Advice about potential prosecutions
An agency can request the DPP’s written advice in relation to a potential prosecution. The DPP will provide advice about whether:

  • there is a reasonable prospect of conviction
  • the prosecution is in the public interest
  • a summary prosecution should proceed to committal because of the defence of mental impairment or unfitness to stand trial.

The DPP does not give advice about operational or investigative matters or whether to file charges in a particular jurisdiction.

Chapter 10 of the Director’s Policy sets out when the DPP will provide advice to an external agency. It also sets out when the DPP expects an external agency to request the DPP’s advice.

A request for advice from an agency must:

  • be in writing
  • set out:
    • what advice is sought
    • how the request meets the criteria in paragraph 61 of the Director’s Policy
  • include an endorsement from a supervising officer that the request for advice:
    • meets the criteria in paragraph 61 of the Director’s Policy; and
    • addresses:
      • what advice is sought; and
      • how the request meets the criteria in paragraph 61 of the Director’s Policy
  • note any urgency that may require an expedited response.
  • enclose:
    • the charge sheets or a list of charges
    • a summary of the evidence
    • the brief of evidence if advice is sought about whether charges should be filed.  At the very least the record of interview and statements of any complainants must be provided.

Requests for advice must be sent to:

  • advice@opp.vic.gov.au; or
  • or if a hard copy is necessary, the Manager, Policy & Specialised Legal Division, Office of Public Prosecutions, DX 210290.

Upon receiving a request for advice, the OPP will provide the external agency with an acknowledgement of receipt. Within 7 days of receiving the request, the OPP will:

  • determine, in accordance with this policy, whether the requested advice will be given; and
  • inform the external agency whether the requested advice will be given.

The OPP will provide a letter of advice to the external agency within eight weeks of the matter being allocated to a solicitor. This time frame should be truncated in urgent cases. The solicitor must communicate any inability to comply with this time frame to the external agency.

Advice about summary prosecutions involving the defence of mental impairment or unfitness to stand trial
The Magistrates’ Court has no power to deal with unfitness to stand trial (‘unfitness’). If unfitness is established by evidence in a matter involving an indictable offence in the summary jurisdiction of the Magistrates’ Court, the matter must proceed to committal or the charges must be withdrawn. Similarly, if an accused in the summary jurisdiction of the Magistrates’ Court establishes the defence of mental impairment (‘mental impairment’), the court must discharge the accused.

If unfitness or mental impairment is established by evidence in a matter involving an indictable offence in the summary stream of the Magistrates’ Court, and Victoria Police considers that a supervision order is necessary, Victoria Police may request advice from the DPP about whether the matter should be transferred to the committal stream and listed for a filing hearing. The request must be accompanied by:

  • a report from an appropriately qualified and experienced psychiatrist, psychologist or neuropsychologist addressing the matters in s 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 regarding unfitness and/or the matters in s 20(1) of that Act regarding mental impairment; and
  • a report from Victoria Police explaining why a supervision order is necessary by reference to the matters in paragraph 35 of the Director’s Policy.

If unfitness or mental impairment is established by evidence in a matter in the Children’s Court, and Victoria Police considers that a longer supervision order is necessary, Victoria Police may request the DPP to take over the matter and proceed to committal. The request must be accompanied by:

  • a report from an appropriately qualified and experienced psychiatrist, psychologist or neuropsychologist addressing the matters in s 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 regarding unfitness and/or the matters in s 20(1) of that Act regarding mental impairment; and
  • a report from Victoria Police explaining why a longer supervision order is necessary by reference to the matters in paragraph 36 of the Director’s Policy (with any necessary modifications).

The DPP will not consider any requests for advice from Victoria Police about summary matters involving unfitness or mental impairment which do not comply with the above paragraphs.