Prosecution Guidelines

Introduction

The Office of the Director of Public Prosecutions (ODPP) acknowledges the Traditional Custodians of the lands on which our offices are located and where we provide services to the people of New South Wales. We recognise the rich histories, languages and customs of the Traditional Custodians and pay respect to Elders past, present and emerging. The Office honours the Aboriginal and Torres Strait Islander peoples' unique cultural and spiritual relationships with the land and waters.

Public confidence in the criminal justice system demands a prosecuting authority that is independent, fair and effective.

These Prosecution Guidelines, issued under s 13(1) of the Director of Public Prosecutions Act 1986, set out the general principles for the initiation and conduct of criminal prosecutions. They supersede all previous guidelines and policies issued under that section.

There have been developments in recent years which have had an impact on the criminal justice system, including changes to legislation, case law, procedures and policies. These Guidelines reflect a recognition of the inherent interest of victims as participants in the criminal justice system. Greater attention than ever before has been placed on the responsibility of prosecutors to inform victims about the progress of a case and to consult them about key decisions.

However, it must be borne in mind that the ODPP represents the community generally, rather than any individual. The duty of the prosecutor was articulated by the Supreme Court of Canada in the landmark decision of Boucher v The Queen (1954) 110 CCC 263 at 270:

It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his [or her] function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

The ODPP must serve the public interest first and foremost. The prosecutor owes a duty of fairness to the community. The community's interest is twofold: that those who are guilty be brought to justice and that those who are innocent not be wrongly convicted.

These Prosecution Guidelines serve multiple purposes. They guide prosecutors in the exercise of their duties, providing a standard against which the conduct of criminal proceedings should be measured. They promote impartial, principled and consistent decision-making.  Their online publication ensures transparency, openness and accountability to the community. 

In order to achieve these purposes, the Prosecution Guidelines must be accessible to the public and must remain current. A glossary is included and plain English has been used as much as possible.

The Guidelines are intended to be a living document. As the law evolves and new challenges emerge, so too must the Guidelines be updated and amended.

The Guidelines do not envisage every possible scenario that may arise in criminal proceedings. They cannot, and do not, provide a formula which can be applied to individual cases so as to yield a particular outcome. Every case is unique and must be considered on its merits.  Section 13(2) of the Director of Public Prosecutions Act 1986 specifically prohibits the issuing of guidelines in relation to particular cases. Instead, the Guidelines capture the fundamental principles and core values that underpin prosecutorial decision making at various stages in the prosecution process.

DPP
L A Babb SC
Director of Public Prosecutions
29 March 2021


Current Guidelines

The Prosecution Guidelines are available here, or in chapters below.

They should be read in conjunction with the many other instruments that affect the conduct of prosecutions.

 

ODPP Prosecution Guidelines