The Prosecution Policy of the Commonwealth applies to all Commonwealth prosecutions. It outlines the principles, factors and considerations our prosecutors must take into account in prosecuting offences against the laws of the Commonwealth.
The policy underpins and promotes consistency and efficiency. It guides decision making throughout the prosecution process for every matter, regardless of the crime type or practice group.
Criteria governing the decision to prosecute—the prosecution test
The CDPP must ensure the test for prosecution is met, as set out under the Prosecution Policy of the Commonwealth, when making a decision to prosecute. The test requires that we must be satisfied there is sufficient evidence to prosecute a case and that the prosecution is in the public interest.
To determine if there is sufficient evidence to prosecute a case, we must be satisfied there is both prima facie evidence of the elements of the offence and a reasonable prospect of obtaining a conviction. In making this decision, our prosecutors must evaluate how strong the case is likely to be when presented in court. They must take into account matters such as the availability, competence and credibility of witnesses, their likely effect on the arbiter of fact (magistrate or jury), and the admissibility of any alleged confessionor other evidence. Our prosecutors also consider any lines of defence open to the alleged offender, and any other factors that could affect the likelihood of a conviction.
In addition, our prosecutors consider if any evidence might be excluded by a court. If that evidence is crucial to the case, this may substantially affect the decision whether or not to prosecute. Our prosecutors need to look closely at the evidence in each matter, particularly in borderline cases.
Once satisfied there is sufficient evidence to justify starting or continuing with a prosecution, our prosecutors then consider whether pursuing a prosecution is in the public interest. This involves assessing all provable facts and surrounding circumstances.
Public interest factors we may consider include:
- whether the offence is serious or trivial
- mitigating or aggravating circumstances
- the age, intelligence, physical health, mental health or vulnerability of the alleged offender, witness or victim
- the alleged offender’s criminal history and background
- the passage of time since the alleged offence
- the availability and efficacy of any alternatives to prosecution
- the prevalence of the alleged offence and the need for general and personal deterrence
- the attitude of the victim or victims
- the need to apply regulatory or punitive imperatives, and
- the likely outcome in the event of a finding of guilt.
The decision to prosecute must be made impartially and must not be influenced by reference to race, religion, sex, national origin or political association, activities or beliefs of the alleged offender, or of any other person involved. The decision to prosecute must not be influenced by any possible political advantage or disadvantage to the Government, or to any political group or party.
The Prosecution Policy of the Commonwealth is available on the CDPP website at www.cdpp.gov.au.
Measuring compliance with the prosecution test
Our prosecutors are required to certify compliance in addressing the test for prosecution in the Prosecution Policy of the Commonwealth by completing a Prosecution Policy Declaration. Since introducing this performance metric, we have achieved 100 per cent compliance.
These declarations are entered electronically into our case recording and information management systems. This has been an important initiative to confirm and capture evidence that the Prosecution Policy of the Commonwealth has been addressed. Specifically, it provides assurance that our prosecutors have considered whether there is a prima facie case, whether there are reasonable prospects of a conviction, and whether a prosecution is in the public interest at each stage of the prosecution process.
In December 2019 the CDPP also undertook its first annual internal review of a sample of individual case files, across all practice groups, to provide additional assurance that supporting documents on file properly evidenced and supported the application of the Prosecution Policy.