ANNUAL REPORT2012/2013

Office of the Director of Public Prosecutions, NSW

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ContentsKey Result Areas - Highlights ___________________________________________________ 4

Overview by the Director of Public Prosecutions ____________________________________ 5

Organisation ________________________________________________________________ 8

ODPP NSW Organisational Structure_____________________________________________ 9

Significant Committees _______________________________________________________ 10

Internal Committees _________________________________________________________ 12

External Committees_________________________________________________________ 13

Audit and Risk ______________________________________________________________ 14

Outline of a Typical Prosecution Process _________________________________________ 15

Director of Public Prosecutions Act 1986: Key Provisions ____________________________ 16

Ethnics Affairs Priority Statement _______________________________________________ 18

Report of the Senior Crown Prosecutor __________________________________________ 20

Report of the Solicitor for Public Prosecutions _____________________________________ 24

Report of the Deputy Solicitor for Public Prosecutions (Operations) ____________________ 26

Productivity ________________________________________________________________ 29

Report of the Deputy Solicitor for Public Prosecutions (legal) _________________________ 33

Recovery of Proceeds of Crime ________________________________________________ 40

Government Information (Public Access) Act 2009 NSW _____________________________ 43

Delegations ________________________________________________________________ 46

Report of the General Manager, Corporate Services ________________________________ 47

Financial Information_________________________________________________________ 59

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Key Result Areas - Highlights

82% of all matters resulted in findings of guilt, by way of verdictfollowing trial or guilty plea. Approximately $1.1 million worth of proceeds of crime property

was recovered. 70% of all election referrals were processed within 14 days. 70% of committals resulted in early resolution.

WAS celebrated its 20th Anniversary. 73% of victims and witnesses rated ODPP service as good or

very good. WAS made 110,666 case management service contacts with

victims and witnesses in 4940 matters. Child sexual assault cases constituted 44.1% of WAS work.

100% of all Statutory Reports were provided within theprescribed timeframes throughout 2012/2013. The Net Cost of Service was $2.3 million better than budget.

Conducted leadership training progam for managers:Management Development Program. Developed and strengthened Health and Wellbeing strategies

for all staff. Flu vaccination program was introduced. Staff turnover for 2012/2013 was 11.6% in comparison with a

13.7% turnover in 2011/2012. A 50% increase in training programs for staff during this

period.

Law reform submissions made in relation to sentencing law,the Bail Act, recommendations relating to people withcognitive and mental health impairments in the CriminalJustice System, jury directions and child protection legislation. Participation in over 30 interagency committees including

stakeholders in the Criminal Justice System. New ODPP website was developed.

Just, Independentand TimelyConduct ofProsecutions

Victims andWitness Services

Accountability andEfficiency

Staff Resourcingand Development

Improvements inthe CriminalJustice System

The ODPP achieved strong outcomes in all its key result areas in the 2012/2013 reportingperiod.

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Overview by the Director of PublicProsecutions

Lloyd Babb SC BA MA LLBDirector of Public Prosecutions

Lloyd Babb SC was appointed as New SouthWale’s third Director of Public Prosecutions inJuly 2011. Before his appointment to theposition of DPP, Lloyd practised as a barristerfor 16 years. Following Lloyd’s admission as asolicitor, he worked in private practice and forthe Office of the Director of PublicProsecutions before admission as a barrister.In 1998 Lloyd was appointed a CrownProsecutor. He was then seconded as Directorto the Criminal Law Review Division 2003 to2005 and as an Acting Public Defender from2006 until 2007. Lloyd was appointed bothSenior Counsel and Crown Advocate in 2007and was a member of the Bar Council of theBar Association of New South Wales between1995 and 2000.

This 26th Annual Report of my Officecoincides with the 25 year anniversary of theOffice. In December last year this milestonewas celebrated by all staff and provided anexcellent opportunity to remind us how farwe have evolved from our early days ofrotary phones, a rudimentary database andcramped offices on the outskirts ofDarlinghurst. Technological advancementshave allowed us to develop a much moreefficient prosecution service but now, asthen, our real strength rests in the quality ofour staff.

I am especially proud of the volume andquality of the important work my staff hasaccomplished this year. Our work in NewSouth Wales is of vital importance to all itscitizens. While we are known for our legalwork, we are supported ably by small and

dedicated teams of financial, administrativeand technological professionals.

To this end, we have updated and enhancedour training program over the last twelvemonths. Our objective is not only to improveour work performances, but to engender aworking environment where staff cancontinually improve and expand their skills.Our retention rate of staff is high, and webelieve this willingness of people toestablish careers in the ODPP is of greatbenefit to them, the Office and the State.

The work required behind the scenes toenable a first class prosecution service isimmense. Young lawyers must be trained,mentored and afforded continuousopportunity for improvement whileexperienced lawyers have to keep abreastof an ever-changing legislation alongside

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changes to investigation and policingtechniques.

My long term goal is to oversee a trainingprogram that encourages and nurtures thebest possible legal practitioners in NewSouth Wales. The data is promising - thisyear we increased the number of trainingprograms by 50%, and attendance to thecourses has risen by 61%.

Our enhanced training programs areimperative in light of the increases inmatters we are now handling in the DistrictCourt. Last year we recorded a significantincrease in the matters committed for trialfrom the Local Court to the District Court.

2013 marks the 20th anniversary of ourWitness Assistance Service (WAS), one ofthe most important services the ODPPoffers the people of NSW. WAS officers playa critical role in the prosecution process,acting as support and information hubs forvictims of serious crimes and/or theirfamilies. WAS officers have assistedthousands of victims of crimes through theprosecution process, and in many casesensured that additional services such ascounselling were provided after a case hadbeen finalised. It is a unique service and onethat has been copied and implemented byprosecution offices throughout the world.

Every two years the ODPP surveys victimsand non-expert civilian witnesses who havebeen involved in a trial. This year’s resultsare especially encouraging: 73% rate ourservices as good or very good. The surveyswere sent to a random selection of 4,405people, and invited respondents to rate ourservices and their value. The results enablethe ODPP to evaluate processes or, whereindicated, improve the way in which wedeliver services.

