NSW OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS — PROSECUTION GUIDELINES (MARCH 2021)
Issued under s.13(1) of the Director of Public Prosecutions Act 1986 by Director L A Babb SC on 29 March 2021. These supersede all previous guidelines. The ODPP represents the community generally, not any individual. The purpose of a criminal prosecution is not to obtain a conviction but to lay before the court credible evidence relevant to what is alleged to be a crime, done firmly but fairly. The community’s interest is twofold: that the guilty be brought to justice and the innocent not be wrongly convicted. The Guidelines are a living document, do not cover every scenario, and s.13(2) prohibits guidelines for particular cases.
CHAPTER 1 — THE DECISION TO PROSECUTE
The public interest is the paramount consideration. Sufficient evidence alone does not mandate prosecution.
Two-part test (Guideline 1.2):
- Can it be said there is no reasonable prospect of conviction on the admissible evidence?
- Is the prosecution in the public interest?
Prospects of conviction (1.3): Requires evaluating likely strength of admissible evidence, bearing in mind proof beyond reasonable doubt of each element. Consider: whether evidence might be excluded; whether witnesses are available, competent, compellable and reliable; credibility and reliability of other admissible evidence; any defence open to or indicated by the accused; inferences from circumstantial evidence; whether the prosecution can exclude beyond reasonable doubt any reasonable hypothesis consistent with innocence; any other matter impacting prospects.
Public interest (1.4): Non-exhaustive list, weight depends on circumstances.
Offence-related factors: seriousness or triviality; prevalence in community, public concern, need for denunciation and deterrence; whether offence is obsolete or obscure; passage of time since offence having regard to seriousness and reasons for delay.
Accused-related factors: degree of culpability; criminal history and background; age, physical health, mental health or cognitive impairment; whether offence occurred while serving sentence, on bail or remand; willingness to cooperate in investigation or prosecution of others.
Victim-related factors: victim’s attitude to prosecution; victim’s age, physical health, mental health or cognitive impairment and whether prosecution may adversely impact victim; protection of victim and victim’s family.
Sentencing factors: likely outcome if found guilty having regard to sentencing options; whether a sentence already imposed adequately reflects criminality; whether already sentenced for other offences and likelihood of additional penalty having regard to totality.
Other factors: whether conviction would be regarded as unreasonable or miscarriage of justice; mitigating or aggravating circumstances; availability and efficacy of alternatives to prosecution including disciplinary proceedings; availability of compensation, restitution, reparation or forfeiture; whether prosecution would be counter-productive or bring law into disrepute; need to maintain public confidence in Parliament and courts; special circumstances preventing fair trial; likely length and expense of trial if disproportionate to seriousness; age, health, mental health or special infirmity of essential witness.
Factors NOT relevant (1.5): Race, religion, gender, gender identity, national origin, political associations/activities/beliefs of accused or any other person (unless directly related to offence); prosecutor’s personal views about accused or victim; possible effect on personal or professional circumstances of decision-makers; political pressure, interference or possible political consequences.
Children (1.6): Special considerations. Particular regard to: seriousness of offence; child’s age, apparent maturity and mental capacity; prior record including previous cautions; availability and efficacy of alternatives to prosecution; sentencing options available to Children’s Court; child’s family circumstances if known; likelihood prosecution would be excessively harmful or otherwise inappropriate.
Discontinuing a prosecution (1.7): The two-part test has continuing application. Also consider any change in evidence or public interest factors. Requests by accused to discontinue must be dealt with expeditiously. Consultation with police and victim must occur per Chapter 5.
Retrials (1.8): Where trial ended without verdict or retrial ordered after successful conviction appeal, consider whether retrial is required. Factors: if no verdict — whether jury unable to agree or other reason, whether another jury would be better positioned; if retrial ordered after appeal — whether evidence ruled inadmissible; in either case — seriousness, time accused spent in custody, cost to community and accused, views of victim and police per Chapter 5, whether evidence still available. Where two juries unable to agree, retrial only in exceptional circumstances, must be directed by Director or Deputy Director. Where jury reached verdict on some charges but not others, also consider seriousness of remaining charges and sentences received. Complainant in prescribed sexual offence proceedings should be informed about provisions permitting recorded evidence to be tendered at retrial.
Reconsidering a decision (1.9): A decision to proceed or take no further proceedings will be reversed when in the interests of justice: significant new facts; decision resulted from fraud or improper conduct; decision made on erroneous basis. Victims have right to seek review of discontinuance decisions under the Victims’ Right of Review Policy.
CHAPTER 2 — THE ROLE OF THE PROSECUTOR
General principles (2.2): Prosecutor’s principal role is to assist the court to arrive at truth and do justice between community and accused, according to law and fairness. Must not argue beyond a full and firm presentation of the case, but may firmly and vigorously urge the prosecution’s view and test defence evidence. ODPP adopts International Association of Prosecutors’ Standards.
