Public Interest

The public interest embraces a multiplicity of persons from diverse sectors, strata of society, station in life and different interests.  The public interest includes victims of crime, accused persons, witnesses, law enforcement personnel, Human Rights Organisations and everyone else who forms members of the public.

Prosecutors in the 21^st century have to be aware that their role is a delicate balancing act where they have to be sensitive to the public interest while retaining their independence in decision making.  At the same time, one’s decision cannot be driven by sympathy, prejudices, public sentiment or a talk show host’s opinion or a poll but by prosecutorial ethics, fairness and courage.  This demands that the decision to prosecute has to be taken in the context of all the available evidence and the relevant law.  Although one is cognizant of public sensitivities in relation to high interest matters, and we try as best as possible to fast track urgent matters that come to our attention, there is no room for the use of sympathy for one party or the other, in our decision making process or the exercise of our discretion.

The role and obligation to act in the public interest was recognized by Justice Avory in R v. Banks[1].  He pointed out that:

“It is true prosecuting counsel ought not to press for a conviction…They should “regard themselves” rather as “ministers of justice” assisting in its administration than as advocates.  ”[2]

The decision whether or not to prosecute is the most important step in the prosecution process.  In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made.  A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system.[3]

Having satisfied himself or herself that the evidence is sufficient to justify the institution or continuation of a prosecution, the prosecutor must then consider whether, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued.  It is not the rule that all offences brought to the attention of the authorities must be prosecuted.[4]

The factors which can properly be taken into account in deciding whether the public interest requires a prosecution will vary from case to case.  While many public interest factors militate against a decision to proceed with a prosecution, there are public interest factors which operate in favour of proceeding with a prosecution (for example, the seriousness of the offence, the need for deterrence).  In this regard, generally speaking the more serious the offence the less likely it will be that the public interest will not require that a prosecution be pursued.[5]  It has occasionally occurred that there is the rare case where though the chances of a successful prosecution may appear to be very slim at the outset and the prosecution is faced with insurmountable hurdles, nevertheless the public interest dictates that the process not be prematurely terminated but that the prosecution puts up what it has so that the issues and the challenges are fully ventilated in the public domain. 

In Paragraph 2.10 of the Prosecution Policy of the Director of Public Prosecutions of Australia the factors which may arise for consideration in determining whether the public interest requires a prosecution were considered.  These include:

1. The seriousness or, conversely, the triviality of the alleged offence or that it is of a ‘technical’ nature only;

2. Any mitigating or aggravating circumstances;

3. The youth, age, intelligence, physical health, mental health or  special infirmity of the alleged offender, a witness or victim;

4. The alleged offender’s antecedents and background;

5. The staleness of the alleged offence;

6. The degree of culpability of the alleged offender in connection with the offence;

7. The effect on public order and morale;

8. The obsolescence or obscurity of the law;

9. Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute;

10. The availability and efficacy of any alternatives to prosecution;

11. The prevalence of the alleged offence and the need for deterrence, both personal and general;

12. Whether the consequences of any resulting conviction would be unduly harsh and oppressive;

13. Whether the alleged offence is of considerable public concern;

14. The attitude of the victim of the alleged offence to a prosecution;

15. The likely length and expense of the trial;

16. Whether 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;

17. The likely outcome in the event of a finding of guilt having regard to the sentencing options available to the court;

18. Whether the alleged offence is triable only on indictment; and

19. The necessity to maintain public confidence in such basic institutions as the Parliament and the courts.

The applicability of and weight to be given to these and other factors will depend on the particular circumstances of each case.