The data raise the question of whether prosecutors are exercising their public office in a manner which serves the interests of justice. In making this point we recognise that charging of murder may be standard prosecutorial practise in some of the jurisdictions under examination and thus may also operate unfairly in respect to other classes of defendants.
9.8The most relevant is Guideline 5: The Decision to Prosecute. This Guideline covers all the factors to be taken into account in the prosecution decision. In essence, the test is whether there is sufficient evidence to provide a reasonable prospect of conviction and whether it is in the public interest to prosecute.
9.9The latter element is not so relevant in the case of serious assaults or homicides, as the seriousness of the offence will usually make prosecution in the public interest. We understand that such cases will usually be determined on the evidential tests. However, there is a caveat to this point. The prosecutor must properly assess whether self-defence can be legitimately pleaded and its prospects of success. If it is probable that self-defence will succeed, a prosecution should not be undertaken.
9.10Guideline 8. The Choice of Charges is also relevant. Guideline 8.1 states that the nature of the charge “should adequately reflect the criminality of the defendant’s conduct as disclosed by the facts to be alleged at trial”. Thus, a prosecutor ought to make an informed judgement as to whether the proper charge should be murder or manslaughter. The prosecutor ought not to take a default position that the jury can determine this question.
9.11Guideline 8.2 also provides that a prosecutor should not inflate the seriousness of the charge in order to increase the likelihood that the defendant will offer to plead guilty to a lesser charge.
9.12As noted at paragraph 3.28 above and while mindful of the small size of the case analysis, the rate of murder conviction in the cases we have identified could suggest the Prosecution Guidelines (which comprise an evidential sufficiency test and a public interest inquiry) are not being properly applied or that alternative considerations should apply in these cases.
9.14One option could be to recommend the Solicitor General considers including guidance in the Prosecution Guidelines on prosecutorial consideration of the circumstances of victims of family violence. This could be included in Guideline 5.4 and in the public interest considerations for prosecution in Guideline 5.8.
Questions for consultation
Q19 Do you consider the Prosecution Guidelines should include specific guidance on charging and/or plea discussions where family violence against a defendant accused of committing homicide is in issue?