Committals: Report

8. Charging practices

Introduction

8.1 Appropriate charging is important for ensuring fair trial rights, efficiency in the criminal justice system, and to minimise trauma for victims and witnesses. Charges filed against an accused person must be evidence-based.

8.2 Consistently with this, the Victoria Police Manual requires the informant to ‘ensure there is sufficient admissible evidence to cover all points of proof relevant to each charge and that there is a reasonable prospect of a conviction being secured.’[467] The Policy of the Director of Public Prosecutions for Victoria (Director’s Policy) requires that for a prosecution to proceed, there must be a reasonable prospect of conviction and it must be in the public interest.[468]

8.3 Nonetheless, in Victoria, as in many other jurisdictions, it is common for more charges to be filed than are ultimately prosecuted or result in a guilty plea.[469] Frequently, Victoria Police or the Director of Public Prosecutions (DPP) withdraws or downgrades charges during negotiations with the defence or as a result of its own case review.[470]

8.4 This chapter examines the current approach and historical backdrop to charging in Victoria. It describes the phenomenon of overcharging, which involves unnecessarily filing more charges than are pleaded or indicted, and considers if this is a problem in Victoria. After concluding that overcharging is a problem, the chapter discusses the consequences of overcharging for the accused, for efficiency, and for victims and witnesses.

8.5 The Commission considers a range of responses to overcharging. It concludes there is a need to provide Victoria Police with better charging training and support, and to involve the DPP in charging decisions at an early stage. It describes recent initiatives to improve consultation with victims about charging and resolution decisions. These initiatives should reduce the trauma experienced by victims and other witnesses when charges are withdrawn.

Current approach to charging

Responsibility for investigating criminal conduct and filing charges

8.6 Several agencies have responsibility for investigating criminal conduct. Victoria Police conducts most criminal investigations in this state. Commonwealth offences are investigated by the Australian Federal Police, sometimes in collaboration with Victoria Police.[471] Statutory agencies such as WorkSafe Victoria and the Environmental Protection Authority also have the power to investigate criminal conduct falling within their statutory authority. While the DPP has the power to provide advice about the investigation of a criminal offence,[472] its longstanding policy has been not to give advice about ‘operational or investigative matters’.[473]

8.7 Criminal proceedings are commenced in the lower courts by an investigating officer (‘the informant’) filing a charge sheet.[474] The charge sheet must be signed by the informant personally.[475] In most cases, the informant is a Victoria Police officer.

8.8 The DPP is not involved in the initial drafting of charges but is available to provide charging advice to Victoria Police or other investigative agencies in cases that are ‘complex’, ‘novel’, have policy implications, or raise potential conflicts of interest for the police.[476]

8.9 After apprehension, if the accused has not been released by the police on summons or bail, they must be brought before a bail justice or a magistrate within ‘a reasonable period of time’.[477] In most cases involving indictable offences, bail may only be granted in ‘exceptional circumstances’[478] or if the accused can ‘show compelling reasons why bail should be granted.[479] The ‘show compelling reasons’ test, introduced in 2018, means that it is now less common for police or a bail justice to grant bail; magistrates are hearing more applications for bail; and more people are being detained on remand.[480]

Responsibility for conduct of committal proceedings and charge review

8.10 Both the informant and the DPP have responsibilities in relation to the conduct of committal proceedings (see Chapter 7), but in the early stages of the proceedings, active consideration or review of the charges by the DPP is rare. In some cases, charges are not reviewed until just before the committal mention, when they may be re-assessed in the context of completion of the case direction notice. In other cases, charges may not be reviewed at all until after the accused has been committed for trial, when they are considered in the context of the DPP’s decision to file an indictment.[481]

Historical backdrop to current charging practices

8.11 The involvement of investigative agencies in filing charges and conducting committal proceedings is, to some degree, a historical legacy.[482]

8.12 Victoria established Australia’s first independent DPP in 1982, and the first Commonwealth Director of Public Prosecutions was established in 1984.[483] The DPP was appointed, and the Office of the DPP created, in response to concerns about the politicisation of criminal prosecutions and the lack of an independent, non-partisan prosecuting agency.[484] Before this, investigators tended not to consult with prosecutorial authorities, who were embedded in government departments.[485]

8.13 The need to enhance public confidence in police investigations and the criminal justice system more broadly was recognised by (among others) Australia’s DPPs. While DPPs did not seek to influence investigative processes, they moved to separate them from the prosecution of offences. They also addressed concerns about the quality of police prosecutions by establishing uniform prosecution and disclosure guidelines.[486]

