Can Criminal Charges Be Withdrawn in Victoria?
Yes, criminal charges can be withdrawn in Victoria. However, the decision is usually made by the prosecution, not the person who made the complaint or the person charged.
Many people believe that if someone withdraws their complaint, the criminal charges will automatically be dropped. In reality, once charges have been filed, the prosecution controls whether they continue.
Depending on the circumstances, criminal charges may be withdrawn because there is insufficient evidence, a key witness is unavailable, forensic evidence undermines the prosecution case, or the matter is resolved through charge negotiations.
Understanding when criminal charges can be withdrawn—and when they cannot—is important if you have been charged with an offence or are involved in a criminal investigation.
Key Points
Criminal charges can be withdrawn in Victoria.
The decision usually belongs to the prosecution, not the complainant.
Police or prosecutors may withdraw charges where there is insufficient evidence or no reasonable prospect of conviction.
Charges are sometimes withdrawn during plea negotiations.
A withdrawn charge is different from a dismissal or an acquittal.
Some withdrawn charges can, in limited circumstances, be filed again.
Who Decides Whether Criminal Charges Are Withdrawn?
Who has the authority to withdraw criminal charges depends on who is prosecuting the matter.
For most summary offences and less serious indictable offences heard in the Magistrates' Court, Victoria Police prosecutors conduct the prosecution. They may decide to withdraw one or more charges after reviewing the evidence and considering whether there is a reasonable prospect of securing a conviction.
More serious indictable offences are prosecuted by the Office of Public Prosecutions (OPP). In these matters, the prosecution may discontinue proceedings if the evidence no longer supports the charges or continuing the prosecution is not in the public interest.
Some matters prosecuted under specialist legislation are conducted by government agencies with their own prosecutorial powers, and those agencies may also decide to withdraw charges where appropriate.
Ultimately, the accused person cannot require charges to be withdrawn.
What Does It Mean When a Criminal Charge Is Withdrawn?
A criminal charge is withdrawn when the prosecution decides not to continue pursuing that allegation before the court.
If every charge is withdrawn, the criminal proceeding will usually come to an end. However, a withdrawn charge is not the same as being found not guilty.
Unlike an acquittal after a contested hearing or trial, a withdrawn charge may sometimes be filed again if the law permits and the prosecution considers it appropriate.
Can the Complainant Withdraw Criminal Charges?
One of the biggest misconceptions in criminal law is that a complainant can "drop the charges".
In Victoria, that is generally not how the criminal justice system works.
Although a complainant can tell police they no longer wish to continue, they do not control the prosecution. Once charges have been filed, it is the prosecution that decides whether they should proceed.
This is particularly common in matters involving:
Police may continue prosecuting these matters even where the complainant changes their mind, especially if there is independent evidence such as body-worn camera footage, CCTV, medical records, admissions, text messages or independent witnesses.
A complainant can express their wishes and ask police not to continue, but they cannot require police or prosecutors to withdraw the charges.
Why Are Criminal Charges Withdrawn?
There is no single reason why charges are withdrawn.
Instead, prosecutors continually review the evidence throughout the life of a case to determine whether it should continue.
Common reasons include:
Insufficient Evidence
Every criminal offence must be proved beyond reasonable doubt.
If the prosecution cannot prove every legal element of the offence, it may withdraw the charge rather than continue proceedings that are unlikely to succeed.
This may occur because witness statements are inconsistent, CCTV contradicts the allegations, forensic testing produces unexpected results or identification evidence is unreliable.
Witness Problems
Sometimes an important witness becomes unavailable, refuses to give evidence or their evidence changes significantly.
If that witness is essential to proving the offence, the prosecution may decide the case cannot proceed.
The Wrong Charge Was Filed
Occasionally police determine that a different offence more accurately reflects the alleged conduct.
Rather than continuing with an incorrect charge, they may withdraw it and file a different charge.
Plea Negotiations
Many criminal matters resolve through negotiations between defence lawyers and prosecutors.
As part of those discussions, prosecutors may agree to withdraw duplicate, alternative or less serious charges in exchange for a plea of guilty to charges that properly reflect the alleged offending.
Public Interest
Even where sufficient evidence exists, prosecutors must also consider whether continuing the prosecution is in the public interest.
Factors may include the seriousness of the offending, the age and circumstances of the accused, the impact on the complainant, community protection, delay and whether another lawful outcome is more appropriate.
When Can Criminal Charges Be Withdrawn?
Charges can be withdrawn at almost any stage of a criminal proceeding.
Depending on the circumstances, this may occur:
after the brief of evidence is served
following further investigation
during a contest mention
immediately before a contested hearing
during plea negotiations
after committal proceedings
before trial in the County Court or Supreme Court
The later a matter progresses, the more detailed the prosecution's review of the evidence is likely to be.
Charges may therefore be withdrawn even before a matter reaches court. If the prosecution determines that charges should not proceed, they may be withdrawn before the first court appearance.
