The ODPP does not investigate allegations that a crime has been committed. Investigations are carried out by the NSW Police Force and other investigative agencies. However, the ODPP may provide independent legal advice prior to proceedings being commenced for a criminal offence. This is referred to as pre-charge advice. Pre-charge advice has the benefit of identifying the appropriate charges early in the criminal justice process to avoid whenever possible withdrawing a prosecution or varying the charges at a later time.

This Chapter sets out:

1. when the ODPP will provide pre-charge advice
2. what the ODPP will provide advice about
3. the principles concerning confidentiality and legal privilege.

The ODPP has protocols in place with investigative agencies setting out procedures for providing pre-charge advice.

The criteria for determining whether a person should be prosecuted for an offence are as set out in Guideline 1.2.

The ODPP is available to provide pre-charge advice to investigative agencies:

1. if the matter would be prosecuted by the ODPP if charges were filed
2. the matter has some complexity, novelty, raises a potential conflict of interest for the investigative agency or has broader policy implications
3. as agreed by the investigative agency and the ODPP. Advice will not be provided on an informal basis.

Pre-charge advice must be sought from the Director prior to filing any charge that requires the consent of the Director or the Attorney General.

The ODPP will provide advice about the sufficiency of evidence and the appropriateness of charges in accordance with Chapter 1: the decision to prosecute. 

Unless otherwise instructed by the Director or a Deputy Director, the ODPP will not provide advice about:

• operational or investigative matters
• whether to file charges in a particular jurisdiction.

The fact that a matter has been referred to the ODPP for pre-charge advice, the content of the advice and the fact that advice has been provided will not be disclosed to a third party unless legal privilege has been waived. The privilege rests with the agency that has requested the advice.