NSW DPP Prosecuting Guidelines Part 3: Charge Negotiations, Vulnerable and Unrepresented Defendants, Judge-Alone Trials, Jury Selection, Retrials, Proceeds of Crime and the Media

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By Paul Gregoire and Ugur Nedim

In carrying out its operations, the Office of the Director of Public Prosecutions (ODPP) follows the procedures set out in the ODPP Prosecution Guidelines.

This article is the final in a series summarising the processes and principles set out in the document, which govern the independent body that prosecutes individuals on the behalf of the state of NSW and its people.

The first article lays out the rules in deciding to prosecute and take over cases, while the second considers duty of disclosure, immunities and vulnerable witnesses.

This current article takes a look at the final requirements that ODPP prosecutors must take into account when pursuing a case.

Negotiating charges

Negotiations between the prosecution and defence regarding the charges to be pursued in court can take place at any stage in the progress of a matter.

As the guidelines state, “charge negotiations must be based on principle and reason, not on expedience alone”, and written records must be kept.

Prosecutors must actively seek guilty pleas. They should point to the benefits of entering early guilty pleas, which include discounts on sentences. While charge negotiations can include the dropping of certain offences on the proviso the defendant pleads guilty to other charges.

Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits lesser charges laid against an accused be placed on a “Form 1” and linked to a more serious crime. While not actively pursued for conviction, these offences will be considered in sentencing for the principal offence.

The maximum penalty for a Form 1 offence won’t usually exceed the maximum for the principal offence. And certain offences, such as those relating to firearms or those against police officers aren’t usually dealt with on Form 1.

These charging procedures generally relate to Commonwealth offences as well.

Vulnerable defendants

In terms of young offenders, the guidelines stress consideration be given to the long-term damage prosecution can have on a child when deciding upon pursuing charges. Alternatives like cautioning and youth justice conferences should be considered, along with age and seriousness of offence.

Then there are those charged with crimes who have serious mental health issues that make it inappropriate to be prosecuted via regular criminal justice processes. In these cases, the procedures set out in the Mental Health (Criminal Procedure) Act 1990 (NSW) should be followed.

In relation to proceedings against such a person on a summary charge before the Local Court, the magistrate may deal with it without a hearing, while in the case of a matter before the District or Supreme courts, the person’s fitness to stand trial should be considered during proceedings.

Unrepresented defendants, judge-alone trials and jury selection

Prosecutors must exercise particular care when dealing with an accused person without legal representation. This is especially so in ensuring they’re informed of the prosecution case. Although, this does not extend to consideration of legal issues, evidence and any investigations made.

An accused may apply to be tried by judge alone. Such a request must be approved by the ODPP, with principal consideration given to “the fairest and most expeditious means available”. Technical cases suit judge alone trials, while those raising community values are best heard before a jury.

In selecting a jury, the Crown has the right to challenge the inclusion of a juror and have them stood aside, without stating a reason. Although the guidelines stress this should only be done if there’s a reasonable cause and it shouldn’t be to secure a jury that fails to represent the community.

The prosecution should call all credible witnesses whose evidence is essential. If it considers a witness unreliable, yet the accused requests their presence, this should be facilitated. In deciding not to call a witness who usually would be, the ODPP must promptly inform the defence of this.

The prosecution must ensure that disputed evidence delivered on opening, doesn’t lead to a subsequent discharge of the jury. The accused must be notified of evidence illegally or improperly obtained. And evidence via hypnosis, must be limited to matters recollected prior to the procedure.

On sentencing

The prosecution cannot sway the court in sentencing, but it has a duty to inform of any relevant authorities or legislation, assist in avoiding appealable errors, recommend custodial or noncustodial approaches, and it may inform the court of a range of severity, including that of sentences.

Any cooperation a convicted person has given to law enforcement should be acknowledged at the time of sentencing, and in the case where the NSW Police Force wants to bring this assistance to the attention of the court, it can do so via a specific affidavit.

Copies of all documents to be tendered on sentencing by the defence must be provided to the prosecution at least two clear working days prior to the proceedings so that it can be tested, otherwise the ODPP can apply for hearsay evidence to be made inadmissible or for an adjournment.

Following the handing down of a sentence, the ODPP prosecutor is to consider whether it should be appealed and if so, produce a report for the DPP. In deciding on whether to appeal, matters such as an error of law, manifest inadequacy of a sentence and likely success should be taken into account.

Proceeds of crime

When preparing matters, ODPP lawyers should consider whether confiscation of the proceeds of crime is necessary. The lawyer needs to seek the authority of the DPP to proceed in doing this and an application for authorised confiscation must be pursued only after a conviction is recorded.


When a trial has ended without a verdict, a retrial can be considered. The decision on whether to undertake a retrial include considering whether the initial jury was unable to agree, whether a new jury would be in a better position to come to a verdict, the costs involved in retrial and the view of the victim of the crime.

Media contact

There is a legal regime governing ODPP prosecutors’ dealings with the media. In the case of jury trials, prosecutors cannot make comments to the press about rulings made on evidence and other matters that don’t involve the jury.

The seeking and giving of legal advice in regard to the ODPP are matters subject to privilege and prosecutors cannot address such matters in the press unless given specific approval to do so by the director.

And the final point worth noting from the ODPP guidelines is that prosecutors must be aware of disclosure prohibitions around certain information, which includes not identifying children, witnesses in protection, those in controlled operations and certain law enforcement officers.

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

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

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