Criminal Charges in the Magistrates' Court
Most criminal matters in Victoria begin in the Magistrates' Court.
Throughout the proceedings, police prosecutors continue assessing whether the available evidence supports each charge.
It is not unusual for charges to be withdrawn before a mention hearing, during negotiations with defence lawyers or even on the day of a contested hearing where new evidence comes to light.
If every charge is withdrawn, the proceeding generally comes to an end and any bail relating to those charges will usually be discharged.
Serious Charges in the County Court and Supreme Court
Serious indictable offences prosecuted by the OPP are commonly described as being discontinued rather than withdrawn.
A prosecution may be discontinued where:
there is no reasonable prospect of conviction
important evidence changes
expert evidence no longer supports the case
a key witness becomes unavailable
plea negotiations resolve the matter
continuing the prosecution is no longer in the interests of justice
These decisions are generally made after careful legal review of the entire brief of evidence.
A discontinuance in a higher court is therefore different from a withdrawal in the Magistrates' Court, although both involve the prosecution deciding not to continue the relevant proceeding.
Can a Criminal Defence Lawyer Help Get Charges Withdrawn?
Yes.
One of the most important roles of an experienced criminal defence lawyer is identifying weaknesses in the prosecution case as early as possible.
A lawyer may assist by:
carefully reviewing the brief of evidence
identifying legal or evidentiary issues
obtaining additional material that supports the defence
making written representations to Victoria Police or the OPP
negotiating with prosecutors
resolving duplicated or inappropriate charges
conducting charge negotiations where appropriate
In some matters, early negotiations result in charges being withdrawn before the case proceeds to a contested hearing or trial.
Practical Examples
Assault Charge Withdrawn After CCTV Review
A person is charged with assault following an altercation outside a licensed venue.
After reviewing CCTV footage, police accept that the accused acted in lawful self-defence.
Because there is no reasonable prospect of proving an unlawful assault, the prosecution withdraws the charge.
Drug Possession Charge Withdrawn
A person is charged with possessing a drug of dependence.
Forensic analysis later confirms the substance is not an illegal drug.
Without evidence proving an essential element of the offence, the prosecution withdraws the charge.
Family Violence Charges Continue
A complainant tells police they no longer want assault charges to proceed.
Police nevertheless continue because body-worn camera footage, photographs, admissions and independent witnesses support the allegations.
This demonstrates that the complainant does not decide whether charges continue.
Charges Withdrawn During Negotiations
A person faces several assault-related charges arising from the same incident.
After negotiations, the prosecution accepts a plea to one charge and withdraws the remaining alternatives because they substantially overlap.
Can Withdrawn Charges Be Filed Again?
Sometimes.
Whether charges can be refiled depends on several factors, including the type of offence, any applicable limitation period, the stage at which the charge was withdrawn and whether recommencing proceedings would amount to an abuse of process.
For this reason, a withdrawn charge should not automatically be treated as permanently resolved.
Withdrawal vs Dismissal vs Acquittal
The terms withdrawn, discontinued, dismissed, acquitted and diversion describe different outcomes in the criminal justice process.
| Outcome | Meaning |
|---|---|
| Withdrawn | The prosecution decides not to continue the charge. |
| Discontinued | A higher court prosecution is ended by the OPP. |
| Dismissed | The court dismisses the charge. |
| Acquitted | The accused is found not guilty after a hearing or trial. |
| Diversion | The matter is resolved without a finding of guilt following successful completion of the diversion process. |
What Happens When Charges Are Withdrawn?
If the prosecution withdraws all charges, the court will usually finalise the proceeding immediately.
Depending on the circumstances:
all charges may end
some charges may continue
amended charges may replace withdrawn charges
negotiations may continue
sentencing may proceed on the remaining charges
If no charges remain, any associated bail will generally be discharged.
A withdrawn charge does not result in a finding of guilt. Whether information about the withdrawn charge appears on police records or certain background checks depends on the type of record being considered.
Do Intervention Orders Continue?
Yes.
Criminal charges and intervention order proceedings are separate.
Even if criminal charges are withdrawn, a Family Violence Intervention Order or Personal Safety Intervention Order may continue unless the court makes separate orders affecting that proceeding.
Speak With an Experienced Criminal Defence Lawyer
If you have been charged with a criminal offence, obtaining legal advice early can make a significant difference to your case.
Our experienced criminal defence lawyers regularly appear in the Magistrates' Court, Children's Court, County Court and Supreme Court of Victoria. We carefully analyse the prosecution brief, identify weaknesses in the evidence, negotiate with prosecutors where appropriate and provide strategic representation at every stage of criminal proceedings.
Whether you are seeking to have charges withdrawn, negotiating the resolution of a matter or preparing for a contested hearing, the team at Stary Norton Halphen & Galbally can provide clear, practical advice tailored to your circumstances.
Reviewed by: Jasper MacCuspie
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.