LEGAL STUDIES ASSOCIATION OF NSW INC.
Annual Conference 2005,
31 March 2005
THE CRIMINAL PROCESS AND THE
ROLE OF DISCRETION
Nicholas Cowdery AM QC
Director of Public Prosecutions, NSW
President, International Association of Prosecutors
It is sometimes (wrongly) said that discretion is the better part of valour. The accurate quotation is that the better part of valour is discretion. (I suppose it is all a matter of emphasis.) Shakespeare revived and reinterpreted the old maxim in the mouth of Falstaff in Henry IV, Part 1; but Euripides is recorded as having written it long before, followed by: “… and bravery consists in foresight”. In the criminal law we sometimes have to make brave decisions (even, on occasions, what Sir Humphrey would have described as “courageous”). However, whether decisions are courageous, brave or mundane, foresight is always required and discretion is almost always an important component.
In that context, discretion is judgment. Judgment is exercised by applying principles and values to facts. In finding the facts it may be necessary also to exercise judgment in a different way – by weighing competing versions and choosing between them or predicting how the competition might be resolved by an ultimate fact finder.
These operations are essential and ever-present features of the criminal justice process.
There are tensions between all participants in the criminal justice system – victims, offenders, investigators, legal actors, the community – and at all stages of the process. They arise out of the nature of the process itself but also out of the way in which we require it to operate – out of the community’s expectations for it.
The criminal law imposes rules on our behaviour and provides sanctions for their breach. There are regular breaches; but, such is the ingenuity of humans, they often occur in ways that were not precisely predicted when the rules were made. If the prohibited conduct could be precisely described in advance and if strict and inflexible rules for dealing with them could be enacted in advance, life in the criminal law would be greatly simplified. It would then be a matter of just applying the strict rule to the precise behaviour and looking up the prescribed consequences. But life is not so black and white and the criminal law has more shades of grey to it than the pre-dawn light. Offences are prescribed by reference only to the essential elements or ingredients to be proved and they may often be established from widely differing surrounding factual circumstances. That is why discretion must be exercised in the enforcement and application of the criminal law.
To the absence of precise rules addressing precise behaviours we add the overriding need to do justice in every case. More shades of grey. The tension is exacerbated by the ways in which individual agencies involved exercise discretion at all stages of the criminal justice process. Sometimes bravery is required…
Different criminal justice systems deal with the exercise of discretion in different ways. For example, in some places a prosecutor may not alter the charges laid or negotiate with the offender for a plea of guilty to an alternative charge. In our system, however, discretion enters early and remains throughout.
When a crime is committed there is usually (but not always) an individual victim. Some offences (for example a minor assault or the theft of an item of little value or the commission of a minor offence by a family member or friend) might be shrugged off. The victim in that case is exercising a discretion whether or not to report the offence to the relevant authority. If there is no other witness to the event (or nobody with knowledge of it otherwise), then that will be the end of the matter and a crime will go unreported. I suspect that happens millions of times a year in NSW alone.
Many factors will operate on the mind of a victim of crime and there is no need to describe them in any detail. They will arise from the relationship between offender and victim, the circumstances of the offending, the subject matter of the offence, the prospects for future outcomes from reporting, and so on.
When a crime is reported to police (or other relevant agency), discretion will also be used in their response. In the old days, if a juvenile was causing problems in the neighbourhood the local policeman would sometimes administer summary justice by a clip on the ear or a kick in the backside and a warning to the parents. These days that sort of thing is frowned upon (officially) and even in those relatively minor cases police must decide whether or not to proceed formally and, if so, in what manner.
Again, many factors operate at that level. Police have an overriding duty to act in accordance with the law and the various professional requirements imposed upon them by regulation, agency procedures and so on. They must do their duty as prescribed; but they do have some discretion – some leeway. So, for instance, in the case of juvenile offending there is the option in some cases of proceeding by administering a caution, by holding a youth justice conference or proceeding by charge in the Children’s Court. There are rules prescribed for these courses and judgment – or discretion – must be exercised in choosing the course to follow. In a case where police and the relevant Department of Juvenile Justice officer cannot agree on whether or not a caution or a conference should be held, the DPP acts as the gatekeeper and must decide, exercising discretion, which way the matter should proceed.
So at this early stage of the process, both the community and the police and other public authorities may exercise discretion in ways that will determine how matters will proceed.
INVESTIGATION, ARREST AND CHARGE
If a crime is reported officially, police must decide whether or not to investigate. Not every allegation of crime will be investigated. For example, NSW Police will not investigate allegations of fraud unless the value of the fraud is very high. A judgment has been made to leave it to the citizens involved as a civil matter between them in cases falling below a certain threshold. This is a controversial exercise of discretion, because not everyone in the community agrees that a $10,000 fraud, for instance, should be ignored by the criminal law authorities – but police have been given discretion to act in this way.