Every year I am honoured to present myawards for excellence. In this financial yearJackie Eastburn and Colin Cupitt were thedeserving recipients. Their hard work hasnot gone unnoticed by their colleagues andI was delighted to offer this recognition oftheir contributions to the ODPP.

Independence and Accountability

No guideline under section 26 of theDirector of Public Prosecutions Act hasbeen received from the Attorney General,nor has notice been received from him of theexercise by him of any of the functionsdescribed in section 27. No request hasbeen made to the Attorney Generalpursuant to section 29.

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The Deputy Directors of Public Prosecutions

Keith Alder B. Leg SDeputy Director of Public Prosecutions

Keith Alder was admitted as a solicitor in 1988,and in that same year was employed as asolicitor in the Office of the Director of PublicProsecutions. Keith was appointed as theManaging Lawyer of the Penrith Regional Officebefore his appointment as a Trial Advocate in1998. In 2010 Keith was appointed as a DeputySenior Crown Prosecutor subsequent to hisappointment as a Crown Prosecutor in 2001.Keith has undertaken secondments with theOffice of the Ombudsman and the IndependentCommission Against Corruption. Keith wasappointed to the position of Deputy Director ofPublic Prosecutions in November 2011.

John Pickering SC BEC LLBDeputy Director of Public Prosecutions

John Pickering SC commenced his employmentas a solicitor in the Office of the Director of Publicprosecutions following his admission as asolicitor in 1993. In 1998 John was appointed tothe position of Trial Advocate and soon after in2001 was appointed as a Crown Prosecutor.Following John’s appointment as an ActingDeputy Senior Crown Prosecutor in January2012 he was appointed to the role of DeputyDirector of Public Prosecutions in February 2012.In 2012 John was also appointed SeniorCounsel.

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OrganisationThe Office of the Director of PublicProsecutions (the ODPP) was establishedby the Director of Public Prosecutions Act1986 (“the DPP Act”) and commencedoperation on 13 July, 1987. The creation ofa Director of Public Prosecutions changedthe administration of criminal justice in NewSouth Wales. The day to day control ofcriminal prosecutions passed from thehands of the Attorney General to theDirector of Public Prosecutions.

There now exists a separate andindependent prosecution service whichforms part of the criminal justice system inNew South Wales. That independence is asubstantial safeguard against corruptionand interference in the criminal justicesystem.

Functions

The functions of the Director are specified inthe DPP Act and include: Prosecution of all committal proceedings

and some summary proceedings beforethe Local Court;

Prosecution of indictable offences in theDistrict and Supreme Courts;

Conduct of District Court, Court ofCriminal Appeal and High Court appeals

on behalf of the Crown; and Conduct of related proceedings in the

Supreme Court and Court of Appeal.

The Director has the same functions as theAttorney General in relation to: Finding a bill of indictment, or

determining that no bill of indictment befound, in respect of an indictable offence,in circumstances where the personconcerned has been committed for trial;

Directing that no further proceedings betaken against a person who has beencommitted for trial or sentence; and

Finding a bill of indictment in respect ofan indictable offence, in circumstanceswhere the person concerned has notbeen committed for trial.

Section 21 of the DPP Act provides that theDirector may appear in person or may berepresented by counsel or a solicitor in anyproceedings which are carried on by theDirector or in which the Director is a part.

The functions of the Solicitor for PublicProsecutions are prescribed in section 23 ofthe DPP Act. These are:(a) to act as solicitor for the Director in the

exercise of the Director’s functions; and(b) to instruct the Crown Prosecutors and

other counsel on behalf of the Director.

The functions of Crown Prosecutors are setout in section 5 of the Crown ProsecutorsAct 1986. They include:(a) to conduct, and appear as counsel in,

proceedings on behalf of the Director(b) to find a bill of indictment in respect of an

indictable offence(c) to advise the Director in respect of any

matter referred for advice by the Director(d) to carry out such other functions of

counsel as the Director approves.

OUR ROLETo provide for the people of New SouthWales an independent, efficient, fair and

just prosecution service.

OUR VISIONA criminal prosecution system that isaccepted by the community as being

equitable and acting in the public interest.

OUR STAKEHOLDERSThe NSW Parliament, the Judiciary, the

Courts, Police, victims, witnesses, accusedpersons and others in the criminal justice

system and the community.

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ODPP NSW Organisational Structure

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Significant CommitteesExecutive Board

The ODPP Executive Board comprises the Director (Chair), the two Deputy Directors, theSenior Crown Prosecutor, Solicitor for Public Prosecutions, General Manager CorporateServices and two independent members. The current independent members are Mr JohnHunter and Ms Janis Watson-Wood.

The Board meets bi-monthly and its role is to:

advise the Director on administrative and managerial aspects of the ODPP with a view toensuring that it operates in a co-ordinated, effective, economic and efficient manner;

advise the Director on issues relating to strategic planning, management improvement andmonitoring performance against strategic plans;

monitor the budgetary performance of the ODPP and advise the Director on improving costeffectiveness;

identify and advise the Director on initiatives for change and improvement in the criminaljustice system; and

provide periodic reports on its operations to the Attorney General and report to the AttorneyGeneral upon request on any matter relating to the exercise of its functions, or, afterconsultation with the Attorney General, on any matters it considers appropriate.

An agenda is published prior to each meeting and minutes kept of proceedings.

Management Committees

This Committee comprises the Director (Chair), the two Deputy Directors, the Senior CrownProsecutor, Solicitor for Public Prosecutions, General Manager Corporate Services, DeputySolicitors (Legal and Operations) and Assistant Solicitors (Sydney, Sydney West and Country).

The Committee meets monthly and its primary functions are:

to report, discuss and resolve upon action on operational and management issues affectingthe ODPP, including (but not limited to) workload and resource allocation;

to consider monthly financial reports and to initiate action where funding and expenditureissues are identified;

to discuss issues affecting major policy decisions and other matters requiring referral to theODPP Executive Board; and

serve as a forum for discussion by senior management of any matter affecting the operationsof the ODPP, including the activities, challenges and initiatives of the various areas withinthe Office.

An agenda is published prior to each meeting and minutes kept of proceedings.

Audit and Risk CommitteeThe Audit and Risk Committee, in accordance with Treasury Policy, comprises of anindependent chair, an independent member and a representative of ODPP management.Representatives of the Audit Office of NSW, the Deputy Director, the Solicitor’s Office and theGeneral Manager Corporate Services attend meetings by invitation.

