The Act creates a statutory Director of Public Prosecutions (with deputies and a solicitor), gives that office primary authority to commence, conduct, take over or discontinue major prosecutions and appeals, and sets appointment, delegation and accountability rules. It imposes disclosure and assistance duties on police and investigators, enables binding guidelines and limited non‑delegable decisions, and allocates staffing, indemnity and reporting obligations—affecting the Director, Crown prosecutors, law enforcement, the Attorney General and courts.
The Director of Public Prosecutions Act 1986 (NSW) (the Act) establishes a statutory office of Director of Public Prosecutions (the Director or DPP) and supporting senior officers, and confers upon them a comprehensive suite of functions relating to the investigation, prosecution, and appeal of criminal offences in New South Wales. At its heart the legislation effects a partial transfer of prosecutorial authority from the Attorney General to an independent statutory officer, while preserving the Attorney General’s ultimate constitutional responsibility.
Section 4(2) provides that the Director “shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act”. The principal functions are enumerated in s 7(1): to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court; to institute and conduct appeals on behalf of the Crown arising from such prosecutions; and to appear as respondent in appeals brought by convicted persons. Subsection 7(2) gives the Director the same powers the Attorney General possesses in relation to the finding of bills of indictment after committal, the entry of a nolle prosequi, and the filing of ex officio indictments.
The Act then widens the Director’s remit. Under s 8 the Director may institute committal proceedings, summary prosecutions, and summary proceedings for indictable offences that may be dealt with in the Local Court, subject to the constraint in s 8(3) that summary matters may only be taken over if they are prescribed summary offences or the original prosecutor consents in writing. Section 9 confers a robust power to take over any prosecution or proceeding (indictable or summary) already instituted by another person. Once the Director complies with the notification requirement in s 10(1), the Director is deemed to be the prosecutor (s 9(4)(a)) and may decline to proceed further.
Current sections
Direct links to the current provisions in Director of Public Prosecutions Act 1986.
(1) Sections 1 and 2 shall commence on the date of assent to this Act.
(2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—
appeal includes any proceedings in the nature of an appeal, including—
Solicitor means the Solicitor for Public Prosecutions.
summary offence means an offence that is not an indictable offence.
(2) In this Act—
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
s 3: Am 1998 No 137, Sch 2.9; 2001 No 121, Sch 2.84 [1]–[3]; 2006 No 73, Sch 3.10 [1]; 2007 No 80, Sch 2.11 [1]; 2015 No 15, Sch 2.15; 2017 No 55, Sch 3.4 [1]; 2022 No 49, Sch 1.3[1]; 2025 No 61, Sch 2.35[1].
Part 2
Senior Officers
Part 2 Senior Officers
Part 2 Senior Officers
3A
Guidelines for Senior Officer appointments
3A Guidelines for Senior Officer appointments
3A Guidelines for Senior Officer appointments
The Attorney General may issue guidelines as to the process for the selection of a person to be proposed for appointment (including reappointment) to any office under this Act. The guidelines are not mandatory and a failure to comply with them does not affect the validity of an appointment.
s 3A: Ins 2007 No 51, Sch 1 [1].
4
Director
4 Director
4 Director
(1) The Governor may appoint a Director of Public Prosecutions.
(2) The Director shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act.
(3) The Director is responsible to the Attorney General for the due exercise of the Director’s functions, but nothing in this subsection affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings.
4A
Veto of proposed appointment of Director
4A Veto of proposed appointment of Director
4A Veto of proposed appointment of Director
(1) A person is not to be appointed as Director until—
(a) a proposal that the person be appointed has been referred to the Committee on the Office of the Ombudsman under section 31BA of the Ombudsman Act 1974, and
(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
(2) A person may be proposed for appointment on more than one occasion.
(3) In this section, appointment includes re-appointment.
s 4A: Ins 1992 No 43, Sch 1.
5
Deputy Directors
5 Deputy Directors
5 Deputy Directors
(1) The Governor may appoint one or more Deputy Directors of Public Prosecutions.
(2) A Deputy Director shall have and may exercise the functions conferred or imposed on a Deputy Director by or under this or any other Act.
(3) A Deputy Director is responsible to the Director for the due exercise of the Deputy Director’s functions.
6
Solicitor for Public Prosecutions
6 Solicitor for Public Prosecutions
6 Solicitor for Public Prosecutions
(1) The Governor may appoint a Solicitor for Public Prosecutions.
(2) The Solicitor shall have and may exercise the functions conferred or imposed on the Solicitor by or under this or any other Act.
(3) The Solicitor is responsible to the Director for the due exercise of the Solicitor’s functions.
Part 3
Functions
Part 3 Functions
Part 3 Functions
7
Principal functions
7 Principal functions
7 Principal functions
(1) The principal functions and responsibilities of the Director are—
(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences 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.
(2) 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.
8
Instituting other proceedings
8 Instituting other proceedings
8 Instituting other proceedings
(1) The Director may institute and conduct—
(a) committal proceedings for indictable offences,
(b) proceedings for summary offences in any court, and
(c) summary proceedings for indictable offences that may be dealt with summarily in the Local Court.
(2) If the Director has instituted any such proceeding, the Director may—
(a) institute and conduct, on behalf of the Crown or the prosecution, appeals in any court arising from the proceeding, and
(b) conduct, as respondent, appeals in any court arising from the proceeding.
(3) The Director may not exercise any function under this section in respect of a summary offence, unless—
(a) the offence is a prescribed summary offence, or
(b) the person otherwise responsible for the prosecution or proceeding concerned has consented in writing.
s 8: Am 2007 No 94, Sch 1.30.
9
Taking over prosecutions or proceedings
9 Taking over prosecutions or proceedings
9 Taking over prosecutions or proceedings
(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and—
(a) carry on the prosecution or proceeding,
(b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence,
(c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and
(d) conduct, as respondent, an appeal in any court in respect of the offence.
(2) The Director may not take over a matter under this section involving a summary offence, unless—
(a) the offence is a prescribed summary offence, or
(b) a person otherwise responsible for the matter has consented in writing.
(3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents.
(4) If the Director takes over a matter under this section—
(a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and
(b) the Director may decline to proceed further in the prosecution or to carry the proceeding further.
(5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989.
s 9: Am 1987 No 209, Sch 10 (1); 2006 No 107, Sch 1.12.
9A
Handing back of matters to original prosecutor
9A Handing back of matters to original prosecutor
9A Handing back of matters to original prosecutor
(1) If a prosecution or proceeding that has been taken over by the Director under section 9 is remitted to the Local Court, the Director may hand the matter back to the prosecutor from whom it was taken over (the original prosecutor) or, if the original prosecutor (being a holder of a position in the Public Service or as a member of the NSW Police Force) no longer holds that position, to the person now holding that position (the original prosecutor’s successor).
(2) If a matter is handed back under this section, the original prosecutor or the original prosecutor’s successor, as the case may be, shall, as from the time when the Director complies with section 10 (1A) in relation to the matter, be deemed to be the prosecutor in connection with the matter.
s 9A: Ins 2008 No 53, Sch 11 [1]. Am 2015 No 15, Sch 3.20 [1].
