Statutory Function Statistics for 2023-2024 | Commonwealth Director of Public Prosecutions

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

After an accused has been committed for trial, the question sometimes arises whether the prosecution should continue. This can arise as a result of an application made by the accused or on the CDPP’s own initiative.

The Director’s power to discontinue a prosecution is found in 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 2023–24, a total of 59 prosecutions were discontinued following commitment for trial or the filing of an indictment because there was either insufficient evidence to proceed or for public interest reasons. Four matters were discontinued for other reasons, for example, the death of the accused.

Discontinuances in the summary jurisdiction

The CDPP also discontinued 171 matters in the summary jurisdiction on either evidentiary or public interest grounds. Seven of those were because of the death of the accused.

Indemnities

The DPP Act empowers the Director to give an undertaking to a potential witness in certain circumstances:

Section 9(6) authorises the Director to undertake 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 undertake 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.

The DPP Act also empowers the Director to indemnify persons from prosecution:

Section 9(6D) empowers the Director to undertake to a person that he or she will not be prosecuted under Commonwealth law in respect of a specified offence. This kind of undertaking is referred to as an indemnity.

During the reporting period, the Director provided four undertakings under section 9(6) and one undertaking under section 9(6B).

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 an accused consents to a prosecution on indictment without being examined or committed for trial, or where an accused, 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 a delegate exercised ex-officio powers on 31 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 charges against 49 defendants in relation to 24 alleged conspiracies.

Taking matters over and discontinuing – private prosecutions

Section 13 of the Crimes Act 1914 (Cth) 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 decision to discontinue a prosecution taken over is delegated to the Commonwealth Solicitor for Public Prosecutions, practice group leaders and branch heads who make these decisions in certain circumstances. The Director exercised the power on four occasions during 2023–24. In each of those cases, the Director or a delegate took over the prosecution and discontinued it because the evidence was insufficient for the charges to proceed.

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.