National Legal Directions
Discontinuing charges or proceedings
Last Updated: June 2014
Contents
Power under the DPP Act to discontinue charges or terminate proceedings ............................................... 1
Who can make the decision to discontinue charges or terminate proceedings ........................................... 1
Discontinue summary charges/proceedings and indictable charges/proceedings prior to commitment 1
Discontinue charges or proceedings after commitment or indictment .................................................... 1
Considerations in relation to discontinuing a prosecution............................................................................ 2
Consulting the referring agency in relation to discontinuing a prosecution ................................................. 2
Consulting victims in relation to discontinuing a prosecution ...................................................................... 2
Briefing on any Criminal Assets Implication in ‘No Bill’ Applications ............................................................ 2
Costs when proceedings terminated ............................................................................................................. 3
Power under the DPP Act to discontinue charges or terminate proceedings
1. The power to terminate summary proceedings being carried on by the CDPP is contained in section 9(5A)
of the Director of Public Prosecutions Act 1983. The power to terminate proceedings after commitment or
indictment for trial is contained in section 9(4).
Who can make the decision to discontinue charges or terminate proceedings
Discontinue summary charges/proceedings and indictable charges/proceedings prior to commitment
2. A decision to discontinue charges or a prosecution under section 9(5A) will ordinarily be made at the
regional office level by the Branch Head or the Deputy Director.
The Director should be consulted if the exercise of the power could be contentious in the circumstances of
a particular case.
Discontinue charges or proceedings after commitment or indictment
3. The Deputy Director or Branch Head can make the decision to discontinue charges or proceedings after
commitment or indictment where:
(i)
The charge or charges are to be replaced by charges which are:
• founded on facts or evidence disclosed in the course of the committal proceedings; and
• either:
(a) not substantially different in number and/or kind (for example in substance and/or
elements) to the committal order; or
(b) adequately reflect the nature and extent of the criminal conduct disclosed by the evidence
and which will provide the court with an appropriate basis for sentence; or
(ii)
The charges which will remain either:
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Last Updated: June 2014
National Legal Directions
Discontinuing charges or proceedings
(a) are not substantially different in number and/or kind (for example in substance and/or
elements) to the committal order; or
(b) adequately reflect the nature and extent of the criminal conduct disclosed by the evidence
and which will provide the court with an appropriate basis for sentence.
4. The term “not substantially different in number and/or kind” will cover most charge negotiation
situations where there is agreement to amend the indictment from the committal order by, for example,
“rolling up” charges, scheduling charges, discontinuing some charges and/or replacing charges with others.
Charge negotiation issues are also discussed in the GDM paper entitled “Charge negotiations”.
The Deputy Director can also make the decision to discontinue proceedings after commitment or
indictment in circumstances where the matter would normally be referred to the Director but where the
decision needs to be made as a matter of urgency. In these circumstances the power should only be
exercised by a delegate when, in his or her opinion, there is insufficient time in a particular case for the
matter to be referred to the Director.
Where the matter is politically sensitive, a matter of national significance or where there is serious internal
disagreement, the Director must make the decision whether to discontinue the charges.
Considerations in relation to discontinuing a prosecution
5. Occasionally during the course of carrying on a prosecution a need to review a case will arise in the light
of new information including:
•
changed circumstances of the defendant, or
•
important evidence no longer being available,
•
new evidence becoming available;
This may require a re-determination of whether the evidential and public interest tests remain satisfied.
6. If the evidential and public interest tests are no longer satisfied, the proceedings should be terminated,
provided they have not reached the point of a conviction being recorded.
7. If public interest factors personal to the defendant change between conviction and sentence, they are
matters to be considered in mitigation of sentence.
Consulting the referring agency in relation to discontinuing a prosecution
8. The referring agency must be consulted before a prosecution is terminated. The process of consultation
allows the referring agency to provide additional material that may affect the decision. For example
additional witness statements may resolve the evidential difficulties first identified.
Consulting victims in relation to discontinuing a prosecution
9. Occasionally a case being prosecuted by the Office involves victims who are natural persons. The
Prosecution Policy of the Commonwealth provides for the views of victims, where those views are available
and where it is appropriate, to be considered and taken into account when deciding whether it is in the
public interest to discontinue a prosecution or to agree to a charge negotiation.
10. Once a decision has been made, consideration and care should be given to:
• how such victims will be informed of a decision to terminate proceedings, and
• what reasons it would be appropriate to give.
Briefing on any Criminal Assets Implication in ‘No Bill’ Applications
11. Where the AFP is taking criminal assets action in a case and consideration is being given to:
•
a ‘no bill’ application;
•
a recommendation not to institute a prosecution on indictment; or
•
a recommendation not to proceed with a prosecution on indictment,
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Last Updated: June 2014
National Legal Directions
Discontinuing charges or proceedings
the case officer should note in their minute any criminal assets action being taken by the AFP and include ,
to the extent it is able, a comment on the implications for that action if the prosecution does not proceed.
12. Where a ‘no bill’ application has little obvious merit it may be sufficient simply to note that there are
related civil proceedings and that more information is available if the decision maker requires it.
Costs when proceedings terminated
13. The issue of costs is most likely to arise in proceedings before a magistrate. In some jurisdictions costs
may be awarded where a person is acquitted or discharged in proceedings on indictment. In Solomans v
District Court of New South Wales (2002) 192 ALR 217 the High Court decided that neither section 68 or 79
of the Judiciary Act “picked up” the machinery of the Costs in Criminal Cases Act 1979 (NSW) in the federal
jurisdiction. The effect of that decision is that no costs were available in that case for the defendant
following acquittal for a Commonwealth offence. There is a related decision in Victoria. As at 15 January
2004 the Commonwealth Attorney-General’s Department was considering what policy response it should
make to the decision.
14. Wherever possible the termination of proceedings should be negotiated with the defendant or his or
her legal representative on the basis that each party pay their own costs.
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