10
Director to inform court etc when taking over, or handing back, proceedings
10 Director to inform court etc when taking over, or handing back, proceedings
10 Director to inform court etc when taking over, or handing back, proceedings
(1) If the Director decides to take over a matter in accordance with section 9, the Director shall, as soon as practicable—
(a) by notice in writing, inform the person otherwise responsible for the matter, and
(b) if the matter is pending before a court—
(i) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding concerned is to be heard, or
(ii) if the prosecution or proceeding is being heard by a Judge—in such manner as the Director thinks fit, inform the Judge,
that the Director has taken over the matter.
(1A) If the Director hands a matter back in accordance with section 9A, the Director shall, as soon as practicable—
(a) by notice in writing, inform the original prosecutor (or the original prosecutor’s successor) referred to in section 9A, and
(b) by notice in writing, inform the registrar or other proper officer of the Local Court in which the prosecution or proceeding concerned is to be heard,
that the Director has handed the matter back to the original prosecutor (or the original prosecutor’s successor).
(2) Failure by the Director to notify or inform does not affect any of the Director’s functions in relation to the matter.
s 10: Am 2001 No 121, Sch 2.84 [4] [5]; 2008 No 53, Sch 11 [2]; 2025 No 61, Sch 2.35[2].
11
Consents
11 Consents
11 Consents
(1) The Director may consent to prosecutions for offences, being offences of a kind in relation to which an order under subsection (2) is in force.
(2) A person who has, under a law of the State, the power to consent to prosecutions for offences of a particular kind may, by order published in the Gazette, authorise the Director to consent to prosecutions for offences of that kind.
(3) Such an authorisation may not be given by a person who has that power by virtue of an authorisation granted to the person by another person.
(4) The mere giving of an authorisation under this section does not prevent the giving of a consent by a person who, but for this section, would have power to give a consent.
(5) If the Director consents to a prosecution for an offence, being an offence of a kind to which an order under subsection (2) is in force, the prosecution may be instituted and conducted without the consent of any other person.
(6) The Director shall notify the person who gives an authorisation under this section of the giving or refusing of consent under the authorisation.
(7) If the Director gives or refuses consent under an authorisation under this section, the person who gives the authorisation is bound by the Director’s decision.
(8) In this section—
consent includes authorisation, sanction and any similar authority.
12
Coroners
12 Coroners
12 Coroners
The Director may, with the consent of the coroner, assist a coroner in any inquest or inquiry.
13
Guidelines to Crown Prosecutors etc by Director
13 Guidelines to Crown Prosecutors etc by Director
13 Guidelines to Crown Prosecutors etc by Director
(1) The Director may, by order in writing, furnish guidelines to the Deputy Directors, the Solicitor and the Crown Prosecutors with respect to the prosecution of offences, including guidelines as to the exercise of specified functions (whether statutory or not).
(2) Guidelines may not be furnished in relation to particular cases.
14
Recommendations and guidelines to police etc by Director
14 Recommendations and guidelines to police etc by Director
14 Recommendations and guidelines to police etc by Director
(1) The Director may recommend to—
(a) the Commissioner of Police, or
(b) any other person who—
(i) conducts investigations in relation to offences, or
(ii) institutes or conducts prosecutions for offences,
that proceedings be instituted in respect of any offence.
(2) The Director may, by order in writing, and after consultation with the Attorney General, furnish guidelines to the Commissioner of Police or any such person with respect to the prosecution of indictable offences or prescribed summary offences.
(3) Guidelines may not be furnished in relation to particular cases.
15
Provisions relating to guidelines
15 Provisions relating to guidelines
15 Provisions relating to guidelines
(1) The Director shall—
(a) give to the Attorney General a copy of each guideline furnished under this Part, and
(b) include in a report under section 34—
(i) a copy of each guideline furnished during the period to which the report relates, and
(ii) the title of, and a brief description of any publication containing, each guideline furnished as in force at the end of that period.
(2) The persons to whom guidelines are furnished under this Part are subject to the guidelines.
s 15: Am 1997 No 55, Sch 1.4.
15A
Disclosures by law enforcement or investigating officers
15A Disclosures by law enforcement or investigating officers
15A Disclosures by law enforcement or investigating officers
(1) Law enforcement or investigating officers for alleged offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
(1A) The duty of disclosure arises only if the Director exercises any function under this Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986 with respect to the prosecution of the offence (including in connection with a law enforcement or investigating officer seeking advice from the Director under section 14A of the Criminal Procedure Act 1986 about the commencement of proceedings for an offence).
(2) The duty of disclosure continues until one of the following happens—
(a) the Director decides that the accused person will not be prosecuted for the alleged offence,
(b) the prosecution is terminated,
(c) the accused person is convicted or acquitted.
(3) Law enforcement or investigating officers for alleged offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.
(4) The regulations may make provision for or with respect to the duties of law enforcement or investigating officers under this section, including for or with respect to—
(a) the recording of any such information, documents or other things, and
(b) verification of compliance with any such duty.
(5) The duty imposed by this section is in addition to any other duties of law enforcement or investigating officers in connection with the investigation and prosecution of offences.
(6) The duty imposed by this section does not require law enforcement or investigating officers to provide to the Director any information, documents or other things—
(a) that are the subject of a claim of privilege, public interest immunity or statutory immunity, or
(b) that would contravene a statutory publication restriction if so provided.
(7) The duty of a law enforcement or investigating officer in such a case is to inform the Director of—
(a) the existence of any information, document or other thing of that kind, and
(b) the nature of that information, document or other thing and the claim or publication restriction relating to it.
However, a law enforcement or investigating officer must provide to the Director any information, document or other thing of that kind if the Director requests it to be provided.
(8) (Repealed)
(9) In this section—
statutory publication restriction means a prohibition or restriction on publication that is imposed by or under—
(a) section 176 (Disclosure and use of examination material) or 177 (Disclosure and use of evidence given at examination) of the Law Enforcement Conduct Commission Act 2016, or
s 15A: Ins 2001 No 7, Sch 2. Am 2011 No 65, Sch 1 [1]; 2012 No 80, Sch 1 [1]–[3]; 2015 No 15, Sch 3.20 [2]; 2016 No 61, Sch 6.16 [1]–[6]; 2017 No 55, Sch 3.4 [2]; 2022 No 49, Sch 1.3[2]–[7].
16
Directions to police etc by Director
16 Directions to police etc by Director
16 Directions to police etc by Director
(1) The Director may, by order in writing, give directions referred to in subsection (2) to—
(a) the Commissioner of Police, or
(b) any other person who institutes or conducts prosecutions for offences.
(2) Directions may be given requiring specified information or kinds of information to be referred to the Director for the purpose of enabling the Director to consider—
(a) instituting or carrying on a prosecution or prosecutions for a specified offence or class of offences,
(b) instituting, carrying on or taking over proceedings for a specified offence or class of offences, or
(c) instituting, carrying on or taking over other proceedings in connection with functions conferred on the Director whether under this Act or otherwise.
