Discontinuance of a prosecution following commitment to trial or the filing of an indictment
After a defendant has been committed for trial, the question sometimes arises whether the prosecution should continue. This can arise either as a result of an application by the defendant or on the CDPP’s own initiative. The Director’s power to discontinue a prosecution is derived from section 9(4) of the Director of Public Prosecutions Act 1983 (DPP Act). A submission made to the Director to discontinue such a matter is known as a ‘no bill’ application.
The Director’s power to discontinue is delegated to the Commonwealth Solicitor for Public Prosecutions, practice group leaders (Deputy Directors) and branch heads (Assistant Directors) who make these decisions in certain circumstances.
In 2019–20, a total of 23 prosecutions, which the CDPP had carriage of, were discontinued. These prosecutions were discontinued following commitment to trial or the filing of an indictment because there was either insufficient evidence to proceed or for compelling public interest reasons and include one matter were the prosecution was discontinued because the accused person was deceased.
Taking matters over and discontinuing—private prosecutions
The right for any person to bring a private prosecution is protected in Commonwealth matters by section 13 of the Crimes Act 1914 and is expressly preserved under section 10(2) of the DPP Act.
Under section 9(5) of the DPP Act, the Director has the power to take over a prosecution for a Commonwealth offence that has been instituted by another person. The Director is empowered to either carry on the prosecution or, if appropriate, to discontinue it.
The Director was required to exercise this power on two occasions during 2019–20. In those cases, the Director took over the prosecution and discontinued it as the evidence was insufficient for the charges to proceed.
Discontinuances in the summary jurisdiction
Apart from the cases that were discontinued in the circumstances outlined above, the CDPP also discontinued 115 matters in the summary jurisdiction in the 2019–20 financial year6 on either evidentiary or public interest grounds. These matters were largely in the RBF, IASA and HEBP practice groups.
Review of Discontinuances
The Executive Leadership Group reviews the reasons for discontinuances annually with a view to identifying any systemic issues and/or areas for improvement for either the CDPP or partner agencies.
The DPP Act empowers the Director to give an undertaking ‑ referred to as an indemnity ‑ to a potential witness in three circumstances:
- Section 9(6) authorises the Director to give an indemnity to a potential witness in Commonwealth proceedings that any evidence the person may give, and anything derived from that evidence, will not be used in evidence against the person, other than in proceedings for perjury.
- Section 9(6B) empowers the Director to give an indemnity to a person that any evidence he or she may give in proceedings under state or territory law will not be used in evidence against them in a Commonwealth matter.
- Section 9(6D) empowers the Director to give an indemnity to a person that he or she will not be prosecuted under Commonwealth law in respect of a specified offence.
In the past year, the Director provided indemnities under section 9(6) to 21 persons and granted one indemnity under section 9(6B).
The Director has the function under section 6(2A)‑(2D) of the DPP Act to institute prosecutions on indictment, referred to as ex-officio indictments. These powers in section 6(2A)‑(2C) are used in circumstances where a defendant consents to a prosecution on indictment without being examined or committed for trial, or where a defendant having been committed on either Commonwealth, state or territory offences, is indicted on different charges from those on which they were committed.
Section 6(2D) of the DPP Act provides that in any other case, where the Director considers it appropriate to do so, the Director may institute a prosecution of a person on indictment for an indictable offence against the laws of the Commonwealth, in respect of which the person has not been examined or committed for trial.
In certain circumstances the decision to present an ex-officio indictment is delegated to the Commonwealth Solicitor for Public Prosecutions, practice group leaders and branch heads. In 2019–20, the Director, a practice group leader or Branch Head exercised ex-officio powers on 15 occasions.
Consent to conspiracy proceedings
The Director’s consent is required before proceedings for Commonwealth conspiracy offences can commence. In 2019–20, the Director consented to the commencement of conspiracy proceedings against 23 defendants in relation to 13 alleged conspiracies.
Consent under section 121(8) of the Family Law Act 1975
The Director’s consent is required before proceedings are commenced for an offence against section 121 of the Family Law Act 1975, which restricts publication of court proceedings.
During 2019–20, the Director was not required to give consent under this provision.