AN OVERVIEW OF THE OFFICE OF
THE
DIRECTOR OF PUBLIC PROSECUTIONS
The Office
of the Director of Public Prosecutions (NSW)
(ODPP) was established by the Director of Public Prosecutions Act 1986 (the DPP
Act) and commenced operation on
The creation
of a Director of Public Prosecutions changed the administration of criminal
justice in
The ODPP
conducts matters involving offences under the laws of
· Trials for indictable offences in the District Court and the Supreme Court.
· Committal
proceedings for indictable offences in the
· Summary hearings in the Local Court in relation to a limited class of matters; for example matters in which a police officer is a defendant; matters in which a defendant has been charged with a sexual assault offence against a child; matters taken over by the Director pursuant to the take over power in the DPP Act.
· Appeals in the District Court in relation to summary matters.
· Appeals in the Court of Criminal Appeal and the High Court.
· Appeals in the Supreme Court and the Court of Appeal.
FUNCTIONS OF THE DIRECTOR[TOP]
The Director is appointed by the Governor under s4 of the
DPP Act, and has the functions conferred by the Act or by any other Act; eg the Confiscation of Proceeds of Crime Act 1989 confers
on the Director certain powers in relation to confiscation. The Director is responsible to the Attorney
General for the due exercise of the Director’s functions. This does not detract from or affect the
authority of the Director in respect of the preparation,
institution and conduct of criminal proceedings (see s4 of the DPP Act).
The principal functions and responsibilities of the Director
are found in section 7(1) of the DPP Act and are -
(a)
to
institute and conduct, on behalf of the Crown, prosecutions for indictable
offences (under NSW laws) in the Supreme Court and the District Court;
(b)
to
institute and conduct, on behalf of the Crown, appeals in any court in respect
of any such prosecution; and
(c)
to conduct, on behalf of the Crown as respondent, any appeal in any court
in respect of any such prosecution.
Section 20(1) of the DPP Act provides that the functions of
the Director include the following:
(a)
to
exercise such functions as are prescribed; and
(b)
to do anything incidental or conducive to the exercise of any functions of
the Director.
The Director has the same functions as the Attorney General
in relation to:
(a)
finding
a bill of indictment, or determining that no bill of indictment be found, in
respect of an indictable offence, in circumstances where the person concerned
has been committed for trial;
(b)
directing
that no further proceedings be taken against a person who has been committed
for trial or sentence; and
(c)
finding a bill of indictment in respect of an indictable offence,
in circumstances where the person concerned has not been committed for trial (ie, to find an ex officio bill of indictment).
The DPP Act also empowers the Director to do any of the
following:
·
Institute
and conduct committal proceedings for indictable offences, proceedings for
summary offences and summary proceedings for indictable offences that may be
dealt with summarily in Local Courts (see s8(1) of the DPP Act).
·
To
take over prosecutions instituted by others under NSW laws and either carry on
or decline to proceed further in such prosecutions (see ss9-10 of the DPP Act).
·
To
recommend to the Commissioner of Police that proceedings be instituted in
respect of any offence (see s14(1) of the DPP Act ).
·
Furnish
guidelines to the Commissioner of Police with respect to the prosecution of
indictable or prescribed summary offences (see s14(2)
of the DPP Act). Such guidelines may
only be furnished after consultation with the Attorney General.
·
To
·
Advise
and assist any member of the Police Service in the conduct of criminal
proceedings (see s20(2) of the DPP Act).
·
Request
the Attorney General to grant an indemnity from prosecution or give an
undertaking under the Criminal Procedure Act (see s19(1)
of the DPP Act).
The Director also has administrative and managerial responsibilities as the chief executive officer of the Office of the DPP.
THE DEPUTY DIRECTORS OF PUBLIC PROSECUTIONS[TOP]
The DPP Act provides in s5 for the appointment, functions
and accountability of Deputy Directors of Public Prosecutions. The Deputy Directors are appointed by the
Governor and have the functions conferred or imposed under the DPP Act or any
other Act. A Deputy Director is
responsible to the Director for the due exercise of his/her functions.
Section 22 of the DPP Act provides that a Deputy Director
must assist the Director, as the Director requires, and has the same functions
as a Crown Prosecutor. (See “The Crown
Prosecutors” below).
