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The role of an independent prosecutor and guidelines for the exercise of the discretion to prosecute

These guidelines are published to provide an indication to the community at large of the nature of the task undertaken by my Office in determining whether or not an Indictment should be filed and a prosecution undertaken in the Criminal Court.

In Tasmania almost all charges involving indictable crime are laid by Police officers who undertake the investigation and gather the evidence relevant to the prosecution. These officers are trained investigators, they are not qualified lawyers and do not undertake a formal course of training in the prosecution of indictable matters in the Supreme Court of this State.  In addition the case presented to my Office for prosecution after a committal proceeding has been conducted will often have undergone an evidentiary change due to the effect of cross-examination upon witnesses, the addition of forensic evidence (some of which may not be available at the time of charging) and the response to any request from my Office for additional evidence or investigation.  Police prosecutions are commenced on obtaining a prima facie case but, as the Prosecutorial Guidelines indicate, a mere prima facie case is an insufficient level of proof for my Office to be satisfied that an Indictment should be filed.  The test applied by my Office and all other prosecuting agencies in Australia is one which requires the person signing the Indictment to be satisfied that there is a reasonable prospect of conviction on the available and admissible evidence.  This test requires, quite obviously, the assumption that the prosecution will be conducted before a reasonable jury not subject to any bias or undue influence and one which is properly directed to assess the issue of guilt.

The decision to discontinue a prosecution will often cause anger and distress to the victim or family of the victim of a crime.  Whilst, in an emotional sense, victims of crime and the families of victims of crime may wish to see the perpetrator of a wrong prosecuted for the most serious criminal offence possible there is always a need to ensure that a careful and objective assessment of the available and admissible evidence is made and a correct application of legal principle to that evidentiary material.   It is unfortunate that the role of an independent prosecutor is only the subject of consideration or discussion when issues such as this arise.  It is to be hoped that the continued publication of these guidelines and, wherever necessary, public explanation will assist the community at large in understanding the careful consideration which is given to the decision to prosecute and the factors which are taken into account in exercising the discretion to prosecute or making the decision to discontinue a prosecution.

The decision whether or not to prosecute is the most important step in the prosecution process.  In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made.  A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, tend to undermine the confidence of the community in the criminal justice system.

It follows that the objectives of fairness and consistency are of particular importance.  However, fairness need not mean weakness and consistency need not mean rigidity.  The criteria for the exercise of this discretion cannot be reduced to something akin to a mathematical formula; indeed it would be undesirable to attempt to do so.  The breadth of the factors to be considered in exercising this discretion indicates a candid recognition of the need to tailor general principles to individual cases.

In deciding whether or not a matter should be prosecuted any views put forward by Tasmania Police or other investigating agencies are carefully taken into account. Ultimately, however, the decision is to be made having regard to the consideration referred to below.

The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution (s 310(4) of the Criminal Code).  A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by an identifiable person.

In deciding whether the evidence is sufficient to justify the institution or continuation of a prosecution the existence of a bare prima facie case is not enough.  A prima facie case is a necessary but not sufficient condition for launching a prosecution.  Given the existence of a prima facie case it must be understood that a prosecution should not proceed if there is no reasonable prospect of a conviction being secured before a hypothetical reasonable jury properly instructed (i.e. an impartial jury) or Magistrate in the case of summary offences.  This decision requires an evaluation of how strong the case is likely to be when presented in Court.  It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression 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 which are plainly open to, or have been indicated by, the alleged offender and any other factors which in the view of the prosecutor could affect the likelihood or otherwise of a conviction.  This assessment may be a difficult one to make, and of course there can never be an assurance that a prosecution will succeed.  Indeed, it is inevitable that some will fail.  However, application of this test dispassionately, after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds.

Having satisfied himself or herself that the evidence is sufficient to justify the institution or continuation of a prosecution, the prosecutor must then consider whether, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued.  It is not the rule that all offences brought to the attention of the authorities must be prosecuted.

The factors which can properly be taken into account in deciding whether the public interest requires a prosecution will vary from case to case.  While many public interest factors militate against a decision to proceed with a prosecution, there are public interest factors which operate in favour of proceeding with a prosecution (for example, the seriousness of the offence, the need for deterrence).  In this regard, generally speaking the more serious the offence the less likely it will be that the public interest will not require that a prosecution be pursued.

Factors which may arise for consideration in determining whether the public interest requires a prosecution include:

  • the seriousness or, conversely, the triviality of the alleged offence or that it is of a "technical" nature only;
  • any mitigating or aggravating circumstances;
  • the youth, age, intelligence, physical health, mental health or special infirmity of the alleged offender, a witness or victim;
  • the alleged offender's antecedents and background;
  • the staleness of the alleged offence;
  • the degree of culpability of the alleged offender in connection with the offence;
  • the obsolescence or obscurity of the law;
  • whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute;
  • the availability and efficacy of any alternatives to prosecution;
  • the prevalence of the alleged offence and the need for deterrence, both personal and general;
  • whether the consequences of any resulting conviction would be unduly harsh and oppressive;
  • whether the alleged offence is of considerable public concern;
  • any entitlement of the victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken;
  • the attitude of the victim of the alleged offence to a prosecution;
  • the likely length and expense of a trial;
  • whether the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;
  • the likely outcome in the event of a finding of guilt having regard to the sentencing options available to the Court;
  • whether the alleged offence is triable only on indictment.

The applicability of and weight to be given to these and other factors will depend on the particular circumstances of each case.

As a matter of practical reality the proper decision in many cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution.  Although there may be public interest factors present in a particular case, often the proper decision will be to proceed with a prosecution and for those factors to be put to the Court at sentence in mitigation.  Nevertheless, where the offence is not so serious as plainly to require prosecution the prosecutor should always apply his or her mind to whether the public interest requires a prosecution to be pursued.

Special considerations apply to the prosecution of persons under the age of 16 years.  Prosecution action against children should be used sparingly and in making a decision whether to prosecute particular consideration should be given to available alternatives to prosecution, such as a caution or reprimand, as well as to the sentencing alternatives available to the relevant Youth Justice Court if the matter were to be prosecuted.

A decision whether or not to prosecute must clearly not be influenced by:

  • the race, religion, sex, national origin or political associations, activities or beliefs of the alleged offender or any other person involved;
  • personal feelings concerning the offender or the victim;
  • possible political advantage or disadvantage to the Government or any political group or party; or
  • the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.