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The Committee meets four times each year and monitors:

internal audit; risk management; and anti-corruption functions across all areas of the Office’s operations, ensuring that probity and

accountability issues are addressed.

An agenda is published prior to each meeting and minutes kept of proceedings.

Information Management and Technology Steering Committee

The IM&T Steering Committee (IM&TSC) comprises the Chief Information Officer (currently theDeputy Solicitor (Operations) as Chair; Solicitor for Public Prosecutions, General ManagerCorporate Services, Deputy Solicitor (Legal), Assistant Solicitor (Country), a Deputy SeniorCrown Prosecutor, Manager Information Management & Technology Services and the AssistantSolicitor (Operations).The Committee meets bi-monthly and is the management body convened to:

ensure and promote effective use and management of information and technology; guide the selection, development and implementation of information and technology projects;

and assure the strategic and cost effective use of information and systems to support ODPP

activities.

An agenda is published prior to each meeting and minutes are kept of proceedings andpublished on the ODPP Intranet.

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Internal Committees

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External Committees

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Audit and Risk

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Outline of a Typical Prosecution Process

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Director of Public Prosecutions Act 1986:Key Provisions

Section 4(3)

The Director is responsible to the AttorneyGeneral for the due exercise of theDirector’s functions, but nothing in thissubsection affects or derogates from theauthority of the Director in respect of thepreparation, institution and conduct of anyproceedings.

Section 7(1)

The principal functions and responsibilitiesof the Director are: to institute and conductprosecutions in the District and SupremeCourts; to institute and conduct appeals inany court; to conduct, as respondent,appeals in any court.

Section 7(2)

The Director has the same functions as theAttorney General in relation to: finding billsof indictment; determining that no bill befound; directing no further proceedings;finding ex officio indictments.

Section 8

Power is also given to the Director toinstitute and conduct proceedings of eithera committal or summary nature in the LocalCourt.

Section 9

The Director can take over prosecutionscommenced by any person (and see section17).

Section 11

The power to give consent to variousprosecutions has been delegated to theDirector.

Section 13

The Director can furnish guidelines toCrown Prosecutors and officers within theODPP.

Section 14

Guidelines can also be issued to theCommissioner of Police with respect to theprosecution of offences.

Section 15

Guidelines furnished each year must bepublished in the Annual Report.

Section 15A

Police must disclose to the Director allrelevant material obtained during aninvestigation that might reasonably beexpected to assist the prosecution ordefence case.

Section 18

The Director may request police assistancein investigating a matter that may be takenover by the Director.

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Section 19

The Director may request the AttorneyGeneral to grant indemnities and giveundertakings from time to time, but may notdo so himself/herself.

Section 24

Appointment to prosecute Commonwealthoffences is provided for by this section.

Section 25

Consultation with the Attorney General isprovided for.

Section 26

The Attorney General may furnishguidelines to the Director.

Section 27

The Attorney General shall notify theDirector whenever the Attorney Generalexercises any of the following functions:

finding a bill of indictment; determining thatno bill be found; directing no furtherproceedings; finding ex officio indictments;appealing under s5D of the Criminal AppealAct 1912 to the Court of Criminal Appealagainst a sentence. The Director shallinclude in the Annual Report information asto the notifications received by the Directorfrom the Attorney General under this sectionduring the period to which the report relates.

Section 29

If the Director considers it desirable in theinterests of justice that the Director shouldnot exercise certain functions in relation to aparticular case, the Director may request theAttorney General to exercise the AttorneyGeneral’s corresponding functions.

Section 33

The Director may delegate certain of his/herfunctions.

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Ethnics Affairs Priority Statement

Ethnics Affairs Priority Statement

The ODPP continues to meet itscommitment to the Community and EthnicAffairs Priority Statement. All staffendeavour to ensure that members of thecommunity are afforded every respect whendealing with the ODPP. The Officecontinues to adhere to the Memorandum ofUnderstanding implemented in 2008 withthe Community Relations Division and theDepartment of Attorney General andJustice. All witnesses, victims and accusedare entitled to access free interpreterservices and the Office consistently ensuresthese entitlements are met.

Witness Assistance Service

The ODPP Witness Assistance Service (theWAS) prioritises service delivery to sexualassault complainants, family of deceasedvictims in homicide and danger drivingmatters, domestic violence victims, children,Aboriginal and Torres Strait Islanders,people with a disability, the elderly and othervulnerable witnesses and special needsgroups. A number of victims and witnessescan experience cultural or languagebarriers. WAS Officers consult with ODPPsolicitors and Crown Prosecutors to assessthe special needs and support issuesvictims and witnesses may have when theydeal with our solicitors and give evidence atcourt. While some victims and witnesseswho have cultural and language difficultiescan often communicate effectively, theirinteraction with the criminal justice systemcan cause stress and anxiety. The WASutilises interpreter services for both face-to-face and telephone contacts with victimsand witnesses so that the victim or witness

can use their primary language. Victims arealso able utilise both interpreters andtranslation services when writing theirvictims impact statements. When aninterpreter is required for giving evidence atcourt, the interpreters are booked by theODPP solicitors through the courts.

Training

The ODPP training programs for all staffhave components covering culturaldiversity. Training providers are required toadhere to the ODPP Code of Conduct,which requires respect for individualdifferences and non-discriminatorybehaviours.

In March 2013 the Office engaged the Anti-Discrimination Board of NSW to conduct aseries of training sessions for all staff titled‘Bullying and Harassment Prevention:Creating Safe and Healthy Workplaces’.These sessions were recorded and areavailable through the Online DVD ResourceLibrary to all staf. Judge Richard CogswellSC presented a paper to all staff at the 2012Annual Solicitors Conference titled ‘Ethics ofProsecuting’.

Training supporting cultural awareness hasbeen offered in the specific areas of‘Working Effectively with Refugee Survivors’presented by Anne Mainsbridge from theSurvivors of Torture and Trauma Assistanceand Rehabilitation Service (December2012), ‘Working with clients fromAfghanistan, Iran and Iraq’ run byCommunity Migrant Resource Centre andLegal Aid (June 2013) and ‘Understandingof Islam and Muslims’ which was run by the

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Islamic Sciences & Research AcademyAustralia and Corrective Services NSW(September 2012).

