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Case Note Corner: Why knowing the difference between acquittal vs discharge is important

Key Takeaway

  • The Criminal Procedure Act (2009) in Fiji allows the Court to acquit or discharge an accused.

  • An “acquittal” order frees an accused from those proceedings whereas a “discharge order” does not.

  • In Drose v State [2019] FJHC 113 (Drose v State), the Accused was discharged from the Magistrate Court after prosecution informed the Court that it was not going to proceed against the Accused.

  • The Accused appealed to the High Court against the “discharge order” and asked for an “acquittal order”.

The Case

In the High Court case of Drose v State [2019] FJHC 113; HAA87.2018 (22 February 2019) Justice Madigan set aside an order of a Magistrate’s Court to discharge the accused and substituted it with an order to acquit him.

The difference between a “discharge order” and an “acquittal order” is that “an acquittal frees an accused from the “yoke” of those proceedings, but a withdrawal does not. Where a “discharge order” is sought it is open to the prosecution to re-launch a prosecution against an accused at their whim if the charge is withdrawn.”[1] It is an exercise of discretion (on a case by case basis) by the Courts when deciding whether to acquit or discharge an accused person in the event prosecution decides to withdraw the charges.

In his findings, Justice Madigan said that the Accused had been facing those charges for a little over three years when the prosecution “elected not to proceed against him and for him to still be facing the possibility of the re-launching of proceedings would be a gross injustice and in contravention of his constitutional right to a fair and speedy resolution of the initial charges laid against him.”

Justice Madigan further said, “in future, prosecution should be aware of such an injustice and be mindful of the order they are seeking from a judicial officer when charges are being withdrawn.”[2] In the end, there “must” be a balance between public interest, prosecutorial guidelines and the rights of an accused person.


In criminal proceedings orders for an acquittal versus a discharge produce very different outcomes. The former frees an accused from proceedings whereas the latter permits the prosecution to reopen proceedings even when they have been withdrawn. While the case Drose v State reaffirms the discretionary nature of an acquittal v discharge it also serves as a reminder to those who have been charged to be aware of their rights and for practitioners to understand the consequences of such orders.

We note this article is for general information and should not be relied upon as specific legal advice. For personalized and confidential advice about your rights, please contact our team at Haniff Tuitoga Lawyers.

[1] Drose v State, at paragraph 5.

[2] Drose v State, at paragraph 8.

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