A prosecutor must: act independently and impartially without regard to individual/sectional interests or media/public pressure; act fairly to the accused; strive for timely and efficient justice; assist court with adequate legal submissions; assist court to avoid appellable error; not seek to inflame or bias court against accused; observe highest ethical and professional standards; act with integrity and care; be mindful of cultural sensitivities especially re Aboriginal and Torres Strait Islander people; avoid real, perceived or potential conflicts of interest; comply with Legal Profession Uniform Conduct (Barristers) Rules 2015 and Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
Prosecution is entitled to procedural fairness as a party — e.g. may seek adjournment when defence gives insufficient notice of alibi or expert evidence.
Role in trials and summary hearings (2.3):
General conduct: Must present case fairly and firmly; adduce all relevant evidence clearly and logically; refer in opening only to evidence reasonably expected to be admitted; confine case to genuinely disputed issues, presented clearly and succinctly.
Calling witnesses: Should generally call all witnesses whose testimony is admissible, necessary and gives reasonable grounds to believe it could provide relevant evidence, unless: opponent consents to not calling; matter dealt with by admission; point already adequately established by other witnesses; prosecutor believes on reasonable grounds testimony is untruthful or unreliable; prosecutor believes interests of justice would be harmed. Must inform defence as soon as practicable of identity of any witness not being called and the grounds, unless revealing grounds would harm interests of justice. If not calling a material witness due to unreliability, should assist accused to call witness if requested, and where appropriate seek to cross-examine.
Must object to questions of prosecution witnesses that are: misleading or confusing; unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; put in belittling, insulting or inappropriate manner or tone; based solely on stereotype.
Must cross-examine accused fairly and not suggest reversal of onus of proof.
Must not: appeal to prejudice or make emotional attacks on accused (but case need not be bland); comment on witness answers while witness in box; advance theories or submissions not supported by evidence.
Witness conferences: May assist witness to prepare by: advising to read statement; explaining court procedure, oath/affirmation, examination order; informing must answer truthfully; informing it’s not weakness to say they don’t know/recall; explaining defence counsel’s role to put client’s case; informing can ask for breaks. May: conference by eliciting account in statement; question and test evidence; request OIC obtain new information in statement form. Must not: advise or suggest false/misleading evidence; coach by advising what answers to give.
Evidence: Must not inform court or defence prosecution has evidence without reasonable grounds to believe it exists or will be available; must promptly inform if evidence becomes unavailable. Must promptly inform defence if intending to use evidence that may have been unlawfully or improperly obtained. Should disclose criminal history of controversial witnesses or those whose conduct is impugned.
Role in sentencing (2.4): Prosecutor has active role. Must present facts at sentence; whenever possible submit statement of agreed facts (Guideline 4.4). If sentenced after trial, prepare summary of facts consistent with verdict. Where offender asserts facts contrary to prosecutor’s position on significant matters, identify areas of agreement and those for disputed facts hearing.
Must: make submissions on objective seriousness and subjective circumstances; inform court of relevant authority or legislation on sentence; inform court of co-offender outcomes and provide relevant material; fairly test evidence/assertions for offender; correct errors on behalf of offender; assist court to avoid appellable error on sentence. Must provide reasonable notice to defence of witnesses required for cross-examination; seek adjournment if insufficient notice of defence material.
May: submit full-time detention is appropriate or that a non-custodial sentence is within range, but must not suggest or recommend a numerical sentence or range unless by reference to guideline judgment; provide statistical material and comparable cases where it would assist. Must not limit Director’s discretion to appeal against sentence inadequacy.
CHAPTER 3 — SELECTING CHARGES
Charge selection (3.2): Charges must adequately and appropriately address the criminality alleged and enable fair and expeditious dealing. Substantive charges preferred over conspiracy charges whenever possible, but conspiracy may sometimes be the only adequate charge. Avoid overloading indictment with excessive charges (may cause undue complexity/length), but extent of criminality may necessitate lengthy indictment. Representative charges appropriate where they adequately reflect totality of criminal conduct. Consider desirability of consistent charges for co-accused, though different charges may be necessary for different roles. Charges must not be selected to provide scope for later charge resolution.
Ex officio charges (3.3): May be necessary: in substitution for committal charge to ensure most appropriate charge; to add charge for previously unidentified criminality; where committed for sentence and charges withdrawn as part of resolution but accused fails to adhere to plea; to revive charges after previous direction of no further proceedings; to place offences on indictment transferred under s.166 Criminal Procedure Act 1986; to expedite trial or join accused with co-accused; to correct technical defect. Ordinarily accused should be put on notice and given opportunity to make representations by nominated date.
Finding a bill of indictment (3.4): Crown Prosecutors have statutory bill-finding function under s5(1)(b) Crown Prosecutors Act 1986. Approval of Director or Deputy Director should be sought for finding bill for offence under different provision to that committed. No bill should be found for offence not committed for trial except to add statutory or common law alternative. Finding a bill does not permit withdrawal of any committed charge.
CHAPTER 4 — CHARGE RESOLUTION
Why important (4.2): Necessary for effective and efficient prosecution. Relieves victims/witnesses of giving evidence, provides certainty, saves community trial costs. Must be based on principle and reason, not expedience alone. Law recognises benefits of early guilty pleas; sentencing discounts available reflecting utilitarian value. Earlier the plea, greater the benefits.
