Alleged wrongdoing may give rise to a potential choice between different charges. The purpose of this Chapter is to set out the principles that apply to selection of appropriate charges and to the filing of an indictment with an ex officio charge.

Charges are to be selected that adequately and appropriately address the criminality alleged and enable the matter to be dealt with fairly and expeditiously according to law.

Substantive charges reflecting the offences actually committed are to be selected in preference to conspiracy charges whenever possible. However, there will be occasions when only a conspiracy charge is adequate and appropriate to reflect the accused’s participation in an offence.

It is undesirable to overload the indictment with an excessive number of charges as this may result in trials becoming unduly complex or lengthy. However, there will be cases where the extent of the criminality makes it necessary and appropriate to present a lengthy indictment.

In some cases it will be appropriate to proceed with representative charges, provided the charges on the indictment adequately and essentially reflect the totality of the criminal conduct.

A prosecutor should consider the desirability of consistent charges when there is one or more co-accused, although there will be cases where different charges are necessary and appropriate to reflect the different roles of each accused.

Charges should not be selected for the purpose of providing scope for charge resolution at a later stage.

It may be necessary to consider an  ex officio charge in certain circumstances, including:

1. in substitution for a charge committed for trial or sentence, to ensure the indictment contains the most appropriate charge
2. to add a charge to cover criminality not identified or known about prior to committal
3. where the matter has been committed for sentence and certain charges were withdrawn for public interest reasons as part of a resolution (see Chapter 4) but the accused subsequently fails to adhere to the plea
4. where a direction has previously been made for no further proceedings following a committal but it is considered appropriate to revive the charges
5. to place offences on the indictment that were transferred to the District Court or Supreme Court on a certificate under s.166 of the Criminal Procedure Act 1986 
6. expedite trial proceedings, including where it is considered desirable and appropriate to join the accused in proceedings against a co-accused who has already been committed for trial
7. where there is a technical defect in the committal charge requiring substitution or other correction.

Ordinarily the accused should be put on notice that the prosecutor is considering filing an ex officio indictment and given the opportunity to make representations to the Director by a nominated date on whether an ex officio indictment should be filed.

Crown Prosecutors have a statutory bill-finding function pursuant to s5(1)(b) Crown Prosecutors Act 1986. Because of the desirability of certainty in charge selection, however, the approval of the Director or a Deputy Director should be sought for the finding of a bill of indictment or count in respect of any offence under a different provision (including subsection) to that committed for trial or sentence.

No bill of indictment should be found for an offence that has not been committed for trial except to add a statutory or common law alternative to the indictment, as an alternative to an offence that has been committed for trial or sentence.

The finding of a bill of indictment does not permit the withdrawal of any charge committed for trial or sentence (including the purported merging of charges, or the substitution of charges except as outlined above).