8.14 In the 1980s, other common law countries separated the investigation of criminal offences from their prosecution, abolishing the role that the police had previously performed in prosecuting crime, even in relation to summary offences.[487] Corns points out that

the prohibition on the police conducting criminal prosecutions is based on the ideological and operational need to separate criminal investigative functions from prosecutorial functions to ensure … independence and impartiality in prosecution decision-making.[488]

8.15 In the United Kingdom, Crown Prosecutors rather than the police are responsible for making indictable charging decisions. The separation between criminal investigations and indictable prosecutions has been reduced, however, because Crown Prosecutors may advise the police on reasonable lines of enquiry to take in an investigation. If police fail to pursue lines of enquiry suggested by a Crown Prosecutor, or to provide information requested by the prosecutor about an investigation, the prosecutor may defer a charging decision or refuse to make it at all.[489] Even so, there is an attempt to retain the separation between investigative and prosecutorial roles: prosecutors are not meant to direct police or other investigators in the conduct of their investigations, and are characterised as independent of police.[490]

Overcharging

What is overcharging?

8.16 ‘Overcharging’ involves unnecessarily filing more charges than are ultimately indicted or pleaded. Three distinct forms of charging are often conflated, and all are sometimes described as ‘overcharging’: alternative charging, discrete event charging and inflated charging. Each of these is explained below.

8.17 Whilst is generally appropriate to characterise ‘discrete event charging’ and ‘inflated charging’ as overcharging, ‘alternative charging’ may be defensible and appropriate. This is only so, however, in circumstances where it seems likely, on the available evidence, that the accused is guilty of an offence or offences at the more serious end of the spectrum. Using alternative charging as a strategy for the conduct of plea negotiations is inappropriate and constitutes overcharging.

Alternative charges

8.18 In relation to the same offending conduct, it is common for the accused to be charged with the most serious version of the alleged offence—such as intentionally cause serious injury—as well as less serious versions, such as intentionally cause injury.

8.19 Alternative charging has a statutory basis.[491] It may be warranted in situations where charges must be filed while an investigation is still in its infancy.[492] It is important that charges reflect the most serious offence on the available evidence, as this will influence decisions such as the jurisdiction in which the case will proceed and the availability of bail. Once an investigation is complete, it may be apparent that the available evidence does not support the most serious offence charged. As a result, alternative less serious versions of the offence may proceed.

8.20 An accused is entitled to have his or her alleged criminal conduct dealt with as promptly as possible.[493] Filing less serious alternative charges at the outset means that, if the more serious charges are withdrawn, the remaining alternative charges can be dealt with immediately.

Discrete event charges

8.21 Sometimes criminal offending occurs over the course of numerous discrete events. The Criminal Procedure Act 2009 (Vic) (CPA) allows for an accused to be charged according to a ‘course of conduct’ if the offending involves more than one incident of a relevant offence—either a sexual offence or an offence under specified sections of the Crimes Act 1958 (Vic)[494]—and other conditions are met.[495]

8.22 Instead of a course of conduct charge, however, the informant will often charge the accused for each of the discrete events. For example, 20 separate charges of obtaining property by deception on 20 separate days may be filed rather than a single charge of obtaining property by deception over a sustained period. This practice reflects police culture and there is no statutory requirement for it.

Inflated charges

8.23 Inflated charging involves speculative charging for offences that are more serious than the available evidence is likely to support, alongside charging for less serious offences for which there is evidence. While this may appear similar to alternative charging, it differs in that the evidence at the outset does not credibly support the most serious charges.

Is overcharging a problem in Victoria?

8.24 Victoria Police denied that overcharging is an issue, suggesting that its charge rate is at the lower end of the spectrum by comparison with other Australian jurisdictions.[496] It told the Commission that filing alternative charges is its standard practice, and claims that this is legitimate ‘as a basis for plea negotiations’.[497]

8.25 The Criminal Bar Association and the Magistrates’ Court both note that charges are often laid at the time of an accused’s arrest, when police might have little evidence in admissible form available to them.[498] In these circumstances, some disparity between the charges initially filed and those prosecuted or pleaded is inevitable.