Section 33 of the DPP Act enables the Director to delegate
the exercise of any of the Director’s functions (other than the power of
delegation) to nominated persons. Under s33(2) the Director is able to delegate the following
functions to a Deputy Director:
·
Determining
that no bill of indictment be found in respect of an indictable offence, where
the person concerned has been committed for trial;
·
Directing
that no further proceedings be taken against a person who has been committed
for trial or sentence;
·
Finding
a bill of indictment where the person has not been committed for trial;
·
Appealing
under s5D of the Criminal Appeal Act 1912 to the Court of Criminal Appeal
against sentence.
The Deputy Directors regularly appear on behalf of the Crown
in the High Court, and in other appellate jurisdictions. In the absence of Director, the Deputies
exercise the functions of the Director.
The Deputy Directors also
exercise a range of administrative and managerial responsibilities in the
Office of the DPP under delegation from the Director.
THE CROWN PROSECUTORS [TOP]
Crown Prosecutors are appointed under the Crown Prosecutors Act 1986. Their functions are set out in s5 of that Act and are:
(a) to conduct, and appear as counsel in, proceedings on behalf of the Director;
(b) to find a bill of indictment in respect of an indictable offence;
(c) to advise the Director in respect of any matter referred for advice by the Director; and
(d) to carry out such other functions of counsel as the Director approves.
A Crown Prosecutor does not have the function of determining that no bill of indictment be found. Where a Crown Prosecutor finds a bill of indictment, he/she does so in the name of and on behalf of the Director.
The Crown Prosecutors of
New South Wales, presently numbering 97, comprise one of the largest “floors”
of barristers in the State. They are
counsel who, as statutory office holders under the Crown Prosecutors Act 1986,
specialise in the conduct of criminal trials by jury
or judge alone in the Supreme and District Courts and appeals therefrom. [Their particular functions are set out in the
preceding note.] The vast bulk of criminal jury trials in this State are
prosecuted by Crown Prosecutors. They
also regularly provide advice to the Director of Public Prosecutions on the
continuation or termination of criminal proceedings. Occasionally they appear
at coronial inquests, inquiries under s.474B of the Crimes Act 1900 and in
unusually complex committal proceedings.
A number of Crown Prosecutors are seconded
from time to time as counsel to other organisations
such as the National Crime Authority, the ICAC, the Police Integrity
Commission, the Legal Representation Office, the Public Defenders Office and
the Criminal Law Review Division of the Attorney General’s Department. There are also a significant number of
former Crown Prosecutors who are Judges of the Supreme Court and District
Court. The Crown Prosecutors are almost
all members of the NSW Bar Association and participate in its Council, its
Committees (including Professional Conduct Committees) and its collegiate life.
As at 2002, the Crown
Prosecutors comprise nine senior counsel (six QCs and
three SCs) and 88 junior counsel. There are 82 Crown Prosecutors, 14 Deputy
Senior Crown Prosecutors and a Senior Crown Prosecutor. Appointments are made, after an open and
competitive selection process, by the Governor in Council. In practice, the Attorney
General’s recommendations are usually adopted and the Attorney General, in
turn, relies upon the advice of the Director of Public Prosecutions who sets up
a selection panel for each recruitment action.
The first Crown Prosecutor,
Frederick Garling, who was a solicitor, was appointed in
1830. The first member of the Bar appointed as a Crown Prosecutor was Alfred Cheeke who was appointed in 1841 and who later went on to
become the first foundation Judge of the new District Court in 1858. Over the
past thirty-five years the number of Crown Prosecutors has slowly risen from 15
to the present number of 97.
Since the 1980s, about
fifty percent of appointees have come from the private Bar (locally, interstate
and overseas) and fifty percent have come from the Office of the Solicitor for
Public Prosecutions. Prior to that, most appointees came from the Bar.
Currently, twenty one percent of Crown Prosecutors are women
which represents a higher proportion than at the private Bar. Crown Prosecutors have tenure of office until
the age of retirement, although a number of the more junior ones hold acting
appointments. Crown Prosecutors’
salaries are fixed by the Statutory and Other Offices Remuneration Tribunal and
they do not have a right of private practice.
There are Crown Prosecutors
located in Chambers in the City of
The Crown Prosecutors come
under the administrative umbrella of the Director of Public Prosecutions, also
an independent statutory officer. They
are answerable by law to the Director for the performance of their duties and
the Director may make arrangements for the disposition of their work. However, in practice, the Senior Crown
Prosecutor and his Professional Assistant distribute the briefs and attend to many of the administrative arrangements. The Senior and Deputy Senior Crown Prosecutors generally
prosecute Supreme Court trials and the more complex District Court matters.
