Version No. 034
Public Prosecutions Act 1994
No. 43 of 1994
Version incorporating amendments as at 1 December 2009
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
Part 2—Director of Public Prosecutions
4–8Repealed
9Acting Director
10Director is responsible to Attorney-General
11Appearance by Director
12Annual report
Part 3—Chief Crown Prosecutor
13Appointment
14Role of Chief Crown Prosecutor
15Terms and conditions
15ASalary sacrifice—Chief Crown Prosecutor
16Resignation
17Suspension and removal from office
18Pension of Chief Crown Prosecutor and of his or her partner
and children
19Acting Chief Crown Prosecutor
19ASalary sacrifice—Acting Chief Crown Prosecutor
20Chief Crown Prosecutor is responsible to Director
21Exercise of powers in cases of conflict of interest etc.
Part 4—Functions and Powers of Director
22Functions of Director
23Director's Committee
24Matters to which Director must have regard
25Power to discontinue criminal proceedings
26Guidelines
27Director to be provided with certain information
28Director may request police assistance
29Director may make request to Attorney-General
30Delegation
Part 5—Crown Prosecutors
31Appointment
32Terms and conditions
32ASalary sacrifice—Crown Prosecutors
33Resignation
34Removal from office
35Pensions of Senior Crown Prosecutors and of their partners
and children
36Functions of Crown Prosecutors
Part 5A—Associate Crown Prosecutors
36AAppointment
36BTerms and conditions
36BASalary sacrifice
36CResignation
36DRemoval from office
36EFunctions of Associate Crown Prosecutors
Part 6—Solicitor for Public Prosecutions
37Appointment
38Functions of Solicitor for Public Prosecutions
39Delegation
Part 7—Office of Public Prosecutions
40Office of Public Prosecutions
41Functions of Office
Part 8—Committee for Public Prosecutions
42Committee for Public Prosecutions
43Functions of Committee
44Meetings of Committee
45Annual report
Part 9—Miscellaneous
46Immunity
47Outcome of trial cannot be challenged etc. on ground relating
to special decision
48Judicial notice
48AConsolidated annual report
49Supreme Court—limitation of jurisdiction
50Regulations
51Transitional provisions
51ATransitional provisions (1998 amendments)
52Transitional provisions (1999 amendments)
53Transitional provision (2004 amendment)
54Transitional provision (2006 amendment)
55Validation provision
56Repealed
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SCHEDULE—Repealed55
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 034
Public Prosecutions Act 1994
No. 43 of 1994
Version incorporating amendments as at 1 December 2009
1
Public Prosecutions Act 1994
No. 43 of 1994
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
S. 1(a) amended by Nos 36/1995 s.10(1), 62/1999 s.3(1).
(a)to provide for the appointment of a Chief Crown Prosecutor, Crown Prosecutors, Associate Crown Prosecutors and a Solicitor for Public Prosecutions and set out their respective functions and powers;
S. 1(ab) inserted by No. 62/1999 s.3(2).
(ab)to set out the functions and powers of the Director of Public Prosecutions;
(b)to require that certain decisions be made by the Director of Public Prosecutions only after obtaining the advice of a Committee on the decision;
(c)to make fresh provision with respect to the manner of dealing with certain contempts of court;
(d)to establish an Office of Public Prosecutions;
(e)to establish a Committee for Public Prosecutions;
(f)to repeal the Director of Public Prosecutions Act 1982.
2Commencement
s. 2
(1)This Part comes into operation on the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 1 July 1994, it comes into operation on that day.
S. 3 amendedby No. 4/2009 s.37(Sch. 1 item21.2) (ILA s.39B(1)).
3Definitions
(1)In this Act—
S. 3(1) def. of Associate Crown Prosecutor inserted by No. 36/1995 s.10(2)(a).
Associate Crown Prosecutor means an Associate Crown Prosecutor appointed under Part 5A;
S. 3(1) def. of Australian lawyer insertedby No. 18/2005 s.18(Sch. 1 item90.1).
Australian lawyer has the same meaning as in the Legal Profession Act 2004;
Chief Crown Prosecutor means Chief Crown Prosecutor appointed under Part 3;
Crown Prosecutor includes a Crown Prosecutor appointed under Part 5 as a Senior Crown Prosecutor;