8.26 While acknowledging that ‘divergence between charges filed by police and those ultimately prosecuted can be problematic’, the DPP suggested it ‘is understandable that police often file charges for more serious offences than those ultimately proceeded with’.[499]

8.27 The Magistrates’ Court acknowledged this complexity:

there may be times when more serious charges than are warranted are laid as a form of negotiation. However, the Court appreciates that charges are often laid at the time of an accused’s arrest, when police may have little evidence in admissible form available to them. As more evidence becomes disclosed and witnesses are identified and questioned, it is appropriate for charges to be reviewed, and only those charges that could be supported by evidence pursued. The prosecution should be encouraged to review and negotiate charges as investigation and disclosure progresses.[500]

8.28 The Victorian Aboriginal Legal Service reports that in its experience there is often disparity between charges initially filed and those ultimately prosecuted.[501]

Consequences of overcharging

8.29 Overcharging is problematic because charges that do not have a strong evidentiary basis may be discharged at committal; withdrawn by the prosecution at some point prior to trial; or lead to an acquittal. It is of course appropriate that the accused is acquitted of ill-founded charges, or even better, is not indicted on those charges, but it would be better still if they were not charged at all.

8.30 Overcharging undermines fair trial rights, is inefficient, and can have consequences that are traumatic for victims and witnesses.

Overcharging undermines fair trial rights

8.31 Overcharging may undermine fair trial rights if it leads to unnecessary delay and prevents timely disposition of evidence-based charges. The Judicial College’s Criminal Procedure Manual says the prosecution ‘should not include every conceivable charge on a charge sheet or indictment as this is unfair and tends to impede the proper disposition of the more serious offences’.[502]

8.32 Victoria Legal Aid points out that overcharging increases the likelihood of an accused person being refused bail in circumstances in which they may be entitled to bail.[503] The Victorian Aboriginal Legal Service also emphasises the danger of this.[504]

Overcharging undermines efficiency

8.33 As well as placing time and resource burdens on the courts, defence, and prosecutors, Victoria Legal Aid told the Commission that overcharging can delay early guilty pleas.[505]

8.34 One practitioner described overcharging as a ‘very negative thing’, telling the Commission that in his experience, ‘having so many charges at the outset is problematic because psychologically, the tendency of the accused is to want to respond by flipping one finger up to the prosecution.’[506]

Overcharging can lead to trauma for victims

8.35 The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) emphasised the distress felt by victims when charges are withdrawn or downgraded, particularly in instances where victims feel the remaining charges ‘do not reflect the worst abuse or the extent of the abuse they suffered.’[507] RCIRCSA also found:

The later in the course of a prosecution that charges are downgraded or discontinued, the greater the likely negative impact on victims and the criminal justice system. In particular, discontinuing prosecutions close to the trial date raises significant concerns.[508]

8.36 Domestic Violence Victoria told the Commission that using overcharging as a basis for negotiation:

reflects the fact that these things get developed in a vacuum and very much separate from the experience of the victim. How the victim might feel about charges being downgraded is just seen as an unfortunate side-effect … [the system has not been developed] with the victim at the centre.[509]

8.37 The legal centre knowmore, which represents victims of child sexual abuse, suggests that decisions to withdraw or downgrade charges ‘are particularly difficult for victims when they do not understand the prosecutor’s decision or feel as though they have not been properly consulted about it’.[510]

8.38 According to the Victims of Crime Commissioner:

Some victims are relieved if a lesser charge means that their matter won’t go to trial, they don’t need to give evidence, and the offender admits their guilt—other victims can feel completely let down and cheated.[511]

8.39 The Victims of Crime Commissioner emphasised that the risk of participation in the criminal justice system causing ‘secondary victimisation’ is reduced:

if victims are given information about the process, are kept informed of the progress of their case and have the opportunity to have their views heard—even if the outcome doesn’t result in a conviction or a lengthy sentence.[512]

Commission’s conclusions: addressing overcharging

8.40 While divergence between the charges filed and those prosecuted is inevitable in some cases, there is a need to reduce the disparity between charges filed by investigating agencies and those prosecuted on indictment.

Do not introduce charge certification

8.41 In New South Wales and South Australia, recent reforms require that police disclose the evidence in the case to the prosecution, which must then certify the charges (in New South Wales) or make a charge determination in respect of the charges (in South Australia) that will proceed to trial.[513]

8.42 Some stakeholders suggested that charge certification ‘may be a useful mechanism for ensuring that appropriate charges are laid at an early stage.’[514]

8.43 In New South Wales, the requirement for charge certification has led to delay.[515] The Director of Public Prosecutions (New South Wales) told the Commission he has been reluctant to certify charges until the brief of evidence is complete, and frequently has to request additional material from police following service of the brief.[516] He added:

in a way, that’s not unexpected. We have been working closely with the police and have restructured to align our working groups with Police Commands. Senior lawyers are going out and talking to the police and educating them about what they should provide.[517]