(3) A person to whom such a direction is given shall comply with the direction.
(4) In this section—
offence means an indictable offence or a prescribed summary offence.
s 16: Am 1987 No 209, Sch 10 (2).
17
Provision of information to Director
17 Provision of information to Director
17 Provision of information to Director
(1) If a prosecution for an offence has been instituted by a person other than the Director and—
(a) the Director informs the person that the Director is considering taking over the prosecution,
(b) the Director takes over the prosecution, or
(c) the person considers that the Director should take over the prosecution,
the person shall furnish to the Director the relevant information or material.
(2) The relevant information or material is—
(a) a full report of the circumstances of the matter,
(b) a copy of the statements of any witnesses,
(c) each material document in the possession of the person, and
(d) such other information or material as the Director requires.
18
Request for assistance from police etc by Director
18 Request for assistance from police etc by Director
18 Request for assistance from police etc by Director
(1) If the Director is considering instituting or taking over, or has instituted or taken over, a prosecution for an offence, the Director may, by order in writing, request—
(a) the Commissioner of Police, or
(b) any other person who—
(i) conducts investigations in relation to offences, or
(ii) institutes or conducts prosecutions for offences,
to investigate or further investigate matters associated with the alleged commission of the offence.
(2) The Commissioner or other person shall, so far as practicable, comply with the request.
19
Indemnities and undertakings
19 Indemnities and undertakings
19 Indemnities and undertakings
(1) The Director may request the Attorney General to exercise the function of the Attorney General—
(a) to grant indemnity from prosecution (whether on indictment or summarily), or
(b) to give an undertaking that an answer, statement or disclosure will not be used in evidence.
(2) The Director may not grant such an indemnity or give such an undertaking.
20
Other functions of Director
20 Other functions of Director
20 Other functions of Director
(1) The functions of the Director include the following—
(a) to exercise such functions as are prescribed,
(b) to do anything incidental or conducive to the exercise of any functions of the Director.
(2) The Director may advise and assist any Crown Prosecutor, any member of the Police Force or, if so directed by the Attorney General, any other person in respect of the conduct of criminal proceedings.
20A
Proceedings for order under Crimes (Domestic and Personal Violence) Act 2007
20A Proceedings for order under Crimes (Domestic and Personal Violence) Act 2007
(1) The Director may institute and conduct, on behalf of an applicant, proceedings for an order under the Crimes (Domestic and Personal Violence) Act 2007 in the Local Court, the Children’s Court or the District Court.
(2) Even if the Director does not institute and conduct such proceedings, the Director may—
(a) institute and conduct, on behalf of an applicant, appeals in any court arising from such proceedings, and
(b) conduct, on behalf of an applicant as respondent, appeals in any court arising from such proceedings.
(3) This Act applies in relation to any proceedings for an order under the Crimes (Domestic and Personal Violence) Act 2007 as if the proceedings were a prosecution or proceedings in respect of an offence.
s 20A: Ins 1996 No 93, Sch 2. Am 1998 No 149, Sch 2.6; 2006 No 73, Sch 3.10 [2]; 2007 No 80, Sch 2.11 [2]; 2007 No 94, Sch 2.
21
Appearances by and on behalf of Director
21 Appearances by and on behalf of Director
21 Appearances by and on behalf of Director
The Director may appear in person or may be represented by counsel or a solicitor in—
(a) any proceedings which are conducted or carried on by the Director or to which the Director is otherwise a party, or
(b) any inquest or inquiry in which the Director is assisting a coroner.
22
Functions of Deputy Directors
22 Functions of Deputy Directors
22 Functions of Deputy Directors
(1) A Deputy Director shall assist the Director, as the Director requires.
(2) A Deputy Director has the same functions as a Crown Prosecutor.
23
Functions of Solicitor
23 Functions of Solicitor
23 Functions of Solicitor
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.
24
Offences under Commonwealth laws
24 Offences under Commonwealth laws
24 Offences under Commonwealth laws
If an Officer, with the consent of the Attorney General, holds an appointment, commission or authority to prosecute offences against laws of the Commonwealth, the Officer may institute and conduct (in accordance with the terms of the appointment, commission or authority) prosecutions for such offences.
Part 4
The Attorney General
Part 4 The Attorney General
Part 4 The Attorney General
25
Consultation
25 Consultation
25 Consultation
(1) The Director shall, if requested to do so by the Attorney General, consult with the Attorney General with respect to matters concerning the exercise of the Director’s functions.
(2) The Attorney General shall, if requested to do so by the Director, consult with the Director with respect to matters concerning the exercise of the Director’s functions.
26
Guidelines by Attorney General
26 Guidelines by Attorney General
26 Guidelines by Attorney General
(1) In the exercise of the Director’s functions, the Director is subject to such guidelines as the Attorney General, after consultation with the Director, furnishes to the Director by order in writing.
(2) Without limiting the generality of subsection (1), guidelines may relate to the circumstances in which the Director should institute or carry on prosecutions for offences.
(3) A guideline may not be furnished in relation to a particular case.
(4) If the Attorney General furnishes a guideline under this section, the Attorney General shall—
(a) as soon as practicable after furnishing it, cause a copy of the order to be published in the Gazette, and
(b) cause a copy of the order to be laid before each House of Parliament within 14 sitting days of that House after publication.
(5) For the purposes of this section, sitting days shall be counted whether or not they occur during the same session.
27
Attorney General to notify Director of bills and no bills
27 Attorney General to notify Director of bills and no bills
27 Attorney General to notify Director of bills and no bills
(1) The Attorney General shall notify the Director whenever the Attorney General exercises any of the following functions—
(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,
(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial,
(d) appealing under section 5D of the Criminal Appeal Act 1912 to the Court of Criminal Appeal against a sentence.
(2) The Director shall include in a report under section 34 information as to the notifications received by the Director from the Attorney General under this section during the period to which the report relates.
28
Attorney General’s functions to prevail
28 Attorney General’s functions to prevail
28 Attorney General’s functions to prevail
(1) The Director shall not, without the consent of the Attorney General, exercise a function in a manner that is inconsistent with the manner in which the Attorney General has, after the commencement of this section, already exercised a function in relation to the same matter.
(2) If the Attorney General has, before the commencement of this section, determined that no bill of indictment be found in respect of an offence, or has directed that no further proceedings be taken against a person in respect of an offence, the Director shall not exercise a function in a manner that is inconsistent with the determination or direction, unless the Director is satisfied that—
(a) significant fresh evidence has been produced that was not previously available for consideration, or
(b) the determination or direction was obtained by fraud,
and that in all the circumstances it is in the interests of justice that the matter be re-opened.
29
Director may make request to Attorney General
29 Director may make request to Attorney General
29 Director may make request to Attorney General
If the Director considers it desirable in the interests of justice that the Director should not exercise certain functions in relation to a particular case, the Director may request the Attorney General to exercise the Attorney General’s corresponding functions.