Corporate Induction training held in April2013 included information on the ODPP’spolicies on ‘Dignity and Respect in theWorkplace’, ‘Workplace relations Policy(Building a Harassment-Free Workplace)’and ‘Workplace Wellbeing Policy’.

Interagency Groups

The ODPP regularly participates ininteragency meetings and fora whichaddress issues for victims of crime andvulnerable witnesses. The ODPPparticipates in a number of committees andconsultation processes with representatives

of ethnic communities. The WAS regularlyliaises with a range of relevant services andregularly updates the resources availablefor people from culturally and linguisticallydiverse background.

International Delegations

In the last year, the Office has hosted adelegation from China, a group of TianjinJudges and, as part of a state wide visit oflegal agencies undertaken to enhance theirprosecution skills, a delegation of AfricanProsecutors. The Office also hosted twoprosecutors from the Maldives for 3 weeksat the Drug Court.

The ODPP will continue to host internationaldelegations.

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Report of the Senior Crown ProsecutorMark Tedeschi AM QC MA LLBSenior Crown Prosecutor

Mark Tedeschi has been a Crown Prosecutor since1983. He was previously a private barrister. He hasbeen a Queen’s Counsel since 1988, and SeniorCrown Prosecutor since 1997. He is the author of abook in international trade law and of numerousarticles on environmental law, social welfare law,business law, mental health law and criminal law. Heis the President of the Australian Association ofCrown Prosecutors and a visiting Professor in theCentre for Transnational Crime Prevention at theUniversity of Wollongong. He is a member of theBoard of Directors of the National Art School inSydney.

The Crown Prosecutors of New SouthWales make up the largest “floor” of criminalbarristers in the State. They are counselwho, as statutory office holders under theCrown Prosecutors Act 1986, conduct, andappear as counsel, in proceedings on behalfof the Director; to find a bill of indictment inrespect of an indictable offence; to advisethe Director in respect of any matter referredfor advice by the Director; and to carry outsuch other functions of counsel as theDirector approves.

The vast bulk of criminal jury trials in theDistrict and Supreme Courts and criminalappeals in this State are prosecuted by aCrown Prosecutor. Occasionally theyappear at coronial inquests, inquiries underPart 7 of the Crimes (Appeal and Review)Act 2001 and in unusually complexcommittal proceedings.

The Crown Prosecutors are a repository ofsome of the most experienced and ablecriminal lawyers in Australia. TheirChambers encourage substantial collegiateinteraction in the finest traditions of the Barand take great pride in being able to applytheir considerable expertise to represent the

community of New South Walesindependently and fearlessly.

This talent has been recognised over theyears when Crown Prosecutors have beenseconded to such organisations as thePolice Integrity Commission, the ICAC andthe Public Defenders. They have also beencalled upon to work in internationalhumanitarian law arenas, including theSolomon Islands, Afghanistan and theformer Yugoslavia. In addition, there are asignificant number of former CrownProsecutors who are Judges of theSupreme Court and District Court. TheCrown Prosecutors are almost all membersof the NSW Bar Association and participatein its Council, its Committees (includingProfessional Conduct Committees) and itscollegiate life.

As at August 2013, there were 81 CrownProsecutors. Their locations were: headoffice Sydney (51), Sydney West atParramatta, Campbelltown and Penrith (12),and also at regional locations in Newcastle,Wollongong, Lismore, Dubbo, WaggaWagga and Gosford (18). In the City Officethe Crown Prosecutors were divided as

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follows: trial Crown Prosecutors 37, Court ofCriminal Appeal 9, Pre Trial Unit (PTU) 5. Inaddition, there are private barristers on long-term retainer in both Sydney and SydneyWest.

Prosecutions

Each year the Crown Prosecutors prosecutethe highest profile criminal cases in NewSouth Wales. Here are a few of the casesthat have been prosecuted over the lastyear;

R v Michael Jacobs

Michael Jacobs was found guilty of theshooting murder of Senior Constable DavidRixon of the Oxley Highway Patrol atTamworth on 2nd March 2012. The officerhad been shot after having pulled up avehicle which contained Jacobs andrequiring Jacobs to undergo a roadsidebreath test. The Crown alleged that it was atthis point that Jacobs shot Constable Rixon.After being shot in the chest, the officerreturned fire and wounded Jacobs, beforeholstering his weapon and handcuffing theoffender. The trial involved an allegation byJacobs that a third man who escaped thescene had fired the shots at Rixon. The juryrejected this account. This was the first casein which the 2011 amendment to the CrimesAct, which provides for a mandatory lifesentence for the murder of a policeman inthe execution of his duty, had application.

R v Malcolm Naden

Mr Naden pleaded guilty to 2 murders, achild sexual assault and numerous breakenter and steal offences. Mr Naden receivedmuch media attention after remaining on therun from police for many years aftercommitting the two murders. After delicatenegotiations between the Crown and thedefence, Mr Naden entered pleas of guilty.The sentence proceedings were protracted

and resulted in Mr Naden receiving a lifesentence for one of the murders.

R v Roger Dean

Mr Dean, a senior nurse, was charged with11 murders and a number of offences ofcausing grievous bodily harm arising out ofa fire which he set at the Quakers Hillnursing home, where he was on duty as asupervisor at the time. Mr Dean was set togo for trial, however one working day priorto the trial commencing he indicated awillingness to plead guilty to all offences.After lengthy sentence proceedings, MrDean was sentenced to life imprisonment.

R v Philip Nguyen

Mr Nguyen had been charged with thehomicide of Constable Bill Crews, who diedduring a police raid on the car park of a unitblock. This was a highly unusual case in thatthe fatal shot had, in fact, been fired by oneof Constable Crews fellow police officers inresponse to Mr Nguyen producing a firearmand pointing it at the police. Mr Nguyenentered a plea of guilty to manslaughter,which was accepted by the Crown. Prior tobeing sentenced, Mr Nguyen sought toreverse his plea to ‘not guilty’, in order tostand trial. The Crown opposed hisapplication, and the Supreme Court heldthat he had not established sufficientgrounds for withdrawing his plea. MrNguyen was sentenced for themanslaughter. The sentence is subject to aCrown appeal.