8.44 The Director commented that ‘it is a work in progress.’ He said his office will not certify a charge unless it thinks it has the right material and if necessary the ODPP will requisition the police until it gets further material:

This means that the Local Court gets requests to extend the time period for charge certification, especially in complex matters.[518]

8.45 NSW Legal Aid told the Commission that sometimes an accused may wish to plead but is unable to do so under the legislation until the charges have been certified.[519]

8.46 The Office of the Director of Public Prosecutions in South Australia has also been reluctant to certify charges until a complete brief of evidence is provided by South Australia Police. Although a recent review concluded the delays resulting from the reforms have been over-stated and ‘Signs to date are positive’,[520] the Commission was told that, in some cases, charges had not been certified twelve months after they were originally filed. As a result, magistrates are discharging cases where certification has not occurred.[521]

8.47 The logic behind charge certification—of requiring the prosecution to review charges at an early stage in proceedings—is sound. Due to the practical issues associated with it in New South Wales and South Australia, however, and a lack of clear evidence concerning its effect on delay in those states, the Commission does not recommend adopting a requirement for charge certification at this point.

Provide charging training for Victoria Police

8.48 Victoria Police’s position that alternative charging may serve appropriately as a basis for plea negotiations is at odds with the need to ensure that only evidence-based charges are filed.

8.49 Victoria Police should ensure police informants are trained to charge appropriately on the basis of the evidence, and not to view ‘the use of alternative charges to allow for early pleas’[522] as tactically advantageous.

8.50 This training needs to be provided for both junior members and experienced officers and should be regularly updated. The work of drafting charges needs to be treated as an integral part of police officers’ duties, not as an adjunct to their operational roles.

Recommendations

19 Victoria Police officers should receive regular and up-to-date charging training.

Require earlier involvement of DPP in charging

8.51 In order to reduce disparity between charges initially filed and those ultimately prosecuted, the DPP should be involved in reviewing and instructing on the most appropriate charges in serious criminal matters at an earlier stage.

8.52 Earlier involvement of the OPP in advising investigating agencies on the most appropriate charges, and in reviewing at an early stage the charges filed by the investigating agency, would strengthen the separation of the police’s investigative functions from their role in prosecuting offences. The police’s prosecutorial role should be minimal in relation to indictable offences.

8.53 Twenty years ago the Standing Committee of Attorneys-General recommended that DPPs review charges laid by police at a much earlier stage in proceedings.[523] It also suggested that DPPs should provide prosecution advice during the investigative process in complex cases. On its face this might appear to threaten the separation between investigation and prosecution functions, but the separation can be maintained by ensuring that the DPP’s advice is confined to ‘reviewing the sufficiency of evidence, advising on proofs to be obtained and suggesting appropriate charges’, as the committee then recommended.[524]

8.54 There is widespread support among stakeholders for earlier involvement by the DPP[525] in providing charging advice.

8.55 Victoria Legal Aid suggested:

there would be substantial value in having earlier support from the prosecuting agency’s lawyers …This would assist police investigators to advance the preparation of the complete hand-up brief in accordance with the rules of evidence and admissibility, to ensure that appropriate evidence is obtained and included, and ensure that the process is completed in a timely manner.[526]

8.56 Victoria Legal Aid clarified that it ‘does not recommend that the prosecution provide investigative advice, rather, pre-charge advice about what evidence would be required to support the charge.’[527]

8.57 The Magistrates’ Court supported DPP involvement ‘at the earliest possible stage of decision making in relation to the charges’.[528] When this should occur ‘would be a matter for consultation with the OPP. In the Court’s view, the process could easily commence with the service of the [hand-up brief], or as early as the filing hearing’.[529]

8.58 The County Court supported improvement of procedures for charging, saying that it supports the model adopted in the United Kingdom whereby senior lawyers from the prosecution service play a role in determining the appropriate charges. The Court submitted that ‘it stands to reason that the DPP should also file the charges at the commencement of the proceeding,’ recognising that this process would increase resource demands on the DPP.[530]

8.59 Victoria Police argued that decisions regarding what charges to file should remain with Victoria Police, ‘but [it should have …] early access to advice from [the] DPP.’[531] While this occurs currently, Victoria Police claimed ‘it is not as widespread as desirable.’[532]

8.60 The Commission concludes that it is appropriate to give decision-making power in relation to charging indictable matters to the DPP in some circumstances. How the DPP is involved in providing charging instructions will differ depending on the nature of the alleged offending and its investigation.

