lOMoARcPSD|7775370
Lexi Yates, Semester 1 2014, Sydney Law
summary-criminal-law 3 2021-2022 School
3. PROSECUTION, PRE-TRIAL PROCESS +
PUBLIC ORDER OFFENCES
TEXTBOOK READINGS/LECTURE NOTES
1. P.103 – 107: Talks about discretion in the criteria for prosecution, copy of relevant DPP
guidelines, includes media statement by the Director of PP regarding the decision to not
proceed with the prosecution of the ‘Chaser Case’
2. P.108 – 113: Deals with problems of police prosecutions, duties that prosecutors are subject
to, plea bargaining, charge bargaining – outlines advantages and disadvantages of charge
negotiation
3. P.114 – 127: Talks about the pressures to plead guilty with good case law and article citations
Police Prosecutions
Police prosecutors take over most prosecutions in Local Courts
Wood Royal Commission into NSW Police Force (1995-1997) found this to be a problem because
a) Police prosecutors are answerable to superiors in the chain of command
b) Do not owe a legal duty to the court as solicitors and barristers do
c) Not subject to same code of behaviour and professional discipline as lawyers
In May 2010 Nicholas Cowdry also noted that
a) Police are involved in investigation – therefore not ideal for them to prosecute
b) Committed to a particular outcome (guilty verdict)
c) Lack of objectivity about whether or not the prosecution should be conducted
Many commissions and inquiries have suggested DPP take over all prosecutions
Principle:
Police conduct most prosecutions of summary offenses rather than the DPP.
Qualification:
They have the power to do this under the DPP Act s9 as private prosecutors.
Discussion:
- It is unusual because Australia and NZ are the only countries who allow this.
- It is problematic because there is a lack of independence from investigators, potentially become
very involved in generating evidence against suspects in the belief that they are guilty. They also
lack legal expertise, as the prosecutor’s legal education program of 13 weeks is not a law degree.
They also do not have to follow the DPP guidelines - no ethical requirement.
- They remain because the police see it as a reduction in power; reduction in their budget, if these
powers are taken away.
The Director of Public Prosecutions:
Principle: The DPP is the primary prosecutor in NSW for indictment and some summary cases. Their
rights are vested in them through statute, and they are governed by guidelines. Qualifications:
- The DPP’s principal functions include instituting and conducting prosecutions for indictable
offenses in the Supreme Court and the District Court and appeals in respect of these
prosecutions. They also decide whether any further proceedings are to be taken and finding a bill
for indictment - DPP Act s7.
- The DPP may also institute and conduct committal proceedings for indictable offenses,
proceedings for summary in any court, and summary proceedings for indictable offenses in the
local court, and any appeals arising out of these summary proceedings - DPP Act s8.
- The DPP has power to furnish guidelines to deputy directors, crown prosecutors and solicitors (i.e.
the DPP Guidelines) - DPP Act s13.
- Persons to whom the guidelines are furnished are subject to them - DPP Act s15. 30
Downloaded by Anthony Juzz
, lOMoARcPSD|7775370
Lexi Yates, Semester 1 2014, Sydney Law
School
Key Question for DPP: Whether or not to prosecute
This is not a question of whether the crime has been committed or not
Instead, there are a range of factors DPP is allowed to consider when answering this question, and a
range of things they are NOT allowed to consider
DPP Guideline 4 outlines issues relating to the decision to prosecute. The paramount criterion of
deciding whether to not to prosecute requires determining whether the prosecution is in the general
public interest.
DPP Guideline 4:
FIRST ISSUE – Is the prosecution in the general public interest?
The question whether or not the public interest requires that a matter be prosecuted
is resolved by determining:
(a) Whether or not the admissible evidence available is capable of establishing each
element of the offence;
(b) Whether or not it can be said that there is no reasonable prospect of conviction
by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if
not
(c) Whether or not discretionary factors nevertheless dictate that the matter should
not proceed in the public interest.
SECOND ISSUE – Likelihood of success based on prima facie case
The second matter requires an exercise of judgment, which will depend in part upon an
evaluation of the weight of the available evidence and the persuasive strength of the
prosecution case in light of the anticipated course of proceedings, including the
circumstances in which they will take place. It is a test appropriate for both indictable
and summary charges
THIRD ISSUE – Variety of factors that may be considered when deciding whether
to prosecute
3.1 the seriousness or, conversely, the triviality of the alleged offence or that it is of a
"technical" nature only;
3.2 the obsolescence or obscurity of the law;
3.3 whether or not the prosecution would be perceived as counter-productive; for example,
by bringing the law into disrepute;
3.4 special circumstances that would prevent a fair trial from being conducted;
3.5 whether or not the alleged offence is of considerable general public concern;
3.6 the necessity to maintain public confidence in such basic institutions as the Parliament
and the courts;
3.7 the staleness of the alleged offence;
3.8 the prevalence of the alleged offence and any need for deterrence, both personal and
general;
3.9 the availability and efficacy of any alternatives to prosecution;
3.10 whether or not the alleged offence is triable only on indictment;
3.11the likely length and expense of a trial;
3.12 whether or not any resulting conviction would necessarily be regarded as unsafe and
unsatisfactory;
3.13 the likely outcome in the event of a finding of guilt, having regard to the sentencing
options available to the court;
3.14 whether or not the proceedings or the consequences of any resulting conviction would
be unduly harsh or oppressive;
3.15 the degree of culpability of the alleged offender in connection with the offence;
3.16 any mitigating or aggravating circumstances;
31
Downloaded by Anthony Juzz ()
Lexi Yates, Semester 1 2014, Sydney Law
summary-criminal-law 3 2021-2022 School
3. PROSECUTION, PRE-TRIAL PROCESS +
PUBLIC ORDER OFFENCES
TEXTBOOK READINGS/LECTURE NOTES
1. P.103 – 107: Talks about discretion in the criteria for prosecution, copy of relevant DPP
guidelines, includes media statement by the Director of PP regarding the decision to not
proceed with the prosecution of the ‘Chaser Case’
2. P.108 – 113: Deals with problems of police prosecutions, duties that prosecutors are subject
to, plea bargaining, charge bargaining – outlines advantages and disadvantages of charge
negotiation
3. P.114 – 127: Talks about the pressures to plead guilty with good case law and article citations
Police Prosecutions
Police prosecutors take over most prosecutions in Local Courts
Wood Royal Commission into NSW Police Force (1995-1997) found this to be a problem because
a) Police prosecutors are answerable to superiors in the chain of command
b) Do not owe a legal duty to the court as solicitors and barristers do
c) Not subject to same code of behaviour and professional discipline as lawyers
In May 2010 Nicholas Cowdry also noted that
a) Police are involved in investigation – therefore not ideal for them to prosecute
b) Committed to a particular outcome (guilty verdict)
c) Lack of objectivity about whether or not the prosecution should be conducted
Many commissions and inquiries have suggested DPP take over all prosecutions
Principle:
Police conduct most prosecutions of summary offenses rather than the DPP.
