In deciding whether to prosecute, the public interest is the paramount consideration. It has never been the rule that whenever sufficient evidence exists, a prosecution must take place.

The purpose of this Chapter is to set out:

1. the tests for deciding whether to prosecute
2. the special considerations that apply when deciding whether to prosecute a child
3. the circumstances in which a prosecution will be discontinued
4. the factors taken into account when deciding whether to proceed to retrial
5. the circumstances in which a decision to prosecute may be reversed or reviewed.

The decision to prosecute involves two questions:

1. can it be said that there is no reasonable prospect of conviction on the admissible evidence?
2. is the prosecution in the public interest?

Determining whether it can be said that there is no reasonable prospect of conviction requires evaluating the likely strength of the admissible evidence the prosecution would present to the court, bearing in mind that the prosecution has to prove each element of the offence beyond a reasonable doubt.

The following matters should be taken into account:

1. are there reasonable grounds to believe any evidence might be excluded
2. whether the prosecution witnesses are available, competent, compellable and reliable
3. the credibility and reliability of other admissible evidence in the prosecution case

The test must also take into account any defence open to, or indicated by, the accused. 

Consideration should also be given to:

1. any inferences that may be drawn from circumstantial evidence
2. whether the prosecution is able to exclude beyond a reasonable doubt any reasonable hypothesis consistent with the accused being innocent
3. any other matter that could impact on the prospects of conviction.

If the first test is satisfied, consideration must be given to whether a prosecution is in the public interest.

The following is not an exhaustive list.  The weight to be given to any particular public interest factor will depend on the circumstances of the case.

Offence-related factors

1. the seriousness, or conversely, the triviality, of the offence
2. the prevalence of the offence in the community, whether it is of considerable public concern and the need to denounce and deter the offending behaviour
3. whether the offence is obsolete or obscure
4. the passage of time since the offence, having regard to its seriousness and the reasons for the delay

Accused-related factors

1. the accused’s degree of culpability
2. the accused’s criminal history and background
3. the accused’s age, physical health, mental health or cognitive impairment
4. whether the offence occurred while the accused was serving a sentence, on bail or remand
5. whether the accused is willing to co-operate in the investigation or prosecution of others, or the extent to which the accused has done so

Victim-related factors

1. the victim’s attitude to a prosecution
2. the victim’s age, physical health, mental health or cognitive impairment and whether the prosecution may have an adverse physical or emotional impact on the victim
3. the protection of the victim and the victim’s family 

Sentencing factors

1. the likely outcome if the accused is found guilty, having regard to the sentencing options available to the court
2. whether a sentence has already been imposed on the accused that adequately reflects the criminality of the conduct
3. whether the accused has already been sentenced for other offences and the likelihood of any additional penalty being imposed, having regard to the principle of totality in sentencing

Other factors

1. whether any resulting conviction would necessarily be regarded as unreasonable or a miscarriage of justice
2. any mitigating or aggravating circumstances of the offence
3. the availability and efficacy of any alternatives to prosecution, including disciplinary proceedings
4. the availability of compensation, restitution, reparation or forfeiture to any person or body following a successful prosecution, including any criminal compensation or confiscation
5. whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute
6. the need to maintain public confidence in basic constitutional institutions such as the Parliament and the courts
7. any special circumstances that would prevent a fair trial from being conducted
8. the likely length and expense of a trial if disproportionate to the seriousness of alleged offending
9. the age, physical health, mental health or special infirmity of an essential witness.

A decision whether or not to prosecute must not be influenced by:

1. the race, religion, gender, gender identity, national origin or political associations, activities or beliefs of the accused or any other person involved (unless the accused’s political associations, activities or beliefs are directly related to an offence)
2. the prosecutor’s personal views concerning the accused or the victim
3. the possible effect of the decision on the personal or professional circumstances of those responsible for making it
4. political pressure or interference, or any possible political consequences of the decision. 

Special considerations apply to the prosecution of a child.

When deciding whether the public interest warrants the prosecution of a child, particular regard should be given to:

1. the seriousness of the offence
2. the child’s age, apparent maturity and mental capacity
3. the child’s prior record, including the circumstances of any previous caution
4. the availability and efficacy of alternatives to prosecution
5. the sentencing options available to the Children’s Court
6. the child’s family circumstances, if known
7. the likelihood that the prosecution would be excessively harmful to the child or otherwise inappropriate, having regard to any known circumstances.

The tests for determining whether to prosecute in Guideline 1.2 have continuing application throughout the prosecution process. In determining whether to discontinue a prosecution, consideration should also be given to any change in circumstances regarding the evidence and the presence of public interest factors.

Any request on behalf of the accused for the matter to be discontinued should be dealt with expeditiously.

Consultation with police and the victim must take place in accordance with Chapter 5: Victims and witnesses.

Where a trial has ended without verdict, or when a retrial is ordered after the accused’s appeal against conviction is upheld, consideration should be given to whether or not a retrial is required.

Factors to be considered include:

1. if the trial ended without a verdict:
   a.   whether the trial ended because the jury was unable to agree, or for another reason
   b.   whether another jury would be in a better or worse position to reach a verdict
2. if a retrial has been ordered after a successful conviction appeal, whether certain evidence has been ruled inadmissible
3. in either case:
   a.   the seriousness of the matter
   b.   whether and to what extent the accused has spent time in custody
   c.   the cost of a retrial to the community and to the accused 
   d.   the views of the victim and police in accordance with the principles of Chapter 5
   e.   whether evidence is still available

Where two juries have been unable to agree upon a verdict, a retrial will be directed only in exceptional circumstances. Any such direction must be given by the Director or a Deputy Director.

Where a jury has reached a verdict on some charges but is undecided on others, the following should be considered in addition to the above factors when determining whether to proceed on the remaining charges:

• the seriousness of the remaining charges
• the sentences the accused has received for the other charges.

The views of the victim and police should be taken into account in considering whether a matter should proceed to a retrial, in accordance with the principles in Chapter 5: Victims and witnesses. The complainant in prescribed sexual offence proceedings should be informed about the legislative provisions permitting his or her recorded evidence at the original trial to be tendered at a retrial.

A decision to proceed in a matter, or to take no further proceedings, will be reversed when it is in the interests of justice to do so. It may be in the interests of justice to reverse a decision if:

• significant new facts warrant it
• the decision was the result of fraud or improper conduct
• the decision was made on an erroneous basis.

The victim has a right to seek a review of a decision to discontinue a prosecution where the discontinuance results in an end to all proceedings relating to that victim in accordance with the Victims’ Right of Review Policy.