Do the Police and Prosecutors have too Much Discretionary Power?

Print Friendly, PDF & Email

Police and prosecutors in NSW have a large amount of discretionary power: they can choose whether or not charges can be dropped or reduced, and whether a case will proceed to a defended local court hearing.

In any given situation police have a large amount of discretion to exercise their power.

But what happens when their judgment is inappropriate?

One NSW magistrate was astonished that a case heard in her court had made it as far as the courthouse at all.

One woman, Claudia Fleurs wrote about her misadventure.

She was a writer and was rushing into court to cover a case for a news story she was writing.

Claudia had inadvertently brought a small pocket knife and canister of pepper spray with her to court.

Security detected the items when her bags were scanned at the security checkpoint at the entrance of the court building.

They took her name and details and said they would forward it on to police.

Claudia assumed it was just routine.

She was later shocked to find out how the whole thing had been blown out of proportion.

Months later after Claudia had forgotten about the incident, her father received a phone call. The police were looking for her.

Claudia was asked to come in for an interview at a police station and finally wound up in court, facing a potential criminal record and even a prison sentence!

She had bought the canister pepper spray while in WA, where it is legal to possess it.

She had been travelling through a relatively isolated area and out of mobile phone reception and was recommended to buy a small canister by a shop assistant.

NSW police charged her with “possession of a prohibited weapon” for the knife she used to chop up her food, and additionally with “carrying a knife in court premises.”

Fortunately for Claudia, the magistrate was more than sympathetic: she expressed her outrage that the matter was even prosecuted let alone gone all the way to a defended hearing!

This was clearly not a case that should have ended up in court.

Over-vigilant policing and the inappropriate use of discretion leading up to hearing is of real concern.

A person is normally charged with a criminal offence if police have a reasonable suspicion that an offence has occurred.

However, not every case is prosecuted to the full extent of the law, nor should it be.

There is no rule that every alleged offence must be prosecuted and that has never been the way the law works here.

There are many steps in between when police become aware of a possible offence being committed and the matter ending up at a defended hearing.

According to the Prosecution Guidelines, the prosecution ought to consider several factors before they bring a case to hearing.

While public interest is the primary consideration there are many factors that must be considered before a case is brought to court.

To make it to court the prosecution must ensure that there will be enough admissible evidence to prove each element in the offence.

Secondly must also be a reasonable prospect of conviction by– the prosecution cannot bring hopeless cases to court. Nor should they bring a case to hearing where there is a high chance that the defendant will establish a valid defence – such as having the knife for a lawful purpose.

But the third consideration when deciding whether or not a case will go to hearing is entirely discretionary.

If these discretionary factors dictate that the matter should not proceed in the public interest, the case should be dropped.

While the complete list of factors is lengthy, the police discretion can be generally summarised to assess the following factors:

  • How serious the offence was, including harm to the victim and degree of violence used;
  • Whether a prosecution would be counterproductive;
  • Whether a fair trial is possible in the circumstances;
  • The background of the offender including their age, health, maturity, intelligence, any disabilities and criminal record;
  • The length and expense of the trial;
  • Whether there are other alternatives available instead of prosecution;
  • Whether the offence is a general public concern;
  • Whether there are appropriate sentencing options;
  • The degree of culpability of the accused and any aggravating or mitigating factors; or
  • Whether proceedings would be unduly harsh or oppressive

Unfortunately it still happens that cases reach the courts like, in Claudia’s case, should never have ended up there in the first place.

What had started out as an honest mistake turned into a nightmare that could have had life-changing consequences.

Even Claudia herself, the possessor of a law degree, never thought that the case would have gone to hearing.

She believed that someone higher up the chain of command would have stopped the proceedings before she ever received summons.

While some level of police and prosecution discretion is undoubtedly an important and necessary part of the job, there are definitely instances where it has been used inappropriately.

If you are charged with a trivial offence or feel that your case should not proceed, a good criminal defence lawyer may be able to persuade police to drop the charge by writing a letter formally requesting withdrawal.

That letter is called ‘representations’ and can be followed-up with negotiations for withdrawal.

If police still want to proceed with the case, a good lawyer may be able to have legal costs awarded in your favour after the case is thrown out of court.

Author Image

About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

One Comment

  1. amy vaughn

    i think this happens all too often. i have just had riot police raid my home and charge me with 6 fabricated charges, all come about from an ex employer i have made a formal complaint for sexual harassment.. He is a business owner in the security industry and i believe knows the officers who came to my home. i was instantly placed under arrest, strip searched and removed from my home to be taken in to be charged

Leave a Comment