The CDPP offers certain complainants a right of review in relation to the following prosecution decisions:
- a decision to commence a prosecution, which results in none of the allegations against an alleged offender relating to a particular complainant being the subject of a prosecution; and
- a decision to wholly discontinue a prosecution against an alleged offender with respect to all of the allegations relating to a particular complainant.
Level of Authority – Practice Group Leader
The aforementioned decisions can only be made by prosecutors whose level of authority is that of Practice Group Leader.
Who is entitled to seek a right of review?
The right of review is available to identifiable victims of the following offences:
- offence involving a child (person under 18 years of age) who is considered a victim of crime (as defined in the CDPP Victims of Crime Policy), including victims of:
- online child exploitation offences, including grooming, procuring and engaging in sexual activity;
- child sex offences outside Australia.
- slavery, servitude and forced marriage offences.
- offences in which a victim suffers really serious physical or psychological harm as a result of alleged offences.
- in addition, matters involving the death of a person as a result of any alleged offence.
Consultation Process with the complainant
Prior to the matter being referred to the Practice Group Leader for decision-making, a consultation process should occur with the complainant.
The complainant should be allowed adequate time to consider their views.
Prosecutors are required to document the views of complainants and ensure that they are referenced within the material provided to the Practice Group Leader responsible for decision-making.
Right of Review by the Director
Where a Practice Group Leader makes a decision of the type mentioned above the complainant (s) should be:
- notified in writing of that decision; and
- notified of their right to request a review of that decision by the Director.
Ordinarily, such decisions should be communicated verbally to the complainant in the first instance and followed up in writing.
Ordinarily, a complainant will have a period of 7 days from the communication of the decision to seek a review by the Director, unless in the particular circumstances of the case it is appropriate to vary the time frame.
Complainants should be provided with clear written information about how to seek a review and any associated deadlines for such a request.
Reasons for not commencing or discontinuing a prosecution
The reasons for not commencing a prosecution or wholly discontinuing a prosecution against a defendant should be explained to the complainant by the prosecutor at the time the decision is first communicated.
Reasons in writing
The complainant may seek written reasons for the decision of the Practice Group Leader or of the Director, not to commence a prosecution or to wholly discontinue a prosecution.
The complainant should be advised of their ability to seek written reasons.
The Practice Group Leader and/or Director may provide written reasons where it is considered appropriate to do so.
Contact/Communication with a Child Complainant
The CDPP Victims of Crime Manual provides detailed guidance on who a prosecutor should contact when the case involves a child complainant.
Whilst the appropriate person to consult with and obtain views from, will often be the parents/guardians of the child complainant (for example in cases involving very young children), this will not always be the case (for example in cases involving teenagers) and should be assessed on a case by case basis.
Referral to the Practice Group Leader or Director in other Circumstances
Nothing in the CDPP’s Right of Review National Legal Direction prevents a victim matter which falls outside the terms of Direction, to be escalated to the Practice Group Leader or Director, where it is otherwise appropriate to do so.
The CDPP’s National Legal Direction: Right of Review - Prosecutions involving child and certain other complainants sets out guidelines regarding our obligations to inform and consult with certain complainants regarding decisions to commence or discontinue prosecutions.
The CDPP’s Victims of Crime Policy and Prosecution Policy also identifies the other types of information that victims of crime are entitled to receive upon request.