Director of Public Prosecutions (DPP) Guidelines
The Office of the Director of Public Prosecutions (ODPP) represents the State of Queensland - the Queensland community in criminal cases in the Magistrates, District, Supreme Court and Court of Appeal Queensland as well as the High Court of Australia. The decision on whether to prosecute medical cannabis cases or not must be based upon the evidence, the law and the Director's Guidelines which provide for the use of discretion to not prosecute cases that are not in the public interest.
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In February 2015, the Therapeutic Goods Administration entered Cannabidiol (CBD) as a Schedule 4 prescription medicine in the Commonwealth Poisons Standard (SUSMP).
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In November 2015 the Health (Drugs and Poisons) Regulations 1996 (QLD) was amended to allow access to Schedule 8 cannabis - nabiximols (THC/CBD)
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In December 2015 the Queensland Premier and Cabient amended Health Regulation 270A of the Health (Drugs and Poisons) Regulations 1996 (QLD) to allow access to Schedule 9 cannabis medicines for research trials or in line with the provisions in the Commonwealth Therapeutic Goods Act 1989 that provides for access to "unapproved" cannabis medicines via the Special Access Scheme (SAS).
The changes to the Queensland Health Regulations highlight how the past prohibition in Regulation 270A was in conflict with an Australian law and invalid under the Australian Constitution.
The DPP should use its discretion and not prosecute patients and carers who use cannabis for medical purposes and who have been charged with a criminal offence under the Drug Misuse Act 1986 (QLD), and who out of "necessity" break an invalid and unjust law to prevent harm or death.
The Director's Guidelines
The decision to prosecute is a two tiered test:
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is there sufficient evidence?; and
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does the public interest require a prosecution?
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If it is not in the interests of the public that a prosecution should be initiated or continued then it should not be pursued.
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The scarce resources available for prosecution should be used to pursue, with appropriate vigour, cases worthy of prosecution and not wasted pursuing inappropriate cases.
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Sufficient Evidence
Most cases will be to proceed with the prosecution if there is sufficient evidence.
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A prima facie case is necessary but not enough.
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A prosecution should not proceed if there is no reasonable prospect of conviction before a reasonable jury (or Magistrate). A decision by a Magistrate to commit a defendant for trial does not absolve the prosecution from its responsibility to independently evaluate the evidence. The test for the Magistrate is limited to whether there is a bare prima facie case. The prosecutor must go further to assess the quality and persuasive strength of the evidence as it is likely to be at trial.
The following matters need to be carefully considered bearing in mind that guilt has to be established beyond reasonable doubt:-
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(a) the availability, competence and compellability of witnesses and their likely impression on the Court;
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(b) any conflicting statements by a material witness;
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(c) the admissibility of evidence, including any alleged confession;
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(d) any lines of defence which are plainly open; and
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(e) any other factors relevant to the merits of the Crown case.
Public Interest Criteria and Discretionary Factors
If there is sufficient reliable evidence of an offence, the issue is whether discretionary factors nevertheless dictate that the matter should not proceed in the public interest. The relevance of discretionary factors will depend upon the individual circumstances of each case.
Discretionary factors may include:-
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(a) the level of seriousness or triviality of the alleged offence, or whether or not it is of a ‘technical’ nature only;
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(b) the existence of any mitigating or aggravating circumstances;
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(c) the youth, age, physical or mental health or special infirmity of the alleged offender or a necessary witness;
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(d) the alleged offender’s antecedents and background, including culture and ability to understand the English language;
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(e) the staleness of the alleged offence;
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(f) the degree of culpability of the alleged offender in connection with the offence;
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(g) whether or not the prosecution would be perceived as counter- productive to the interests of justice;
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(h) the availability and efficacy of any alternatives to prosecution;
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(i) the prevalence of the alleged offence and the need for deterrence, either personal or general;
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(j) whether or not the alleged offence is of minimal public concern;
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(k) any entitlement or liability of a victim or other person to criminal compensation, reparation or forfeiture if prosecution action is taken;
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(l) the attitude of the victim of the alleged offence to a prosecution;
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(m) the likely length and expense of a trial;
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(n) whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;
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(o) the likely outcome in the event of a conviction considering the sentencing options available to the Court;
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(p) whether the alleged offender elected to be tried on indictment rather than be dealt with summarily;
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(q) whether or not a sentence has already been imposed on the offender which adequately reflects the criminality of the episode;
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(r) whether or not the alleged offender has already been sentenced for a series of other offences and what likelihood there is of an additional penalty, having regard to the totality principle;
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(s) the necessity to maintain public confidence in the Parliament and the Courts; and
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(t) the effect on public order and morale.
The more serious the offence, the more likely, that the public interest will require a prosecution.
Mitigating factors - Sentencing
Mitigating factors can also be put to the Court at sentence if a person wither pleads guilty or is found guilty.
Other Guidelines
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DUTY TO BE FAIR
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a prosecutor has the duty of ensuring that the prosecution case is presented properly and with fairness to the accused;
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a prosecutor is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack the view put forward on behalf of the accused; however, this must be done temperately and with restraint;
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a prosecutor must never seek to persuade a jury to a point of view by introducing prejudice or emotion;
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a prosecutor must not advance any argument that does not carry weight in his or her own mind or try to shut out any legal evidence that would be important to the interests of the person accused;
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a prosecutor must inform the Court of authorities or trial directions appropriate to the case, even where unfavourable to the prosecution; and
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a prosecutor must offer all evidence relevant to the Crown case during the presentation of the Crown case. The Crown cannot split its case.
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FAIRNESS TO THE COMMUNITY
The prosecution also has a right to be treated fairly. It must maintain that right in the interests of justice. This may mean, for example, that an adjournment must be sought when insufficient notice is given of alibi evidence, representations by an unavailable person or expert evidence to be called by the defence.
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EXPEDITION
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cases should be prepared for hearing as quickly as possible;
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indictments should be finalised as quickly as possible;
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indictments should be published to the defence as soon as possible;
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any amendment to an indictment should be made known to the defence as soon as possible;
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as far as practicable, adjournment of any trial should be avoided by prompt attention to the form of the indictment, the availability of witnesses and any other matter which may cause delay; and
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any application by ODPP for adjournment must be approved by the relevant Legal Practice Manager, the Director or Deputy Director.
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A decision to prosecute or not to prosecute must never be influenced by:-
(a) race, religion, sex, national origin or political views;
(b) personal feelings of the prosecutor concerning the offender or the victim;
(c) possible political advantage or disadvantage to the government or any political group or party; or
(d) the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution.
