Who is the informant in the prosecution of a corporation?

Informants generally

Unless legislation expressly limits the power to file charges, any person – including you and I, as private citizens – may act as informant and file criminal charges.  You and I could, if we had the means, instruct lawyers to conduct a prosecution on our behalf.  Or we could seek the court’s leave (if we were not officers of the court) to represent ourselves in the proceedings.  The DPP in each jurisdiction has power to take over any such prosecution (and discontinue it, should she deem that appropriate).

Interestingly, when police officers, and many regulatory officers, file charges, they do so in their capacity as private citizens (Western Australia is an exception to this rule; in that state, charges are filed by “WA Police” – see Corns, 2013, 226).  This is why, if you check criminal listings in your local Magistrates’ Court, you will see cases listed as Jo Citizen v Joe Citizen, and, unless you know the informant, will not be able to identify whether they are a member of a police force or regulatory agency, or they are just an ordinary person.

Most corporate crime charges are filed by non-police informants.  They include heads of regulatory bodies, or certain of their staff, and people appointed by them for the purpose of filing charges.  I call those bodies capable of initiating prosecutions ‘prosecuting agencies’ and you can review a list of prosecuting agencies that deal with corporate crime in Australia, here.  Unlike standard Crimes Acts, under which any person may file a charge, the legislation establishing “regulatory” corporate offences frequently limit the persons who may act as informant.  In Victoria, for example, charges under the Australian Consumer Law (Vic), may only be filed by the Director of Consumer Affairs Victoria, or a person authorised by her: s194 ACLFTA 2012.   Similarly, charges under the Environment Protection Act 1970 may only be filed by a person appointed by the Environment Protection Authority: s59.   

The informant in corporate prosecutions is therefore likely to be the head of a prosecuting agency or member of their staff.  But, in Australia, there is a curious difference in approach regarding who in fact drafts the charge filed by the informant – and who makes the decision to file the charge in the first place.

State & Northern Territory Offences

In the Australian States, the informant will draft and file the charge/s without input (and, in likelihood, without notifying) the state DPP.  In the Northern Territory, whether the DPP is involved in the drafting of charges will depend on the particular relationship between the informant’s office and the DPP’s office.

The circumstances in which a State DPP might conduct a summary prosecution  include where the accused is an employee of the prosecuting agency, or there is some other conflict of interest; where the DPP received the brief as an indictable prosecution but has consented to summary jurisdiction; or where there are some other special arrangements or circumstances.  Of course, the relevant DPP (see, e.g.,  s22 Public Prosecutions Act 1994 (Vic)) has power to take over conduct of any summary prosecution at any time.

Commonwealth and ACT Offences

The situation is significantly different in relation to Commonwealth and ACT offences.  For ease of reference, I’ll just discuss the Commonwealth arrangement in this part, though the ACT arrangement is analogous.  In Commonwealth corporate crime matters, the vast majority of briefs are referred to the CDPP for consideration before any charges are filed; the CDPP then determines whether to initiate a prosecution, drafts the charges, and directs the relevant Commonwealth agency informant to sign them.  The prosecution is, therefore, initiated with the Commonwealth prosecuting agency officer as informant, just as in State prosecutions – however, the charges have been filed at the CDPP’s direction.  This is a significant divergence from standard State practice, where the DPP is not consulted, or even notified, before summary charges are filed, and where summary prosecutions are conducted without any supervision by the DPP.

Of course, there will always be cases in which the Commonwealth officer cannot properly consult the CDPP before filing charges; this may be the case where urgent arrests are required, for example – though these issues are less likely to arise in corporate offences.  And there are certain Commonwealth prosecuting agencies that have an agreement in place with the CDPP granting them independence to run their own summary prosecutions without CDPP consultation (ASIC and the ATO are examples).

Who is the prosecutor in the summary prosecution of corporations?  

The informant will not necessarily be the person who handles the prosecution litigation after the charges are filed.

