Discontinuation of Prosecutions: A Comparative Study of Three Australian States and New Zealand
Dr Jean-Pierre Gauci, Georgia Greville, Katie Lines, Dr Jan van Zyl Smit
The Bingham Centre was commissioned by the Crown Prosecution Service in England and Wales to undertake independent research looking at how prosecutors in countries with similar criminal justice systems are allowed to discontinue a prosecution, sometimes with the option of reviving it later. The findings of that research are now published and available here.
Mechanisms to discontinue criminal prosecutions are fundamental to prosecutorial discretion, ensuring proceedings advance only where tests of evidentiary sufficiency and public interest are satisfied. Not only do these mechanisms shape case outcomes, resource allocation and perceptions of fairness, but they can have significant implications for both accused persons and victims.
Commissioned by the Crown Prosecution Service, this report provides a comparative analysis of mechanisms for discontinuing criminal prosecutions across three Australian jurisdictions - Queensland, New South Wales and Victoria - and New Zealand. The analysis highlights how different legal frameworks balance competing rule of law values including certainty, procedural fairness and flexibility in the administration of justice.
The report shows that while the four jurisdictions share common foundations, they diverge markedly in institutional design. All employ a two-tiered test for prosecution - broadly, evidentiary sufficiency and public interest - that is applied continuously throughout proceedings.
However, the balance between prosecutorial autonomy and judicial oversight differs fundamentally. The report demonstrates that Australian jurisdictions tend to favour prosecutorial discretion tempered by internal hierarchical review and back-end protections through the abuse of process doctrine. By contrast, New Zealand embeds court supervision at the point of discontinuation itself, requiring leave of the court for most withdrawals. This additional front-end control reflects a rights-sensitive approach prioritising accountability through judicial gatekeeping rather than relying solely on institutional self-regulation.
The analysis reveals significant variation in stage-of-proceedings flexibility. Queensland and New South Wales permit discontinuance until the entry of a verdict, prioritising adaptability to emerging circumstances. Victoria imposes strict statutory trial-stage restrictions, prohibiting discontinuance once trial commences. This temporal limitation addresses concerns about the tactical use of discontinuance to avoid unfavourable verdicts while preserving prosecution rights. New Zealand's framework requires prosecutors to elect between seeking a (reversible) withdrawal and (irreversible) dismissal, forcing explicit consideration of finality at the outset based on whether circumstances are likely to change.
A striking feature across all jurisdictions is the gap between legal reversibility and practical finality. While modes of discontinuance not resulting in acquittal are legally reversible, interviewees universally described revival of discontinued prosecutions as very rare in practice. The report examines how internal policies establish presumptions against revival, institutional culture discourages reversal and resource constraints contribute to making discontinuance a practical endpoint in the vast majority of cases.
The report also explores victims' rights frameworks, revealing contested terrain. All jurisdictions provide information and consultation rights, operationalised through statutory victims' charters and prosecutorial guidelines. However, formal review mechanisms diverge sharply. Queensland and New South Wales introduced internal merits review rights in 2025 and 2021 respectively, though outcomes rarely change and views remain mixed about their value versus resource implications. Victoria resists both internal and external review, emphasising prosecutorial independence. New Zealand offers only informal review, contingent on agency discretion, with stronger protections for sexual violence cases.
These structural differences reflect deeper institutional choices about where accountability should reside, how flexibility and finality should be balanced, and whose interests should shape prosecutorial decision-making. Each model represents a coherent approach to managing competing imperatives, offering lessons for jurisdictions considering reform.
The report is based on desk research of legislation, case law, prosecutorial guidelines and academic commentary, validated and supplemented by interviews with prosecutors, defence practitioners, members of criminal bar associations and academics across all four jurisdictions. In addition to the comparative report, detailed case studies for each jurisdiction are included, examining modes of discontinuation, safeguards for accused persons and victims' rights in greater depth.
