Wednesday, 23 October 2013

How to give your prosecutions the best chance of success

Regulators don’t prosecute lightly.  So when they do, it is important to get it right.

This involves more than good investigation.  As the Victorian Auditor-General’s Office has noted in a number of its recent reports, good regulatory outcomes come from agencies having clear and comprehensive systems in place for their enforcement activities. 

VAGO's reports include recommendations such as:

  • establishing a compliance framework for determining appropriate enforcement action;
  • documenting the procedures and standards required of staff carrying out compliance and enforcement activities; and
  • ensuring staff understand the legislation and rules for their regulatory area.

Here are some tips for building your agency’s capacity to conduct prosecution casework and achieve good regulatory outcomes.

Know the law


Investigators and prosecutors should have a good understanding of the regulatory laws that they apply, including relevant acts, regulations and other rules (such as Ministerial orders).  This can be developed through training, information sharing and reference material as much as through experience.

Investigators and prosecutors should be particularly familiar with the criminal offences under their legislation, the 'elements' or 'points of proof' for those offences, and the evidence required before a prosecution can be commenced.   Template investigation plans for these offences help investigators identify the evidence to be gathered and inquiries to make.

Companies and other organisations may operate in your regulatory space. Proving criminal offences against companies can be complex.  Investigators and prosecutors should know how relevant laws apply to companies as well as to individuals.

Develop appropriate investigative techniques and use statutory powers carefully


Successful prosecution outcomes start with good investigations.

Basic investigatory techniques, such as effective communication and interpersonal skills, are important for any investigation.  However, some offences require specialised investigative techniques or resources to gather the required evidence. 

This may include:

  • developing information systems or databases to store, manage and access information;
  • using appropriate interviewing or questioning techniques (for example, when dealing with children or persons from different social, cultural and linguistic backgrounds); or
  • obtaining technical support for gathering evidence (such as a forensic computer analyst or accountant).

Operational training is important to ensure staff can use these techniques and resources.

Investigators sometimes have special powers, for example, to enter buildings, search for items and seize possible evidence.  It is very important to know the limits of these powers, not only because their improper use can affect the admissibility of evidence, but also because they can infringe important civil rights.  Agencies should develop guidelines for the use of these powers, and regularly audit how they are being used.

Prepare well-organised and comprehensive briefs


Investigators ordinarily compile all of the evidentiary material they obtain into a brief.  A well-organised brief allows a prosecutor to easily:

  • understand the alleged offending;
  • assess the evidence against the allegation;
  • identify what further evidence the investigator should attempt to obtain;
  • provide appropriate disclosure of the prosecution case to the defence; and
  • prosecute the case in court.

Investigators should make sure the brief includes:

  • well-prepared witness statements for all witnesses (in coming weeks, we will write in more detail about witness statements, watch this space!)
  • a complete list of exhibits (including copies of all relevant evidentiary documents and details of any 'real evidence', such as items seized during a search);
  • details of any prior criminal history of alleged offenders; and
  • any other documents which may need to be disclosed under the pre-hearing disclosure provisions of the Criminal Procedure Act 2009 (for example, the investigator's notes, relevant documents that will not be relied on in evidence). 

A covering memorandum from the investigator to the prosecutor, explaining the substance of the allegations and any other relevant matters, is always helpful.

Original evidentiary documents and 'real evidence' should not be included with investigation briefs, but should be kept safely.  The investigator may need to demonstrate the 'chain of custody' of particular evidence, and include these details in his/her witness statement.  Agencies should ensure that there are procedures for handling and storing important evidence, particularly seized documents or items.

Agencies should have a standard format for investigation briefs.  Investigators should work with prosecutors to create a useful format, and discuss proposed prosecution briefs at an early stage.

Make good decisions about when to prosecute offences


Having clear guidelines for making decisions about whether or not to prosecute offences is especially important.  It is not in the public interest to prosecute all offences. 

Good guidance as to the range of considerations in making such decisions can be found in the DPP's policy on prosecutorial discretion).

Agencies have a range of regulatory compliance and enforcement tools available, of which criminal prosecutions are only one option.  Most agencies that conduct compliance activities will have an established, risk-based framework for determining the appropriate enforcement action.

Some good resources for establishing a risk-based compliance framework include:


If you are in the Victorian government and would like advice or assistance with any aspect of your agency’s regulatory compliance and enforcement activities, please contact:

Greg Elms
Managing Principal Solicitor
t 9247 6790
greg.elms@vgso.vic.gov.au

Matt Carrazzo
Senior Solicitor
t 8684 0497
matthew.carrazzo@vgso.vic.gov.au


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