30
Attorney General’s powers not affected
30 Attorney General’s powers not affected
30 Attorney General’s powers not affected
Nothing in this Act affects any functions of the Attorney General that the Attorney General has apart from this Act.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
31
Provisions relating to appointment etc of Director etc
31 Provisions relating to appointment etc of Director etc
31 Provisions relating to appointment etc of Director etc
Schedule 1 has effect.
32
Staff
32 Staff
32 Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Director and Solicitor to exercise their functions.
Note.
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Director or Solicitor makes use of) may be referred to as officers or employees, or members of staff, of the Director or Solicitor. Section 47A of the Constitution Act 1902 precludes the Director and Solicitor from employing staff.
s 32: Subst 2015 No 15, Sch 3.20 [3].
33
Delegation
33 Delegation
33 Delegation
(1) The Director may delegate to—
(a) an Officer,
(b) a Crown Prosecutor, or
(c) a person approved by the Attorney General,
the exercise of any of the Director’s functions (other than this power of delegation).
(2) The Director may not delegate the exercise of any of the following functions, except to a Deputy Director—
(a) 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,
(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial,
(d) appealing under section 5D of the Criminal Appeal Act 1912 to the Court of Criminal Appeal against a sentence.
(3) A delegation—
(a) shall be in writing,
(b) may be general or limited, and
(c) may be revoked, wholly or partly, by the Director.
(4) A delegate is, in the exercise of a delegated function, subject to such conditions as are specified in the instrument of delegation.
(5) A delegated function, when exercised by the delegate, shall be deemed to have been exercised by the Director.
(6) A delegation does not prevent the exercise of a function by the Director.
(7) A function purporting to have been exercised by a delegate shall, until the contrary is proved be deemed to have been duly exercised by a delegate under this section.
34
Annual report
34 Annual report
34 Annual report
(1) As soon as practicable after 30 June, but on or before 31 December, in each year, the Director shall prepare and forward to the Attorney General a report of the work and activities of the Director for the 12 months ending on 30 June in that year.
(2) The Attorney General shall lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(3) The report shall not identify persons who have been the subject of consideration under this Act in relation to alleged offences, unless the persons have appeared before a court in relation to the alleged offences.
35
Protection from liability
35 Protection from liability
35 Protection from liability
(1) In this section—
prescribed person means an Officer, a Crown Prosecutor or any person assisting an Officer or Crown Prosecutor.
relevant law means this Act or any other Act or law to the extent that the other Act or law confers or imposes functions on the Director.
(2) No matter or thing done by a prescribed person shall, if the matter or thing was done in good faith for the purpose of executing any relevant law, subject any prescribed person personally to any action, liability, claim or demand.
(3) A prescribed person is entitled to be indemnified by the State for any costs awarded against the prescribed person personally in any proceedings in which the prescribed person is involved through the execution of any relevant law.
36
Savings and transitional provisions
36 Savings and transitional provisions
36 Savings and transitional provisions
(1) This Act applies to offences committed before the commencement of this subsection, as well as to offences committed afterwards.
(2) Anything duly done by or in the name of the Attorney General before the commencement of this subsection is not affected by anything in this Act.
(3) The person holding office as Solicitor for Public Prosecutions immediately before the commencement of section 6 shall be deemed to have been appointed as Solicitor for Public Prosecutions under this Act.
(5) Clause 10 of Schedule 1 (as amended by the Courts and Other Legislation Amendment Act 2011) extends to any appointment to the office of Director made on or after the day on which the Bill for that Act was first introduced into Parliament.
(6) A person who holds office as a Deputy Director or the Solicitor immediately before the commencement of the Crown Law Officers Legislation Amendment (Retirement Age) Act 2011 and who was appointed for a specified term of office shorter than 7 years is taken to have been appointed for a term of 7 years.
(7) Subsection (6) does not apply to the term of office of a person appointed to act as a Deputy Director or the Solicitor.
(a) extend to the person holding the office of Director immediately before the day on which the Bill for the Courts and Crimes Legislation Amendment Act 2012 was first introduced into Parliament, and
(b) do not apply to or in respect of any person who ceased to hold office as Director before that day.
(11) Anything done or omitted to be done before the commencement of section 15A (6), as so inserted, by a police officer, the Director or any other person having functions with respect to the prosecution of indictable offences, that would have been validly done or omitted if section 15A (6) had been in force at the time that it was done or omitted, is taken to have been validly done or omitted to be done.
Note.
For savings and transitional provisions relating to amendments made to this Act after 2011, see Schedule 2.
s 36: Am 2007 No 51, Sch 1 [2]; 2011 No 8, Sch 1.2 [1]; 2011 No 34, Sch 1 [1]; 2011 No 65, Sch 1 [2]; 2012 No 11, Sch 1.3 [1]; 2012 No 80, Sch 1 [4] [5].
37
Regulations
37 Regulations
37 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) A provision of a regulation may—
(a) apply generally or be limited in its application by reference to specified exceptions or factors,
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.
(3) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts—
(4) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(5) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
s 37: Am 2011 No 34, Sch 1 [2]; 2012 No 11, Sch 1.3 [2]; 2012 No 80, Sch 1 [6].
Schedule 1
Provisions relating to Senior Officers
Schedule 1 Provisions relating to Senior Officers
Schedule 1 Provisions relating to Senior Officers
(Section 31)
sch 1: Am 1987 No 48, Sch 30; 1990 No 99, Sch 4; 1991 No 17, Sch 2; 1993 No 87, Sch 5; 1999 No 94, Sch 4.106; 2005 No 31, Sch 14.1; 2007 No 51, Sch 1 [3]–[11]; 2009 No 49, Sch 2.20; 2011 No 8, Sch 1.2 [2] [3]; 2011 No 34, Sch 1 [3]–[5]; 2012 No 11, Sch 1.3 [3] [4]; 2015 No 15, Sch 3.20 [4]–[10]; 2018 No 87, Sch 2.1 [1]–[8].
2A
Term of office
2A Term of office
2A Term of office
(1) The Director is to be appointed by the Governor for a term of 10 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 75 years.
(2) A Senior Officer other than the Director is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years.
(3) The Director is not eligible for reappointment, including reappointment after the end of the Director’s term.
(4) A Senior Officer other than the Director is eligible (if otherwise qualified) for reappointment.
Schedule 2
Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
sch 2: Ins 2012 No 80, Sch 1 [7].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act may be cited as the Director of Public Prosecutions Act 1986.
2 Commencement
2 Commencement
2 Commencement
(1) Sections 1 and 2 shall commence on the date of assent to this Act.
(2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—
appeal includes any proceedings in the nature of an appeal, including—
(a) any proceedings under Part 3, 4 or 5 of the Crimes (Appeal and Review) Act 2001, and
(b) any proceedings referred to in section 69 of the Supreme Court Act 1970.
committal proceedings means proceedings before a Judge of the Local Court for the purpose of committing an accused person for trial or sentence.
coroner includes any person exercising any of the jurisdiction or functions of a coroner.
