Procedures outlined in this protocol apply to a decision to discontinue a prosecution by tendering no evidence (TNE"), prior to any count on the SAPol Information being committed for trial in circumstances where:

a) there is no identified complainant, for example, certain drug and firearm Offences ; and

b) there is no reasonable prospect of conviction ("RPOC"). The lack of RPOC may be for any number of reasons, including that the ODPP has not received or will not receive in a timely manner a declaration essential to RPOC, such as:

• drug certificates of analysis • ballistic reports • DNA reports • E-Crime analysis

In considering and preparing an application to discontinue, regard is to be had principally to the tests set out in the Policy and Guidelines 'Decision to Prosecute', and any additional considerations of fact or argument put forward by the defence. See attached.

Internal Procedure

1. The solicitor responsible for the file, must prepare and sign a Form A, recording the recommendation to discontinue a prosecution pre-committal.

2. The decision must be authorised by either a SAES 1 or above.

3. The investigating officer should be consulted on any relevant matters, including perceived deficiencies. The n;levant solicitor must advise the investigating officer of the decision prior to tendering no evidence. A record of any consultation must be kept on file.

4. In any TNE due to evidence not being provided in a timely manner, the solicitor will also advise the defence in writing prior to the TNE that charges may be re-laid if that evidence is later obtained. This letter should also be sent to the investigating officer.

5. If a SAES is authorising a decision and another SAES has made an earlier decision refusing to TNE then the authorising SAES must discuss the matter with the original SAES, and make a written record of the discussion.

6. If a SAES authorises a TNE and the investigating officer has expressed opposition to the decision, the solicitor/prosecutor should inform the officer that the decision will be reconsidered upon their request. .

7. In circumstances where an investigating officer has requested a decision be reconsidered, this will be conducted by another SAES1 .If there is disagreement or any uncertainty on

STAT.0936.002.0001

the part of the reviewing SAES1 , a SAES 2 (or above) will then review the decision

8. After the decision is final, the relevant solicitor/prosecutor must make all reasonable attempts to notify the investigating officer of the decision prior to advising the court.

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STAT.0936.002.0002

A. Procedures outlined in this protocol apply to the following decisions:

1) decision to discontinue a prosecution by entering a nolle prosequi or white paper for any count on a Supreme or District Court Information (with no replacement Information being filed).

2) decision to discontinue a prosecution in Magistrates Court/ Youth Court in which the ODPP has assumed conduct of the trial/prosecution in that jurisdiction.

3) decision to reduce the main charge/son a District Court Information either:

a) by filing a fresh Information; or

b) accepting a plea(s) to a reduced number of counts in satisfaction of an Information irrespective of whether a charge is discontinued.

4) changing the charges, whether in the CDCC or Magistrates Court, where there is an identifiable complainant.

5) tendering no evidence in a prosecution with an identifiable complainant before committal1.

In considering and preparing an application to discontinue, regard is to be had to the tests set out in the Policy and Guidelines 'Decision to Prosecute', and any additional considerations of fact, or any argument put forward by the defence. See attached guidelines.

B. Internal Procedure

1. All reasonable attempts must be made to consult the investigating officer and the complainant (or guardian or family of the victim) on any relevant matter prior to the making of a final decision. This does not preclude a preliminary decision being reached prior to a meeting with a family or complainant to enable that preliminary decision being communicated at the meeting .

2. The solicitor/prosecutor responsible for the file must prepare and sign a memorandum for the file, recording his/her recommendation regarding the decision or in circumstances where the prosecution will be reducing charges or accepting fewer counts in satisfaction of the information on full facts , must record a file note of the discussion with the SAES.

STAT.0936.002.0003

3. The decision must be authorised by either a SAES 1 or SAES 2. In authorising the decision, the SAES must prepare and sign a memorandum or sign a Form B recording the decision.

4. If a SAES is authorising a decision for a matter where the Information has been signed by another SAES (the original SAES), or the original SAES has made an earlier decision refusing an offer by the defendant, the authorising SAES must discuss the matter with the original SAES, and make a written record of the discussion.