S. 3(1) def. of Director amended by No. 62/1999 s.4.
Director means Director of Public Prosecutions appointed under section 87AB of the Constitution Act 1975;
Director's Committee means a Director's Committee under section 23;
S. 3(1) def. of domestic partner insertedby No. 4/2009 s.37(Sch. 1 item21.1).
domestic partner of a person means—
(a)a person who is, or was at the time of the person's death, in a registered domestic relationship with the person; or
(b)a person to whom the person is not married but with whom, in the opinion of the Minister, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender);
S. 3(1) def. of legal practitioner insertedby No. 18/2005 s.18(Sch. 1 item90.1).
legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;
S. 3(1) def. of partner insertedby No. 4/2009 s.37(Sch. 1 item21.1).
partner of a person means—
s. 3
(a)in relation to a person who became entitled to benefits under this Act before the commencement of section 9 of the Constitution Amendment (Judicial Pensions) Act 2008—
(i)the person's husband, wife, widower or widow; or
(ii)a person of the opposite sex who, though not married to the person, in the opinion of the Minister lives with the person, or lived with the person at the date of the person's death, on a bona fide domestic basis as the person's husband or wife;
(b)in any other case, the person's spouse or domestic partner;
S. 3(1) def. of special decision amended by Nos 36/1995 s.10(2)(b)(i)(ii), 35/1996
s. 453(Sch. 1 item 69.1), 50/2006 s.36.
special decision means a decision—
(a)to make presentment of a person for an offence on which the person was not committed for trial except in the following circumstances—
(i)the person was committed for trial on an offence that—
(A)is not materially different from; or
(B)is founded on the same facts as; or
s. 3
(C)forms or is part of a series of offences of the same or a similar character as—
the offence for which the prosecution intends to make presentment;
(ii)the person, or a legal practitioner representing the person, has consented in writing to presentment being made for that offence;
(iii)the person, or a legal practitioner representing the person, has indicated in writing an intention to plead guilty to that offence; or
(b)subject to guidelines established by the Committee for Public Prosecutions under section 43(1)(d), to enter a nolle prosequi, or not to take within the period prescribed under section 353(2) of the Crimes Act 1958 any step mentioned in that section, in relation to the charge or all the charges on which a person was committed for trial on a committal proceeding; or
*****
(d)to make presentment of a person for an offence if a Crown Prosecutor has declined to make, or an Associate Crown Prosecutor or another legal practitioner briefed to advise the Director has advised against making, presentment of that person for that offence or for an offence that is not materially different from that offence; or
(e)to enter a nolle prosequi in relation to a charge if a Crown Prosecutor, Associate Crown Prosecutor or another legal practitioner briefed to advise the Director has advised against the entering of a nolle prosequi in relation to that charge or has advised that that charge should be proceeded with; or
s. 3
(f)to appeal against, or seek any relief or remedy in respect of, an order of the Supreme Court or the County Court quashing, or granting a permanent stay of, a presentment or of a count or counts in a presentment on the ground that for the person to be tried for the offence or offences charged in the presentment or in the count or counts (as the case requires) would constitute an abuse of process; or
(g)to issue guidelines under section 26(1); or
(h)of any other kind that, in the opinion of the Director, should be treated as a special decision for the purposes of this Act.
S. 3(1) def. of spouse insertedby No. 4/2009 s.37(Sch. 1 item21.1).
spouse of a person means a person to whom the person is, or was at the time of the person's death, married.
S. 3(2) insertedby No. 4/2009 s.37(Sch. 1 item21.2).
(2)For the purposes of the definition of domestic partner in subsection (1)—
(a)registered domestic relationship has the same meaning as in the Relationships Act 2008; and
s. 3
(b)in determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
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Part 2—Director of Public Prosecutions
S. 4
amended by No. 36/1995 s.4(1), repealedby No. 62/1999 s.5.
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S. 5
amended by Nos 109/1994 s.34(12)(a), 46/1998
s. 7(Sch. 1), repealed by No. 62/1999 s.5.
*****
Ss 6, 7 repealedby No. 62/1999 s.5.
*****
S. 8
amended by No. 109/1994 s.34(12)(b), repealed by No. 62/1999 s.5.
*****
9Acting Director
s. 9
(1)The Governor in Council may appoint a person who is eligible for appointment as the Director to act as the Director during any period when—
(a)the office of Director is vacant; or
(b)the Director is absent from duty or is, for any reason, unable to carry out the duties of the office.
(2)The Governor in Council may at any time terminate the appointment of the Acting Director.
(3)The Acting Director has, during the period of the appointment, the same powers and duties as the Director and may perform any of the functions of the Director.
(4)The Acting Director is entitled to the remuneration and allowances (if any) fixed in respect of him or her by the Governor in Council.
S. 9(5) amended by Nos 46/1998
s. 7(Sch. 1), 108/2004 s.117(1) (Sch.3 item167.1).
(5)The office of Acting Director is not an authority within the meaning ofsection 104(1) of the Public Administration Act 2004.
10Director is responsible to Attorney-General
s. 10
(1)The Director is responsible to the Attorney-General for the due performance of his or her functions and exercise of his or her powers under this or any other Act.
