Requesting advice from the DPP
Information for Victoria Police and external agencies
Requesting advice about a potential prosecution
When will the DPP provide advice to Victoria Police and other external agencies?
Chapter 10 of the Director’s Policy sets out:
- when the DPP will provide advice to an external agency
- when the DPP expects an external agency to request advice from the DPP
- what advice the DPP will provide.
The DPP does not provide advice:
- over the phone
- about operational or investigative matters
- about whether to file charges in a particular jurisdiction.
How to request advice from the DPP
Requests for advice must be in writing and include the following information:
- what advice is being sought
- how the request for advice meets the criteria in Chapter 10 of the Director’s Policy
- an endorsement from a supervising officer that the request meets the criteria in the Director’s Policy
- any urgency to the advice (for example summary offences will soon be out of time).
We require the following materials:
- charge sheets or list of charges
- summary of facts
- brief of evidence (if advice is sought about whether charges should be filed).
The brief must include transcripts of any record of interview (ROI) and any video audio recorded evidence (VARE). Advice files will not be allocated until transcripts are provided.
Please send the request to advice@opp.vic.gov.au.
We prefer to receive materials electronically. Any hard copy materials may be sent to:
The Manager
Policy and Specialised Legal
Office of Public Prosecutions
PO Box 13085
Melbourne VIC 8010
Timeframe for providing advice
When we receive a request for advice, we will determine whether the request meets the criteria in the Director’s Policy and confirm whether the DPP will provide advice.
Our usual time frame is eight weeks from the time the advice is allocated to a solicitor. In urgent cases, we will do our best to respond more quickly.
Requests by Victoria Police to uplift indictable charges where mental impairment or unfitness is raised
Uplift requests
Victoria Police may request advice from the DPP about whether a summary stream matter should be transferred to the committal stream and listed for a filing hearing if:
- the summary stream matter involves an indictable offence
- unfitness or mental impairment is established by evidence
- Victoria Police consider that a supervision order is necessary.
If unfitness or mental impairment is established by evidence in a matter involving an indictable offence in the Children’s Court, and Victoria Police consider that a longer supervision order is necessary, Victoria Police may request advice from the DPP about whether the matter should be transferred to the committal stream.
When to make an uplift request?
Before making an uplift request, make sure the case meets the following criteria:
- The matter involves some indictable charges.
- There is a current 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.
- Victoria Police consider that a supervision order is necessary, with reference to the matters set out in paragraph 38 of the Director’s Policy.
How to make an uplift request?
Please send the request to advice@opp.vic.gov.au and include the following materials:
- completed CMIA Questionnaire
- expert report
- charge sheets
- summary of facts
- brief of evidence
- information about any current treatment and support in place for the person.
We prefer to receive materials electronically. Any hard copy materials may be sent to:
The Manager
Policy and Specialised Legal
Office of Public Prosecutions
PO Box 13085
Melbourne VIC 8010
Timeframe for considering uplift requests
Our usual timeframe is at least eight weeks from the time the matter is allocated to a solicitor. In urgent cases, we will do our best to respond in a shorter timeframe.
Factors the DPP will consider when deciding whether to uplift a matter
Paragraph 38 of the Director’s Policy provides that the DPP will only uplift matters involving mental impairment or unfitness where the DPP considers that a supervision order is necessary. The DPP will consider these factors:
- Whether a supervision order is necessary to protect the community.
- Any treatment or support in place for the accused, the accused’s compliance with that treatment or support and the extent to which that treatment or support makes the accused less dangerous to the community.
- The seriousness of the offence.
- Any prior or subsequent offending.
- The likelihood that the County Court would release the accused unconditionally.
- The fact that in deciding whether to make a supervision order the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Indemnities and undertakings
Indemnities and undertakings
Indemnities and undertakings are means of allowing the prosecutor to call a witness who might otherwise rely on the privilege against self-incrimination.
What is an undertaking?
An undertaking is a document in which the DPP undertakes pursuant to s 22(1)(cb) of the Public Prosecutions Act 1994 to a person that an answer given, or statement or disclosure made, by that person in a specified proceeding will not be used in evidence against that person in any criminal proceeding, other than a proceeding in respect of the falsity of evidence given by that person.
What is an indemnity?
An indemnity is a document by which the DPP grants pursuant to s 22(1)(ca) of the Public Prosecutions Act 1994 indemnity from prosecution for any summary or indictable offence to a person on account of a promise given by that person to give evidence, or an understanding or expectation that that person will give evidence, in a specified proceeding. Indemnities are exceedingly rare as they provide complete immunity from prosecution.
Applying to the DPP for an undertaking or indemnity
Chapter 6 of the Director’s Policy sets out when the DPP will provide an undertaking or an indemnity to a witness who may raise the privilege against self-incrimination. The DPP will only grant an undertaking of indemnity if satisfied that it is in the public interest to do so. If the undertaking or indemnity relates to a matter currently being prosecuted by the OPP, please contact the OPP solicitor with carriage.
If the undertaking or indemnity relates to a matter that will be prosecuted by the OPP, if charges are laid, Victoria Police and other external agencies should send an initial request for advice as to whether the witness may be eligible for an undertaking or indemnity to advice@opp.vic.gov.au. The request should include the following materials:
- A cover letter which clearly identifies the evidence that the witness proposes to give that is said to be incriminating and which addresses why an indemnity or undertaking is in the public interest (noting that the granting of an indemnity is extremely rare), with reference to the factors set out in paragraph 45 of the Director’s Policy.
- Any other statements or interviews by the witness that have been made without the expectation of an indemnity or undertaking.
- The brief of evidence against the principal offender(s).
- The brief of evidence against the witness (if any).
- A signed acknowledgment by the witness which confirms that the witness understands the following:
- if an undertaking is granted, it does not grant immunity from prosecution but is merely an undertaking that the evidence given by the witness will not be subsequently used against them and/or
- if an indemnity is granted, any immunity from prosecution conferred by the indemnity is provisional upon the giving of true and frank evidence and that the indemnity may be revoked if the witness does not give such evidence in court.Â
We prefer to receive all materials electronically. Any hard copy materials may be sent to:
The Director
Policy and Specialised Legal
Office of Public Prosecutions
PO Box 13085
Melbourne VIC 8010
Please note, this policy for an undertaking or indemnity was updated in July 2022.
International extradition
International extradition requests are made by the Australian Government. However, requests for international extradition of persons to Victoria must first be considered by the DPP. If Victoria Police wish to make an international extradition request, please contact advice@opp.vic.gov.au as a first step.
Interstate prisoner transfer
Example: A person is serving a prison sentence in Western Australia. There are outstanding indictable charges in Victoria. The DPP may request an interstate prisoner transfer, to transfer the prisoner to Victoria to prosecute them for the outstanding indictable charges.
If Victoria Police wish to apply for an interstate prisoner transfer, please contact advice@opp.vic.gov.au as a first step.
Interstate extradition
Example: A person is living in Queensland. There are outstanding indictable charges in Victoria. Victoria Police wish to apply for an interstate extradition to bring the person from Queensland to Victoria to face criminal prosecution for those outstanding charges.
Interstate extradition is a matter for Victoria Police. The OPP is not involved in this process and does not provide advice about this process.