Charge immediately following apprehension—cases where remand is sought

8.61 It is generally accepted that it may be necessary in some instances for the police to file charges before an investigation is complete. This may be because the police believe an alleged offender poses a risk to the community and should be remanded in custody pending prosecution.

8.62 In South Australia, the Office of the Department of Public Prosecutions (SA ODPP) undertakes an adjudication in all cases in which a person is charged with a major indictable offence, including when charges need to be filed without the benefit of a full investigation. The SA ODPP provides advice to the South Australia Police on the appropriate charge or charges that should be filed and provides advice about the likely evidence required.[533]

8.63 Requiring adjudication at an early stage and for all cases was a part of South Australia’s Major Indictable Reform package. In his review of the reforms, the Hon. Brian Martin AO QC described the availability of adjudication for all cases as a ‘sensible administrative step … that should be encouraged and appropriately resourced.’[534]

8.64 To implement a similar process in Victoria would be expensive and would involve a major cultural shift. Given this is not a system that stakeholders have advocated for, the Commission does not recommend placing onerous adjudication obligations on the DPP. Even so, adjudication could be considered in the future if the South Australian experience demonstrates that:

• it is practical for the DPP to adjudicate charges in every case involving a suspected indictable offence

• adjudication leads to more accurate charging.

8.65 In instances in which charges must be laid soon after the accused is apprehended, the informant should not be required to seek nor the DPP required to provide pre-charge instructions. The charges should be reviewed by the DPP when it assumes carriage of the matter. There should be a formal requirement that the DPP review the charges within seven days of receiving the hand-up brief from the informant and prior to serving it on the accused.

Recommendation

20 In cases where indictable charges are filed immediately following apprehension, the Director of Public Prosecutions should review the charges within seven days of receipt of the hand-up brief from the informant.

Charge following investigation

8.66 There are some matters that can be thoroughly investigated and a brief of evidence prepared before charges are filed. The New South Wales DPP suggested:

In matters that lend themselves to it, the police need to have an adequate brief before arrest. Especially in sexual assault cases, police need to check all the evidence and supporting material beforehand.[535]

8.67 Where there is an opportunity to investigate alleged serious offending prior to arrest, the investigating agency should prepare an ‘initial charge brief’ for review by the DPP. It should contain:

• a summary of the alleged indictable offending and available evidence

• a draft charge sheet.

8.68 The DPP should be required to review initial charge briefs and provide instructions to the informant as to the suitability of the proposed charges according to the evidence presented.

8.69 The DPP’s instructions should be binding on the informant. This would entrench the distinction between the role of investigative agencies to investigate crime and the DPP to prosecute it.

8.70 This distinction enhances the independence and impartiality of prosecution decision making. It recognises that the police’s current role in prosecuting indictable matters (along with summary offences) in the Magistrates’ Court is a historical legacy, is inefficient and may lower justice standards because:

• prosecuting indictable crime is not a ‘core function’ of investigating agencies

• investigating agency personnel need not be legally qualified.[536]

Recommendations

21 In cases involving a suspected indictable offence that has been the subject of an ongoing investigation prior to arrest, the investigating agency should prepare an ‘initial charge brief’. This should be provided to the Director of Public Prosecutions before any charge sheet is filed.

22 The Director of Public Prosecutions should review any ‘initial charge brief’ received and provide charge instructions to the informant. Charge instructions should be binding on the informant.

Improve disclosure and early engagement

8.71 Victoria Legal Aid argued:

the most effective way to ensure that charges are amended at the earliest possible stage in a case is to ensure that the available evidence has been properly disclosed, and the parties have been properly funded and incentivised to consider the evidence at the earliest stages in proceedings.[537]

8.72 Recommendations to ensure full and early disclosure are discussed in detail in Chapter 9, and recommendations to support early involvement of the DPP and experienced practitioners are set out in Chapter 7.

Codify the DPP’s power to withdraw charges

8.73 There may be a need to withdraw, add or amend charges during the course of a case. The CPA does not specifically allow the DPP to withdraw charges.[538] According to the DPP:

There are differences of opinion as to whether the prosecution gives notice of its decision to withdraw charges to a magistrate or applies to a magistrate to make the decision.[539]

8.74 Given the differences of opinion cited by the DPP, the Commission recommends that the CPA should be amended to explicitly set out the power of the DPP to decide to withdraw charges. This power should be subject to the Court’s inherent power to avoid an abuse of process.

Recommendation

23 The Criminal Procedure Act 2009 (Vic) should be amended to give the Director of Public Prosecutions the power to withdraw, amend or file charges in the Magistrates’ and Children’s Courts.