When appropriate (4.3): Only if in the public interest. Consider (in addition to Chapter 1 factors): charges to proceed appropriately reflect essential criminality capable of being proven beyond reasonable doubt and provide adequate sentencing basis; evidence is weak in a material way even though reasonable prospect exists, and public interest satisfied with acknowledgment of lesser conduct; significant cost saving weighed against likely trial outcome; will save witness from testifying where this is particularly compelling.
Discussions must occur as part of case conference where required, and may occur at any other stage.
Consultation with victims and police: Victim and OIC must be consulted and views properly considered, though public interest is overriding. Per s.35A Crimes (Sentencing Procedure) Act 1999, prosecutor must file certificate verifying consultations occurred or reasons why not. Chapter 5 sets out victim consultation requirements. Generally appropriate to require accused’s plea offer in writing. Written records must be maintained of charge resolution discussions and consultation. If accused’s proposal is not in public interest, prosecutor may propose alternative resolution.
Statement of agreed facts (4.4): Desirable for prosecution and accused to agree on sentencing facts, signed by prosecutor and by/on behalf of offender. Must not grossly distort facts; should precisely identify accepted facts and indicate disputed facts/issues; should not include facts inviting court to sentence for more serious offence. Views of victim and OIC regarding contents must be obtained. Written record must explain how and when statement came into being.
Form 1 offences (4.5): Prosecutor determines suitability for Form 1. Decision based on principle and reason, not administrative convenience. Consider: need to ensure sentencing offences adequately reflect totality of admitted criminality; relative seriousness and maximum penalties of principal and Form 1 offences including aggravating factors; relationship between principal offence and Form 1 offences, need to represent individual victims and episodes on indictment; public interest in convictions being recorded for certain offences.
Maximum penalty for Form 1 offence should generally be less than principal offence. May be appropriate for same maximum penalty where multiple similar offences, provided no imbalance created.
General public interest in convictions being recorded for: failure to appear; firearms offences; serious offences against police; breaches of ADVOs; offences while on bail or conditional liberty; offences with increased penalties for subsequent convictions; offences re administration of justice; traffic offences where poor record.
Victim and OIC views must be obtained. Form 1 should set out date and particulars for identification. Same considerations apply to Commonwealth offence schedules, requiring appropriate CDPP delegation.
Unrepresented accused (4.6): Particular care required. Duties of fairness and disclosure mean accused must be informed of prosecution case, its course and procedural issues. Prosecutor must maintain detachment and never advise on legal issues or how defence should be conducted. Charge resolution not prohibited but caution required: plea offers considered and responded to in writing; avoid telephone contact where possible (witness present if unavoidable); face-to-face only with witness present; contemporaneous notes of all communications; written record of all information/material provided and received; may communicate through court where appropriate. Special legislative protections prevent self-represented accused from directly cross-examining vulnerable persons and sexual assault complainants.
CHAPTER 5 — VICTIMS AND WITNESSES
Introduction (5.1): ODPP recognises victims’ important role as participants. Will treat all victims with courtesy, compassion, cultural sensitivity and respect. ODPP does not provide legal representation to victims.
Charter of Victims’ Rights (5.2): ODPP bound by Charter; together with Guidelines forms framework for working with victims and witnesses.
Communication principles (5.3): Must have regard to: whether victim wishes to be contacted; preferred method and frequency of contact; personal circumstances. Victim must be given contact details of solicitor with carriage. Information about case must be given at early stage with ongoing obligation to keep informed throughout, done directly by prosecution team member (not administrative staff or police). Minimise number of staff responsible for victim contact.
Information to be provided (5.4): Must be given in timely manner unless victim has indicated they don’t wish to be consulted or whereabouts cannot be ascertained after reasonable inquiry.
Court process, witness role and support services: ODPP website information provided.
Charges: Must be informed of charges. Must be consulted prior to: substantially changing charges; not proceeding with some/all charges; accepting plea to less serious charge. Must be informed of any such decision before announced in court.
Bail: Must be notified of any bail application including variation; consulted about protection needs before hearing; promptly informed of outcome including special conditions for victim/family protection.
Court listings: Must be informed of date, time and location of any mention or hearing including bail, committal, trial, sentence, appeal and breach of sentence.
Hearing outcomes: Must be informed of outcome of any proceedings including bail, criminal case conference, committal, trial, sentence, appeals, breach of sentence.
Appeals: If appeal lodged, must be informed of: fact of appeal; type; process and possible outcomes.
Breach of sentence: If offender required to appear for breach, must be informed of: fact of appearance; nature of proceedings and possible outcomes.
Sexual assault communications privilege: If accused seeks access to confidential counselling records, victim should be informed of legal advice and assistance through Sexual Assault Communications Privilege Service, Legal Aid NSW.
