Charges are withdrawn for many reasons: the complainant has been compensated by custom, the witness has left, the evidence has fallen apart, a plea has been agreed to a lesser charge. The Act allows it, but the consequences differ from those of a dismissal, and a defendant should understand the difference.
The power
(1) Subject to Subsection (2), an informant may, at any time, advise the Court that he does not intend to proceed further in the matter the subject of the information.
(2) In relation to an offence under Section 420 of the Criminal Code, no information shall be withdrawn without the consent of the Public Prosecutor.
(3) On withdrawal of an information in accordance with this section, the defendant shall be discharged from any further proceedings in connexion with the information.
Three points. The decision belongs to the informant, the police officer who laid the charge, or the prosecutor appearing for him under section 59(2); it does not need the Court’s leave. It may be exercised at any stage, before or during the hearing. And the discharge is from proceedings on that information.
The Public Prosecutor’s consent
Subsection (2) matches section 4(1)(ga) of the Public Prosecutor (Office and Functions) Act, which gives the Public Prosecutor an absolute discretion to elect the method of proceeding under section 420 including the withdrawal of an information. The Magistrates’ Manual explains that once the Public Prosecutor has elected summary trial of a Schedule 2 offence, the Public Prosecutor retains control of whether it continues. A police prosecutor cannot withdraw a stealing or assault occasioning bodily harm charge on his own authority; the Court should ask for the consent, in writing or through a State Prosecutor.
Withdrawal is not dismissal
| Withdrawal (s 61A) | Dismissal (ss 124, 129, 162) | |
|---|---|---|
| Who decides | The informant | The Court |
| Effect | Defendant discharged from that information | Order of dismissal; certificate under s 162 bars any further proceeding for the same matter |
| Fresh charge later | Possible, within any time limit under s 36 | Barred by the certificate; Constitution s 37(8) also applies to an acquittal |
| Costs | Section 260A(3)(b) says withdrawal alone does not entitle the defendant to costs, but costs may be ordered after the s 260A factors are considered | Same test under s 260(1)(b) and s 260A |
| Appeal by the State | Not applicable | Not available (s 219(2)) |
Because withdrawal is not an adjudication, there is no certificate of dismissal and no double jeopardy. The police may lay the same charge again, or a different charge on the same facts, subject to the six-month limit for simple offences. A defendant who has a complete answer to the charge may prefer to insist on a hearing and a dismissal rather than accept a withdrawal, particularly where costs are in issue. Conversely a defendant who has settled with the complainant will usually welcome the withdrawal.
Compensation and settlement
Many withdrawals follow a customary settlement between the defendant and the victim. Nothing in the Act prevents that, and the Criminal Law (Compensation) Act 1991 recognises compensation as part of the criminal process. But two cautions apply. Section 59 of the Summary Offences Act makes it an offence to delay or withdraw an information for reward, so a payment to the informant to withdraw, as opposed to compensation to the victim, is unlawful. And the Family Protection Act 2013 provides in section 6(2) that it is no defence to the domestic violence offence that the defendant has paid compensation to the complainant; the police retain the power to withdraw under section 61A, but the payment does not compel them to.
Can the Court refuse a withdrawal?
Section 61A gives the informant the right to advise the Court that he will not proceed, and subsection (3) then discharges the defendant. The Court’s role is to record the withdrawal and the discharge. The Court has no power to compel a prosecution to continue, and equally no power to convert a withdrawal into a dismissal on the merits. What the Court can do is deal with costs, and with any property held under section 276 or section 121.
Withdrawal during a committal
The same section applies to an information for an indictable offence during committal proceedings. The defendant is discharged, and section 113(2)(b) provides for the release of any witness held in custody where the duly appointed officer declines to file an information. Because a committal is an inquiry, not a trial, withdrawal at that stage has no effect on the Public Prosecutor’s power under section 526 of the Criminal Code to indict on the same facts if the evidence warrants it. Section 261 excludes costs against the complainant on the dismissal of an indictable charge, and the same reasoning applies to a withdrawal.
Civil complaints
A complainant in a civil case may withdraw or discontinue under section 147 on immediate payment of the costs the Court fixes, and may then sue afresh. See withdrawing a complaint.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.