(2)Subject to this Act, nothing in subsection (1) affects or takes away from the authority of the Director in respect of the institution, preparation and conduct of proceedings under this or any other Act.
11Appearance by Director
S. 11 amended by No. 35/1996
s. 453(Sch. 1 item 69.2).
The Director may appear in person, or be represented by a legal practitioner, in any proceedings instituted or conducted by the Director or arising out of proceedings instituted or conducted by the Director.
12Annual report
(1)The Director must, in respect of each financial year, prepare an annual report on his or her operations during that year and submit the report to the Attorney-General not later than 31 October next following the financial year.
(2)The report must—
(a)be prepared in a form and contain information determined by the Director to be appropriate; and
(b)contain a copy of any statement submitted to the Attorney-General under section 23(6) that is laid before the Legislative Council or the Legislative Assembly by the Attorney-General during that year; and
(c)contain a copy of any statement submitted to the Attorney-General under section 23(6) during that year in relation to which the Director did not act under section 23(7); and
(d)contain any other information required by the Attorney-General.
(3)The Attorney-General must cause each annual report submitted to him or her under this section to be laid before the Legislative Council and the Legislative Assembly within 7 sitting days of the Legislative Council or the Legislative Assembly, as the case may be, after the report has been received by the Attorney-General.
s. 12
(4)If the Director fails to submit an annual report to the Attorney-General by 31 October in any year, the Attorney-General must report or cause to be reported that failure and the reasons for that failure to each House of the Parliament.
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Part 3—Chief Crown Prosecutor
13Appointment
s. 13
S. 13(1) amendedby No. 18/2005 s.18(Sch. 1 item90.2).
(1)The Governor in Council may appoint as Chief Crown Prosecutor a person who is an Australian lawyerof not less than 8years' standing.
S. 13(2) amended by No. 36/1995 s.4(2).
(2)Subject to this Part, a person appointed as Chief Crown Prosecutor holds office for a term of 10years or for the longer term, not exceeding 20years, that is specified in his or her instrument of appointment and is eligible for re-appointment[1].
14Role of Chief Crown Prosecutor
The Chief Crown Prosecutor—
S. 14(a) amended by No. 36/1995 s.10(3).
(a)subject to the general direction and control of the Director, has control of the day to day management of the Crown Prosecutors and Associate Crown Prosecutors so as to ensure that they function as a group in an effective and efficient manner; and
(b)has, in addition to the functions and powers given to the Chief Crown Prosecutor by or under this or any other Act, all the functions and powers of a Crown Prosecutor.
15Terms and conditions
(1)The Chief Crown Prosecutor is entitled to be paid the same salary as that payable to a judge of the County Court (other than the Chief Judge) under section 10 of the County Court Act 1958.
(2)The Chief Crown Prosecutor must not, without the consent of the Director and in accordance with any conditions attached to that consent, engage in the practice of the law or in any paid employment (whether within or outside Victoria) outside the duties of his or her office.
S. 15(3) amended by Nos 46/1998
s. 7(Sch. 1), 108/2004 s.117(1) (Sch.3 item167.1).
(3)The office of Chief Crown Prosecutor is not an authority within the meaning ofsection 104(1) of the Public Administration Act 2004.
S. 15A insertedby No. 83/2008 s.20.
15ASalary sacrifice—Chief Crown Prosecutor
s. 15A
(1)The Chief Crown Prosecutor may by notice in writing to the Attorney-General enter into an arrangement under which the Chief Crown Prosecutor agrees to receive the whole or part of his or her total amount of future salary as a Chief Crown Prosecutor as non-salary benefits of an equivalent value.
(2)The notice must specify a date from which the arrangement is to take effect which must be the date on which the notice is given or a later date.
(3)The Chief Crown Prosecutor may vary or revoke a notice he or she has given under subsection (1) by notice in writing to the Attorney-General.
(4)The notice of variation or revocation must specify a date from which the variation or revocation is to take effect which must be the date on which the notice is given or a later date.
(5)If, before the commencement of section 20 of the Salaries Legislation Amendment (Salary Sacrifice) Act 2008 (the 2008 Act), a Chief Crown Prosecutor entered into an arrangement under which the Chief Crown Prosecutor agreed to receive the whole orpart of his or her total amount of salary as Chief Crown Prosecutor as non-salary benefits of an equivalent value, that arrangement, by virtue of this subsection, has and is deemed always to have had full effect according to its tenor as if it had been authorised under this section.
(6)On and after the commencement of section20 of the 2008 Act, an arrangement referred to in subsection (5) may only be varied or revoked in accordance with subsection (3).