Mental illness defence: Must be informed of: what not guilty by reason of mental illness means; how evidence may be presented; options if found NGRI. If fitness to be tried is raised, must inform victim of: date, time and location of fitness hearing, special hearing and penalty hearing; nature of fitness inquiries and special hearings.
Victims Registers: Where offender sentenced to full-time detention or subject to limiting term, must provide victim with contact details for relevant Victims Register with Corrective Services, Juvenile Justice or Forensic Division of Mental Health Review Tribunal.
Additional obligations (5.5): Victims and prosecution witnesses must be informed: of prohibition against publishing their name/identifying information; that they need not state address or telephone number in open court unless court orders. Prosecutors should be familiar with provisions for: excluding public; pre-recorded evidence; special measures (screens, CCTV); support persons. Must explain applicable provisions. Witness entitled to special measures must not be discouraged due to perceived forensic advantage. Must be familiar with privacy protections and apply for closed court, non-publication or suppression orders in appropriate cases. Must inform victims of option to request lifting of such orders. Must minimise victim’s exposure to unnecessary contact with accused, defence witnesses and supporters.
Consultation on charge resolution and discontinuance (5.6): Victim must be consulted before: substantially changing charges; not proceeding with some/all charges; accepting plea to less serious charge — unless they’ve expressed desire not to be consulted or whereabouts cannot be ascertained.
Consultation on charge resolution requires explanation of: current charges and proposed substitution; summary of reasons for considering resolution; respective maximum penalties; impact on sentencing evidence including agreed facts and VIS; implications of Form 1 where relevant. For discontinuance, provide summary of reasons. Providing summary of reasons does not waive legal privilege.
Victims must be given adequate time to form views, including opportunity to obtain assistance from parent/carer (not the accused) or support person. Views must be taken into account and given due consideration but are not determinative. Public interest, not private/sectional interest, must be served. Decision rests with Director or delegate.
Where victim requests discontinuance (can occur in DV, non-domestic sexual assault, other contexts), careful consideration required, but other factors also relevant including other evidence, history of similar offending, and gravity of offence.
Witness Assistance Service (5.7): WAS provides support to victims and witnesses during criminal justice process — information, identifying special needs, referrals, court preparation, court support. Allocates to those in greatest need. Must be referred as early as possible if matter involves: death; sexual assault; domestic violence; child victim or witness; victim or witness with special needs. Otherwise refer when considered appropriate.
Conferences (5.8): May be conducted to: obtain information from/about witnesses on evidentiary issues; explain court process and matters in Guideline 5.4; consult victims per Chapter 4 and Guideline 5.6. Prosecutors including Crown Prosecutors must confer with victims at earliest opportunity before all court hearings. Key witnesses should ordinarily be conferenced. WAS officer may be present and should be consulted if prior involvement. Victim may have support person present.
Victim Impact Statements (5.9): Harm suffered is a sentencing factor. Victims who suffered physical, psychological or psychiatric harm, and family of deceased victims, must be informed of: right to prepare VIS; how it may be presented including read aloud; alternative arrangements; limits on content; content that may result in objection. Must take all reasonable steps to ensure sufficient opportunity to prepare. If insufficient notice of plea, must seek adjournment. Must ensure VIS complies with legislation — no offensive, threatening, intimidating or harassing material; no inadmissible material (e.g. criminal conduct allegations beyond sentenced offences) — delete before tendering. Consult victim on required changes and inform of reasons.
Domestic violence offences (5.10):
General principles: ODPP recognises unique DV dynamics — fear of consequences, reluctance to show allegiance. Must conduct DV prosecutions sensitively with regard to needs and safety. Important to support victims throughout and minimise delays.
Requests to discontinue: Possible reasons include: threats/harassment/intimidation by accused or associates; pressure from family/community; fear of shame/disownment; fear prosecution increases risk; wish to reconcile; belief accused won’t reoffend (e.g. counselling); fear of custodial sentence and financial consequences.
If victim reluctant/unwilling: request police investigate; conference victim if possible to discuss concerns and options; consult WAS. Consider: reasons victim doesn’t want to proceed; known risk to safety of victim, children, dependents, connected persons; whether advised of support services, special measures, protections; whether reasonable prospect of conviction without victim’s evidence; seriousness (harm, planning, weapon, presence of children); reported/known history of violence including police call-outs; escalation in violence; history of threatening behaviour, stalking, intimidation; whether offence committed in breach of bail, sentence, parole or AVO; personal circumstances of victim including well-being if required to testify; views of OIC and any other agency.
Victim’s attitude is important but not determinative. May be appropriate to compel attendance. Prosecutor should determine if case can be proven on evidence other than victim’s account.
ADVOs: Prosecutors must be familiar with court’s power to make interim and final AVOs under Part 9 Crimes (Domestic and Personal Violence) Act 2007 and bring this to court’s attention.
Complaints and reviews (5.11): Victims may complain under ODPP Feedback and Complaints Policy regarding Charter breaches or case handling. Victims’ Right of Review Policy gives right to request review of decision not to prosecute in certain circumstances; must be informed in writing when notified of decision.
