An order for retrial is not rendered futile by the prosecutor's announcement that a notice of discontinuance will be filed; the order remits the prosecution decision to the proper decision-maker and results in a qualitatively different disposition from an acquittal. The fact that an accused has served the entirety of the sentence does not of itself require an acquittal rather than a retrial order. The statutory discretion under s 326E(1) of the Criminal Procedure Act 2009 (Vic) is not properly exercised for the purpose of expressing condemnation of police or prosecutorial misconduct.
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