In the wake of news that charges have been dropped against the three Wild brothers accused of raping a 14-year-old girl in Geelong, you may be trawling the internet or texting a lawyer friend for an explanation. You may be asking how prosecutors can drop charges when the case was so close to coming to trial. Prosecutors rarely publish their reasons, and will not do so if their reasons were personal to the victim. Melbourne University's criminal law expert Jeremy Gans has explained why such charges are dropped in these kinds of cases.
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Prosecutors believed they will lose
According to the guidelines of the Director of Public Prosecutions Victoria prosecutors must only proceed with a case if "there is a reasonable prospect of a conviction."
Prosecutors can't be sued if they make the wrong decision, but they are bound by the guidelines and take them very seriously, said Professor Gans.
"They can't just say, we think we may lose, but we're going to go for it anyway - even if some would like them to do that, in order to give the victim his or her day in court."
Prosecutors doubts the victim's credibility
While it is possible that charges are dropped due to a lack of physical evidence, Professor Gans said it was more likely in cases such as these, that prosecutors lacked confidence in the victim's story.
"If they think there's a good chance that the jury isn't going to accept the victim's testimony, then they will drop the case," he said. "Or, the victim may have changed his or her story, in a way that makes it harder to be sure that the jury would convict."
Professor Gans said if the charge is sex with a child under 16, then a jury needs to determine that the sex occurred, and that the defendants in the case were the ones who had penetrated the victim.
"The jury might say we're sure it was one of them, but we're not sure which one, so we're going to acquit all of them."
Victim wants to avoid further trauma
The victim may have withdrawn their allegations because they believe they are untrue.
Or, if the victim maintains their allegations, they may wish to avoid the trauma of the proceedings, said Professor Gans.
"Some people want to put the whole thing behind them and get on with their lives and see testifying as continuing their trauma.
"Another possibility is that even though the victim is anonymous and the media are not allowed to name them, if their name is known in a particular community there could be a lot of attention directed at them," he said.
The victim may want to avoid being accused of lying if they provide different accounts in court. Such attacks could be waged by defence lawyers, the media, and members of their community.
Too traumatic for the victim
Even if the prosecution believes they will win, and the victim wants to testify, they may decide that proceeding with the case will be too damaging for the victim.
"Maybe the victim has a medical or psychological issue and they've made a call," he said.
"The damage the case will put on the victim may be too great when weighed against the gains of winning the case.
"But it would mean there are dangerous people on the streets, so the prosecution has got to make a judgment call."
Victim decides that prosecution is not appropriate
Professor Gans said that "rightly or wrongly", the victim may have decided that it was not worth ruining the lives of the accused by going ahead with the case.
It was also possible that the victim lost motivation to go through with the case due to the inconvenience.
"They could be unwell, wanting to move towns, in a new relationship or dealing with family and don't want to go through with it."
While the prosecution could technically press ahead with the case without the victim's consent, their case would almost certainly fall over.
"The victim can be called in as a witness just like anyone else, even against their will," he said.
"But on a practical level, it is going to be pretty hard to proceed with a prosecution when your central witness says 'I don't want to do this'."