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Prosecution Guidelines

Chapter 7. Taking over proceedings

This Chapter sets out the principles for determining whether the DPP should take over proceedings commenced by Police or by a private prosecutor.

Published 29 March 2021

7.1 Introduction

This Chapter sets out the principles for determining whether the DPP should take over proceedings commenced by Police or by a private prosecutor.

7.2 Taking over proceedings commenced by Police

The DPP will take over a prosecution commenced by Police:

  1. in every case where an election has been made
  2. in accordance with an arrangement between the ODPP and Police for the conduct of certain matters in the Local Court or the Children’ s Court, such as child sexual assault offences
  3. where proceedings are being conducted in the Local Court or Children’s Court in accordance with pre-charge advice on the basis that the ODPP would conduct the prosecution in that court
  4. where proceedings were brought contrary to advice or a decision by the DPP not to proceed
  5. where there appears to be a conflict of interest or the risk of unfairness arising from the conduct of the prosecution if it is not taken over by the DPP
  6. where, on the request of a Police Prosecutor, there is a sound basis for doing so
  7. the public interest otherwise requires it, having regard to, for example, the gravity of the offence, its connection with another offence the ODPP is prosecuting and all the surrounding circumstances.

If the DPP takes over the prosecution, a decision may be made to discontinue it in accordance with Guideline 1.2: The tests for deciding whether to prosecute.

7.3 Taking over proceedings commenced by a private prosecutor

NSW law allows for a prosecution to be commenced by a private individual and this right has been described as "a valuable constitutional safeguard against inertia or partiality on the part of authority".

However, since the creation of the DPP in 1986, one of the principal functions of the Director has been to conduct prosecutions for indictable offences in NSW. The Director therefore has a role to play in ensuring the right to launch a private prosecution is not abused.

Consequently, the DPP has the power to take over the conduct of a prosecution initiated by another person and, having done so, to continue it or bring it to an end. 

Where the DPP has taken over the conduct of a private prosecution, or is considering doing so, the DPP may request a full report of the circumstances giving rise to the prosecution, copies of the statements and other documentary evidence, and any further information. The DPP may also seek police assistance to investigate the matter. These provisions enable a full assessment to be made of the prosecution case before, or after, any decision is made to take over the matter.

Given the large range of circumstances that may give rise to a private prosecution, it is impracticable to lay down inflexible rules as to when the discretion to take over a matter will be exercised. In general, however, a private prosecution will be taken over and discontinued where:

  1. there is no reasonable prospect of a conviction on the admissible evidence
  2. the prosecution is not in the public interest
  3. there are reasons for suspecting that the decision to institute the prosecution was based on improper motives or otherwise constituted an abuse of the prosecution process
  4. the private prosecution was instituted to circumvent an earlier decision of the DPP not to proceed with a prosecution for the same offence.