5. If a SAES authorises a resolution/nolle and the complainant or investigating officer has expressed opposition to the decision, the solicitor/prosecutor should inform the complainant/officer that the decision will be reconsidered upon their request.

6. In circumstances where a complainant or investigating officer has requested a decision be reconsidered, this will be conducted by another SAES1, and the other SAES1 shall endorse the Form B, or prepare and sign a memorandum (which should be attached to the Form B). If there is disagreement or any uncertainty on the part of the reviewing SAES1, a SAES 2 (or above) will then review the decision.

7. After the decision is final, the relevant solicitor/prosecutor must make all reasonable attempts to notify the investigating officer and the complainant of the decision prior to advising the court.

8. Where:

a. the complainant or any key witness has indicated they do not wish to proceed and the decision is whether the complainant/witness should be subpoenaed; or

b. there are two people charged for an offence/s and one offender admits full responsibility for those offence/s,

charges may be discontinued on the ground that "it is not in the public interest to proceed' and a SAES 1 is authorised to make such a decision. If charges are to be discontinued for any other reason on the ground "it is not in the public interesf' the decision must be made by one of the Deputy Directors or the Director.

9. Where the charges involve homicide, attempted murder or matters of public notoriety or high sensitivity, the decision must be authorised by the Director.

10. No decision covered by this protocol may be authorised by a SAES on any file of which they are the solicitor or counsel.

C. Record Keeping

1. The written memorandum, recording the relevant recommendation must include:

a. details of the charges

b. a copy of any material provided by defence which is relevant to the decision;

c. a reference to the offender's criminal history if relevant;

d. details of the reasons why the decision ought to be made;

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STAT.0936.002.0004

e. details of the consultation that has occurred with the investigating officer and/or complainant or relevant guardian as required by the guidelines;

f. the views of the investigating officer and complainant/s in relation to the decision;

g. in circumstances where consultation has not occurred with the investigating officer and/or complainants, reasons why, and details of all attempts made;

h. the relevant solicitor/prosecutor's recommendations.

2. Upon authorising a decision , the SAES must:

a. check all required information (as outlined in part C.1 above) has been provided; and

b. provide in writing the reasons for authorising the decision-either on Form B or elsewhere.

4. In the ordinary case all record keeping obligations outlined in this protocol must be complied with within 7 days of the decision being made.

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STAT.0936.002.0005

Form A TNE - Record of Decision

File Name:

File Number:

Responsible Solicitor: -------------------

Part A Recommendation (to be completed by solicitor prior to entering a TNE)

Recommendation that TNE be entered?

Reasons for recommendation:

Dves

Name: _________ Signature: _________ Date: _______ _

Has the investigating officer been advised that a TNE is being considered?

If not please provide reasons:

Authorisation (to be completed by SAES)

Is the recommendation authorised Please provide details of any difference in reasoning:

0Yes

0Yes

Name: _________ Signature: _________ Date: _______ _

STAT.0936.002.0006

Part B (to be completed by solicitor upon entering a TNE)

Has written advice been sent to the investigating officer?

Is there an intention to relay the charges?

If yes, has defence been notified?

Dves

Dves

Dves

Name: _________ Signature: _________ Date: _______ _

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STAT.0936.002.0007

Form B Discontinuing a Prosecution

File Name:

File Number:

Responsible Solicitor/Prosecutor:

Mode of discontinuation:

Part A

Record of Decision (to be completed by SAES)

0TNE D Whi.te Paper

A memorandum has been prepared by the responsible Solicitor/Prosecutor:

The investigating officer has been consulted:

The memorandum includes/ the discussion has referred to:

• a copy of the offenders criminal history

• details of the charges

• relevant materials provided by defence

• details of the reasons for the recommendation

• details of the consultations undertaken

• views of the complainant

• views of investigating officer

• in circumstances where no consultation has occurred, reasons why and details of attempts made

• recommendations

Is the recommendation authorised: 0Yes Please provide details of any difference in reasoning:

0Nolle

0Yes

0Yes

0Yes 0No

0Yes 0No

0Yes 0No

0Yes 0No

0Yes 0No

0Yes 0No

0Yes 0No

0Yes 0No

0Yes

Name: Signature: Date: ~~~~~~~~~~~- -~~~~~~~~- -~~~~-

STAT.0936.002.0008

Part B

Notification (to be completed by responsible solicitor/prosecutor prior to discontinuing)

Has the complainant been notified that the prosecution will be discontinued?