R v Kristi Abrahams

The offender pleaded guilty to the murder ofher six year old child Kiesha. The skeletalremains of the deceased had been foundscattered around a shallow grave inbushland in Western Sydney. The accusedhit the child with an intent to cause reallyserious bodily injury as a result of which thedeath occurred. The offender took part in

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the burial of the deceased. Evidence on thesentencing proceedings indicated that theoffender experienced an extremely deprivedupbringing. This case attracted a great dealof attention from the community largelybecause the offender had given interviewsinitially indicating that the deceased haddisappeared from the house.

Achurch v R (No 2)

[2013] NSWCCA 117 (Bathurst CJ,McClellan JA, Johnson, Garling and BellewJJ). The Court of Criminal Appeal wasconstituted by a five judge bench to considerwhether it is appropriate to use the reviewmechanism in s 43 of the Crimes(Sentencing Procedure) Act 1999 to permitthe original sentencing court to reconsidersentences that are said to have relied on thedecision of the NSW CCA in R v Way(2004), which was overruled by the HighCourt in Muldrock v The Queen (2011).The Court rejected the application and soMuldrock appeals are to be heard by theCourt of Criminal Appeal in the normalcourse.

FP v R [2012] NSWCCA 182 (McClellan CJat CL, R A Hulme and Schmidt J). Appeal tothe Court of Criminal Appeal againstconviction and sentence for multiple countsof administering an intoxicating substancewith intent, aggravated sexual assault andconspiracy to commit sexual assault. Thisappeal was heard over two days. Theconviction appeal involved fifteen groundsof appeal, including alleged errors in thesumming up concerning tendency andcoincidence, the meaning of “in company”as an element of aggravated sexual assault,knowledge of lack of consent as an elementof aggravated sexual assault and directionson the criminal standard following a jurynote seeking clarification about ‘beyondreasonable doubt’.

GWM v R [2012] NSWCCA 240 (McClellanCJ at CL, Johnson and Bellew JJ). This

Crown appeal to the Court of CriminalAppeal against sentence considered thecorrect approach to self-induced intoxicationin relation to the assessment of the gravityof an offence of aggravated sexual assaultand as a circumstance of mitigation, and theassessment of objective gravity and theproper approach to standard non-paroleperiods following the decision in Muldrock.The judgment of Johnson J regarding theextent to which self-induced intoxicationmay properly be taken into account insexual assault cases is an importantdevelopment in sentencing law in NSW.

R v Sean Lee King

The accused was charged with the murderof his 19-year-old girlfriend. He applied fortrial by judge alone and his application wasrefused. They had been in a turbulentrelationship. Friends overheard the accusedsaying he was coming to kill the deceasedand she had told her mother she was veryscared of the accused. As depicted onCCTV footage, she allowed the accusedinto her apartment building in Pyrmont andhe admitted that once inside he stomped herto death.The accused pleaded not guilty tomurder, but guilty to manslaughter on thebasis that he was so affected by methylamphetamine ("ICE") that he did not formthe specific intent to kill or inflict grievousbodily harm. The jury found the accusedguilty of murder. The total sentenceimposed for this offence and others wasimprisonment for 33 years and six monthswith a non-parole period of 25 years and sixmonths. Justice Bellew found that theoffender's intoxication aggravated themurder.

Sydney Supreme Court trials

In the period from July 2012 to June 2013there were 72 trials listed for hearing in theSydney Supreme Court.

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Of those trials:

28 were briefed to the Senior CrownProsecutor and the Deputy SeniorCrown Prosecutors;

44 were briefed to junior CrownProsecutors.

The Senior Crown Prosecutor had a juniorCrown Prosecutor or a trial advocateappearing with him in 2 of those matters.

Of the trials listed, 5 accused pleaded guiltybefore the trial date and 6 accused pleadedguilty on the trial date or in the week that thetrial was listed.

Of the trials listed:

7% had an estimated length of up to10 days

38% had an estimated length of up to15 days

17% had an estimated length of up to20 days

38% had an estimated length of over20 days

Country Crown Prosecutors

The 17 Country Crown Prosecutors are in

regional chambers at Newcastle, Lismore,Gosford, Wollongong, Wagga Wagga, andDubbo. The Deputy Senior CrownProsecutor (Country) has his Chambers atNewcastle and oversees the administrationof the Country Crown Prosecutors.

The Country Crown Prosecutors arerequired to attend Supreme and DistrictCourt circuits away from their usual regionalcentres. Regional District Courts sat in thefollowing centres in this period:

Albury OrangeArmidale ParkesBathurst Port MacquarieBega QueanbeyanBourke East MaitlandGrafton TamworthGriffith TareeMoree Broken HillNowra Coffs HarbourCoonamble Goulburn

The 12 Sydney West Crown Prosecutorsare in regional chambers at Parramatta,Campbelltown and Penrith. The DeputySenior Crown Prosecutor (Sydney West)has his Chambers at Parramatta andoversees the administration of the SydneyWest Crowns.

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Report of the Solicitor for PublicProsecutionsStephen Kavanagh LLBSolicitor for Public Prosecutions

Stephen Kavanagh practised as a solicitor following admission in 1973 in a city firm and later atthe State Crown Solicitor’s office from 1976 to 1988, primarily in the areas of civil, criminal andconstitutional law. Following the establishment of the ODPP in 1987, he was appointed asManaging Lawyer (Advisings Unit) in 1989 undertaking responsibility for a wide range ofappellate litigation conducted by the unit in the Supreme, Court of Appeal and High Court.Stephen was appointed Solicitor for Public Prosecutions in June 2004.

All members of staff of the Solicitor’s Officeare entitled to be proud of their contributionto the effective and efficient professionalperformance of the ODPP over the pasttwelve months.

Despite ongoing budgetary pressures,resourcing constraints and the increasingcomplexity of the prosecutorial process theOffice conducted over 16,000 prosecutionsand appeals during the year across alljurisdictions and throughout the State.

The provision of a high quality, ethical andindependent prosecution service isessential to the community interest.However, it is equally essential for theservice to be adequately funded to carry onthis work. Following the completion inDecember 2012 of a Review of the Office’sbase budget, considerable work is nowbeing undertaken in the development of afunding model which is expected to providefor greater budget certainty for future needs.