CHAPTER 6 — ELECTIONS
Elections to proceed on indictment (6.2): For Table offences, consider: whether conduct can be adequately addressed within Local Court sentencing limits having regard to — seriousness (circumstances, nature of conduct, aggravating/mitigating), accused’s personal circumstances including criminal background, maximum penalties for summary disposal and on indictment, any standard non-parole period; prevalence and greater deterrent effect of indictment; manner of dealing with co-accused; relevant connection between Table offence and strictly indictable or other suitable Table offence; whether interests of justice otherwise require indictment.
Resolve election issue at earliest possible stage. Election should not be made for tactical reasons. Should only be withdrawn in accordance with above principles and subject to consultation with victim and OIC.
CHAPTER 7 — TAKING OVER PROCEEDINGS
From Police (7.2): DPP will take over: every case where election made; per ODPP-Police arrangement for certain Local Court/Children’s Court matters (e.g. child sexual assault); where conducted per pre-charge advice on basis ODPP would prosecute; where brought contrary to DPP advice/decision not to proceed; where conflict of interest or risk of unfairness; on Police Prosecutor request with sound basis; where public interest requires it. If taken over, may discontinue per Guideline 1.2.
From private prosecutor (7.3): Private prosecution right is a valuable constitutional safeguard against official inertia or partiality. DPP has role in ensuring this right is not abused — can take over and continue or end. May request full report, copies of statements/evidence, further information, and seek police assistance to investigate. Generally will take over and discontinue where: no reasonable prospect of conviction; not in public interest; reasons to suspect improper motives or abuse of process; instituted to circumvent earlier DPP decision not to proceed.
CHAPTER 8 — MENTAL ILLNESS
Decision to prosecute (8.2): Accused’s mental health is a factor per Guideline 1.2 alongside seriousness. Ordinarily mentally disordered people should not be prosecuted for trivial offences posing no community threat.
Diversion (8.3): Where diversion from criminal to health system raised in Local Court or Children’s Court, prosecutor should assist with submissions on nature/circumstances of offence, nature/extent of condition, availability of health services.
Fitness and special hearings (8.4): Fitness hearing may be conducted in District or Supreme Court. Usually raised by defence; where obvious fitness issue not raised, prosecution should raise it. Prosecutor may seek independent medical assessment. For special hearings, Guideline 1.2 principles and Chapter 5 consultation requirements apply. Consider changes in evidence since unfitness finding and extent of detention.
Special verdict (8.5): Where availability supported by both defence and prosecution experts, approval of Director or Deputy Director required before prosecutor agrees court should enter special verdict.
CHAPTER 9 — JURIES AND JUDGE ALONE TRIALS
Jury selection (9.2): Prosecution allowed three challenges without restriction per accused. May challenge for cause (only if reasonable cause). Challenge must never be exercised to select non-representative jury (re age, gender, gender identification, sexual orientation, ethnic origin, religious belief, marital status, economic/cultural/social background). Most important concern is fair and impartial jury.
Judge alone trials (9.3): Most District/Supreme Court trials are judge and jury, but judge alone orders possible. If accused applies and prosecutor disagrees, judge determines if in interests of justice.
Prosecutors must have regard to: important role of juries as community representatives; whether trial involves factual issue requiring objective community standards (reasonableness, negligence, indecency, obscenity, dangerousness); evidence supporting accused’s request; timing of application (within statutory limit or leave required, especially if shortly before trial); whether potential prejudice can be addressed through jury selection or judicial instructions; whether trial involves highly technical/complex expert evidence; public health emergencies preventing jury trials.
Predictions of conviction likelihood by either mode must not be considered. Must assess requests on merits and make submissions against in appropriate cases.
CHAPTER 10 — DPP APPEALS
When DPP will appeal (10.2): Only if satisfied: all statutory criteria established; reasonable prospect of success; in public interest.
Interlocutory appeals and evidence exclusion (10.3): DPP has right to appeal to CCA against interlocutory judgment/order in District/Supreme Court. Also against admissibility decision/ruling that eliminates or substantially weakens prosecution case. Consider whether unfavourable decision is amenable to appeal; alert judge to possible expedited CCA handling. Will consider whether judge made error.
Appeals against sentence (10.4):
To CCA: DPP has right against sentence in Supreme Court, District Court and Drug Court. Only Director or Deputy Director can determine. Prosecutors must promptly assess all sentences. No statutory time limit but delay may impact. Non-custodial matters should be expedited. Persons with legitimate interest (victim, OIC) may request review — prosecutor should refer to Director even if disagreeing.
Primary purpose is CCA governance and guidance to sentencing courts. First consider whether sentencing judge erred. Even with error, must establish manifest inadequacy. Without identifiable error, may succeed if sentence is so manifestly inadequate as to undermine public confidence. Should be rare. Brought to: establish/maintain adequate punishment standards; correct idiosyncratic approaches; correct disproportionate sentences causing loss of confidence. For any offence there is a range of legitimate options; CCA must be satisfied sentence falls outside range to extent of manifest inadequacy. Mere dissatisfaction insufficient.