Consulting victims about charging decisions

8.75 Although the DPP’s decision about what charges should be filed on indictment should ultimately be made independently,[540] the DPP is required to consult with victims and consider their views regarding certain charging decisions. The Victims Charter Act 2006 (Vic) requires the DPP to seek victims’ views before deciding to:

• substantially modify charges

• discontinue a prosecution

• accept a plea of guilty to a lesser charge.[541]

8.76 If a decision is made on these issues, the DPP must inform victims and provide reasons as soon as reasonably practicable.[542]

8.77 Such consultations recognise that victims have an interest in the decision, and ensure victims are treated with respect.[543] This can result in victims feeling fairly treated and able to accept the outcome of a prosecution.[544] There is some research to suggest that victims who perceive procedures to be fair suffer less symptoms of trauma than those who felt they were treated unfairly.[545]

8.78 Citing the experience of its clients,[546] knowmore suggested the quality of information provided to victims and their ability to understand and engage meaningfully in the consultation process has been inadequate.[547] Amendments to the Victims Charter Act in 2018 requiring greater consultation, and initiatives by the DPP to strengthen communication with victims, should address these concerns.

8.79 In 2018 the DPP adopted a ‘Discontinuance Review Framework’ that sets out a detailed procedure for obtaining victims’ views about discontinuing a prosecution. It also requires prosecutors to inform victims of a decision to discontinue before the decision is announced in court.[548]

8.80 Also in 2018 the DPP commissioned the Centre for Innovative Justice (CIJ) to conduct research into victims’ experience of their consultations with OPP lawyers about resolution decisions. The research found that while OPP lawyers can and do consult effectively with victims about resolution decisions, there is room for improvement.[549] The CIJ recommended that:

• the OPP develop a best practice guide for communicating with and consulting victims. It proposed a guide to support OPP lawyers to build a relationship of trust with victims; communicate effectively; manage victims’ expectations and any misunderstandings; and consult about case resolution proposals. It said the guide should be provided to all lawyers and Witness Assistance Service staff.

• the OPP liaise with Victoria Police to identify strategies to support police officers to communicate effectively with victims about prosecution processes and decisions, recognising that police interactions with victims often lead to victims having unrealistic expectations of the prosecution process.

• the OPP liaise with court representatives to highlight the value of providing sufficient time to consult with victims about proposals for resolution.[550]

8.81 The OPP told the Commission that it is in the process of implementing the recommendations of the CIJ report, including training staff in line with the best practice guide.[551] It reported that multi-disciplinary teams have been established, involving trial lawyers and social workers from the Victims and Witness Assistance Service, who together develop and implement victim engagement plans for all indictable prosecutions.[552]

8.82 If a victim has a complaint regarding the prosecution’s compliance with the Victims Charter Act, they can address them to the OPP and if they are dissatisfied with the response they may make a complaint to the Victims of Crime Commissioner.[553]


  1. Victoria Police, Victoria Police Manual (CD-Rom, 29 April 2019) 6 [4.3].

  2. Director of Public Prosecutions for Victoria, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 2 <http://www.opp.vic.gov.au/Resources/Policies>. See also Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 12 [3.9]–[3.13], discussing the factors that the police and the DPP must take into account before deciding to file charges or an indictment.

  3. Submissions 13 (Victoria Legal Aid), 19 (Victorian Aboriginal Legal Service); Consultations 8 (Victoria Legal Aid), 13 (Goulburn Valley practitioners), 16 (LaTrobe Valley practitioners), 18 (Academic Roundtable), 29 (Bendigo Magistrates’ Court).

  4. The informant or prosecution may seek leave to withdraw charges or file additional charges: see Criminal Procedure Act 2009 (Vic) ss 8, 164, 165.

  5. Note that Victorian courts have jurisdiction to hear matters relating to Commonwealth criminal offences. Victoria’s criminal procedure rules apply in these instances: Judiciary Act 1903 (Cth) s 68. The offences are prosecuted by the Commonwealth Director of Public Prosecutions.

  6. Public Prosecutions Act 1994 (Vic) s 22(1)(ce).

  7. Director of Public Prosecutions, Office of Public Prosecutions for Victoria, Policy of the Director of Public Prosecutions for Victoria

    (17 December 2019) 22 [64] <http://www.opp.vic.gov.au/Resources/Policies>.

  8. Criminal Procedure Act 2009 (Vic) ss 5(a), 6(1)(a). If the accused was arrested without a warrant and is released on bail, the proceedings can be commenced by filing a charge sheet with a bail justice: Criminal Procedure Act 2009 (Vic) s 6(1)(b). Proceedings can also be commenced by a police officer or public official signing a charge sheet and issuing a summons to answer the charge: Criminal Procedure Act 2009 (Vic) s 6(1)(c). Note that criminal proceedings in the Children’s Court are commenced in the same way: Children, Youth and Families Act 2005 (Vic) s 528.