As reported elsewhere 82% of prosecutionsconcluded during the reporting period in theDistrict and Supreme Courts resulted infindings of guilt, either by way of plea orverdict following trial. There were significantimprovements in the turnaround time foradvice work and in the early resolution ofmatters. With the recent amendments to the

Criminal Procedure Act providing formandatory pre-trial defence disclosure it isanticipated that further efficiencies will beachievable in the disposal of defended trials.

As is the case each year a number ofsensitive and at times controversial mattersarose for consideration. It is reassuring tonote that such matters were consistentlyaddressed by staff in accordance with theProsecution Guidelines, the independenceof the Office and in the general publicinterest.

The work of the Office is not limited simplyto the prosecution of matters. We workcollaboratively with other public justiceagencies including Police, the Departmentof Attorney General and Justice, the PoliceIntegrity Commission, the IndependentCommission against Corruption, the JudicialCommission and the Commonwealth DPP.Through the Solicitor’s Office we play amajor role in law reform developments andin the work of numerous externalcommittees with a criminal law focus.

Amongst many achievements during theyear the following are deserving of particularmention:

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Victims and witnesses

In February 2013 the ODPP conducted itsbiannual survey of victims and non-expertcivilian witnesses to assess witnesssatisfaction levels with ODPP services. Thesurvey revealed that 73% of respondentsrated ODPP services as good or very good.

Aspects of ODPP service that made adifference with victims and witnessesincluded professionalism, reliable andcaring support, good and promptcommunication, provision of information andexplanation about the case and courtprocess.

Legal Development Programme(LDP)

The Office conducts a structured 12 monthprogramme for law graduates incorporatingthe Practical Legal Training componentnecessary for law graduates to be admittedto practice as solicitors. LDP officers arerotated across different aspects ofoperational work, from preparation of files totrial instructing and simple appearancework.

In the 2012/13 intake, the fourth year of theimplementation of the programme in itscurrent form, 15 graduates were appointedin the Sydney Metropolitan region.

This programme has proved an extremelysuccessful initiative for graduates and forthe Office. Many of our senior lawyers andsome Crown Prosecutors began theircareers in the Office under this programme.

Drug Court

The Drug Court of New South Walescommenced operation at Parramatta in

February 1999. Within a short time itseffectiveness in reducing drug dependencyand promoting the reintegration of drugdependant persons into the communitybecame clear. Evaluations of the DrugCourt consistently report that it is more costeffective than conventional sanctions inreducing re-offending. The DPP participatesin the programme with the Legal AidCommission, representatives from JusticeHealth, the Probation Service and a Policeprosecutor who together, provide significantinput to the Court’s decisions makingprocess. The value and success of the DrugCourt have been the product of the carefullyconsidered application of thoseprofessionals to a team based therapeuticapproach involving a great deal ofcollaboration between its members.

In 2006 the Drug Court jurisdiction wasextended to sentenced prisoners under theCompulsory Drug Treatment CorrectionalCentre Act. It has now been made apermanent feature of the legal landscape. In2011 its operations were extended toToronto and on 14 February 2013 to theSydney Metropolitan region. The ODPPteam has 7 staff based at Parramatta and 3at Toronto Court.

In summary it has been another productiveand rewarding year. I extend my thanks andappreciation to all members of staff of theSolicitor’s Office, the Director’s Chambers,the Crown Prosecutors’ Chambers, andCorporate Services for their support andcommitment during the year. In particular Ishould also wish to acknowledge the teameffort of the Solicitor’s Executive as well asGroup and Regional Managers inaddressing the major legal, managerial andadministrative challenges of the year.

26

Report of the Deputy Solicitor for PublicProsecutions (Operations)Claire Girotto B. LegSDeputy Solicitor for Public Prosecutions

Claire Girotto joined the ODPP in 1990 as a junior lawyer at a country office. She became themanager of that office in 1998 and in 2000, joined the Solicitor’s Executive in the role of AssistantSolicitor, Sydney West. Since 2003 she has been the Deputy Solicitor Operations, and isresponsible for the management of all operational areas of the Solicitor’s Office.

The ODPP’s Operations areas comprise 4groups in Sydney and 9 regional offices – 3in Sydney West (Campbelltown, Parramattaand Penrith) and 6 in Country NSW (Dubbo,Gosford, Lismore, Newcastle, WaggaWagga and Wollongong). Each countryoffice services a region of NSW

necessitating travel to circuit courts,including those in remote areas of the State.

Solicitors in the ODPP are responsible forthe conduct of summary prosecutions,committals, District Court appeals, DistrictCourt Sentencing and instructing CrownProsecutors in trials and appeals. SolicitorTrial Advocates conduct some trials in theDistrict Court.

Local Court Disposal

Early resolution of cases is undertaken byway of pleas of guilty or disposal in the LocalCourt, where the level of criminality insentencing options can be adequatelyaddressed by appropriate charges. Throughcareful screening and evaluation of theevidence gathered by investigators, in this

reporting period, solicitors resolved almost70% of the 5,947 committal casescompleted, either by summary disposal orby way of early pleas that are committed forsentence to the higher courts. The 1,875cases that could not be resolved werecommitted for trial to either the District or theSupreme Court.

A matter committed for trial is allocated atrial listing at arraignment. Matters listed fortrial are briefed to Crown Prosecutors orTrial Advocates, according to the complexityof the case. Where possible and especiallyin cases involving sexual assault, committallawyers maintain continuity of the case untilit is resolved. Other cases are allocated tojunior solicitors and all trial prosecutionteams work together to present the bestpossible case on behalf of the people ofNSW.

Independent, efficient, fair and just prosecution service

27

Disposal of matters listed for trialin the District Court

Screening, evaluation and negotiation withdefence lawyers continues up to and duringthe trial process.

District Court trials constitute the bulk of thehigher court work of the Operations Units.This year, 1,106 matters were listed for trialand completed in the reporting period, 45%of those as defended trials. Pleas of guiltyon or before the trial date accounted for 46%of trial disposals. Trial Advocates werebriefed in 32% of those 1,106 cases.

Of the 500 defended trials conducted,verdicts of guilty were returned in 54% or270 matters.