State & Northern Territory Offences

Where the informant was the investigator, she becomes a witness in the prosecution and another person will act as prosecutor.  The prosecutor may be an  “in-house” lawyer, who appears to prosecute, or who acts as instructing solicitor to a barrister briefed by the regulatory agency.  Alternatively, the regulatory agency may outsource its prosecutions to a State government solicitor’s office, or to a private firm.

Commonwealth (and ACT) Offences

It’s different for Commonwealth offences, however – in these matters, CDPP staff, not the informant, conduct the vast majority of summary prosecutions.  In the CDPP’s own words:

CDPP prosecutors appear in all levels of the courts from Magistrates Courts to the High Court and we are involved at all stages of the prosecution process including mentions, bail, summary matters, committals, trials and appeals. This differs somewhat from the majority of State and Territory DPPs where the emphasis is mainly on committals and trials and there are police prosecutors who handle many matters at earlier stages.

In those rare instances where the CDPP has agreed that a Commonwealth agency may conduct its own summary prosecutions, the agency’s lawyers will act as prosecutor; however, the CDPP maintains power to take over conduct of the summary prosecution at any time: see ss910(2) Director of Public Prosecutions Act 1983 (Cth).

Who is the prosecutor in the indictable prosecution of corporations?  

State & Northern Territory Offences

In the Australian States, conduct of the prosecution of any indictable crime to be tried on indictment must be transferred to the relevant DPP upon committal (see, eg s22 Public Prosecutions Act 1994 (Vic)).   However, the handover of the conduct of the prosecution may occur at an earlier time, depending on the agreement in place between the relevant prosecuting agency and the DPP.  So, for example, in prosecutions filed by Victoria Police for indictable offences, the brief will be transferred to the DPP’s office immediately following the filing hearing (the first hearing in the Magistrates’ Court), and OPP staff will conduct the prosecution thereafter.  On the other hand, when WorkSafe initiates an indictable prosecution, it maintains conduct of the prosecution until the outcome of any committal proceedings; these arrangements are recorded in the Memorandums of Understanding between the relevant bodies.

Once the conduct of a prosecution has been assumed by the DPP’s office, the informant maintains a role in the proceeding, providing assistance to the prosecutor as required, generally participating in key decision-making, liaising with witnesses and so forth.

Once an accused is committed to trial, the DPP files an indictment in the relevant court (either the County or Supreme Court).  This changes the name of the case from Informant v Accused to DPP v Accused.

Commonwealth (and ACT) Offences

As indicated above, the CDPP will have had conduct of any indictable prosecution from the very outset.  Upon committal, the CDPP (or an appropriate delegate) will file an indictment in the relevant court, at which stage the name of the case will become CDPP v Accused.

References

Christopher Corns, Public Prosecutions in Australia (Lawbook Co., 2013)

Further Reading

For a critical reflection on difference in the roles played by State/Territory and Commonwealth DPPs and prosecuting agencies, see Corporate Crime Critiques – Should Regulators and Investigators be Prosecutors?

Christopher Corns’ book, listed above, is an excellent resource for further information.

Relevant resources

Commonwealth: Director of Public Prosecutions Act 1983 (Cth); Commonwealth Director of Public Prosecutions website; Prosecution Policy of the Commonwealth

Victoria: Public Prosecutions Act 1994 (Vic); Victorian Office of Public Prosecutions website

New South Wales: Director of Public Prosecutions Act 1986 (NSW); NSW Office of the Director of Public Prosecutions website

Queensland: Director of Public Prosecutions Act 1984 (Qld); Queensland Office of the Director of Public Prosecutions website

Tasmania: Director of Public Prosecutions Act 1973 (Tas); Director of Public Prosecutions website

South Australia: Director of Public Prosecutions Act 1991 (SA);  Office of the Director of Public Prosecutions website

Northern Territory: Director of Public Prosecutions Act (NT);   Director of Public Prosecutions website

Western Australia: Director of Public Prosecutions Act 1991 (WA);  Office of the Director of Public Prosecutions website

Australian Capital Territory:  Director of Public Prosecutions Act 1990 (ACT);   Office of the ACT Director of Public Prosecutions website

Prosecuting Agencies

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