Type of document: Prosecution Directive
Effective date: November 14, 2017

A charge may only proceed if there is a reasonable prospect of conviction and it is in the public interest. The appropriate exercise of prosecutorial discretion is fundamental to the proper application of the charge screening standard. The community relies upon Prosecutors to pursue charges that can be proven while protecting individuals from the serious repercussions of a criminal charge where there is no reasonable prospect of conviction.

Deciding to continue or terminate a prosecution can be one of the most difficult decisions a Prosecutor can make. The Prosecutor must act with objectivity, independence and fairness in each case to ensure a principled decision is made. It requires a balancing of competing interests including the interests of the public, the accused and the victim.

The charge screening obligation is ongoing as Prosecutors receive new information in preparation for and during the conduct of bail hearings, pre-trials, preliminary hearings, trials and appeals. Any new information received during or after all appeals have been exhausted should be forwarded to the Director of Crown Law Office – Criminal.

Decisions made by Prosecutors about whether to continue or terminate a prosecution made in the proper exercise of their discretion will be supported by the Attorney General.

Reasonable prospect of conviction

When considering whether to continue the prosecution of a charge, the Prosecutor should determine if there is a reasonable prospect of conviction. This standard must be applied to all cases and at all stages. If at any stage of the proceeding, the Prosecutor determines there is no longer a reasonable prospect of conviction, the prosecution must be discontinued.

The reasonable prospect of conviction standard is higher than a prima facie case that merely requires that there is evidence whereby a jury, properly instructed, could convict. On the other hand, the standard does not require "a probability of conviction," that is, a conclusion that a conviction is more likely than not. The term reasonable prospect of conviction denotes a middle ground between these two standards. It requires the exercise of prosecutorial judgment and discretion based on objective indicators found in the case itself.

Applying the reasonable prospect of conviction standard requires a limited assessment of credibility based on objective factors, an assessment of the admissibility of evidence and a consideration of likely defences.

In applying the standard, Prosecutors should consider the following factors:

  • the availability of evidence
  • the admissibility of evidence implicating the accused
  • an assessment of the credibility and competence of witnesses, without taking on the role of the trier of fact
  • the availability of any evidence supporting any defences that should be known or that have come to the attention of the Prosecutor.

Public interest

If there is a reasonable prospect of conviction, the Prosecutor must then consider whether it is in the public interest to continue the prosecution. The public interest factors must only be considered after it is determined there is a reasonable prospect of conviction. No public interest, however compelling, can warrant the prosecution of an individual if there is no reasonable prospect of conviction.

When deciding whether to prosecute or discontinue the prosecution a number of public interest factors should be considered. No one factor is determinative when assessing the public interest, but consideration should be given to:

  1. the gravity or relative seriousness of the incident
  2. circumstances and views of the victim including any safety concerns
  3. the age, physical health, mental health or special vulnerability of an accused, victim or witness
  4. the prevalence of the type of offence and the actual or potential impact of the offence on the community and/or victim
  5. the criminal history of the accused
  6. whether the consequences of any resulting conviction would be unduly harsh or oppressive to the accused
  7. whether the accused is willing to co-operate or has already co-operated in the investigation or prosecution of others
  8. the degree of culpability of the accused, particularly in relation to other alleged parties to the offence
  9. the likely outcome in the event of a finding of guilt, having regard to the sentencing options
  10. the length and expense of a trial when considered in relation to the seriousness of the offence
  11. the availability of any alternatives to prosecution such as diversion and civil remedies.

This is a non-exhaustive list and some cases will raise unique factors. Not all factors will be applicable to every case and in any particular case one factor may deserve more weight than it might in another case.

In determining whether there is a public interest to proceed or discontinue the prosecution, the Prosecutor must remain objective and be aware of the negative impact of stereotypes. In particular, stereotypes relating to race or ethnic origin, colour, religion, sex, sexual orientation, gender identity, gender expression, political association or beliefs of the accused or any person involved in the case must be rejected.

The Prosecutor should not consider the personal feelings of any official involved in the prosecution concerning the victim or the accused, any political advantage or disadvantage that might flow from the decision to undertake or stop a prosecution or the possible effect on the personal or professional circumstances of anyone connected to the prosecution decision.

There is no class of cases that are of necessity outside the public interest to prosecute.

Discontinuing the prosecution

Where there is no reasonable prospect of conviction or there is no public interest to proceed, the Prosecutor must withdraw the charge. Brief reasons should be provided on the record where the Prosecutor withdraws the charge unless such comments would breach a privilege or create a risk of harm.

A stay of proceedings is not appropriate where a charge does not meet the charge screening standard and there is no expectation that it will meet the standard within a year. A stay is only appropriate where the proceedings are temporarily discontinued with an expectation of recommencing within one year.

Before discontinuing the prosecution, the Prosecutor must ensure reasonable steps are taken to inform the victim and the investigating officer that the charges will be withdrawn. Reference should be made to the Victims Directive, Sexual Assault against Adults Directive, Intimate Partner Violence Directive.