Disposal of matters listed for trialin the Supreme Court

Although fewer Supreme Court trials areconducted, they are generally larger andmore resource intensive than other trials.Matters listed for trial and completed in thereporting period resulted in 66% proceedingto defended hearing and 31% pleadingguilty on or before the trial date.

Verdicts of guilty were returned in 68% ofthe 38 trials that were concluded.

Discontinuances

Cases are discontinued for a variety ofreasons and in accordance with theProsecution Guidelines. This year theDirector’s Chambers received 903submissions seeking discontinuance ofproceedings after committal for trial orsentence.

A total of 162 matters, or 18% of thesubmissions received, were discontinued,representing 5% of all cases finalised aftercommittal for trial or sentence. Of those, 59(36%) were discontinued predominantly dueto the wishes of the complainant in the case.101 of the 162 matters discontinued were inrelation to matters that had a trial listing.

Cost

The Activity Based Costing System hasbeen utilised during the year but completedata in relation to the cost of particular typesof matters is not available for this report.

The added complexity and length of trialsover recent years have increased theaverage cost of a matter from $7,750 to$7,915 from the previous reporting period.This figure represents the net cost ofservices divided by the total number ofmatters concluded, excluding severityappeals, call ups and election advisings. Ifthese matters were included the averagecost of a matter in this reporting period was$4,849, compared to $4,731 in the lastreporting period.

Finding of Guilt

There has also been an increase in the rateof finding of guilt, either by way of plea ofguilty or by verdict after a defended trial.Over the past 3 years the percentage ofcases with guilty outcomes has risen from77% in 2010 to 82% in this reporting period.

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Summary prosecutions conducted by theOffice included 218 Child Sexual Assaultmatters. Findings of guilt were returned in61% of those cases.

Timeliness

1. Summary mattersAverage and median number of days

between:Average Median

Arrest and serviceof brief

135 86

Service of brief anddisposal

146 113

Date of arrest anddisposal

281 237

2. Local Court committalsAverage and median number of days

between:Arrest and brief service

Average MedianCommittals for trial 92 59Committals forsentence

83 57

Brief service and committalCommittals for trial 131 110Committals forsentence

106 77

Summary Disposal 140 933. Disposal in Higher Courts

Average and median number of daysbetween

Committal and completionAverage Median

Committed for trial 360 311Committed forsentence

172 136

Trial prosecution teams were ready toproceed on the first day of trial in 96% oftotal trial listings in this reporting period. Thisreflects the hard work and commitment ofsolicitors, Crown Prosecutors, WitnessAssistance Officers and support staff.

The Office continues to provide timely andhigh quality advice in electionconsiderations and advice on sufficiency ofevidence and/or appropriateness of

charges. In relation to matters referred bypolice for a decision as to jurisdiction(election matters), 70% were completedwithin 14 days of receipt of the request. Thedecision to elect may be delayed when aproper consideration of the appropriatejurisdiction cannot be made purely on thefacts prepared by the police. Where moredetailed information is required to properlyinform the election decision, the completiontime may be delayed pending receipt of thatinformation from investigators.

Advice work seeking guidance on theappropriateness of charges or thesufficiency of evidence usually involves theconsideration of complex legal and factualissues. A protocol in relation to this workincludes an allowance for mutually agreedtimeframes to ensure that a properevaluation of the evidence is conducted.

Turnover times for this Advice work haveimproved over the past 2 years by 30%. Ofthe 201 requests for advice received thisyear, 28% were completed within 30 daysand 52% within 90 days.

The Operations Units will continue tomanage a growing number of cases acrossall jurisdictions with an increased level ofcomplexity. A major challenge continues tobe the evaluation and presentation of casesinvolving more reliance on electronicevidence. We are strengthening ourinformation technology and are developingbetter applications to support litigation andinformation exchange.

Efficiency and DevelopmentalInitiatives

The Operations Unit has focused on anumber of initiatives in 2012/13:

Our solicitors continue to make aconcerted effort in front end resolution ofmatters, that is, early resolution ofappropriate cases in the Local Court in

29

the form of summary disposal andnegotiation of pleas of guilty. The input ofCrown Prosecutors in the committalphase of the prosecution process hasprovided further assistance in theevaluation of evidence and negotiation ofcharges.

Early briefing of trials has beenvigorously pursued by the Office,contributing to the efficient running of theCourts. Trials suitable for TrialAdvocates are identified and briefedsoon after arraignment. There has beenan increase in the number of long trialsthat are briefed early, resulting in betterpreparation and in some cases earliernegotiation of charges and evidentiaryissues.

In order to develop our staff and reducetrial matters briefed out, suitably qualified

solicitors are briefed in appropriate trialsas a developmental opportunity. Thesetrials are briefed well in advance and amentor, usually a Deputy Director, isavailable to the solicitor for assistanceduring the preparation for and conduct ofthe trial

Managers across NSW held the first ofseveral planning days to workshopinitiatives for improvement. The focuswill be to effect efficiencies and tostandardise processes and systems.

A centralised unit for formatting andediting electronic evidence will be trialledin 2013/2014.

Financial modelling of workload,including a systematic approach toweighting of cases is also beingdeveloped.

ProductivityThe ODPP continues to deliver quality service in a high volume environment. The Office handlesapproximately 22,000 matters annually; of which more than 16,000 are prosecutions and appealmatters.

Below are statistics in relation to the most resource intensive work conducted. These statisticsrelate to matters received and completed. A matter “completed” relates to the closing of a file,not the outcome of the matter.