Has the investigating officer been notified that the prosecution will be discontinued?

Dves

Dves 0No

If either or both the complainant and the investigating officer have not been notified please provide reasons why and any details of attempt made to notify:

Has the investigating officer/complainant requested the decision D Yes be reviewed?

Part C

Reconsideration of Decision (to be completed by another SAES or above)

Upon review of all information, is the decision to discontinue endorsed?

Dves

Name: __________ Signature: __________ Date: ____ _

STAT.0936.002.0009

Form C1

File Name:

File Number:

Internal Audit Discontinuing Prosecution

Responsible Solicitor/Prosecutor:

Responsible SAES

The decision audited relates to: D TNE(Special Circumstance) D White Paper

Recommendation Prior to authorising the decision:

• was the complainant consulted?

• was the investigating officer consulted?

• were their views recorded?

• was all the required information provided in accordance with form?

If not please provide details:

Authorisation

• was the decision appropriately authorised?

• was the authorising SAES required to discuss with another SAES responsible for signing the Information? If so, was this recorded?

• was there a difference in reasoning between the solicitor/prosecutor and the authorising SAES? If so, was that adequately recorded?

• Did the Complainant/Investigating Officer request the decision be reconsidered?

Discontinuation Prior to discontinuing:

• was the complainant notified?

• was the investigating officer notified in writing?

• did the investigating officer request a review?

Does the basis for the decision require auditing?

0Yes

0Yes

0Yes

0Yes

0Yes

0Yes 0Yes

0Yes 0Yes

0Yes

0Yes

0Yes

0Yes

0Yes

0Nolle

0No

0No 0No

0No 0No

0No

0No

0No

0No

STAT.0936.002.0010

Name: __________ Signature: __________ Date: ____ _

Name: __________ Signature: __________ Date: ____ _

Name: __________ Signature: __________ Date: ____ _

STAT.0936.002.0011

Form C2

File Name:

File Number:

Responsible Solicitor/Prosecutor:

Responsible SAES

Internal Audit Crown Appeals

Appeal type D Against appeal D Against sentence

D Against sentencing decision 0Miscellaneous

Was a note placed on the file outlining the solicitor/prosecutor's view regarding the sentence and whether consideration should be given to appeal?

If not, please comment or provide a reasons (if applicable) : ______ _

Where relevant, was the sentence discussed with the relevant SAES within five (5) days of the date of sentence?

Comment:-------------------

Where relevant, were instructions obtained from the relevant SAES1 within five (5) days of the date of sentence? Comment: ___________________ _

Where relevant, was a memorandum provided to the SAES 1 within seven (7) days of the date of sentence?

Comment: ___________________ _

Where relevant, was the matter brought to the attention of a SAES2 within ten ( 10) days of the date of sentence?

Comment: ___________________ _

0Yes

0Yes

0Yes

0Yes

0Yes

ON/A

ON/A

ON/A

ON/A

STAT.0936.002.0012

Was a memorandum provided to the Director recommending

an appeal within fourteen (14) days of sentence? Comment: ___________________ _

0Yes ON/A

In light of the above, was the appeal potentially compromised due to a failure to adhere to Practice Note(8/14)? (If yes, please provide details in the Committee report to Executive)

0Yes 0No

ON/A

Additional comments: --------------------------~

Name: Signature: Date: ---------- ---------- ------

Name: Signature: Date: ---------- ---------- ------

Name: __________ Signature: __________ Date: ____ _

STAT.0936.002.0013