If CCA finds manifest inadequacy, must persuade CCA to exercise residual discretion. Factors against intervention: delay in lodging; likely custodial status by hearing; subjective characteristics including health and rehabilitation steps; position taken before sentencing judge.
To District Court: DPP has right against Local Court sentences. 28-day time limit. Not essential to establish magistrate error or manifest inadequacy, but only where reasonable prospect of success.
Appeal against acquittal on law alone (10.5): DPP may appeal to CCA against directed acquittal or judge alone acquittal. Only if: acquittal arose from error on question of law alone; Court would exercise discretion to order retrial.
Referral on question of law (10.6): After acquittal, DPP may refer point of law to CCA for opinion if: point clearly arose in proceeding; contentious and requires authoritative resolution; opinion would be of practical benefit.
Retrials after acquittal (10.7): DPP may apply to CCA where: fresh and compelling evidence for offence with maximum penalty of life imprisonment; tainted acquittal for offence with maximum 15+ years. Only if retrial in interests of justice.
Investigation after acquittal (10.8): Police cannot investigate without DPP written authorisation (rare). Only if: sufficient new evidence exists or likely from investigation; in public interest; previous acquittal would not bar trial for offence charged from investigation.
CHAPTER 11 — INDEMNITIES, UNDERTAKINGS, INFORMERS AND INDUCED STATEMENTS
Benefits (11.2): Generally serious offenders should be accountable, but may be in public interest to grant benefits in exchange for evidence against another: indemnity from prosecution; undertaking not to use evidence against them; sentence reduction for cooperation.
Informer witnesses (11.3): Any person (not a direct-harm victim) who can provide information from direct personal contact with accused and/or other relevant evidence, and is a co-offender, civilian undercover operative, or other person seeking benefit. Prison informer: prisoner/former prisoner providing account of another inmate’s admission in custody.
Approval to call informer: from Solicitors Executive or briefed Crown Prosecutor. Must carefully consider desirability; check ODPP Index of Informers; identify independent supporting evidence. Particular care for prison informers — independent evidence of admission generally required; Director or Deputy Director approval required.
Disclosure when calling informer (subject to LPP and PII): criminal history; police/Corrective Services information on credibility — motivation, animosity towards accused, favourable treatment, reliability and mental health, extent of public officer evidence/reports on informer’s behalf, sentence discount for assistance, whether in custody when assisting, whether immunity granted/requested, whether monetary/other benefit claimed/offered/provided, whether gave evidence in other proceedings.
Informer who assisted may be entitled to sentence reduction. Cooperation should be appropriately acknowledged and tested at sentencing. Police may provide affidavit of assistance annexing endorsed report — prosecutor must read before tendering and should see copy before sentence date.
Immunities (11.4): Two types: indemnity (protection from prosecution in exchange for promise to give evidence) and undertaking (evidence in court cannot be used against them). Usually conditional on truthful evidence; may be revoked if witness fails. Only Attorney General can grant. Director makes recommendations per Interagency Protocol, including for other government agencies.
Applications must be timely, accompanied by informer’s statement and evidence summary.
Criteria for recommendation: Only if in interests of justice. Most important: whether informer’s evidence reasonably necessary for conviction; informer’s culpability compared to accused.
Application factors: informer’s circumstances and attitude without immunity; value of evidence having regard to all admissible evidence and anticipated defence; relative seriousness and involvement levels; strength of evidence against informer and public interest in prosecuting; strength of evidence against accused without informer’s evidence and whether lesser charges would reflect criminality; likelihood of strengthening case otherwise; informer’s character, credibility, reliability; outcome of previous reliance; whether corroborated; whether full and frank statement with role acknowledgment; whether other reward/inducement/protection being provided; whether OIC and relevant agencies support application; whether court certificate under s128 Evidence Act 1995 more appropriate; any other relevant matters. Type of immunity should be addressed.
Induced statements (11.5): Statement taken with promise not to use information against witness in criminal proceedings. Where relating to ODPP prosecution, Director’s approval required (in writing with relevant documents). Before DPP takeover, Police Area/District Commanders or equivalent rank (Superintendent+) can approve.
Must be clear only inducement is that contents won’t be used against witness — no other benefit (charge resolution, withdrawal). Prescribed inducement wording at beginning of statement. All correspondence treated as sensitive and securely stored. Does not apply to investigations solely pursuant to ACC, NSW Crime Commission, ICAC, or LECC references.
CHAPTER 12 — PRE-CHARGE ADVICE
ODPP does not investigate. May provide independent legal advice before proceedings commenced (pre-charge advice), benefiting early charge identification.
When provided (12.2): Available to investigative agencies if: matter would be prosecuted by ODPP; has complexity, novelty, potential conflict for agency, or broader policy implications; as agreed. Not provided informally. Must be sought from Director before filing any charge requiring Director or AG consent.
What about (12.3): Sufficiency of evidence and appropriateness of charges per Chapter 1. Unless Director/Deputy Director instructs otherwise, will not advise on: operational/investigative matters; whether to file in particular jurisdiction.