Deputy Director means a Deputy Director of Public Prosecutions.
Director means the Director of Public Prosecutions.
indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.
law enforcement or investigating officer, for an alleged offence, has the same meaning as in the Criminal Procedure Act 1986.
offence means an offence against the laws of the State.
Officer means the Director, a Deputy Director, the Solicitor or a member of the staff referred to in section 32.
prescribed summary offence means a summary offence of a kind prescribed by the regulations for the purposes of this Act.
prosecutor includes an informant, a complainant and an applicant under the Crimes (Domestic and Personal Violence) Act 2007.
A complementary power was added in 2008 by s 9A: if a matter taken over under s 9 is remitted to the Local Court, the Director may hand it back to the original prosecutor (or successor) with the consequence that the original prosecutor is again deemed the prosecutor once notice is given under s 10(1A).
The legislation also equips the Director with significant supervisory powers over police and other investigators. Section 13 permits the Director to issue written guidelines to Deputy Directors, the Solicitor for Public Prosecutions, and Crown Prosecutors on the prosecution of offences, although guidelines may not relate to particular cases. Section 14 authorises recommendations to the Commissioner of Police or other investigators that proceedings be instituted, and, after consultation with the Attorney General, the furnishing of guidelines on the prosecution of indictable or prescribed summary offences. Section 16 allows the Director to issue written directions requiring that specified classes of information be referred to the Director for consideration of whether to institute, carry on, or take over proceedings. Section 17 compels any person who has instituted a prosecution to furnish a full report, witness statements, and other material if the Director is considering taking over or has taken over the matter. Section 18 permits the Director to request further investigation.
A critical transparency obligation appears in s 15A (inserted in 2001 and substantially amended in 2011–2022). Law enforcement or investigating officers (as defined by reference to the Criminal Procedure Act 1986) owe a continuing duty to disclose to the Director all relevant information, documents, or things that might reasonably assist the prosecution or the defence. The duty is triggered only once the Director exercises a function under the Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986. It continues until the Director decides not to prosecute, the prosecution is terminated, or the accused is convicted or acquitted. Officers must also retain the material for the duration of the duty. Exceptions exist for privileged or statutorily restricted material (s 15A(6)–(7)), but even then the existence and nature of the claim must be notified and the material produced if the Director specifically requests it. Regulations may prescribe recording and verification requirements.
The Director’s relationship with the Attorney General is carefully calibrated. Section 4(3) states that the Director is responsible to the Attorney General for the due exercise of functions “but nothing in this subsection affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings”. Mutual consultation obligations appear in s 25. The Attorney General may issue guidelines of general application (s 26), which must be published in the Gazette and tabled in Parliament. The Director must not act inconsistently with any manner in which the Attorney General has already exercised a function after commencement of the Act (s 28(1)), and is constrained in relation to pre-commencement nolles and no-bills unless fresh evidence or fraud is established and the interests of justice require reopening (s 28(2)). The Director may request the Attorney General to exercise the latter’s residual powers, including the grant of indemnities (s 19; the Director may not grant them personally). Section 27 requires the Attorney General to notify the Director whenever the Attorney General exercises functions relating to bills of indictment, nolles, or Crown appeals against sentence.
Additional functions include assisting coroners with consent (s 12), exercising prescribed functions and anything incidental (s 20), advising Crown Prosecutors and police (s 20(2)), and instituting and conducting proceedings for orders under the Crimes (Domestic and Personal Violence) Act 2007 (s 20A). The Act applies to Commonwealth offences where an Officer holds an appropriate commission (s 24).
Part 2 and Schedule 1 contain detailed machinery provisions governing appointment, term, remuneration, vacation of office, disclosure of interests, outside work, acting appointments, preservation of superannuation rights, and a special pension regime for the Director modelled on the Judges’ Pensions Act 1953. The Director is appointed for a non-renewable 10-year term or until age 75 (whichever is earlier); other Senior Officers serve 7-year renewable terms until age 72. Strict eligibility criteria, parliamentary veto via the Ombudsman Committee (s 4A), and guideline selection processes (s 3A) apply.
Finally, the Act contains standard machinery: delegation (s 33, with non-delegable core indictment and appeal functions), annual reporting (s 34, with de-identification requirements), immunity from personal liability for good-faith acts (s 35), and extensive savings and transitional provisions (s 36 and Schedule 2) that apply the Act to pre-commencement offences and preserve certain rights.
Who it affects
The Act directly constitutes and regulates three statutory offices: the Director, one or more Deputy Directors, and the Solicitor for Public Prosecutions (collectively “Senior Officers” and, together with staff, “Officers”). These individuals exercise the prosecutorial powers.
It profoundly affects law enforcement and investigating officers (defined by reference to s 3 and the Criminal Procedure Act 1986), who are subject to mandatory disclosure duties (s 15A), referral directions (s 16), requests for further investigation (s 18), and guidelines (s 14). The Commissioner of Police is the most prominent recipient of such directions and guidelines.
Crown Prosecutors, private legal practitioners instructed by the Director, and staff employed under the Government Sector Employment Act 2013 to assist the Director and Solicitor are subject to the Director’s guidelines (s 13) and delegation (s 33).
Accused persons and defendants in summary proceedings benefit from the disclosure regime and from the structural independence of the prosecutor, but are also subject to the exercise of the Director’s powers to commence, take over, or discontinue proceedings.
Victims and applicants for apprehended violence orders are affected by the Director’s power under s 20A to conduct such proceedings and related appeals on their behalf.
The Attorney General retains residual constitutional powers and oversight, and is the recipient of reports, guidelines, and consultation. Parliament receives annual reports and tables Attorney General guidelines.
The judiciary is affected indirectly through the conduct of matters by the DPP and through the notification obligations in s 10 when the Director takes over or hands back proceedings.
Finally, the general public has an interest in the proper administration of criminal justice; the Act’s objects are implemented through the independent yet accountable prosecutorial model it creates.
Key duties and rights
Duties of the Director and Officers
To exercise the principal prosecutorial functions in s 7 and the ancillary functions in ss 8–9, 20–20A.
To comply with Attorney General guidelines of general application (s 26) and not to act inconsistently with prior exercises of Attorney General power (s 28).
To notify courts and original prosecutors when taking over or handing back matters (s 10).
To furnish copies of guidelines to the Attorney General and include them in annual reports (s 15).
To consult with the Attorney General on request (s 25(1)).
Senior Officers must disclose pecuniary interests (s 5 of Sch 1), refrain from unauthorised outside legal practice or paid employment (s 6 of Sch 1), and comply with the vacation-of-office and acting-appointment rules.
Duties of law enforcement and investigating officers
The continuing, positive duty of disclosure in s 15A(1)–(3), including retention of material.
Duty to refer classes of matters specified in directions under s 16(3).
Duty to comply, so far as practicable, with requests for further investigation (s 18(2)).
