What agencies does the OPP prosecute cases for?
The OPP is Victoria’s primary prosecution agency. Most cases we prosecute are investigated by Victoria Police however the OPP also provides its services to other agencies and conducts prosecutions on behalf of those agencies.

For example, the OPP prosecutes cases on behalf of:

  • WorkSafe
  • Legal Services Board
  • Consumer Affairs Victoria
  • Victorian Fisheries Authority; and
  • Independent Broad-based Anti-corruption Commission
  • Environmental Protection Authority
  • Transport Safety Victoria.

Interacting with the DPP and OPP
An agency can request the DPP’s written advice in relation to a potential criminal prosecution. The types of issues that agencies typically request advice about are:

  1. the appropriateness of charges,
  2. the sufficiency of evidence,
  3. whether the matter is in the public interest
  4. and whether there are reasonable prospects of conviction.

As a general rule the OPP does not give advice about operational or investigative matters or whether to file charges in a particular jurisdiction.

Chapter 13 of the Policy of the Director of Public Prosecutions for Victoria sets out when the OPP will provide advice to an external agency (when what how and in what form). It also sets out when the DPP expects an external agency to request our advice.

The discretion whether or not to provide advice to an agency rests with the DPP and conditions or limitations may be placed on any advice given.

The DPP will only provide further assistance to an agency in relation to a prosecution if that agency has acted substantially in accordance with any advice given.

Any request for advice must be accompanied by a detailed memorandum which addresses each of the matters set out in the Director’s Policy Chapter 13 paragraph 6.

What is a brief of evidence?
A brief of evidence for a matter that is proceeding in the indictable stream is known as a ‘hand-up brief’. It contains the documents that the prosecution intends to produce as evidence to prove the charges.

It must be carefully prepared and contain all the documentation set out in section 110 of the Criminal Procedure Act 2009 (CPA).

There are also certain rules relating to witness statements and audio visual recordings which must be complied with (see sections 112 and 113 of CPA). Special care should also be taken in relation to the disclosure of addresses and telephone numbers of witnesses (see section 114 CPA).

If, prior to filing charges, an agency request advice from the DPP, the OPP will expect the agency to have prepared a full brief of evidence and be in a position to provide it.

In recent times the OPP has been working from electronic copies of the brief of evidence. In fact we encourage this, especially where the documentation is voluminous. However the electronic brief must be easy to navigate and contain an index.

If a brief of evidence submitted by an agency is not in the correct form the OPP will send it back and ask for it to be resubmitted.

Please note that if an agency intends to file an electronic brief, leave of the court must first be sought. If an electronic brief is filed with the court without leave being granted, the court will consider that no brief has been filed and may award costs against the agency.

Therefore we suggest best practice would be for an agency to apply to the court at the Filing Hearing for leave to file an electronic brief. If this is not done then a Special Mention should be listed prior to the date of service of the hand-up brief to obtain leave.

Tests to be applied to prosecuting
The decision whether to prosecute is the most important decision in the prosecution process. It can profoundly affect people’s lives.

A prosecution may only proceed if:

  • there is a reasonable prospect of a conviction; and
  • a prosecution is in the public interest.

Each of these criteria is explained further in Chapter 1 of the Director’s Policy. When an agency is contemplating filing charges it should turn its mind to the factors outlined in paragraphs 4 to 10 of Chapter 1.

Who actually files the charges?
The charges should be in the name of the ‘informant’. For Victoria Police this is always the lead investigating officer. However for an external agency it is often the Head of that agency.

An agency should turn its mind to who is actually empowered to file charges under the relevant Act.

It is not, however, the DPP.

Disclosure and rolling disclosure obligations
Great care needs to be taken to ensure compliance with all disclosure obligations.

For more information on disclosure obligations see Director’s Policy Chapter 2 paragraph 3.

The CPA makes it very clear that the informant has continuing obligations of disclosure after the brief of evidence is served on the accused (see section 111 CPA).

Which agency has conduct of the matter?
To see a diagram which sets out the division of responsibilities as between the OPP and the external agency, click here.

The process differs slightly for IBAC and Legal Services Board (LSB) matters. To see a diagram relevant to those two agencies, here.

Victims support
The OPP’s Witness Assistance Service (WAS) employs experienced social workers to supports victims and witnesses of serious crime through the court process.

For more information about supporting victims and witnesses click on this link to the OPP’s comprehensive Victims and Witnesses website, which has been created to help those people navigate the criminal justice system.

If you want to refer a victim or witness to WAS you should speak with the OPP instructing solicitor about that process.

Audio-Visual Unit
The OPP’s Audio-Visual Unit is responsible for the production, post-production and reproduction of audio-visual evidence. Skilled technicians convert audio-visual evidence into a court-compatible format, edit closed-circuit television footage and construct ‘motion tracking’ of accused when requested. They also extract images from computer hard drives, edit records of interview, and edit and convert phone intercepts, text messages, mobile phone video footage, computer graphics and police re-enactment videos.

OPP contacts