Who Decides If Someone Is Charged: 6 Helpful Facts About Criminal Charges and Prosecution
Who decides if someone is charged?
The Police or other law enforcement agencies typically decide to charge someone with a criminal offence.
Depending on your jurisdiction, here's a sample list of some of the officers and law enforcement agencies that can charge you with an offence:
- Local Police
- Federal Police
- Road Policing Drug and Alcohol Section (RPDAS)
- Transport for NSW (TfNSW) (formerly known as Roads and Maritime Services or RMS)
- Commonwealth Director of Public Prosecutions
If you are charged with a crime, it means that you have been accused of doing something illegal. The court will determine the appropriate penalty or punishment if you are found guilty.
Who Decides If Someone Is Charged, and What Is A Crime?
Who decides if someone is charged, and what is a crime?
The general definition of a crime is an act or omission that violates the law and is punishable by the state or federal government.
Crimes are considered violations of public order and are established by legislation defining each crime's elements and penalties.
Who Decides If Someone Is Charged, and What Are The Different Types of Crimes?
Who decides if someone is charged, and what are the different types of crimes?
Crimes can be categorized into various types, such as:
Summary offences: These are relatively minor crimes, often called "misdemeanours" in some jurisdictions. Summary offences are typically dealt with in lower courts, such as Magistrates' Courts, and can include traffic violations, public nuisance, and minor theft.
Indictable offences: Indictable offences are more serious crimes usually heard in higher courts, such as District or Supreme Courts. These crimes include murder, rape, robbery, and drug trafficking.
Regulatory offences: These are violations of specific regulations or statutes that govern particular areas of activity, such as environmental protection, workplace safety, or consumer protection. Specialized government agencies may prosecute regulatory offences.
What Are Common Offences That You Can Be Charged with In Australia?
Depending on the particular circumstances and jurisdiction, people may be accused of various crimes in Australia. While state and territory laws and penalties can vary, some common offences include:
- Theft: The act of stealing someone else's property or possessions with the intent to deprive the owner of their property irrevocably.
- Assault: The intentional or reckless use of force or threats to cause physical harm, dread, or apprehension to another person.
- Drug offences: This category comprises possession, use, cultivation, manufacturing, distribution, and trafficking of illegal drugs or substances.
- Public order offences: Disorderly conduct, public intoxication, offensive language or behaviour, and public nuisance are actions that disturb or threaten public order and safety.
- Traffic offences: Violations of traffic laws such as speeding, driving under the influence of alcohol or narcotics (DUI), driving without a valid licence, and reckless driving.
- Property damage: Causing damage to someone else's property on purpose or by accident, like vandalism, fire, or graffiti.
- Fraud: Using lies or dishonesty to get money, like credit card scams, identity theft, or false claims for government benefits.
- Sexual offences: A range of crimes that involve sexual acts that happen without consent, such as sexual assault, rape, offensive attack, and child pornography.
- Robbery: When someone uses violence or the fear of violence to steal someone else's property or possessions, this is called robbery.
- Domestic violence: Acts of violence, threats, or controlling behaviour in a family or close relationship, such as physical assault, mental abuse, or stalking.
Who Decides If Someone Is Charged; Is It a Prosecutor?
Who decides if someone is charged? Is it a prosecutor?
A prosecutor is a lawyer who acts for the state or the Commonwealth in a criminal case.
Their role is to present the government's case against the accused person and try to get justice in accordance with the law.
Prosecutors have a duty to be fair, do the right thing, and do what is best for the people.
Prosecutors in Australia can be divided into two main categories:
- Public Prosecutors: Public prosecutors work for the government at the state or federal level. At the state level, public prosecutors are represented by the Office of the Director of Public Prosecutions (DPP) in each state or territory. The DPP prosecutes serious criminal offences, such as indictable crimes. At the federal level, prosecutors are represented by the Commonwealth Director of Public Prosecutions (CDPP), which handles cases that involve federal criminal offences or matters of national interest.
- Police Prosecutors: In some states and territories, police prosecutors represent the state in less serious criminal matters, such as summary offences. These prosecutors are usually members of the police force who have received specialized training in legal issues. They typically appear in lower courts, such as Magistrates' Courts.
What Are the Roles of Prosecutors?
Prosecutors play a significant role in choosing whether or not to move forward with a case.
Still, the Police or other law enforcement agencies usually decide whether or not to charge someone with a crime in the first place.
They look into the offence, collect evidence, and determine if there's enough to charge the alleged offender.
Once the Police decide to charge someone, they put together a brief of evidence and give it to the public prosecutor.
The brief of evidence is looked at by the public prosecutor, who then decides whether or not to bring the case to court.
Based on their evidence, the prosecution must decide if there is a good chance of convicting the individual and if it is in the public's best interest to keep going with the case.
In this way, lawyers don't charge people directly, but they have the power to decide whether or not to move forwards with a claim based on the charges that the Police or other law enforcement agencies have brought.
What Are the Elements of the Offence?
Who decides if someone is charged, and what are the elements of an offence?
The elements of an offence refer to the specific components that must be proven beyond a reasonable doubt by the prosecution for the accused person to be found guilty.
These elements are defined in 3.1 B Criminal Code Act of 1995 and can vary depending on the jurisdiction and the specific offence.
Actus Reus (guilty act): This refers to the physical act or omission that constitutes the offence. It is the outward manifestation of the crime, such as stealing, causing harm, or damaging property.
The prosecution must prove that the accused person committed the act or omission that constitutes the criminal offence.
Mens Rea (guilty mind): This refers to the mental element or state of mind of the accused person at the time of the offence.
It involves establishing the accused person's intention, recklessness, or negligence in committing the crime.
The specific mental element required can vary depending on the offence, but common examples include intent, knowledge, or recklessness.
Some offences also have additional elements that need to be proven, such as specific circumstances or a relationship between the parties involved.
It's important to note that some offences are classified as "strict liability" or offences, which do not require the prosecution to prove men's rea.
In these cases, the mere act or omission (actus reus) is enough to establish guilt, regardless of the accused person's intentions or state of mind.
Laws and legal procedures can vary between states and territories in Australia, so consulting with a legal professional for advice on specific cases or offences is essential.
Conclusion
Question: Who decides if someone is charged?
Answer: The Police or other law enforcement agencies typically decide to charge someone with a criminal offence.
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.