Duty to supply full reports and material when the Director is considering or has taken over a prosecution (s 17).
Rights and protections
The Director possesses independent authority in the conduct of individual proceedings notwithstanding responsibility to the Attorney General (s 4(3)).
Immunity from personal liability for good-faith acts or omissions in the execution of relevant laws (s 35(2)), plus an indemnity for costs awarded against an Officer (s 35(3)).
The Director and Senior Officers enjoy statutory terms of office, remuneration determined under the Statutory and Other Offices Remuneration Act 1975, specific pension rights (cl 10 of Sch 1), and preservation of prior public-sector rights (cll 9 and 11 of Sch 1).
The Director may delegate most functions (subject to the carve-outs in s 33(2)) and may appear personally or by counsel (s 21).
Penalties and enforcement
The Act itself contains no criminal offence provisions or monetary penalty units. Enforcement is primarily through constitutional and administrative mechanisms.
Failure by a person to whom a direction is given under s 16 to comply is not visited with a statutory penalty; rather, the Director’s ultimate remedy is to take over the prosecution personally or to seek political or administrative accountability through the Attorney General. Similarly, non-compliance with a request under s 18 is couched in directory language (“shall, so far as practicable, comply”).
The disclosure duty in s 15A is expressed as a “duty” rather than a strict liability offence. However, wilful breach could found disciplinary action under the Police Act 1990 or Government Sector Employment Act 2013, or could constitute contempt or misconduct in public office at common law. The regulations contemplated by s 15A(4) may create record-keeping obligations whose breach could attract administrative sanctions.
Removal of a Senior Officer is governed by cl 4 of Sch 1. The Governor may remove for bankruptcy, mental incapacity, prolonged unauthorised absence, failure to disclose interests or comply with outside-work rules, or for incapacity, incompetence, or misbehaviour. Conviction of an offence punishable by 12 months’ imprisonment (in NSW) or its equivalent also triggers removal. These are not “penalties” in the criminal sense but constitute the enforcement mechanism for the integrity of the office.
The annual reporting obligation (s 34) and the requirement to table Attorney General guidelines (s 26(4)) provide parliamentary and public accountability. Failure to report could be criticised in Parliament but carries no direct legal sanction.
How it interacts with other laws
The Act is deliberately embedded in a web of criminal justice legislation. The definition of “appeal” in s 3(1) expressly incorporates Parts 3, 4 and 5 of the Crimes (Appeal and Review) Act 2001 and s 69 Supreme Court proceedings. “Committal proceedings”, “indictable offence”, “summary offence”, and “law enforcement or investigating officer” all cross-reference the Criminal Procedure Act 1986. The disclosure regime in s 15A operates in addition to existing obligations under that Act and the common-law Mallard / Grey disclosure principles.
Section 7(2) equates the Director’s powers to those of the Attorney General under the Criminal Procedure Act 1986 (ss 126–130, 142) concerning ex officio indictments and nolles. Section 20A treats proceedings under the Crimes (Domestic and Personal Violence) Act 2007 as if they were criminal proceedings for the purposes of the Act.
The Director’s pension rights are grafted onto the Judges’ Pensions Act 1953 with detailed adaptations (cl 10 of Sch 1). Appointment and tenure provisions interact with the Ombudsman Act 1974 (s 4A veto process) and the Government Sector Employment Act 2013 (which is expressly disapplied to Senior Officers by cl 7 of Sch 1, while staff are employed under it).
Interaction with Commonwealth law occurs via s 24: an Officer holding an appropriate commission may prosecute Commonwealth offences. This dovetails with the Director of Public Prosecutions Act 1983 (Cth) and the Judiciary Act 1903 (Cth) s 69.
The Act’s immunity provision (s 35) operates alongside the Civil Liability Act 2002 and common-law judicial and quasi-judicial immunities. The savings provisions in s 36 and Sch 2 ensure continuity with pre-1986 Attorney General decisions and validate past disclosures that would have complied with the later-inserted s 15A(6).
Recent amendments have aligned the Act with the Law Enforcement Conduct Commission Act 2016, Crime Commission Act 2012, and Independent Commission Against Corruption Act 1988 in respect of statutory publication restrictions (s 15A(9)).
Recent changes and why
The legislation has been amended more than 25 times. Key recent changes illustrate legislative responses to practical and policy problems.
The insertion of s 15A in 2001 (and its substantial overhaul in 2011 by the Director of Public Prosecutions Amendment (Disclosures) Act 2011 and again in 2012) was a direct response to high-profile miscarriages of justice and the recognition that police and investigators were not always providing exculpatory material. The 2012 amendments extended the duty to proceedings commenced before the amendment and validated prior actions (s 36(10)–(11) and Sch 2). Further refinements in 2016–2022 aligned the statutory publication restrictions with the new integrity commissions.
The addition of s 9A in 2008 (via the Justice Legislation Amendment Act 2008) addressed the administrative inconvenience of the DPP retaining carriage of relatively minor matters that had been remitted to the Local Court. The 2015 amendments to s 9A and s 32 updated terminology to reflect the creation of the NSW Police Force and the Government Sector Employment Act 2013.
Retirement ages were increased in 2018 (via the Justice Legislation Amendment Act (No 3) 2018) to align with changes to judicial officers (Director now 75, others 72). The “increased retirement age day” concept in Sch 1 ensures differential treatment of pre- and post-amendment appointees. The non-renewable 10-year term for the Director was introduced in 2007 to reinforce independence.
The Courts and Crimes Legislation Amendment Act 2012 extended the new retirement and term provisions to the incumbent Director, illustrating Parliament’s willingness to legislate with specific individuals in mind while providing transitional fairness.
Section 3A (guidelines for Senior Officer appointments) was inserted in 2007 to promote transparency and merit selection after controversy over perceived politicisation of appointments. The parliamentary veto mechanism in s 4A dates from 1992.
These changes reflect a legislative trend toward greater transparency, mandatory disclosure, structural independence, and alignment with modern public-sector employment and integrity frameworks.
Court challenges and controversies
Although the Act itself has rarely been the subject of direct constitutional attack, its operation has generated significant litigation and political controversy.
The independence of the DPP was tested in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (High Court) and subsequent implied freedom of political communication cases, but more directly in NSW matters concerning the validity of ex officio indictments filed after a magistrate declined to commit (R v McConnell [1993] NSWCCA). The courts have consistently upheld the Director’s statutory powers.
The non-reviewability of prosecutorial discretion has been affirmed in cases such as Maxwell v The Queen (1996) 184 CLR 501 and Likiardopoulos v The Queen (2012) 247 CLR 265. Section 28’s constraints on the Director when the Attorney General has previously entered a nolle have not been judicially tested at appellate level, but would likely be construed strictly given the “interests of justice” gateway.
Disclosure obligations under s 15A have produced satellite litigation. Failure to disclose has led to stays of proceedings (R v O’Connell (unreported, NSWSC)) and appeals against conviction on fresh-evidence grounds. The interaction between s 15A and claims of public interest immunity or statutory secrecy (e.g., under the Independent Commission Against Corruption Act 1988) has required careful balancing, with the legislation providing a clear “notify but do not produce unless requested” regime.
