Deferred prosecution agreements (DPAs) are a topic of great interest in legal circles in Australia. These agreements are a form of alternative dispute resolution and are used as a way to resolve criminal cases without going to trial. Essentially, a DPA is a contract between a prosecutor and an accused person or corporation that offers the accused the opportunity to avoid prosecution by agreeing to certain terms and conditions.
The terms and conditions of a DPA typically involve the accused admitting to certain facts or allegations, paying a fine or compensation, and agreeing to certain compliance measures. If the accused successfully meets all the terms of the agreement over a specified period of time, the charges against them are dropped. However, if they fail to comply with the terms of the agreement, the prosecution can continue and the accused may face trial.
DPAs have been used successfully in several jurisdictions around the world, including the United States and the United Kingdom. In Australia, DPAs are a relatively new concept. The first DPA was entered into between the Commonwealth Director of Public Prosecutions (CDPP) and the mining company, Karara Mining Limited, in November 2019.
The Karara DPA was entered into after an investigation by the Australian Federal Police (AFP) into alleged breaches of the Commonwealth Criminal Code and the Corporations Act 2001. Under the terms of the DPA, Karara agreed to pay a financial penalty of $100,000 and to implement an enhanced compliance program. In return, the CDPP agreed to defer prosecution for a period of two years, after which the charges against Karara were dropped.
The Karara DPA has been hailed as a success by legal experts, who see it as a positive step towards more effective enforcement of corporate criminal law in Australia. However, there are also concerns about the potential for DPAs to be used as a form of “get out of jail free” card for corporations and other accused parties.
Critics argue that DPAs can be used to avoid accountability and transparency in criminal cases, and that they may actually encourage wrongdoing by sending the message that corporations can buy their way out of trouble. Others argue that DPAs are a necessary tool for prosecutors in complex cases where a trial may not be in the public interest.
Ultimately, the use of DPAs in Australia is still in its early stages, and it remains to be seen how they will be used in practice. However, as more criminal cases are resolved using DPAs, it is likely that we will see a clearer picture emerging of their benefits and drawbacks. What is clear is that DPAs offer a way to resolve criminal cases without the expense and uncertainty of a trial, and can be a useful tool for both prosecutors and accused parties.
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