  9. Criminal Procedure Act 2009 (Vic) s 6(3).

  10. Director of Public Prosecutions for Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 22 [64], Submission 4 (Director of Public Prosecutions (Victoria)).

  11. Crimes Act 1958 (Vic) s 464A(1). See Crimes Act 1958 (Vic) s 464A(4) for a list of matters that may be considered for the purposes of determining what constitutes ‘a reasonable time’. See also Bail Act 1977 (Vic), which requires a person refused bail by an authorised police officer to be bought before a court ‘as soon as practicable within the period of 48 hours after being so remanded’: ss 10(6), 10AA(4)(b).

  12. Bail Act 1977 (Vic) ss 4AA, 4A, sch 1.

  13. Ibid sch 2.

  14. See Submission 13 (Victoria Legal Aid).

  15. Submission 11 (Criminal Bar Association (Victoria)), Consultations 13 (Goulburn Valley practitioners), 16 (LaTrobe Valley practitioners), 21 (Geelong practitioners), 29 (Bendigo Magistrates’ Court).

  16. This is also true of the fact that Victoria Police has responsibility for prosecuting all summary offences in the Magistrates’ Court: see Christopher Corns, Public Prosecutions in Australia: Law, Policy and Practice (Thomson Reuters, 2014) 242–244 [7.140]–[7.160].

  17. Damian Bugg, ‘The Role of the DPP in the 20th Century’ (Speech, Judicial College of Australia Colloquium, 1999) 3. Tasmania was the first jurisdiction in Australia to establish an independent prosecuting agency, with the creation in 1973 of the Crown Advocate.

  18. In the United Kingdom, according to Sir Thomas Hetherington DPP, the role of the Crown Prosecution service was established with broader objectives, including ‘To be, and to be seen to be, independent of the Police’. Damian Bugg, ‘The Role of the DPP in the 20th Century’ (Speech, Judicial College of Australia Colloquium, 1999) 2–3. See also Christopher Corns, Public Prosecutions in Australia: Law, Policy and Practice (Thomson Reuters, 2014) 242–244 [7.140]–[7.160].

  19. Damian Bugg, ‘The Role of the DPP in the 20th Century’ (Speech, Judicial College of Australia Colloquium, 1999) 2.

  20. Ibid 18–20. In Tasmania, the role of Crown Advocate was changed to Director of Public Prosecutions in 1986. At the same time, the prosecutor’s obligation ‘to provide advice and representation to Police’ was removed in order ‘to recognise the independence of the DPP from the policing and investigative function.’ Ibid 5.

  21. Chris Corns, ‘Police Prosecutions in Australia and New Zealand: Some Comparisons’ (2000) 19(2) University of Tasmania Law Review 280, 280.

  22. Ibid.

  23. Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 9.

  24. Crown Prosecution Service (England and Wales), ‘The Code for Crown Prosecutors’, Publications (Web Page, 26 October 2018) [2.1], [3.3] <https://www.cps.gov.uk/publication/code-crown-prosecutors>.

  25. Crimes Act 1958 pt III div 1 (19).

  26. Submission 11 (Criminal Bar Association (Victoria)).

  27. Charter of Human Rights and Responsibilities Act 2006 s 25(1)(c).

  28. Criminal Procedure Act 2009 (Vic) sch 1, 4A(1)(b).

  29. Ibid sch 1, 4A. Note that the police must not file a course of conduct charge for a sexual offence without prior consent from the DPP: Criminal Procedure Act 2009 (Vic) sch 1, 4A(12).

  30. Consultation 19 (Victoria Police).

  31. Ibid.

  32. Submissions 11 (Criminal Bar Association (Victoria)), 14 (Magistrates’ Court of Victoria).

  33. Submission 4 (Director of Public Prosecutions (Victoria)).

  34. Submission 14 (Magistrates’ Court of Victoria).

  35. Submission 19 (Victorian Aboriginal Legal Service).

  36. Judicial College of Victoria, ‘2.1 Charge Sheet and Indictment’, Victorian Criminal Proceedings Manual (Online Manual, 1 March 2017) <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/indexpage.htm#27318.htm>. See also R v Walker [2004] VSC 411, [15].