Confidentiality and privilege (12.4): Fact of referral, content, and fact advice provided will not be disclosed to third party unless legal privilege waived. Privilege rests with requesting agency.
CHAPTER 13 — DISCLOSURE
Duty of disclosure (13.2): Continuing obligation to fully disclose to accused in timely manner all material known to prosecutors that on sensible appraisal: is relevant or possibly relevant to an issue; raises or possibly raises a new issue not apparent from prosecution evidence; holds real (not fanciful) prospect of leading to evidence going to either situation. Continues after trial and appeal conclusion.
Does not extend to material relevant only: to credibility of defence (not prosecution) witnesses; because it might deter accused from leading false evidence on a fact not otherwise in issue.
Must protect security of sensitive documents/material/information, particularly where disclosure may: affect individual safety; jeopardise ongoing investigations; affect confidential information flow between justice agencies; otherwise prejudice criminal justice process or diminish public confidence. Criminal Procedure Regulations: material served must not disclose witness address, DOB or telephone unless relevant or ordered.
Disclosure by Police and investigative agencies (13.3): In ODPP-prosecuted matters, must: notify ODPP of all other documentation/material/information (including re proposed witnesses) possibly relevant to prosecution or defence; disclose if requested; certify DPP has been notified (s15A DPP Act 1986; Schedule 1 DPP Regulation 2015).
Legal privilege and PII: Where material may be subject to legal privilege (other than Director’s), PII or statutory immunity, prosecutor should not disclose to defence without first consulting OIC, who should have reasonable opportunity to seek advice. Subject to privilege/immunity claims, relevant material should be disclosed. Where prosecutor and police disagree (and no PII claim), refer to Director or Deputy Director.
Must put defence on notice of known material subject to privilege/immunity claim (generally via s15A certificate) to allow defence to contest and seek access via subpoena. Where claim pursued, disclosure determined by court outcome.
Rarely, overriding justice interests may require existence of disclosable information to be withheld (e.g. personal safety threat, ongoing investigation protection) — only with Director/Deputy Director approval. Must consider whether charge should be withdrawn or lesser offence charged. Unless unfairness can be ameliorated, prosecution must be discontinued. Extraordinary circumstances may allow delayed notice (Director/Deputy Director approval, finite period, regular review).
Where ODPP gains possession of accused’s privileged material, must disclose to accused as soon as reasonably practicable. Where ODPP obtains material subject to sexual assault communication privilege, must return it and notify defence of its existence and privilege claim.
Director’s legal privilege (13.4): Ordinarily claimed against production of internal ODPP advice (submissions to Director, between solicitors and Crown Prosecutors). Only Director or Deputy Director may approve waiver. Extends to material created/gathered for dominant purpose of providing legal advice — internal advice, memoranda, summaries, emails, conference notes, file notes.
No implied or automatic waiver on conference notes when witness makes disclosure adding to or inconsistent with previous statement. If disclosure warrants defence notification, best practice is supplementary police statement, then disclosed. In urgent circumstances, police notebook statement. May request direction to waive privilege over relevant disclosures.
Giving reasons for prosecutorial decisions generally does not constitute waiver. Internal legal advice must not be released when reasons are given.
CHAPTER 14 — EVIDENCE
Disputed evidence (14.2): Where admissibility challenged and no pre-trial ruling, take care in opening to jury not to cause discharge.
Illegally/improperly obtained (14.3): Where evidence appears on reasonable grounds to have been unlawfully/improperly obtained, must promptly inform accused and make copy available.
Hypnosis or EMDR (14.4): Evidence obtained by either cannot be used unless approved by Director or Deputy Director.
Expert evidence and AVL (14.5): Must request court allow medical practitioners to give evidence at convenient time and by convenient means, including interposing witness and arranging AVL well in advance. s5BAA Evidence (Audio and Audio Visual Links) Act 1998: “government agency witness” must ordinarily give evidence by audio link or AVL from within NSW. Convenience of government agency witnesses is most important consideration regardless of perceived diminishment of remote evidence. Supreme Court Practice Note SC Gen 15 and Local Court Practice Note Crim 1: 10 working days’ notice of AVL; best practice to advise at time trial is fixed.
CHAPTER 15 — REASONS FOR DECISIONS
Disclosure of reasons is consistent with open and accountable operations.
Applies to decisions to (15.1): withdraw charge and proceed on another; substantially alter charge; discontinue all charges; offer no evidence on appeal; lodge an appeal; decline to lodge appeal. Does not prevent giving reasons in other appropriate cases.
Requests for reasons (15.2): Person requesting reasons for discontinuance may be given reasons if they have legitimate interest and no basis to decline. Legitimate interest includes: victim; family of deceased victim; OIC; any person whose rights, liabilities or obligations are affected.
Must decline if giving reasons would: prejudice current/future court case; interfere with ongoing investigation; risk person’s safety; breach legal privilege; breach statutory provision; breach court order; embarrass or breach victim’s privacy (if victim’s family requests). May also decline if otherwise not in public interest.
