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Criminal Law Blog VIC

A Step-by-Step Guide to Commonwealth Prosecutions

Criminal laws in Australia are created by the legislatures of each state and territory. Crimes against the Commonwealth are created by the Parliament of Australia. Each state and territory has a Director of Public Prosecution (DPP) who is responsible for overseeing criminal prosecutions in that jurisdiction. Violations of Commonwealth law are prosecuted by the Commonwealth Director of Public Prosecution (CDPP). This article describes how the CDPP prosecutes crimes.

Investigation

Before the CDPP begins a prosecution, a criminal investigator must prepare a brief. The investigator interviews victims and witnesses and gathers evidence of the crime. The brief identifies a suspect and outlines the evidence against that suspect, including witness statements and physical evidence such as fingerprints. The investigator who prepares the brief (also known as the “informant”) provides it to the CDPP for review.

Review of Evidence

When the CDPP receives a brief from an informant, it assigns a prosecutor to review the brief and to determine:

  • whether the evidence in the brief supports the issuance of a criminal charge, and
  • whether a criminal prosecution is in the public interest.

To decide whether the evidence is strong enough to support a criminal charge, the prosecutor must decide whether it is reasonably likely that the CDPP will secure a conviction. This requires the prosecutor to assess the availability and credibility of witnesses, the likelihood that evidence will be deemed admissible in court, and the strength of any defences that the accused might raise.

Even if the evidence is substantial, it might not be in the public interest to prosecute the crime. If the crime is of minor significance, the prosecutor might decide the CDPP’s time would be better spent prosecuting more serious cases. In addition, there may be mitigating circumstances that justify the offender’s behaviour. If a good deal of time has passed and the offender has not been involved in further criminal incidents, if the offender is particularly remorseful and is unlikely to reoffend, or if the victim does not want the crime to be prosecuted, the prosecutor might decide that bringing charges would be contrary to the public interest. In some cases, alternatives to a criminal prosecution might be offered.

Charges laid

If, after assessing the brief, the prosecutor decides that charges should be laid, a prosecution is commenced. Unless the accused is already in custody, the accused will typically be notified of the prosecution by service of a Summons that requires the accused to appear in the Local Court (also known as the Magistrate’s Court) on a specified date. Summary offences (those that involve less serious crimes that are not tried before a jury) remain in the Local or Magistrate’s Court. Indictable offences (those that charge more serious offences requiring indictment and the right to a jury trial) are later transferred to either the Supreme Court or to a County or District Court.

At the initial court appearance in Local or Magistrate’s Court, the accused can enter a plea of guilty or not guilty. If the accused has not done so already, the accused can also ask for time to seek legal advice. Any person who is accused of a crime should get advice from a lawyer before pleading guilty. There may be better options that will not be explained by anyone other than the accused’s own lawyer.

Hearing - Summary Offences

If the accused pleads guilty to a summary offence, the Magistrate will sentence the accused. If the accused pleads not guilty, the Magistrate holds a hearing and decides on the basis of the evidence presented whether the CDPP has proven the accused’s guilt beyond a reasonable doubt. If so, the case proceeds to sentencing.

Committal Hearing

In cases charging indictable offences, a committal hearing is held. A Magistrate considers the evidence and decides whether it is sufficient to justify a trial. If so, the case proceeds in the appropriate court. If not, the charge is dismissed.

Trial

After the committal hearing, the accused is formally charged in an indictment and is thereafter referred to as the defendant. The defendant is entitled to a jury trial. The CDPP has the burden of proving guilt beyond a reasonable doubt. The CDPP tries to meet that burden by calling witnesses and presenting other evidence that the rules of evidence allow. The defendant is entitled to present a defense, which also includes calling witnesses and introducing other allowable evidence for the jury to consider. At the conclusion of the trial, the judge sums up the evidence and explains the law to the jury. The jury then deliberates and returns a verdict of guilty or not guilty.

Sentencing

A defendant who is found guilty is sentenced. Sentencing options include imprisonment, conditional release, fines, and community service. The defendant might also be ordered to make reparations to the victim or to the Commonwealth.

Appeal

If a convicted defendant believes an error was made during the trial or that the sentence imposed is unlawful, the defendant can appeal. The appeal will be heard by a higher court. That court will either affirm or overturn the decisions made in the lower court.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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