The Director of Public Prosecutions (CDPP) is created by statute and has the functions and powers given to the Director by legislation. Those functions and powers are found in sections 6 and 9 of the Director of Public Prosecutions Act 1983 (the DPP Act) and in specific legislation including the Proceeds of Crime Act 2002.
The main functions of the Director are to prosecute offences against Commonwealth law and to confiscate the proceeds of Commonwealth crime. The Director also has a number of miscellaneous functions including:
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The Director has a number of specific powers which can be exercised as part of the conduct of prosecution action. These include the power to ‘no bill’ a prosecution, to grant an ‘indemnity,’ to take over a private prosecution, to file an ex officio indictment, and to consent to conspiracy charges being laid in a particular case. Statistics about the way in which the CDPP exercises these powers are reported in the CDPP’s Annual Report every year.
After a defendant has been committed for trial, the question sometimes arises whether the prosecution should continue. This can arise either as a result of an application by the defendant or after review by the CDPP. A submission made to the Director to discontinue such a matter is known as a ‘no bill’ application.
The DPP Act empowers the Director to give what is known in shorthand as an ‘indemnity’ to a potential witness.
Section 9(6) of the DPP Act authorises the Director to give an undertaking to a potential witness in Commonwealth proceedings, which is to the effect that any evidence the person may give, and anything derived from that evidence, will not be used in evidence against the person, other than in proceedings in relation to giving false evidence. Section 9(6D) empowers the Director to give an undertaking to a person that he or she will not be prosecuted under Commonwealth law in respect of a specified offence or specified conduct. Section 9(6B) empowers the Director to give an undertaking to a person that any evidence he or she may give in proceedings under State or Territory law will not be used in evidence against them in a Commonwealth matter.
Traditionally, it has been open to any person to bring a private prosecution for a criminal offence. That right is protected in Commonwealth matters by section 13 of the Crimes Act 1914, and is expressly preserved under section 10(2) of the DPP Act.
Under section 9(5) of the DPP Act, the Director has the power to take over a prosecution for a Commonwealth offence that has been instituted by another person. The Director is empowered to either carry on the prosecution or, if appropriate, to discontinue it.
In general terms, there are two basic types of prosecution action. Less serious offences are dealt with at a Magistrates Court (or ‘Local Court’) level. In some of these matters, the CDPP or the defence makes an election to have the matter dealt with in a Magistrates Court. In other cases, there is no election, and the matter must proceed before a Magistrate according to the relevant legislation.
As a general rule, more serious offences are dealt with ‘on indictment.’ Where those matters are contested, they are heard before a judge and jury. In most jurisdictions, where a matter is indictable, a preliminary hearing is conducted by a Magistrate. This preliminary hearing is called a ‘committal proceeding’. At the conclusion of the hearing, the Magistrate will make a determination as to whether there is sufficient evidence for the case to be tried before a judge and jury.
Under the DPP Act, the Director has the power to file an indictment against a person who has not been committed for trial.
The consent of the Director is required before proceedings for Commonwealth conspiracy offences can be commenced.
All of the Director’s powers and functions are exercised according to the Prosecution Policy of the Commonwealth.