Commonwealth Director of Public Prosecutions

Prosecutions involving child complainants in child sex matters

Prosecutions involving child complainants in child sex matters

The CDPP has created guidelines in relation to how certain critical decisions should be made with respect to commencing or wholly discontinuing charges in a child sex matter where there is a child complainant. These guidelines are contained in a Practice Group Instruction and relate to the following decisions:

  • a decision not to commence a prosecution against the defendant at all
  • a decision to wholly discontinue a prosecution against a defendant (either before or after committal).

Practice Group Leaders to make certain decisions

Through an internal policy known as a Practice Group Instruction, it details that the level of authority required for the aforementioned decisions be that of Practice Group Leader level where: 

  •  The prosecution involves a child sex offence (this would include, but not be limited to, offences contrary to Divisions 268, 270, 271, 272, 273, 471 and 474 of the Criminal Code), and
  •  There is an identifiable child victim (i.e. a person who was under 18 years at the time of the commission of the alleged offence) who is a complainant in the matter (i.e. has provided a statement).

Consultation Process with the Complainant

Prior to the matter being referred to the Practice Group Leader for decision making, a consultation process with the complainant should occur, whether the issue in the case relates to the sufficiency of evidence or the public interest. The complainant should be allowed adequate time to consider whether they are comfortable with proceedings not commencing or being discontinued.
 
In the context of a case in which the key issue is whether the prosecution is in the public interest, the attitude of a victim is a relevant factor to consider in making that ultimate decision. The discussions with the complainant should be carefully file noted by the prosecutor.
 
Referral of the matter to the Practice Group Leader should occur via the CDPP’s internal system and the views of the complainant(s) should be included and referenced accordingly.

Right of review by the Director

Where a Practice Group Leader makes a decision of the type mentioned above (either before or after committal), the complainant should be:

  • notified in writing of that decision, and
  • notified of their right to seek a review of the decision by the Director.

Generally, such decisions will be communicated verbally to the complainant in the first instance and followed up in writing.  A complainant will have a period of 7 days from the communication of the decision to seek a review by the Director, unless in the particular circumstances of the case it is appropriate to vary that time frame. Complainants will be provided with clear written information about how to seek a review and any associated deadlines for such a request.

Reasons for not commencing a prosecution/discontinuation

The reason for not commencing a prosecution at all, or wholly discontinuing a prosecution against a defendant should be explained to the complainant by the prosecutor at the time the decision is first communicated.
 
The complainant may seek written reasons for the decision of the Practice Group Leader or of the Director, not to commence a prosecution at all or to wholly discontinue a prosecution in relevant child sex matters involving children. The complainant should be advised of their ability to do so in writing.  The Practice Group Leader and the Director may provide written reasons where it is appropriate to do so.

Contact/Communication with a Child Complainant

The CDPP Victims of Crime Manual provides detailed guidance on who a prosecutor should contact when the case involves a child complainant.
 
Whilst the appropriate person to consult with and obtain views from, will often be the parents/guardians of the child complainant (for example in cases involving very young children), this will not always be the situation (for example in cases involving teenagers), and should be assessed on a case-by-case basis. References to consultation with the complainant, or obtaining the views of the complainant in this Practice Group Instruction should be viewed in that context, that is, as requiring consultation with and obtaining views from the person(s) whom this office has identified as being the most appropriate person(s) to deal with.

Relevant Policy

To request a copy of full policy (Practice Group Instruction No 7 - Prosecutions involving child complainants in child sex matters) please contact inquiries@cdpp.gov.au.
 
This Practice Group Instruction does not apply to situations where at least some charges will proceed/remain against the defendant. These can be:

  • in cases involving multiple complainants where a decision is made to commence some charges against a defendant (even where no charges are to be commenced in relation to a particular complainant), and/or
  • where a decision is made to continue with some charges against a defendant (even where all charges are to be discontinued in relation to a particular complainant). 

The CDPP’s Victims of Crime Policy and Prosecution Policy also identifies the types of information that victims of crime are entitled to receive upon request and this guides the work of the Witness Assistance Service, together with prosecutors in this area.  

Referral to the Practice Group Leader or Director in other Circumstances

Nothing in Practice Group Instruction No 7 prevents a child sex matter which falls outside the terms of this Practice Group Instruction, to be escalated to the Practice Group Leader or Director, where it is otherwise appropriate to do so.