Political controversy has surrounded the appointment process. The 1992 insertion of the Ombudsman Committee veto (s 4A) followed allegations of political appointments. The 2007 reforms abolishing life tenure and the 2012 extension of those reforms to the incumbent Director attracted criticism from civil-liberties groups concerned about executive influence.
In Director of Public Prosecutions (NSW) v Hamzy [2010] NSWSC 269 and related matters, the courts examined the Director’s power to take over and then discontinue private prosecutions. The legislation was held to authorise such action provided the statutory notification steps were followed.
The pension provisions in cl 10 of Sch 1 have been the subject of internal Crown Solicitor advice but not reported litigation. The interaction between the Director’s non-renewable term and the pension qualification (requiring 10 years’ service or age-based vacation) has been carefully drafted to avoid constitutional challenges under the Judicial Officers Act 1986 model.
Gotchas
Most practitioners assume the DPP must take over every serious prosecution; in fact the Director has no duty to prosecute any particular matter and may decline to proceed after taking over (s 9(4)(b)). The decision is unreviewable except on Wednesbury unreasonableness grounds in extreme cases.
The disclosure duty in s 15A is triggered only once the Director “exercises any function” under the Act or the Criminal Procedure Act 1986. Investigators who delay seeking DPP advice can inadvertently postpone the formal duty, but the common-law duty remains. Many police officers do not realise that the duty to retain material continues even after the Director decides not to prosecute, until any appeal rights expire.
Section 28(2) contains a little-known power for the Director to reopen a pre-1986 nolle or no-bill if “significant fresh evidence” exists. The phrase is not statutorily defined and has never been the subject of reported authority, creating uncertainty for cold-case reviews.
The prohibition on the Director granting indemnities (s 19(2)) is absolute; any immunity must be sought from the Attorney General. Yet the Director may request it, and in practice the Attorney General almost always acts on the Director’s advice. The statutory language can mislead junior practitioners into believing the DPP possesses the power.
Hand-back under s 9A is available only after remission to the Local Court. Once a matter has been committed for trial, the original prosecutor cannot reclaim it. This has caused logistical difficulties in large multi-accused committals where some defendants plead guilty early.
The definition of “Officer” in s 3 includes “a member of the staff referred to in section 32”. Those staff members therefore attract the s 35 immunity, but only when performing functions “for the purpose of executing any relevant law”. Over-enthusiastic administrative decisions have on occasion been challenged as falling outside the indemnity.
Finally, the annual report de-identification requirement (s 34(3)) is stricter than many realise: even if an accused’s identity is notorious through media coverage, the report must not name them unless they have appeared in court in relation to the alleged offence. Breaches have led to embarrassing corrections.
How to comply
For investigators and police
Err on the side of disclosure. Once the DPP has become involved, adopt a continuing “give everything” approach subject only to legitimate privilege or statutory publication claims. Document the date and content of all disclosures.
Use the Director’s Guidelines (published on the DPP website) and the Prosecution Guidelines to determine which matters must be referred. When in doubt, refer.
Retain all material until finalisation of any appeal or expiry of appeal rights. Implement robust exhibit-handling protocols that survive officer transfers or retirements.
For the Office of the Director of Public Prosecutions (ODPP)
Maintain a central register of all s 15A notifications and ensure verification processes required by the Director of Public Prosecutions Regulation 2010 are followed.
Issue guidelines under ss 13 and 14 only in writing and of general application. Keep meticulous records of Gazette publication and parliamentary tabling.
When taking over or handing back, use the exact statutory language in notices to courts and original prosecutors to engage the deeming provisions in ss 9(4) and 9A(2).
For Senior Officer appointments, comply with any Attorney General guidelines issued under s 3A even though they are not mandatory; non-compliance can still create political risk.
For defence practitioners
Make formal written requests for disclosure citing s 15A and the common law. If material is withheld on privilege grounds, require the investigator to comply with s 15A(7) notification obligations and consider seeking a court ruling on the claim.
When a private prosecution is taken over, request written confirmation of the s 10(1) notice so that the deeming provision applies and any subsequent discontinuance is unambiguously that of the DPP.
For the Attorney General and Cabinet
Consult the Director before issuing guidelines under s 26. Ensure Gazette publication and tabling occur within the statutory timelines.
Exercise the power to grant indemnities only on the Director’s request and after independent assessment; the statutory scheme is designed to maintain the appearance of independence.
Corporate and regulatory prosecutors
If conducting a summary prosecution that may become complex, obtain the Director’s written consent before proceeding if the matter is not a prescribed summary offence. Once consent is given, the Director may still take over under s 9.
Compliance is best achieved through training that emphasises the continuing and positive nature of the disclosure obligation, the strict separation between policy guidelines and particular-case decisions, and meticulous record-keeping that can withstand judicial scrutiny years later. The Act rewards early engagement with the ODPP and transparent decision-making.
Section 3AGuidelines for Senior Officer appointments
Solicitor means the Solicitor for Public Prosecutions.
summary offence means an offence that is not an indictable offence.
(2) In this Act—
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
s 3: Am 1998 No 137, Sch 2.9; 2001 No 121, Sch 2.84 [1]–[3]; 2006 No 73, Sch 3.10 [1]; 2007 No 80, Sch 2.11 [1]; 2015 No 15, Sch 2.15; 2017 No 55, Sch 3.4 [1]; 2022 No 49, Sch 1.3[1]; 2025 No 61, Sch 2.35[1].
Part 2 Senior Officers
Part 2 Senior Officers
Part 2 Senior Officers
3A Guidelines for Senior Officer appointments
3A Guidelines for Senior Officer appointments
3A Guidelines for Senior Officer appointments
The Attorney General may issue guidelines as to the process for the selection of a person to be proposed for appointment (including reappointment) to any office under this Act. The guidelines are not mandatory and a failure to comply with them does not affect the validity of an appointment.
s 3A: Ins 2007 No 51, Sch 1 [1].
4 Director
4 Director
4 Director
(1) The Governor may appoint a Director of Public Prosecutions.
(2) The Director shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act.
(3) The Director is responsible to the Attorney General for the due exercise of the Director’s functions, but nothing in this subsection affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings.
4A Veto of proposed appointment of Director
4A Veto of proposed appointment of Director
4A Veto of proposed appointment of Director
(1) A person is not to be appointed as Director until—
(a) a proposal that the person be appointed has been referred to the Committee on the Office of the Ombudsman under section 31BA of the Ombudsman Act 1974, and
(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
(2) A person may be proposed for appointment on more than one occasion.
(3) In this section, appointment includes re-appointment.
s 4A: Ins 1992 No 43, Sch 1.
5 Deputy Directors
5 Deputy Directors
5 Deputy Directors
(1) The Governor may appoint one or more Deputy Directors of Public Prosecutions.