As an investigation proceeds police judge where it should be pursued – who should be contacted, what places and/or things should be examined, and so on. Their decisions in this regard affect, in turn, other members of the community.
If a suspect is identified they must decide how to approach him. Do they arrest; or is there an alternative way of proceeding by issuing a Court Attendance Notice or other process; and if so, what choice should be made? These are discretionary decisions that are guided by principle but which ultimately depend upon the exercise of judgment. Of course, they affect the community and the offender – the community because there may be a risk of further offending and the offender whose liberty may be at risk.
The prosecutor may become involved at this stage. Particularly in complex matters the police may seek the advice of the prosecutor on the sufficiency of the evidence available to establish criminal charges – and, if so, the choice of charges (because the facts in any given case may support the bringing of a range of available criminal charges). Discretionary considerations come into play at that stage (discussed further below).
Whether the prosecutor becomes involved or not, the discretionary decision must still be made by the police as to the charge/s (if any) on which to proceed.
At this stage of the proceedings discretion is exercised by the community (as to what the potential victim/witnesses might tell the police), the police and the prosecutor. The offender may also be required to exercise judgment at some stages (for example, in whether to apply for bail – or to let a period in pre-hearing custody count towards an eventual sentence).
The notion of bail is sometimes poorly understood; but it can become a complicated area of legal practice. It is governed by the Bail Act 1978.
Bail is conditional liberty before verdict and it has nothing whatsoever to do with punishment. The accused is still presumed to be innocent at that stage of the proceedings (although bail can still be granted, in special cases, between conviction and sentencing). The principal considerations in granting bail are:
- is the accused likely to appear at court on the next occasion?
- is there a likelihood of further offending if released on bail?
- is there a likelihood of interference with evidence/witnesses if released on bail?
For some categories of offences and offenders bail is only to be granted in exceptional circumstances. In some cases (charges) there is a presumption against bail; in some there is no presumption either way; and in others there is a presumption in favour of bail. Nevertheless, the court when considering a bail application must take into account all relevant matters, including:
- the nature and severity of the alleged offence;
- the history of the accused (including any previous failures to appear) and his or her situation generally;
- conditions that might be able to be attached to a grant of bail to better ensure compliance.
The tension here is between the presumption of innocence to which the accused is still entitled and the perception of the community (and police) that the person has been charged on the basis of credible evidence and should therefore be regarded as in line for punishment of some sort.
At earlier stages of the process senior police officers also have the power to release people from police stations on bail; so bail decisions can require the exercise of judgment or discretion by police, prosecutors, offenders and the court.
PLEA AND HEARING
When a criminal charge is brought before a court (the Local Court, in the first instance, in all matters – unless an ex officio indictment has been filed) the proceedings begin with a plea by the accused. (There may be some preliminary steps taken without a plea being entered, but the court commences its hearing of the matter with a plea.) If the accused pleads guilty, the matter may proceed on documents without the need for live witnesses. If the plea is not guilty, evidence will need to be heard in support of the charge and for the defence.
The prosecution has a discretion as to the charge (or charges) it will bring in every case and, indeed, as to whether it will proceed with a charge at all. It is not the situation that every allegation of criminal offending will result in a prosecution. In our system a very important discretionary allowance is made to the prosecution.
In NSW that discretion is the subject of the Prosecution Guidelines furnished under section 13 of the Director of Public Prosecutions Act 1986. The Guidelines may be accessed on my Office’s website at www.odpp.nsw.gov.au .
Guideline 4 applies to the decision to prosecute. It prescribes three tests that must be applied by a prosecutor considering a matter.
The first is the prima facie case test: whether or not the admissible evidence available is capable of establishing each element of the offence. That test is not enough by itself – the bare establishment of the elements of an offence is never enough to justify a prosecution. Only if that test is satisfied does the prosecutor then proceed further to two tests that both require the exercise of discretion, or judgment, on the part of the prosecutor.
The second test is 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. This test really does require the prosecutor to make a judgment – in effect a prediction – about the future course of proceedings on any particular charge. The prosecutor’s knowledge and experience will play an important part in making this assessment, just one of the reasons why there must be input into these decisions by more than one prosecutor at different levels in the Office hierarchy. If there is no reasonable prospect of conviction, then the matter goes no further. If that cannot be said, then the third test must be addressed.
That test is whether, nevertheless, discretionary factors dictate that it would not be in the general public interest for the prosecution to proceed. This is a purely discretionary exercise, but the overriding consideration must be the general public interest. What does that expression mean? It requires the prosecutor to consider past decisions and courses of action and their results, the present circumstances surrounding a particular matter and the future – how a decision one way or another will be accepted by the community generally and what it might mean for the future conduct of similar matters. What is “in the public interest” is a very different concept from what is “of interest to the public”.
