Criminal Law

By Edward Chen

25.01.19

An insight into federal prosecutions

Federal (or Commonwealth) prosecutions are prosecutions where you are charged with offences against Australia as a nation, rather than offences against an individual State or Territory. The distinction may seem wholly arbitrary and make very little sense to a non-lawyer. For example, throwing a stone at someone will likely lead to a State/Territory offence but flying a drone into them will likely attract multiple federal offences.

Federal prosecutions can seem foreign, not only to those charged with Commonwealth offences but to legal practitioners, Magistrates and Judges alike. In fact, it’s not uncommon at the end of federal prosecutions for all parties to spend several minutes scratching their heads, making sure all the orders are legally correct.

There are several reasons why federal prosecutions bewilder many in the legal profession.

Firstly, there are relatively few federal offences being committed compared to State/Territory offences. Your average Joe is much more likely to be involved in a simple assault or drink driving than, say, importing drugs or hatching an elaborate tax evasion scheme. The most common federal offence is the defrauding of Centrelink by forgetting, or “forgetting”, to declare a source of income to Centrelink while receiving money from them.

Secondly, federal prosecutions are governed by archaic laws that appear to be written by people who can’t count. What comes after section 16 of the Crimes Act 1914 (Cth)? Section 16AAA. What comes after that? Section 16A. And after that? Section 16AA.

Thirdly, federal prosecutions are prosecuted by an entirely separate body to the ones that deal with State and Territory offences. The prosecuting authority is the Commonwealth Director of Public Prosecutions (CDPP). The CDPP, compared to other DPPs, is generally more meticulous and better-resourced because of their smaller work-load and the more complex criminal offences they deal with. They are not, however, without a significant degree of Government bureaucracy that come with most publicly-funded departments. There is an Excel spreadsheet that sets out almost every significant decision a prosecutor can make and the various levels of management that need to review any proposed decision before it can made.

Lastly, a significant portion of federal prosecutions are planned well in advance. Federal prosecutors often liaise with investigators at an early stage, ensure there are no gaps in the evidence and then lay charges against an individual. In contrast, State and Territory prosecutors often receive cases after police have already arrested someone and the proceedings are well underway. This often means the brief of evidence (that is, the compilation of evidence to be presented against a person) in federal matters are voluminous and technical.

These are the reasons why it can feel particularly daunting to be at the wrong end of a federal prosecution.

The team at Aulich Criminal Law have significant experience dealing with federal prosecutions including specifically selected staff who were formerly federal prosecutors.  If you require advice regarding a federal charge, our team will be able to advise you on the best course of action.