 9(6) and 3 indemnities under section 9(6D).

Ex-officio indictments

Under sections 6(2A)–(2D) of the DPP Act the Director may institute prosecutions on indictment, referred to as ex-officio indictments. In certain circumstances the decision to present an ex-officio indictment is delegated to the Commonwealth Solicitor for Public Prosecutions, practice group leaders and branch heads.

The powers in section 6(2A)–(2C) are used in circumstances where a defendant consents to a prosecution on indictment without being examined or committed for trial, or where a defendant having been committed on either Commonwealth, state or territory offences, is indicted on different charges from those on which they were committed.

Section 6(2D) of the DPP Act provides that in any other case, where the Director considers it appropriate to do so they may institute a prosecution of a person on indictment for an indictable offence against the laws of the Commonwealth, in respect of which the person has not been examined or committed for trial.

During the reporting period, the Director or her delegate exercised ex-officio powers on 33 occasions.

Consent to conspiracy proceedings

The Director’s consent is required before proceedings for Commonwealth conspiracy offences can commence. During the reporting period the Director consented to the commencement of conspiracy proceedings against 65 defendants in relation to 37 alleged conspiracies.

Consent under section 121(8) of the Family Law Act 1975

The Director’s consent is required before proceedings are commenced for an offence against section 121 of the Family Law Act 1975, which restricts publication of court proceedings. During the reporting period, the Director did not give consent under this provision.