Australia: What does the DPP consider when deciding whether to withdraw criminal charges?

Many Australians were surprised to hear the charges against the woman accused of triggering Australia's 'needles in strawberries crisis' have been withdrawn, and want to know why.

My Ut Trinh, who is also known as Judy, was arrested after needles began showing up in strawberries in supermarkets across the nation at the end of 2018.

Some of the more than 200 of these incidents were believed to have been  copy-cat crimes.

Needles in fruit were reported to police nation-wide, creating a social media fuelled frenzy.

People stopped buying strawberries en masse, creating financial hardship for berry farmers as they sat and watched truckloads of fruit go bad during peak season.

Tens of thousands of punnets were removed from supermarkets around the country, and simply went rotten.

It was considered a national crisis, and the Federal Government's response the strawberry growers – which contribute about $470 million to the economy each year – was to  increase the maximum prison sentence for food-tampering from 10 to 15 years.

Ms Trinh was a supervisor at Berrylicious farm in Caboolture, north of Brisbane.

Police arrested her on suspicion she had contaminated a number of punnets of strawberries – her motivation being that she was unhappy about treatment by her employer.

It was alleged Ms Trinh's DNA was found inside a contaminated punnet of strawberries in Victoria.

She was charged with several counts of contamination of goods with intent to cause economic loss, and was set to face a four-week trial in the Brisbane District Court, starting this week.

However, proceedings were delayed by ongoing legal arguments between her lawyers and the prosecution, over the availability of witnesses and admissibility of evidence.

The Office of the Director of Public Prosecution has not disclosed the specific reasons for withdrawing the charges, although it has issued a statement that,  "Following legal argument over the past two days on evidential matters, a determination was made this morning that the Crown no longer had a reasonable prospect of securing a conviction in this matter and it was discontinued."

The decision has left many perplexed given that publicly available court documents show that Judge Michael Byrne allowed the prosecution to use the allegedly incriminatory DNA evidence and allegedly admissions during a conversation  – despite Ms Trinh's criminal defence lawyers attempted to have it excluded.

In relation to the DNA evidence, the Judge determined that "The results indicate that it is more than 100 billion times more likely that the defendant (Ms Trinh) contributed to that mixed sample than some other person chosen at random from the community,"

"The DNA evidence is potentially highly probative of guilt, but it is a matter for the jury whether they consider it to have that high probative value."

The mentioned conversation is alleged to have occurred one or two years before the strawberry contamination, when Ms Trinh said "for no apparent reason, and while smirking" words to the effect of: "If I hate anyone I will put the needle in the strawberry and make them go bankrupt."

It seems the proceedings were withdrawn despite the absence of adverse rulings from a prosecutorial point of view – a situation which, if accurate, leads to a potential criticism that DPP has spent a significant amount of public resources prosecuting charges which did not have a reasonable prospect of success.

The DPP is the body responsible for prosecuting many serious criminal offences in New South Wales.

The offences it prosecutes are overwhelmingly 'indictable offences', which are those that can be referred to a higher court such as the District or Supreme Court for finalisation.

Indictable offences generally carry maximum prison sentences of more than 2 years.

Summary offences, on the other hand, are those finalised in the Local Court.

These generally carry maximum prison terms of 2 years or less and are prosecuted by the police.

The DPP is guided  by a set of rules known as the 'DPP guidelines' when assessing and conducting criminal prosecutions.

The guidelines in New South Wales relate to a range of matters and circumstances, including:

• The role and duties of prosecutors,
• The advice that is given to police officers,
• When to initiate or continue with prosecutions,
• When to file appeals against inadequate sentences,
• When to initiate retrials,
• The prosecution's duty of disclosure to the defence,
• The prosecution's duty of fairness,
• When to agree to judge alone trials, and
• The process for discontinuing proceedings.

It is the policy of DPPs across the nation  to prosecute criminal offences only where this is in the public interest.

In New South Wales, this rule is enshrined in Guideline 4 which commences with the following quote from Sir Hartley Shawcross QC, who was the Attorney General of the United Kingdom and Nuremberg trial prosecutor:

"It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute 'wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest'. That is still the dominant consideration."

The Guideline proceeds to make clear that the following three matters are to be considered when determining whether a prosecution is in the public interest:

1. Whether the available evidence is capable of establishing the offence.
2. Whether there is a reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) that is properly instructed as to the law.
3. Whether discretionary factors nevertheless dictate that the matter should or should not proceed.

The discretionary factors that are relevant to considering point 3 are listed as:

• The seriousness or, conversely, the triviality of the alleged offence or that it is of a "technical" nature only;
• The obsolescence or obscurity of the law;
• whether or not the prosecution would be perceived as counter-productive; for example, by bringing the law into disrepute;
• Any special circumstances that would prevent a fair trial from being conducted;
• Whether or not the alleged offence is of considerable general public concern;
• The necessity to  maintain public confidence in such basic institutions as the Parliament and the courts;
• The staleness of the alleged offence;
• The prevalence of the alleged offence and any need for deterrence, both personal and general;
• The availability and efficacy of any alternatives to prosecution;
• Whether or not the alleged offence is triable only on indictment;
• The likely length and expense of a trial;
• Whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory;
• The likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the court;
• Whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive;
• The degree of culpability of the alleged offender in connection with the offence;
• Any mitigating or aggravating circumstances;
• The youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the alleged offender, a witness or a victim;
• The alleged offender's antecedents and background, including culture and language ability;
• Whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;
• The attitude of a victim or in some cases a material witness to a prosecution;
• Whether or not and in what circumstances it is likely that a confiscation order will be made against the offender's property;
• Any entitlement or liability of a victim or other person or body to criminal  compensation, reparation or forfeiture if prosecution action is taken; and/or
• Whether or not the Attorney General's or Director's consent is required to prosecute.

The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case.

The Guideline makes it explicitly clear that the decision on whether to prosecute must not be influenced by:

• the race, religion, sex, national origin, social affiliation or political associations, activities or beliefs of the alleged offender or any other person involved (unless they have special significance to the commission of the particular offence or should otherwise be taken into account objectively);
• personal feelings of the prosecutor concerning the offence, the    alleged offender or a victim;
• possible political advantage or disadvantage to the government or any political party, group or individual;
• the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution or otherwise Involved in its conduct; or
• possible media or community reaction to the decision.

The Guideline further makes clear that the State's resources are not unlimited and should not be wasted pursuing inappropriate cases.

These are the matters that a prosecutor is meant to weigh up when deciding whether to initiate, or to continue with, a criminal prosecutions in New South Wales.

That being the case, a good criminal defence lawyer will often address relevant matters when preparing and sending what are known as  representations to the prosecution; which are written submissions which call for the discontinuation of criminal proceedings, the downgrading of charges and/or avenues of redress which do not involve charges being pursued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.