Privilege (15.3): Giving reasons generally does not waive legal privilege. Internal legal advice must not be released unless Director determines otherwise.
CHAPTER 16 — MEDIA CONTACT AND NON-PUBLICATION ORDERS
Guiding principles (16.2): Support administration of justice and criminal justice integrity; respect presumption of innocence and right to fair trial; respect open justice and public interest in accurate timely information; recognise media’s important role; treat victims with courtesy, compassion, dignity and privacy. No general obligation to provide information, but ODPP will endeavour to confirm factual information already public.
Communicating with media (16.3): MCLO is primary contact. Uncontroversial public domain information (charges referred to in open court, plea, listings, dates, venues, outcomes) may be provided without MCLO referral. All other enquiries directed to MCLO. Director or Deputy Director approval required for non-routine responses. Director/Deputy Director must be advised if enquiry relates to accused facing other charges. Prosecutors with high-profile matters should provide details to MCLO in advance. Not to speak for Director/ODPP without authorisation. Media releases only via MCLO with Director/Deputy Director approval.
Must conduct themselves courteously and dispassionately. Communications considered “on the record.”
Must not publicly discuss/disclose: whether matter under investigation or advice sought; prosecution’s intended approach or whether under review; victim/civilian witness contact details; information identifying prisoners/informers/others at risk or assisting law enforcement; information prohibited by law (e.g. privacy legislation); matters subject to non-publication/suppression orders; information subject to legal privilege or PII; proceedings not in open hearing; excluded or un-adduced evidence; personal opinions on: likely outcome, veracity of evidence, guilt/innocence, correctness of judicial decision/verdict, adequacy of sentence, prospects of appeal.
Should not comment on current/future proceedings in any forum where publicly reportable and could bring into question prosecutor’s capacity to fulfil duties fairly. May provide names on request; may request anonymity. If media seeks victim/witness contact, may convey request; victim/witness decides.
Closed court, suppression and non-publication orders (16.4):
Closed courts: Required where accused is child; complainant in sexual assault giving evidence; other evidence in prescribed sexual offence proceedings; incest/attempted incest proceedings.
Mandatory non-publication: Legislative restrictions automatically prohibit publication identifying certain persons (children in criminal proceedings, complainants in prescribed sexual assault proceedings). s195 Evidence Act 1995 prohibits publication of disallowed questions. Breach is criminal offence.
Applications: Court may prohibit/restrict under Court Suppression and Non-publication Orders Act 2010 or inherent power. Prosecutors must familiarise and apply when necessary.
Complaints about media reporting (16.5): Contact MCLO immediately if material published in breach of statutory provision or court order or prejudicial. If matter still before court, may request removal order. Inaccurate reports must be reported to MCLO for remedial action.
CHAPTER 17 — PROCEEDS OF CRIME
Confiscation deprives offenders of benefits and removes motivation for crime.
ODPP responsible for confiscation arising from prosecution of all serious offences under NSW law, except where NSW Crime Commission has acted. Justified to: prevent unjust enrichment; deter crime by reducing profitability; prevent crime by confiscating means; maintain public confidence; put criminally derived assets to society’s benefit. Prosecutors should pursue authorised confiscation applications after conviction.
GLOSSARY KEY TERMS (selected):
- Accused/defendant: person charged with crime
- Acquittal: verdict prosecution has not proven guilt beyond reasonable doubt
- Beyond reasonable doubt: standard of proof for criminal cases
- Charge resolution: prosecution withdraws charges on accused promising guilty plea to fewer/lesser offences and/or Form 1
- Child: person under 18
- Committal: referral from Local/Children’s Court to District/Supreme Court
- Ex officio charge: charge on indictment not referred from lower court, authorised by Director/Deputy Director only
- Form 1: document under s.32 Crimes (Sentencing Procedure) Act 1999 listing charges taken into account at sentence; no conviction recorded, no separate sentence
- Indemnity: protection from prosecution granted by AG under s.32 Criminal Procedure Act 1986
- Indictment: document filed in District/Supreme Court listing charges
- Judge alone trial: trial without jury under s132 Criminal Procedure Act 1986
- Legal privilege: protection of confidential lawyer-client communications
- Limiting term: term imposed at conclusion of special hearings for unfit accused
- No further proceedings: direction to end prosecution
- Prescribed sexual offence proceedings: proceedings including charge for prescribed sexual offence per s3(1) Criminal Procedure Act 1986
- Special hearing: hearing where accused found unfit to stand trial, to determine if offence committed
- Statement of agreed facts: written summary of undisputed facts agreed for sentencing
- Table offence: indictable offence in Tables 1 and 2, Schedule 1 Criminal Procedure Act 1986, capable of summary or indictment disposal
- Undertaking: AG promise under s33 Criminal Procedure Act 1986 that evidence won’t be used against person
- Victim: person who suffered harm as direct result of criminal offence, including deceased victim’s immediate family
- VIS: victim statement describing crime’s effects, presented before sentencing
- WAS: Witness Assistance Service providing support to victims and vulnerable witnesses