Each year in Victoria, a number of criminal prosecutions are discontinued before they ever reach a jury — a decision that can leave alleged victims confused, the accused in legal limbo, and the public wondering who is actually in charge of the process. Understanding how the Director of Public Prosecutions reaches that decision matters for anyone trying to make sense of how the alleged-offender accountability system actually works.
This explainer draws on the publicly available Prosecution Policy of Victoria, guidelines published by the Office of Public Prosecutions (OPP), and recent appellate commentary on the limits of prosecutorial discretion.
What does “discontinuance” actually mean? #
A discontinuance — sometimes called a nolle prosequi in older legal language, or more commonly a direct indictment withdrawal — is a formal decision by the OPP to end a prosecution that is already before the courts. It is different from the police choosing not to charge someone in the first place. By the time a discontinuance is considered, the accused person has typically been charged, may have appeared in court, and may have been committed for trial or sentence. The OPP steps in as the independent prosecuting authority and, in effect, says the case will not proceed.
The Director of Public Prosecutions does not act as a rubber stamp for the police view of the case. Under the Public Prosecutions Act 1994 (Vic), the Director exercises prosecutorial discretion independently of both police and the executive government — a constitutional safeguard that sits at the heart of the rule of law in Victoria.
The two-part test every alleged offence must pass #
The OPP’s published prosecution policy sets out a two-limb test that applies at every stage of a prosecution, including when the question of discontinuance arises.
The first limb is the reasonable-prospect test. Crown prosecutors must assess whether, on the available admissible evidence, a properly instructed jury could reasonably convict. This is not a question of whether the prosecutor personally believes the accused person did it — it is a question of whether the evidence could rationally support a guilty verdict. If the answer is no, the policy is clear: the prosecution should not continue.
The second limb, applied only if the first is satisfied, is the public-interest test. Even where there is a reasonable prospect of conviction, prosecutors must consider whether proceeding serves the community interest. Factors the policy identifies include:
- the seriousness and nature of the alleged offending;
- the circumstances of the accused person, including age and health;
- the likely sentence if conviction were recorded;
- the impact on alleged victims and witnesses of continuing or discontinuing;
- the time elapsed since the alleged conduct;
- the availability and reliability of witnesses; and
- the cost and complexity of the proceedings relative to their public benefit.
A case can therefore be discontinued even where the evidence is strong, if compelling public-interest factors weigh against proceeding. The reverse also applies: a marginal evidential case may still pass the first limb if an expert review identifies a pathway to admissible evidence not yet explored.
Who actually makes the call? #
Discontinuance decisions are not made by the most junior solicitor on the file. Under OPP internal policy, cases involving serious alleged offending — including alleged sexual offences, alleged homicide-related charges, and alleged offending against children — must be reviewed at a senior level before any discontinuance is formalised. In practice, that typically means a Senior Crown Prosecutor or the Solicitor for Public Prosecutions reviews the file and provides written reasons.
The Director personally retains oversight of the most sensitive decisions and can, and does, overturn recommendations from below. The OPP has also in recent years embedded specialist units — including a specialist team handling alleged sexual-offence prosecutions and a dedicated family-violence prosecution team — partly in response to community criticism that discontinuance decisions in those categories were not receiving adequate scrutiny.
Victim notification and the right to be heard #
One of the most significant reforms of recent decades is the requirement to notify alleged victims before a discontinuance takes effect. Under the Victims’ Charter Act 2006 (Vic), the OPP must take reasonable steps to tell an alleged victim that the prosecution is being discontinued and the reasons why, in language the alleged victim can understand.
Alleged victims also have a right — enshrined in the Charter — to request a review of the decision. That review is conducted internally by a senior OPP officer who was not involved in the original decision. It is not a court process, and the reviewing officer is not bound to reverse the discontinuance; but the OPP must genuinely engage with any representations made.
Critics, including victim advocates and the Law Institute of Victoria, have argued this internal review lacks independence. The OPP has acknowledged the tension and, in its most recent public consultation on prosecution policy, flagged that it is considering whether an independent review mechanism — potentially involving the Victorian Inspectorate or a specialist oversight body — would better serve alleged victims’ interests. As at the time of publication, no legislative change has been made.
What appellate courts have said #
The courts have been asked, on several occasions, to scrutinise discontinuance decisions — and the answer has generally been that the Director’s discretion is very broad, but not unlimited.
In a line of decisions from the Victorian Court of Appeal, the principle has been confirmed that a court will not ordinarily interfere with the Director’s exercise of prosecutorial discretion unless the decision amounts to an abuse of process — meaning it is so unreasonable or tainted by improper purpose that allowing it to stand would bring the administration of justice into disrepute. The bar is deliberately high: courts are not in the business of re-prosecuting cases the Director has chosen to drop.
However, appellate courts have also confirmed that the Director must act on accurate factual and legal foundations. Where a discontinuance has been based on a misreading of the admissible evidence — for example, a mistaken view that a key witness was unavailable when they were in fact willing to give evidence — the Court of Appeal has left open the possibility that such a decision could be challenged. In practice, successful challenges remain rare.
Where police sit in the process #
Victoria Police and the OPP are separate institutions with different mandates, and their relationship over discontinuance decisions is occasionally tense. Police investigate alleged offending and refer files to the OPP; the OPP then exercises independent judgment about whether to prosecute. Victoria Police has no formal power to override an OPP discontinuance decision, though it can — and does — make representations about the strength of its evidence or the seriousness of the alleged conduct.
The OPP’s published policy acknowledges that police views are a relevant consideration, particularly where police have direct knowledge of witness availability or the broader investigative picture. But the policy is explicit: the ultimate decision rests with the Director, not with Victoria Police.
What this means for the public #
For members of the public — whether following a specific matter or simply trying to understand the system — the key takeaway is that a discontinuance does not mean the OPP has found the accused person innocent, nor does it mean police did anything wrong. It means, on the information available to the OPP at that point in time, the Director concluded that either the evidence did not support a reasonable prospect of conviction, or that the public interest did not favour continuing. Those are genuinely distinct findings, and the OPP’s policy requires it to say which one applies when notifying alleged victims.
The system is designed with significant discretion built in — and with that discretion comes accountability obligations that the OPP, the courts, and increasingly the Victorian Parliament are being asked to clarify and strengthen.
If you have been affected by any of the issues raised in this article, the following services are available 24 hours a day, seven days a week:
- Crime Stoppers: 1800 333 000
- 1800RESPECT (sexual assault and family violence): 1800 737 732
- Safe Steps (family violence): 1800 015 188
- Sexual Assault Crisis Line: 1800 806 292
- Lifeline: 13 11 14
- Beyond Blue: 1300 22 4636
- 13YARN (First Nations crisis support): 13 92 76