Guideline 4 suggests 22 circumstances that might influence the exercise of discretion under this test, but they are not exhaustive – they serve merely as illustrations of the types of considerations that may be taken into account. Examples may be imagined under these descriptions and others.
Discretion is also provided for in many other Guidelines; for example,
- Guideline 6 on Settling Charges;
- 7 on Discontinuing Prosecutions;
- 8 on Election for Offence to be Dealt with on Indictment;
- 9 on Finding Bills of Indictment;
- 10 on Taking Over Proceedings;
- 17 on Immunities (Indemnities and Undertakings);
- 20 on Charge Negotiation and Agreement;
- 24 on Judge Alone Trials;
- 29 on Appeals Against Sentences;
- 31 on Retrials.
The prosecutor’s ability to exercise discretion in these ways must be made accountable, so delegations exist within the Office, structured in such a way that the more serious matters are dealt with at the higher levels of the hierarchy. There are also safeguards against corruption by requirements for the involvement of at least two officers (and sometimes more) in decision making. Proper records must be kept of the decision making process. Ultimately, the Director is responsible to the Attorney General and through him to the Parliament and the people of the State.
When a matter is being heard by a court, the judge or magistrate must exercise discretion, also, at various stages of the hearing.
One major area is the admissibility of evidence. The Evidence Act 1995 gives a court discretion, for example, to reject otherwise relevant evidence if its admission would be unfair: for example, if it has been unlawfully or improperly obtained. “Fairness” is a quality that always requires the exercise of discretion (an application of judgment) in its determination.
Another major area for the exercise of discretion is sentencing. Typically a maximum permissible penalty is prescribed by the legislature, but theoretically any penalty from (virtually) nothing up to the maximum may be imposed. It is for the sentencer to place the penalty in the “right” place on that scale, taking into account the crime, the criminal and all subjective and objective factors relevant to the setting of the penalty.
The hearing process therefore requires the exercise of discretion at various stages by the prosecutor, the defence (and the accused) and the court.
Appeals from convictions (and in some limited circumstances acquittals – but without disturbing the acquittal) and from sentences (by the accused against severity or the prosecution against inadequacy) must be commenced by a party. Judgment is involved in determining whether or not that course may be productive and on what basis any appeal should be pursued. The question of cost is just one relevant consideration (for either side).
An offender may need to assess whether or not his or her position can be improved. The prosecution will need to assess whether or not scarce public resources should be spent on an attempt to correct what is perceived to have been an error.
Prosecution Guideline 29 applies to Appeals Against Sentences. It can be seen that it requires a number of questions to be addressed, even if some error can be shown to have occurred. There is still a discretion in the DPP as to whether to initiate an appeal and the mere fact of leniency or of manifest error may not be sufficient to justify such a decision.
Then, when the appeal court makes its decision, it must exercise its discretion in deciding whether or not to interfere with the sentence imposed at first instance. It has an overriding discretion not to interfere, even if it regards the sentence as being too lenient.
There are five broad issues to be weighed in the balance when deciding whether or not to lodge a Crown appeal against an inadequate sentence:
1 Was a manifest error made by the sentencer? If so, did it affect the severity of the sentence?
2 Does the sentence appear, nevertheless, to be manifestly inadequate?
3 Is the special kind of double jeopardy inherent in a Crown appeal likely to affect the appeal court’s approach to the sentence?
4 Are there other discretionary factors operating that would militate against an appeal?
5 Is it a matter where, notwithstanding a finding of inadequacy, the appeal could would nevertheless exercise its own residual discretion and refuse to intervene?
So appeals involve discretions exercised by the parties and ultimately the appeal court.
Guideline 31 relates to retrials. A trial may be aborted, a jury may fail to agree, a conviction may be overturned by an appeal court (perhaps because of an error of law) but not in every case need there be another trial.
Discretion must be exercised by the prosecutor, taking into account all relevant factors.
TRANSPARENCY AND ACCOUNTABILITY
It would not be wise to give to the actors in the criminal justice process unfettered and unaccountable discretion to do as they please. That is why rules of conduct are prescribed by Acts of Parliament, Regulations, court practices and Prosecution Guidelines. That is why these processes must be accompanied by appropriate consultation and appropriate record keeping. That is also why any one of us may be subject to the glare of the public spotlight through Parliament, the media or established mechanisms of review.
It is useful to be able to exercise discretion at many turns – but that must be done in the overriding general public interest, fairly and in pursuit of justice – and in an accountable manner.