By Paul Gregoire and Ugur Nedim
Having been in operation since July 1987, the Office of the Director of Public Prosecutions (ODPP) is the statutory body that prosecutes those who have committed serious offences against the laws in NSW on behalf of the state and its people.
The NSW Director of Public Prosecutions (DPP) is the head of the ODPP. The position of director is currently held by Lloyd Babb SC. And below the director are two deputy DPPs, the Solicitor for Public Prosecutions, Crown prosecutors and support staff.
The ODPP Prosecution Guidelines are a set of general principles and procedures that the independent prosecuting body operates under. The current set of guidelines was last revised in 2007, under then NSW DPP Nicholas Cowdery QC.
The first article in this series considered procedures around decisions to prosecute, electing to take over cases and advising NSW police on case matters. This current article and the next will look at guidelines around giving evidence and proceedings in the courtroom.
Statements sans incrimination
Induced statements are those taken from a person on the basis that any self-incriminating information disclosed will not be used against them later in court.
At a police station the local area commander or an officer of the rank of superintendent or above can approve the procedure.
However, when such an interview is in relation to a matter already before the ODPP and the induced statement involves a defendant, an accused, an appellant, a witness or a potential witness, written approval must come from the DPP prior to the statement being made.
An induced statement absolves an individual from being prosecuted over any matters they’ve mentioned, except in the case of when providing falsehoods during the making of such a statement.
This process does not apply to the Australian or NSW crime commissions and neither the ICAC.
Then there are guidelines around informers: those who provide police with incriminating information about an offender.
Any decision on whether to call an informant to act as a witness should be taken by either the Crown Prosecutor briefed in the matter, or an assistant solicitor.
In the case of an informer, the ODPP Index of Informers should be considered. A request to do so needs to include a witness informer report. A decision to use an informer or not, along the reasoning behind doing so, must be recorded in the index.
And a prison informer needs DPP approval or that of a deputy.
It’s a requirement that an accused be told pre-trial as to whether an informer has a criminal record, information regarding informer credibility, whether there’s a profit to be gained by informing, if the informer was ever in custody and whether they’ve been granted immunity or any concessions.
Section 19 of the Director of Public Prosecutions Act 1986 (NSW) allows the DPP to request that the NSW attorney general grant an individual indemnity from prosecution – either summarily or on indictment – as well as provide that any disclosure made cannot be used as evidence against them.
The ODPP guidelines state that it’s undesirable to grant any concessions to those who have participated in a crime or have knowledge of who has committed an offence, although in some cases this is appropriate, especially if it’s “in the public interest”.
Section 32 of the Criminal Procedure Act 1986 (NSW) provides that the attorney general can provide a person with indemnity in relation to a specific offence or “specified acts or omissions”, while section 33 allows for an undertaking against disclosures being used as evidence.
In relation to these measures, the DPP and the AG must consider whether the information being provided is “reasonably necessary” to secure conviction, if that evidence can be sourced somewhere else, as well as the differing levels of culpability involved with the witness and the accused.
Any immunity request to the AG must address the attitude of the witness, the evidence being given, the appropriateness of protection, any public interest value, the strength of evidence, likelihood of conviction, and the question of any benefit to the witness in providing such evidence.
Duty of disclosure
The prosecution has a duty of disclosure in regard to evidence that after being sensibly appraised seems relevant to a case, might possibly raise a fresh issue that wasn’t readily apparent beforehand, or if it may lead to new evidence.
This duty doesn’t extend to evidence that might add to the credibility of a defence witness or the accused, or information that only has relevance in deterring the provision of false evidence, or details about the accused that don’t warrant disclosure but may tend to incriminate them.
In addition to the brief of evidence, in all matters being prosecuted by the DPP or NSW police, any other information, documentation or material that is to be produced – including details of witnesses and documentation subject to public interest immunity considerations – must be revealed.
In regard to sensitive information that may be considered for immunity, the prosecution should first consult the police officer-in-charge prior to disclosing such evidence to ascertain whether there are concerns over divulging the details.
If prior to proceedings a witness makes any disclosures that were not presented in their original statements, then a supplementary statement must be produced and provided to the defence.
The guidelines also stipulate that under some circumstances evidence should not be disclosed and that this is a matter that the DPP must decide upon.
In disclosing evidence, consideration should be given to the NSW Barristers Rules 2015 and Solicitors Conduct Rules 2015. Protection of the privacy of victims should be a priority. And the contact details of witnesses should not be contained within their statements.
Victims of crime
Section 5 of the Victims Rights and Support Act 2013 (NSW) defines a victim of a crime as an individual who suffers harms as a result of a criminal offence perpetrated by someone else. Harm suffered can be physical, psychological or psychiatric, or it can involve property.
If the victim of a crime dies as a direct result of the offence, then a member of the person’s immediate family also becomes a victim of the same crime.
In prosecuting a case, the ODPP should consider the Charter of Victims’ Rights. And regardless of whether a victim will also act as a witness, ODPP lawyers should personally explain the prosecution process to them, as well as keep victims updated with the progress of a case.
These updates should include any charges laid, reason for charges not being laid, any decisions to alter charges, as well as any plea deals. In relation to a change of charge or a plea deal involving a violent or sexual offence, the victim of the crime should be consulted before it’s made.
And while these consultations with victims of crime are necessary, they’re not determinative of how a case will proceed, as based on other evidence or an accused’s criminal history, it may be in the public interest to act in a manner that does not coincide with the victim’s wishes.
The Witness Assistance Service (WAS) can be consulted in relation to such matters. And the ODPP Protocol for Reviewing Domestic Violence Offences should be considered in cases where a victim of domestic violence, including sexual assault, may request that the prosecution doesn’t go ahead.
In dealing with child victims of sexual or physical assault, the ODPP should give consideration to the NSW Interagency Guidelines for Child Protection Intervention, as well as the UN Convention on the Rights of the Child. And such a child witness should be referred to the WAS as well.
Child witnesses can give all or part of their evidence-in-chief via recording, which does not have to be served to the defence prior to proceedings.
In terms of adult witnesses with disabilities, they should be referred to the WAS in a prompt manner. And it’s preferred that they deliver their testimony via CCTV.
Due to pre-trial evidence disclosure requirements – especially in relation to witnesses not required to appear personally in court – the prosecution needs to carry out any necessary conference before proceedings commence as soon as possible.
ODPP lawyers and Crown prosecutors should also ensure that any victim impact statements that have been produced were done so in accordance with the provisions set out in part 3 division 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Prisoners are to be supplied with a victim impact statement, however they’re not permitted to retain them.
The final article in this series will detail the ODPP guidelines pertaining to proceedings.