NSW DPP Prosecuting Guidelines Part 1: DPP’s Role, The Decision to Prosecute, Elections to Take Over Cases and Advising Police

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By Paul Gregoire and Ugur Nedim

The NSW Office of the Director of Public Prosecutions (ODPP) is this state’s independent prosecuting body.

Established under the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act), the ODPP prosecutes serious offences committed against the laws of this state on behalf of its people.

The ODPP is headed by the NSW Director of Public Prosecutions (DPP), currently Lloyd Babb SC. The office also consists of two deputy DPPs, the Solicitor for Public Prosecutions, Crown Prosecutors, as well as a range of legal and administrative support staff.

The statutory body’s principal function is prosecuting cases for indictable offences in the NSW Local, District and Supreme courts. Prosecutions proceed once the DPP has determined that there’s enough supporting evidence and it’s in the public interest to do so.

The ODPP Prosecution Guidelines set out the general principles the authority operates under. These guidelines were last reviewed in 2018, with the coming of early appropriate guilty plea reforms, and they were last revised in 2007, under then NSW DPP Nicholas Cowdery QC.

This series of two articles will consider the 34 principles guiding the ODPP.

The role of prosecutor

The first guideline pertaining to the operation of the ODPP underscores its independence from government and politicians. And while the prosecuting body acts on the behalf of the community, it is not concerned with any individual or sectional interests.

As a “minister of justice”, the DPP assists the court in arriving at an equitable and just position between the community and the accused in accordance with the law.

The public interest that it acts on behalf of is a “historical continuum”, with debt to past generations and obligations to those of the future.

In being required to act with impartiality and fairness under the law, the DPP must be open in providing directions, warnings or identifying objectional evidence with both the defence and the court. The DPP is not expected to make any underhanded moves to win a trial.

“The prosecutor owes a duty of fairness to the community,” the third guideline reads. “The community’s interest is twofold: that those who are guilty be brought to justice and that those who are innocent not be wrongly convicted.”

The decision to prosecute

Not all suspicions, allegations or confessions result in a prosecution. The DPP makes three determinations in considering whether to move forward. These are if there’s enough admissible evidence, prospect of a conviction and factors that necessitate prosecution.

In considering the third matter, there are 23 factors the DPP should consider, which include length and expense of a trial, degree of culpability, and aggravating and mitigating factors.

There are a range of factors that should not affect proceedings, which include race, religion, sex, personal feelings or political advantage.

Prosecutors need to select charges that most adequately address the crimes considered. Substantive charges – those relating to completed crimes – are preferred, rather than those relating to incomplete crimes, or conspiracy charges.

When considering whether to discontinue a Local Court prosecution or a District Court appeal, the lawyer in carriage of the matter must consult with the police officer-in-charge, as well as the victim, as to why. Following the consultation, two reports are then produced in relation to a final decision.

Both prosecutors and legal representatives of the accused may make an application for the discontinuance of a District or Supreme Court trial or a committal for sentencing. This should again be done in consultation with the police officer-in-charge and the victim.

Electing to take a case from the police

Schedule 1 of the Criminal Procedure Act 1986 (NSW) lists two tables of offences (table offences) that can be dealt with either summarily – before a magistrate in the Local Court – or on indictment in the District Court, which means the DPP can elect to take over and prosecute the matter.

A police prosecutor will approach the ODPP if they consider a crime should be heard on indictment. The director’s office then considers whether to take over the case. If the DPP does not elect to do this, it will hand the case back to the police prosecutor.

Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) lists offences that carry a standard non-parole period (SNPP). An SNPP is a reference point for a sentencing judge when determining the minimum time a person must spend in prison before being eligible to apply for release on parole.

If the ODPP considers an offence that carries an SNPP falls within the middle range of objective seriousness or higher and there’s no other option than sentencing an accused to prison, then it should proceed with a prosecution on indictment.

While even if a magistrate has decided there’s not enough evidence to commit a defendant to trial, or there has been no committal proceeding, subsection 5(1)(b) of Crown Prosecutors Act 1986 (NSW) provides that a Crown Prosecutor can file a bill of indictment to see the person stand trial.

In cases where prosecutions have been commenced by someone other than the ODPP, section 9 of the DPP Act allows the director to step in and take over the proceedings based on a number of reasons, including police request, no possibility of conviction or conflict of interest.

In collecting and storing information, and prosecuting a case, the ODPP must follow the information protection principles set out in the Privacy and Personal Information Protection Act 1998 (NSW), as well as the health privacy principles in the Health Records and Information Privacy Act 2002 (NSW).

Advising investigators

“The director prosecutes. The police (and some other agencies) investigate,” states the 13th guideline. The DPP cannot direct an investigation. And neither does the DPP nor the police act or appear on behalf of any specific person.

The NSW DPP may advise investigators on the sufficiency of evidence to support specific charges or as to the appropriateness of charges, but it cannot provide guidance on conducting an investigation or any operational issues.

Based on joint ODPP and NSW Police Force protocol, the DPP can provide police with advice on matters that are strictly indictable, alleged child sexual assault, and those offences that the director can elect to prosecute on indictment, when the matter has been specifically referred to it.

The ODPP can advise police on evidence regarding a court attendance notice or on sufficient evidence or it can request more evidence.

These matters should be dealt with within four weeks of an advice request being issued, and any resulting advice should point out why charges aren’t to be recommended if that is the case.

During an investigation, the ODPP may, on request, provide police advice regarding inadmissible evidence, how to make such evidence admissible and the legal implications of differing courses to take. However, this advice cannot include pointing to a choice that should be made.

There is no distinction between formal and informal advice. And the ODPP will not interview witnesses in regard to any advice it may give.

There are requests for advice that must be considered specifically by the DPP or a deputy director, which include prosecutions around extradition, immunity or police prosecutions.

While advice requests related to homicides or dangerous driving causing death incidents must be sent straight to the director’s chambers.

The next articles in the series will consider the rest guidelines pertaining to the ODPP prosecuting matters.

Read NSW DPP Prosecuting Guidelines Part 2: Prosecution’s Duty of Disclosure, Immunities, Informants, Victims of Crime and Vulnerable Witnesses

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