Crown prosecutions

Regulations made under the Criminal Procedure Act 2011 specify the kinds of proceedings that are Crown prosecutions.

Proceedings commenced by private prosecutors are never Crown prosecutions (see the definition of Crown prosecution in section 5 of the Act).

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Crown Prosecution Regulations 2013

The Crown Prosecution Regulations 2013 (the Regulations) sets out 3 things:

  • which proceedings are Crown prosecutions (regulation 4)
  • when the Crown must assume responsibility for a Crown prosecution (regulation 5)
  • the period during which leave of the Court is not required to add, amend or withdraw charges in a Crown prosecution (regulation 6).

The Regulations don't prevent a prosecuting agency from instructing the Crown to appear on its behalf in any case that is not a Crown prosecution, or in a case which is a Crown prosecution but before the Crown is required to assume responsibility.

Identification of proceedings as Crown prosecutions

The following proceedings are Crown prosecutions:

  • category 4 offences
  • offences listed in the Schedule attached to the Regulations (schedule offences)
  • offences not listed in the Schedule (non-schedule offences) if the defendant elects jury trial
  • offences that transfer to the High Court if not covered by the above
  • offences where the Solicitor-General directs that it be a Crown prosecution in a case not otherwise a Crown prosecution.

For example, any proceeding for murder (a category 4 offence), aggravated robbery (a schedule offence), or manufacture of methamphetamine (also a schedule offence). If a proceeding includes a schedule offence, it is a Crown prosecution regardless of whether there is to be a judge-alone trial or a jury trial.

Assuming responsibility for a Crown prosecution

Crown prosecutions will be commenced by a prosecuting agency such as the Police or a government department. The Crown will assume responsibility for the prosecution of the case from the time or stage specified in Regulation 5:

Crown prosecution (type of proceeding)

Crown assumes responsibility

Category 4 offence

After first appearance

Schedule offence

After plea

Non-schedule offence if jury trial elected

After case review, if adjourned for trial callover

Any other offence if HC

After transferred to HC

S-G direction

After direction given

When the Crown assumes responsibility for a prosecution, the Crown must file a notice to this effect. The Criminal Procedure Rules (the Rules) specify the content of the notice and require a copy to be served on the defendant. If a proceeding includes at least one offence which identifies it as a Crown prosecution, the Crown must assume responsibility for the proceeding as a whole (for all charges).

Adding, amending or withdrawing charges

The Regulations specify the period (notice period) in which the Crown may add, amend or withdraw charges by filing a notice to that effect, and serving a copy of this notice on the defendant.

Leave of the Court is not required in the notice period unless the Crown is seeking to withdraw all the charges. In this case, the Court may grant leave or may dismiss the charges.

Once the notice period expires, the Crown may only amend or withdraw charges if the Court grants leave for it to do so. If the Crown wishes to add a new charge after the expiry of the notice period, a charging document must be filed and the Court will need to grant leave before that charge can be added to the proceeding.

The notice period set out in regulation 6(1) for amending, adding, or withdrawing charges in a Crown prosecution expires on the date of the case review hearing or, if there is no case review hearing, after the Crown assumes responsibility:

  • judge-alone trial - 25 working days after the Crown assumes responsibility
  • jury trial - on the date the Crown is required to file its trial callover memorandum .

In any case, in the interests of justice the Crown may apply to the court for an extension of the notice period.

Invalidity rule

No Crown prosecution is invalid only because the Crown did not assume responsibility in accordance with the regulations or assumed responsibility for proceeding when it should not have.

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