There is a team of about 9 Crown Prosecutors who are allocated to do the Court
of Criminal Appeal work, comprising both senior counsel and juniors (some of
whom do it for years and some of whom are allocated for shorter periods of 6 or
12 months). The appeals are almost
always done by different Crown Prosecutors from those who did the trials. High
Court appeals are generally done by the Director or a Deputy Director, but
often a Crown Prosecutor will be the junior counsel.
The independence of the
Crown Prosecutors as Counsel is guaranteed by the Crown Prosecutors Act which
states in section 5(1) that:
“The functions
of a Crown Prosecutor are:
(a)
to conduct, and
appear as Counsel in, proceedings on behalf of the Director;
… and
(d)
to carry out such other functions of Counsel as the Attorney
General or Director approves.”
The role of Crown
Prosecutor is a noble and highly respected office. Crown Prosecutors in this State have established
a commendable reputation for ability, diligence, integrity and fairness and
those who accept the appointment have an honourable
tradition to uphold. In terms of
professional satisfaction, there are few alternative opportunities available
elsewhere which match the challenge and quality of work done routinely by Crown
Prosecutors. The collegiate camaraderie of the Bar is firmly entrenched and
encouraged in the Crown Prosecutors’ Chambers.
To see organisation chart Click Here
THE SOLICITOR FOR PUBLIC PROSECUTIONS[TOP]
The Solicitor for Public Prosecutions is a statutory appointee under s6 of the DPP Act. The Solicitor has the functions conferred or imposed by the DPP Act or any other Act, and is responsible to the Director for the due exercise of the Solicitor’s functions.
Under s23 of the DPP Act, the functions of the Solicitor are:
(a) to act as Solicitor for the Director in the exercise of the Director’s functions; and
(b) to instruct the Crown Prosecutors and other counsel on behalf of the Director.
The Act enables the Director and the Solicitor to employ the staff necessary to carry out their respective functions under the Public Sector Management Act.
STATUTORY RELATIONSHIP BETWEEN DIRECTOR, CROWN
PROSECUTORS AND SOLICITOR FOR PUBLIC PROSECUTIONS[TOP]
As noted above, the Director, the Deputy Directors, Crown Prosecutors and the Solicitor for Public Prosecutions are all statutory appointees, and have the functions conferred on them by the statute which creates them and the functions conferred on them by other statutes.
Section 21 of the DPP Act provides that the Director may appear in person or may be represented by a counsel or solicitor in any proceedings which are conducted or carried on by the Director, or to which the Director is otherwise a party.
The Director is generally represented by either Crown Prosecutors or by solicitors employed by the Solicitor for Public Prosecutions. On occasion the Director is represented by private counsel or by the Crown Solicitor or by the Crown Advocate.
The Act provides in s23 that the Solicitor act as Solicitor for the Director and instructs the Crown Prosecutors and other counsel on behalf of the Director. The role of the Solicitor includes both advocacy and the preparation of matters in which advocacy skills are provided by Crown Prosecutors or private counsel.
STRUCTURE OF THE OFFICE OF THE NSW DPP[TOP]
The ODPP comprises the following:
1. The Director, two Deputy Directors and their legal and administrative support staff. The solicitors who work in the Director’s chambers are called professional assistants. The Director’s Chambers also includes the Manager, Service Improvement Unit.
2. The Crown Prosecutors, and their administrative support staff. At the time of writing there are 97 Crown Prosecutors in total: one is titled the Senior Crown Prosecutor, 14 are titled Deputy Senior Crown Prosecutors and 82 are titled Crown Prosecutors.
3. The Solicitor for Public Prosecutions, the two Deputy Solicitors (Legal and Operations), the three Assistant Solicitors (Sydney, Sydney West and Country) and the solicitors and administrative support staff employed in the office of the Solicitor for Public Prosecutions. At the time of writing there are 280 solicitors and 145 administrative officers in the Solicitor’s office.
4. The Corporate Services Division, headed by the Manager, Corporate Services, and which provides the full range of management and support services to the Directorate, the Crown Prosecutors and the Solicitor’s Office. The Division consists of the following Branches:
· Financial Services
· Personnel Services
· Information Management and Technology
· Properties and Services
· Training and Development
To see organisation chart Click Here
B. Locations [TOP]
The
ODPP has a Head Office located at
The
ODPP has three offices in western
The
ODPP has seven offices in regional
Each of the ODPP offices has Crown Prosecutors, solicitors and administrative support staff allocated to it. Each office conducts prosecutions in the relevant Local, District and Supreme Courts.