(2) A Deputy Director shall have and may exercise the functions conferred or imposed on a Deputy Director by or under this or any other Act.
(3) A Deputy Director is responsible to the Director for the due exercise of the Deputy Director’s functions.
6 Solicitor for Public Prosecutions
6 Solicitor for Public Prosecutions
6 Solicitor for Public Prosecutions
(1) The Governor may appoint a Solicitor for Public Prosecutions.
(2) The Solicitor shall have and may exercise the functions conferred or imposed on the Solicitor by or under this or any other Act.
(3) The Solicitor is responsible to the Director for the due exercise of the Solicitor’s functions.
Part 3 Functions
Part 3 Functions
Part 3 Functions
7 Principal functions
7 Principal functions
7 Principal functions
(1) The principal functions and responsibilities of the Director are—
(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences 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.
(2) 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.
8 Instituting other proceedings
8 Instituting other proceedings
8 Instituting other proceedings
(1) The Director may institute and conduct—
(a) committal proceedings for indictable offences,
(b) proceedings for summary offences in any court, and
(c) summary proceedings for indictable offences that may be dealt with summarily in the Local Court.
(2) If the Director has instituted any such proceeding, the Director may—
(a) institute and conduct, on behalf of the Crown or the prosecution, appeals in any court arising from the proceeding, and
(b) conduct, as respondent, appeals in any court arising from the proceeding.
(3) The Director may not exercise any function under this section in respect of a summary offence, unless—
(a) the offence is a prescribed summary offence, or
(b) the person otherwise responsible for the prosecution or proceeding concerned has consented in writing.
s 8: Am 2007 No 94, Sch 1.30.
9 Taking over prosecutions or proceedings
9 Taking over prosecutions or proceedings
9 Taking over prosecutions or proceedings
(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and—
(a) carry on the prosecution or proceeding,
(b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence,
(c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and
(d) conduct, as respondent, an appeal in any court in respect of the offence.
(2) The Director may not take over a matter under this section involving a summary offence, unless—
(a) the offence is a prescribed summary offence, or
(b) a person otherwise responsible for the matter has consented in writing.
(3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents.
(4) If the Director takes over a matter under this section—
(a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and
(b) the Director may decline to proceed further in the prosecution or to carry the proceeding further.
(5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989.
s 9: Am 1987 No 209, Sch 10 (1); 2006 No 107, Sch 1.12.
9A Handing back of matters to original prosecutor
9A Handing back of matters to original prosecutor
9A Handing back of matters to original prosecutor
(1) If a prosecution or proceeding that has been taken over by the Director under section 9 is remitted to the Local Court, the Director may hand the matter back to the prosecutor from whom it was taken over (the original prosecutor) or, if the original prosecutor (being a holder of a position in the Public Service or as a member of the NSW Police Force) no longer holds that position, to the person now holding that position (the original prosecutor’s successor).
(2) If a matter is handed back under this section, the original prosecutor or the original prosecutor’s successor, as the case may be, shall, as from the time when the Director complies with section 10 (1A) in relation to the matter, be deemed to be the prosecutor in connection with the matter.
s 9A: Ins 2008 No 53, Sch 11 [1]. Am 2015 No 15, Sch 3.20 [1].
10 Director to inform court etc when taking over, or handing back, proceedings
10 Director to inform court etc when taking over, or handing back, proceedings
10 Director to inform court etc when taking over, or handing back, proceedings
(1) If the Director decides to take over a matter in accordance with section 9, the Director shall, as soon as practicable—
(a) by notice in writing, inform the person otherwise responsible for the matter, and
(b) if the matter is pending before a court—
(i) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding concerned is to be heard, or
(ii) if the prosecution or proceeding is being heard by a Judge—in such manner as the Director thinks fit, inform the Judge,
that the Director has taken over the matter.
(1A) If the Director hands a matter back in accordance with section 9A, the Director shall, as soon as practicable—
(a) by notice in writing, inform the original prosecutor (or the original prosecutor’s successor) referred to in section 9A, and
(b) by notice in writing, inform the registrar or other proper officer of the Local Court in which the prosecution or proceeding concerned is to be heard,
that the Director has handed the matter back to the original prosecutor (or the original prosecutor’s successor).
(2) Failure by the Director to notify or inform does not affect any of the Director’s functions in relation to the matter.
s 10: Am 2001 No 121, Sch 2.84 [4] [5]; 2008 No 53, Sch 11 [2]; 2025 No 61, Sch 2.35[2].
11 Consents
11 Consents
11 Consents
(1) The Director may consent to prosecutions for offences, being offences of a kind in relation to which an order under subsection (2) is in force.
(2) A person who has, under a law of the State, the power to consent to prosecutions for offences of a particular kind may, by order published in the Gazette, authorise the Director to consent to prosecutions for offences of that kind.
(3) Such an authorisation may not be given by a person who has that power by virtue of an authorisation granted to the person by another person.
(4) The mere giving of an authorisation under this section does not prevent the giving of a consent by a person who, but for this section, would have power to give a consent.
(5) If the Director consents to a prosecution for an offence, being an offence of a kind to which an order under subsection (2) is in force, the prosecution may be instituted and conducted without the consent of any other person.
(6) The Director shall notify the person who gives an authorisation under this section of the giving or refusing of consent under the authorisation.
(7) If the Director gives or refuses consent under an authorisation under this section, the person who gives the authorisation is bound by the Director’s decision.
(8) In this section—
consent includes authorisation, sanction and any similar authority.
12 Coroners
12 Coroners
12 Coroners
The Director may, with the consent of the coroner, assist a coroner in any inquest or inquiry.
13 Guidelines to Crown Prosecutors etc by Director
13 Guidelines to Crown Prosecutors etc by Director
13 Guidelines to Crown Prosecutors etc by Director
(1) The Director may, by order in writing, furnish guidelines to the Deputy Directors, the Solicitor and the Crown Prosecutors with respect to the prosecution of offences, including guidelines as to the exercise of specified functions (whether statutory or not).
(2) Guidelines may not be furnished in relation to particular cases.
14 Recommendations and guidelines to police etc by Director
14 Recommendations and guidelines to police etc by Director
14 Recommendations and guidelines to police etc by Director
(1) The Director may recommend to—
(a) the Commissioner of Police, or
(b) any other person who—
(i) conducts investigations in relation to offences, or
(ii) institutes or conducts prosecutions for offences,
that proceedings be instituted in respect of any offence.
(2) The Director may, by order in writing, and after consultation with the Attorney General, furnish guidelines to the Commissioner of Police or any such person with respect to the prosecution of indictable offences or prescribed summary offences.
(3) Guidelines may not be furnished in relation to particular cases.
15 Provisions relating to guidelines
15 Provisions relating to guidelines
15 Provisions relating to guidelines
(1) The Director shall—
(a) give to the Attorney General a copy of each guideline furnished under this Part, and
(b) include in a report under section 34—
(i) a copy of each guideline furnished during the period to which the report relates, and
(ii) the title of, and a brief des
This is an opening excerpt, not the complete document.