  37. Submission 13 (Victoria Legal Aid).

  38. Submission 19 (Victorian Aboriginal Legal Service).

  39. Submission 13 (Victoria Legal Aid).

  40. Consultation 8 (Victoria Legal Aid).

  41. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Consultation Paper, September 2016) 280.

  42. Ibid 289.

  43. Consultation 14 (Domestic Violence Victoria).

  44. Submission 7 (knowmore).

  45. Submission 23 (Victims of Crime Commissioner).

  46. Ibid.

  47. Criminal Procedure Act 1986 (NSW) ch 3 pt 2 div 4; Criminal Procedure Act 1921 (SA) s106.

  48. Submissions 7 (knowmore), 13 (Victoria Legal Aid).

  49. Consultations 32 (Local Court of New South Wales), 33 (Director of Public Prosecutions (New South Wales)).

  50. Consultation 33 (Director of Public Prosecutions (New South Wales)).

  51. Ibid.

  52. Ibid.

  53. Consultation 34 (Legal Aid New South Wales).

  54. While the report found ‘it is too early in the operations of the reforms to draw any firm conclusions as to [their] impact’, it concluded it is possible they have succeeded in reducing delay between the time of the defendant’s first appearance in the Magistrates’ Court and committal. Brian Ross Martin, Review of the Major Indictable Reforms—Criminal Procedure Act 1921 (As Amended by the Summary Procedure (Indictable Offences) Amendment Act 2017 (Report, 13 September 2019) 99 [198] see also [387].

  55. Consultation 28 (South Australia Major Indictable Review).

  56. Consultation 19 (Victoria Police).

  57. Standing Committee of Attorneys-General, Report of the Deliberative Forum on Criminal Trial Reform (Report, June 2000).

  58. Ibid.

  59. Or other prosecuting agency, such as the CDPP.

  60. Submission 13 (Victoria Legal Aid).

  61. Ibid.

  62. Submission 14 (Magistrates’ Court of Victoria).

  63. Ibid.

  64. Submission 20 (County Court of Victoria).

  65. Consultation 19 (Victoria Police).

  66. Ibid.

  67. Brian Ross Martin, Review of the Major Indictable Reforms—Criminal Procedure Act 1921 (As Amended by the Summary Procedure (Indictable Offences) Amendment Act 2017 (Report, 13 September 2019) 27. See pages 46–50 for an explanation of the adjudication.

  68. Ibid 92.

  69. Consultation 33 (Director of Public Prosecutions (New South Wales)).

  70. Chris Corns, ‘Police Prosecutions in Australia and New Zealand: Some Comparisons’ (2000) 19(2) University of Tasmania Law Review 280, 296.

  71. Submission 13 (Victoria Legal Aid).

  72. Currently the Magistrates’ Court can order that a charge sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused: Criminal Procedure Act 2009 (Vic) s 8(1). The DPP says that recent Court of Appeal obiter has called into question its power to withdraw charges and give notice of its decision to the court: Submission 4 (Director of Public Prosecutions).

  73. Submission 4 (Director of Public Prosecutions).

  74. The Director’s policy explains that ‘Prosecutors represent the DPP, not the government, the police, the victim or any other person’: Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019)

    6 [14].

  75. Victims Charter Act 2006 (Vic) s 9B.

  76. Ibid ss 9(c), 9C.

  77. Centre for Innovative Justice, Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs (Report, April 2019) 20.

  78. Ibid 20–21.

  79. Jo-Anne Wemmers, ‘Victims’ Experiences in the Criminal Justice System and Their Recovery from Crime’ (2013) 19(3) International Review of Victimology 221.

  80. As well as the experience of victims reported in: Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (Report, August 2017) pts III–VI, 346–347.

  81. Submission 7 (knowmore).

  82. Director of Public Prosecutions, Office of Public Prosecutions Victoria, Discontinuance Review Framework (Guide, 26 March 2019)

    <http://www.opp.vic.gov.au/Resources/Discontinuance-Review-Framework>.

  83. Centre for Innovative Justice, RMIT University, Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs (Report, April 2019) 8.

  84. The CIJ said this was necessary because the OPP is sometimes pressured to make a decision quickly when pleas are received at the last minute: Centre for Innovative Justice, Communicating with Victims about Resolution Decisions: A Study of Victims, Experiences and Communication Needs (Report, April 2019) 15.

  85. Letter from Office of Public Prosecutions to Victorian Law Reform Commission, 19 December 2019.

  86. Ibid.

  87. Victims and Other Legislation Amendment Act 2018 (Vic) s 20 inserting new Division 3A to Part 2 of the Victims of Crime Commissioner Act 2015 (Vic).

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