It’s often believed that once a person has been charged with a criminal offence in Western Australia, the charge will stand until a person is found guilty or not guilty at trial. However, that’s not always the case.
Charges can be discontinued by the prosecution and/or dismissed by a court prior to a verdict; a result far more common than most defendants think.
The following outlines the differences between having charges discontinued and charges being dismissed, defining the terms and noting the importance of legal advice as early as possible in criminal matters.
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The Difference Between Discontinued and Dismissed Charges
In WA, a charge is discontinued when the prosecution elects not to proceed with it. In these circumstances there is an application by the prosecution to dismiss the charge pursuant to section 25 of the Criminal Procedure Act 2004 WA. The court then dismisses the charge.
However, a charge may be dismissed by the court in circumstances where the prosecution have not made such an application. The court may dismiss a charge in circumstances where it determines that the prosecution has failed to establish a prima facie case or that the charge cannot proceed as a matter of law.
In regard to charges being discontinued, the relevant prosecuting authority may be the Director of Public Prosecutions in serious criminal matters or a police prosecutor in summary matters. The discontinuance may occur at any stage before a final determination.
A charge will be dismissed by the court without the prosecution discontinuing the charge when the court determines that the prosecution cannot proceed. In the Magistrates Court this commonly occurs at the close of the prosecution case if there is insufficient evidence capable of supporting a conviction. Unlike a discontinuance of the charge, a court dismissal in these circumstances reflects a formal judicial determination.
Why the Prosecution Might Drop Charges
Discontinuance of charges is an executive decision made by a prosecuting authority.
In summary matters before the Magistrates Court, proceedings are governed by the Criminal Procedure Act 2004 (WA). A prosecution is commenced by lodging a prosecution notice. The prosecution (undertaking by a police prosecutor) retains the ability to discontinue a charge at any time prior to final determination.
In indictable matters, particularly those prosecuted on indictment in the District or Supreme Court the Director of Public Prosecutions may withdraw a prosecution by filing a Notice of Discontinuance (a formal application to discontinue proceedings).
Any decision to discontinue charges is guided by prosecutorial policy, including whether there remains a reasonable prospect of conviction and whether proceeding with the prosecution is in the public interest. If the evidence no longer supports the elements of the offence, the prosecution is not obliged to proceed.
In practice, it is common for the prosecution to discontinue certain charges in exchange for guilty pleas to others, particularly where multiple counts arise from the same facts. This will often be the result of certain ‘plea negotiations’ or proposals made between defence lawyers and prosecutors. The court is not a party to negotiations but must be satisfied that any plea entered is voluntary and that the factual basis for sentence is accepted.
Once discontinued, the charge is dismissed by the court. In limited circumstances, charges may be re-prosecuted, subject to statutory time limits and abuse of process principles.
When a Court Can Dismiss Charges Without Prosecution Discontinuing
The dismissal of charges is a formal judicial decision and order by a Judge or Magistrate.
In summary proceedings under the Criminal Procedure Act 2004 (WA), section 79 of the Act provides that at the close of the prosecution case, the court may determine that there is no case to answer. If the evidence is insufficient to establish a prima facie case, the Magistrate must dismiss the charge.
Summary offences may also be subject to statutory limitation periods. Section 21 of the Criminal Procedure Act WA states that a prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed, unless another written law provides otherwise or the person consents to it being commenced at a later time. If a prosecution is commenced outside the applicable limitation period, the charge may be dismissed by the court.
In indictable matters, dismissal may arise from defects in the charge outlined in the indictment. A defective indictment may be quashed at any time prior to the resolution of proceedings.
Jurisdictional issues can also arise for both indictable and summary matters, where a question is raised as to whether a particular court can hear and determine a criminal case or whether a different court is more appropriate. Under sections 126 to 128 of the Criminal Procedure Act WA, the accused may submit that the court lacks jurisdiction or raise certain legal objections to a charge.
The court must determine any issue raised by the submission and may amend the charge, refer legal questions to the Court of Appeal or involve a jury where appropriate. If upheld, the charge is either transferred to a court with jurisdiction or the accused is discharged without being convicted or formally acquitted.
Finally, courts in Western Australia retain inherent jurisdiction to prevent abuse of process. If a prosecution is oppressive, vexatious, or fundamentally unfair, the court may order a permanent stay of proceedings. The power to grant a stay derives from the court’s inherent jurisdiction and has been recognised at common law as necessary to protect the integrity of the judicial process. The threshold is high. The remedy of a permanent stay is regarded as one of last resort, reserved for circumstances where no lesser procedural safeguard can cure the unfairness.
The Role of Early Legal Advice
Early legal advice can be decisive in ensuring a withdrawal or dismissal of criminal charges. A qualified criminal defence lawyer can examine the prosecution’s brief and reveal evidentiary deficiencies, inconsistencies or procedural irregularities.
Further, defence lawyers may make written representations to the prosecution, urging a discontinuance on the basis that the elements of the offence cannot be established and that it would be in the public interest not to proceed. If the prosecution declines to discontinue, those issues may be raised in court through a no-case submission or through pre-trial applications challenging the validity of the charge.
Delay in obtaining advice can result in missed opportunities to challenge the legal foundation of the proceedings.
What If Charges Are Not Discontinued or Dismissed?
If a charge is neither discontinued by the prosecution nor dismissed by the court, it proceeds in accordance with the regular court procedure.
Summary offences remain within the jurisdiction of the Magistrates Court. Indictable offences may proceed through the committal process, including disclosure and hand-up brief procedures, and if there is sufficient evidence, the accused may be committed to the District Court or Supreme Court for trial. At all stages, the prosecution bears the onus of proving each essential element of the offence beyond reasonable doubt. The accused is not required to prove their innocence.
Importance of Legal Representation
Not all criminal charges proceed to trial or result in conviction. Whether through prosecutorial discontinuance or judicial dismissal, there are circumstances in which proceedings may come to an end before verdict. Early legal advice is critical in identifying weaknesses in a case and determining whether there are grounds to challenge the continuation of a prosecution.