(7)In subsection (1) non-salary benefits has the same meaning as it has in clauses 3(5) and 3(6) of Schedule1A to the Public Administration Act 2004.
16Resignation
s. 16
The Chief Crown Prosecutor may resign from office by delivering to the Governor a signed letter of resignation.
17Suspension and removal from office
(1)The Governor in Council may suspend the Chief Crown Prosecutor from office.
(2)If the Chief Crown Prosecutor is suspended from office the Attorney-General must cause a full statement of the ground or grounds of the suspension to be laid before each House of Parliament on or before the 7th sitting day of that House after the suspension.
(3)The Governor in Council must remove the Chief Crown Prosecutor from office if each House of Parliament on or before the 7th sitting day of that House after the statement is laid before it passes a resolution declaring that the Chief Crown Prosecutor ought to be removed from office.
(4)If both Houses of Parliament do not pass a resolution of the kind specified in subsection (3) within the time specified in that subsection, the Governor in Council must without delay remove the suspension and restore the Chief Crown Prosecutor to office.
(5)The Chief Crown Prosecutor can only be removed from office in accordance with this section.
S. 18 (Heading) inserted by No. 23/2008 s.21(1).
18Pension of Chief Crown Prosecutor and of his or her partner and children
s. 18
S. 18(1)
amended by No. 23/2008 s.21(2).
(1)The Chief Crown Prosecutor and his or her partnerand children are entitled to pensions in the same circumstances and at the same rates and on the same terms and conditions as a judge of the County Court (other than the Chief Judge) and his or her partnerand children are entitled to under section 14 of the County Court Act 1958.
(2)A pension under this section is liable to be suspended or determined in the same circumstances and to the same extent as pensions under section 14 of the County Court Act 1958 are liable to be suspended or determined.
S. 18(2A) inserted by No. 19/2001 s.17(1).
(2A)A pension under this section may be commuted in the same circumstances and to the same extent as pensions under sections 14AC, 14AF and 14AI of the County Court Act 1958 may be commuted and for that purpose sections 14AA to 14AI of that Act apply with such modifications as are necessary.
S. 18(3) amended by No. 19/2001 s.17(2).
(3)All pensions under this section and any payments of lump sums provided by the commutation of those pensions are payable out of the Consolidated Fund which is to the necessary extent appropriated accordingly.
19Acting Chief Crown Prosecutor
s. 19
(1)The Governor in Council may appoint a person who is eligible for appointment as the Chief Crown Prosecutor to act as the Chief Crown Prosecutor during any period when—
(a)the office of Chief Crown Prosecutor is vacant; or
(b)the Chief Crown Prosecutor is absent from duty or is, for any reason, unable to carry out the duties of the office.
(2)The Governor in Council may at any time terminate the appointment of the Acting Chief Crown Prosecutor.
(3)The Acting Chief Crown Prosecutor has, during the period of the appointment, the same powers and duties as the Chief Crown Prosecutor and may perform any of the functions of the Chief Crown Prosecutor.
(4)The Acting Chief Crown Prosecutor is entitled to the remuneration and allowances (if any) fixed in respect of him or her by the Governor in Council.
S. 19(5) amended by Nos 46/1998
s. 7(Sch. 1), 108/2004 s.117(1) (Sch.3 item167.1).
(5)The office of Acting Chief Crown Prosecutor is not an authority within the meaning ofsection 104(1) of the Public Administration Act 2004.
S. 19A insertedby No. 83/2008 s.21.
19ASalary sacrifice—Acting Chief Crown Prosecutor
(1)An Acting Chief Crown Prosecutor may by notice in writing to the Attorney-General enter into an arrangement under which the Acting Chief Crown Prosecutor agrees to receive the whole or part of his or her total amount of future remuneration as Acting Chief Crown Prosecutor as non-salary benefits of an equivalent value.
(2)The notice must specify a date from which the arrangement is to take effect which must be the date on which the notice is given or a later date.
(3)An Acting Chief Crown Prosecutor may vary or revoke a notice he or she has given under subsection (1) by notice in writing to the Attorney-General.
(4)The notice of variation or revocation must specify a date from which the variation or revocation is to take effect which must be the date on which the notice is given or a later date.
(5)If, before the commencement of section 21 of the Salaries Legislation Amendment (Salary Sacrifice) Act 2008 (the 2008 Act), an Acting Chief Crown Prosecutor entered into an arrangement under which the Acting Chief Crown Prosecutor agreed to receive the whole orpart of his or her total amount of remuneration as Acting Chief Crown Prosecutor as non-salary benefits of an equivalent value, that arrangement, by virtue of this subsection, has and is deemed always to have had full effect according to its tenor as if it had been authorised under this section.