A Witness Assistance officer (generally a social worker or a psychologist) is located in each office. The Witness Assistance Service (WAS) provides support, referral to other support services, assistance and information to civilian prosecution witnesses. For more information about WAS, look on the DPP Net at the WAS component of the Net.
All members of the Corporate Services Division are located in Head Office.
C. Specialist Units in Head Office[TOP]
There are a number of Specialist Units located in Head Office which carry out work not conducted elsewhere. These are as follows:
Court
of Criminal Appeal Unit - This unit specialises in
preparing and instructing in appeals listed before the Court of Criminal Appeal
(which generally sits in
Research Unit - This unit provides information, advice and assistance on legal matters to ODPP solicitors and Crown Prosecutors. The unit publishes the Advance Notes (summaries of significant decisions in the CCA, Court of Appeal and High Court), legislation updates and the Sentence Manual. It also maintains and updates the comprehensive electronic Research System on the DPP Net.
Advisings Unit - This unit is responsible for the conduct of a large range of appellant litigation in the Supreme Court, Court of Appeal, Court of Criminal Appeal and High Court. This litigation derives from summary matters and appeals in the District Court, as well as trials in the District and Supreme Court. This unit provides advice to the Director in relation to these appeals, and related matters.
Group 6 - This unit prosecutes police officers, and prosecutes matters referred to the ODPP by the Police Integrity Commission and the Independent Commission against Corruption, as well as other high profile matters.
The Library- The R O
Blanch QC Library is a law library specialising in criminal law. Its
primary function is to support the information and research needs of lawyers,
Crown Prosecutors and Witness Assistance officers in the Office of the Director
of Public Prosecutions Head Office and Regional Offices. It also provides
services on
PROSECUTION POLICY AND GUIDELINES[TOP]
Under s13 of
DPP Act the Director may furnish guidelines to the Deputy Directors, the
Solicitor for Public Prosecutions and the Crown Prosecutors with respect to the
prosecution of offences, including guidelines as to the exercise of special
functions. Guidelines may not be furnished in relation to particular
The first Director of Public Prosecutions published a Prosecution Policy and Guidelines in July 1987, when the ODPP commenced operation. He subsequently revised and re-issued the Policy and Guidelines. The current Director has also revised and re-issued the Policy and Guidelines. The document is of critical importance and the latest version is located on the DPP Net. All who work in the ODPP should be familiar with the Policy and Guidelines.
The policy document sets out the basic approach required of the prosecutor. The guidelines refer to specific criteria applicable in particular situations.
The prosecution policy deals with, inter alia, the following major topics:
· The role and duties of the prosecutor
· The factors affecting the decision to prosecute (and to discontinue prosecution)
· Charge bargaining
· Mode of trial (including summary disposal of matters)
· Informers and immunities (indemnities and undertakings under the Criminal Procedure Act)
· Victims of crime
· Appeals against sentence by the Crown
· Publication of reasons for decisions
The guidelines flesh out the topics dealt with in the policy. There is a guideline/s pertaining to each topic dealt with in the policy; for example there are guidelines relating to fairness, expedition, charging practice, case screening, election for trial on indictment, no bill applications and no further proceedings, advice to police, taking over proceedings, disclosure, informers, immunities, victims of crime.
An index to the Policy and Guidelines appears at the back of the hard copy version and is on the DPPNET.
There are a number of significant documents annexed to the prosecution policy and guidelines; for example extracts from the NSW Barristers Rules and the Law Society of NSW Solicitors Rules; media contact guidelines; the NSW Charter of Victims Rights. These Appendices are also on the DPPNET.
The ODPP is committed to recognising the needs of victims of crime. If they wish, victims will be kept informed of the progress of the prosecution. After conviction for an offence involving actual or threatened violence (including sexual assault) or the death of, or actual physical bodily harm to any person, victims have the opportunity to participate in the sentencing process by providing a written victim impact statement for presentation to the Court.
The ODPP represents the State, not individual victims. Therefore at times, the ODPP, while considering the views of victims, will have to make decisions in the general public interest with which the victim may disagree.
GUIDELINES TO THE COMMISSIONER OF POLICE[TOP]
Pursuant to
s14 of the DPP Act, the Director may furnish guidelines to the Commissioner of
Police in relation to the prosecution of indictable offences or prescribed summary
offences. The Director must first consult with the Attorney
General. The guidelines may not be furnished in relation to particular
The Director has furnished guidelines to the Commissioner of Police in relation to one topic, ie disclosure by police to the DPP in prosecutions being conducted by the ODPP. These guidelines are Appendix D to the Prosecution Policy and Guidelines.
