NCJ Number
93094
Date Published
1982
Length
23 pages
Annotation
An examination of the initiation of prosecutions, the exercise of prosecutorial discretion, and the separation of investigative and prosecutorial responsibilities in Australia indicates the need for reform in these areas.
Abstract
Greater fairness, impartiality, and independence in prosecution can be attained by controlling the ad hoc nature of existing prosecution practices. Intervention by the private prosecutor should be controlled, possibly along the lines of the recent English proposal, whereby court approval of the proceedings would be necessary if the public prosecuting service refused to handle the complaint. At a minimum, a power of take-over should be placed in a public official such as a director of public prosecutions or the attorney general, and the exercise of the decision to prosecute should be subject to published guidelines. These guidelines should apply to the police as well as to the Attorney General, Solicitor General, and staff under their control or the control of other ministers of government who exercise prosecutorial discretion. The English courts have shown some willingness to review the general application of prosecution policy, but review of specific decisions raise complex issues and practical problems. Existing mechanisms, such as police complaint procedures and the ombudsman, could provide a degree of external review of specific complaints. Additionally, police and lawyers should be encouraged to develop internal mechanisms for review of practice. The development of formal external review mechanisms is fraught with difficulties, such that offical resistance is likely to be intense. The establishment of formal external review of specific instances of the exercise of prosecutorial discretion should only be done if the ombudsman-type approach fails. Finally, the structure of prosecution functions should be overhauled to eliminate the heavy dependence on police in conducting prosecutions at summary level. Police should concentrate on investigation and detection functions, while, as the Lusher Report notes, prosecution is inconsistent with the police function and damaging to public confidence in the justice system. Ninety-three notes are provided.