Qualification:
They have the power to do this under the DPP Act s9 as private prosecutors.
Discussion:
- It is unusual because Australia and NZ are the only countries who allow this.
- It is problematic because there is a lack of independence from investigators, potentially become
very involved in generating evidence against suspects in the belief that they are guilty. They also
lack legal expertise, as the prosecutor’s legal education program of 13 weeks is not a law degree.
They also do not have to follow the DPP guidelines - no ethical requirement.
- They remain because the police see it as a reduction in power; reduction in their budget, if these
powers are taken away.
The Director of Public Prosecutions:
Principle: The DPP is the primary prosecutor in NSW for indictment and some summary cases. Their
rights are vested in them through statute, and they are governed by guidelines. Qualifications:
- The DPP’s principal functions include instituting and conducting prosecutions for indictable
offenses in the Supreme Court and the District Court and appeals in respect of these
prosecutions. They also decide whether any further proceedings are to be taken and finding a bill
for indictment - DPP Act s7.
- The DPP may also institute and conduct committal proceedings for indictable offenses,
proceedings for summary in any court, and summary proceedings for indictable offenses in the
local court, and any appeals arising out of these summary proceedings - DPP Act s8.
- The DPP has power to furnish guidelines to deputy directors, crown prosecutors and solicitors (i.e.
the DPP Guidelines) - DPP Act s13.
- Persons to whom the guidelines are furnished are subject to them - DPP Act s15. 30
Downloaded by Anthony Juzz
, lOMoARcPSD|7775370
Lexi Yates, Semester 1 2014, Sydney Law
School
Key Question for DPP: Whether or not to prosecute
This is not a question of whether the crime has been committed or not
Instead, there are a range of factors DPP is allowed to consider when answering this question, and a
range of things they are NOT allowed to consider
DPP Guideline 4 outlines issues relating to the decision to prosecute. The paramount criterion of
deciding whether to not to prosecute requires determining whether the prosecution is in the general
public interest.
DPP Guideline 4:
FIRST ISSUE – Is the prosecution in the general public interest?
The question whether or not the public interest requires that a matter be prosecuted
is resolved by determining:
(a) Whether or not the admissible evidence available is capable of establishing each
element of the offence;
(b) Whether or not it can be said that there is no reasonable prospect of conviction
by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if
not
(c) Whether or not discretionary factors nevertheless dictate that the matter should
not proceed in the public interest.
SECOND ISSUE – Likelihood of success based on prima facie case
The second matter requires an exercise of judgment, which will depend in part upon an
evaluation of the weight of the available evidence and the persuasive strength of the
prosecution case in light of the anticipated course of proceedings, including the
circumstances in which they will take place. It is a test appropriate for both indictable
and summary charges
THIRD ISSUE – Variety of factors that may be considered when deciding whether
to prosecute
3.1 the seriousness or, conversely, the triviality of the alleged offence or that it is of a
"technical" nature only;
3.2 the obsolescence or obscurity of the law;
3.3 whether or not the prosecution would be perceived as counter-productive; for example,
by bringing the law into disrepute;
3.4 special circumstances that would prevent a fair trial from being conducted;
3.5 whether or not the alleged offence is of considerable general public concern;
3.6 the necessity to maintain public confidence in such basic institutions as the Parliament
and the courts;
3.7 the staleness of the alleged offence;
3.8 the prevalence of the alleged offence and any need for deterrence, both personal and
general;
3.9 the availability and efficacy of any alternatives to prosecution;
3.10 whether or not the alleged offence is triable only on indictment;
3.11the likely length and expense of a trial;
3.12 whether or not any resulting conviction would necessarily be regarded as unsafe and
unsatisfactory;
3.13 the likely outcome in the event of a finding of guilt, having regard to the sentencing
options available to the court;
3.14 whether or not the proceedings or the consequences of any resulting conviction would
be unduly harsh or oppressive;
3.15 the degree of culpability of the alleged offender in connection with the offence;
3.16 any mitigating or aggravating circumstances;
31
Downloaded by Anthony Juzz ()