DELEGATIONS - LEGAL[TOP]
Pursuant to s33 of the DPP Act the Director may delegate to an officer or a Crown Prosecutor the exercise of any of the Director’s functions (other than the power of delegation). An “officer” is defined in s3 of the DPP Act as the Director, a Deputy Director, the Solicitor or a member of the staff referred to in s32 of the Act.
Crown
Prosecutors and solicitors have been issued with an instrument of delegation by
the Director. It is dated
DELEGATIONS OF ADMINISTRATIVE AUTHORITY[TOP]
The
Director, in his capacity as a Department Head, has delegated specified powers,
duties and functions, pursuant to s12 of the Public Sector Management Act
1988. At the time of writing the most recent instrument of delegation is
dated
Delegations
have been made to the Solicitor for Public Prosecutions, the Deputy Solicitors,
the Assistant Solicitors, the Senior Crown Prosecutor, the Manager, Corporate
Services, certain managers with budget
allocations and managers of
TYPE
AND
The ODPP generally prosecutes the more serious offences in the District and Supreme Courts. The bulk of minor matters are prosecuted in the Local Courts by police prosecutors. The ODPP prosecutes mainly in the areas of drugs, assault, sexual assault (both child and adult), armed robbery, theft, fraud, dangerous driving, manslaughter and murder.
A small number of solicitors in the ODPP are trial advocates and conduct trials in the District Court. The majority of trials are conducted by Crown Prosecutors and are conducted in the District Court. Essentially the Supreme Court now only conducts criminal trials involving murder and manslaughter. There is however provision for the Chief Justice to permit the Crown to present indictments in other matters, pursuant to the Criminal Procedure Act.
Solicitors
generally instruct Crown Prosecutors in trials in the District and Supreme
Courts. In the year ended
Solicitors
also conduct advocacy in the
Advocacy in the District Court includes all grounds appeals, severity appeals, and sentences. In the year ended 30 June 2001, the ODPP concluded 1220 sentence matters, 1301 all grounds appeals and 3877 severity appeals; and 43 leniency appeals in the District Court.
A specialist unit of solicitors appears each day in the Supreme Court to conduct Supreme Court bail applications. This group is known within the ODPP as Group 5. This group also conducts sentences and appeals in the District Court each day.
A small
number of solicitors in the CCA Unit instruct about 7 Crown Prosecutors in the
Court of Criminal Appeal. For the year ended 30 June 2001, the Court
concluded 61 Crown appeals against inadequacy of sentence (7 abandoned, 25
allowed and 29 dismissed), 168 conviction and sentence appeals by prisoners,
(56 successful) 386 sentence appeals by prisoners (85 successful): 75
appeals were summarily dismissed and 178 were abandoned, making a total
of 807 completed matters. There were also 27 interlocutory appeals and 3 stated
Some
solicitors specialise in appellate work in the Supreme Court, Court of Appeal
and High Court. In the year ended
At the time
of writing there are two ODPP lawyers on secondment to a pilot project involving
a
The ODPP
does not have investigative functions or capacities, but does advise police and
other investigative agencies (eg. ICAC, PIC) on evidence in
relation to specific investigations. There were 117 advisings
on hand as at
The ODPP provides advice and comment to criminal justice reform agencies (eg the Criminal Law Review Division and the Legislation and Policy Division of the Attorney General’s Department) and is represented on many interagency fora.
ETHICAL OBLIGATIONS[TOP]
All solicitors and barristers are bound by ethical obligations to the Court expressed in the Solicitors Rules and the Barristers Rules. The rules applicable to prosecutors specifically are set out in Appendix A to the Director’s Prosecution Policy and Guidelines.
The ODPP is committed to the highest ethical and professional standards and strives to achieve the most effective and appropriate criminal prosecutions.
The Director has published a Code of Conduct setting out the standards expected of all officers.The Code was revised and republished in August 2001 and is available on the DPPNET.
The ODPP also has a policy relating to disclosures under the Protected Disclosures Act 1994 (the whistleblowers legislation).
ODPP ROLE IN JOINT COMMONWEALTH/STATE PROSECUTIONS[TOP]
A brief of evidence sometimes contains a mixture of Commonwealth and State offences. Consideration must then be given by the NSW Director to the question of which DPP will prosecute the whole case.
In such
matters a submission to the Director should be made setting out the facts and
charges (or annexing them) and recommending which DPP should prosecute.
Where the most serious criminality is involved in the State charges, the NSW
ODPP will generally prosecute all of the charges (after obtaining a formal
Deputy Solicitor for Public Prosecutions (Legal)