Matters received and completed

Local Court Committals

Productivity6,147 6,073 5,877 5,781 6,080

6,3755,965 5,793 6,016 5,947

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

08/09 09/10 10/11 11/12 12/13Received Completed

30

ProductivityLocal Court Summary Prosecutions

District Court Trials

District Court Conviction Appeals

500 478 442 504 482

463 452482

517 506

0

100

200

300

400

500

600

08/09 09/10 10/11 11/12 12/13Received Completed

1,819 1,736 1,795 1,664 1,629

1,6561,831

1,6711,922

1,649

0

500

1,000

1,500

2,000

2,500

08/09 09/10 10/11 11/12 12/13Received Completed

1,798 1,706 1,712 1,571 1,806

1,6991,818 1,701 1,746

1,596

0

500

1,000

1,500

2,000

08/09 09/10 10/11 11/12 12/13Received Completed

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ProductivityDistrict Court Conviction Appeals

District Court Severity Appeals

Supreme Court Trials

1,457 1,611 1,603 1,547 1,382

1,4091,569 1,593 1,656

1,335

0

500

1,000

1,500

2,000

08/09 09/10 10/11 11/12 12/13Received Completed

6,135 6,131 5,672 5,260 5,141

6,056 6,1375,540 5,408 5,040

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

08/09 09/10 10/11 11/12 12/13Received Completed

86 71 87 68 69

82 8774

85 89

0

20

40

60

80

100

08/09 09/10 10/11 11/12 12/13Received Completed

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ProductivitySupreme Court Sentences

Appeals finalised in CCA

Appeal Finalised in the High Court of Australia

9 15 9 10 105

15

1210

19

0

5

10

15

20

08/09 09/10 10/11 11/12 12/13Received Completed

0

100

200

300

400

08/09 09/10 10/11 11/12 12/13

Crown Inadequacy Appeals

Other Appeals

Appeals by offenders

18

8

16 16

12

1 0

41

0

5

10

15

20

08/09 09/10 10/11 11/12 12/13

Special Leave Applications

High Court Hearings after grant of special leave to appeal

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Report of the Deputy Solicitor for PublicProsecutions (Legal)Johanna Pheils BA LLB

Deputy Solicitor for Public Prosecutions (Legal)

Johanna Pheils BA LLB was admitted to practice in 1988. She has worked at the ODPP since1991 in a number of roles, including as the Manager of the Child Sexual Assault Unit, DrugCourt, Short Matters Unit and the Court of Criminal Appeal Unit. She has been a member ofthe Senior Executive since 2006 as the Assistant Solicitor (Legal) and then as the ActingDeputy Solicitor for Public Prosecutions (Legal).

Legislative changes

The Legal section of the ODPP includes theWitness Assistance Service (WAS), theCourt of Criminal Appeal Unit, Group 6, theAdvisings Unit the Research Unit and theLibrary. The Deputy Solicitor (Legal) andAssistant Solicitor (Legal) provide policyadvice to the Director and are involved in anumber of interagency committeesconcerning legislative reform. This reporthighlights a number of cases these unitshave dealt with this year and other activitiesin the Legal section

The most significant legislative change thisyear were the amendments commencing 1January 2013 to section 15A of the Directorof Public Prosecutions Act, Director ofPublic Prosecutions Amendment(Disclosures) Act 2012 (No 80) relating to

police disclosure to the DPP. Section 15Aand the form of the disclosure certificatewere substantially amended, following thedecision in R v Lipton [2011]NSWCCA 247.

This decision concerned section 15 A of theDPP Act and a claim by the New SouthWales Police Force for public interestimmunity (PII). The upshot of the decisionwas that the DPP could not simply acceptthat the police had a claim for PII, theprosecutor had to look at the material andbe satisfied that the material should not bedisclosed to the defence.

The amendments:

(a) Require the NSW Crime Commission,the Police Integrity Commission and theIndependent Commission AgainstCorruption, when investigating possibleindictable offences, to disclose to the DPPall relevant material that may reasonablyassist the Crown or the defence case, in thesame manner as police;

(b) clarify a disclosure exception for material

that is subject to a claim of privilege, publicinterest immunity or statutory immunity andremove a “sunset clause” in s 15A (6) of theDirector of Public Prosecutions Act 1986

Equitable criminal prosecution servicethat acts in the public interest

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which applies to that exception and was dueto expire on 1 January 2013;

(c) allow law enforcement officers to declineto provide the DPP with material obtainedduring an investigation that is subject to a"statutory publication restriction”.

Law Reform

This year, as always, we participated in alarge number of inter-agency committees,court user groups and working parties withthe main aim of considering the reform of thecriminal law and to implement newlegislation. The reform topics included: theLaw Reform Commission’s reference onsentencing law in NSW, the implementationof the Bail Act 2013, and the Governmentresponse to the Law Reform Commissionrecommendations in respect of people withcognitive and mental health impairments inthe criminal justice system.

The Director also made numeroussubmissions on proposals for law reformidentified by the Attorney General, LawReform Commissions, Legislative CouncilStanding Committee on Law and Justiceand the Sentencing Council. Examplesinclude: jury directions, sentencing,Provocation, creation of a new offence ofstrangulation and the Child ProtectionLegislative Reform Discussion Paper.

Some of the interagency committees thatwe participated this year were:

Strengthening Victims RightsGovernment Implementation Groupformed by Victims Services, Departmentof Attorney General and Justice.Activities of this forum included thecreation of a Code of Practice toimplement the Victims Charter and areview of Court Support Servicesconducted by Price Waterhouse Cooper.The ODPP also cooperates with anadditional working group Strengthening

the Charter and Strengthening VictimsRights Government ImplementationGroup;

The Senior Officers Group formed by theDepartment of Premier and Cabinet toreview the NSW Police, Health andODPP guidelines for Responding toAdult Victims of Sexual Assault. We arecurrently working with DAGJ VictimsServices and other agencies relating toinformed consent of complainants torelease of SAIK kits to the NSW Police.

The development of procedures for thecorrect referral of prisoners with mentalhealth issues, following the decision in Stateof New South Wales v TD [2013] NSWCA32 about the wrongful detention of a forensicpatient, for 16 days in 2002, in part of LongBay Prison hospital that was not gazetted asa hospital.

The Deputy Solicitor (Legal) has continuedto be a member of and has participated inthe Law Society of New South WalesCriminal Law Committee.

The Advisings Unit

The Advisings Unit undertakes varioustypes of criminal related litigation in theCourt of Appeal and Supreme Court,provides advice to the Director andconducts some High Court work. It alsoinstructs the Crown Solicitors Office inrespect of malicious prosecution claimsagainst the ODPP.

This year the Unit finalised a number ofcases of interest.

The DPP v Gardner [2013] NSWSC 28,involved negligent driving and whetherseparate charges should be laid for eachvictim injured as a result of the driving. Thedefendant while driving a utility vehicleturned into the path of another vehicletravelling in the opposite direction, causing

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a collision. Two passengers in the othervehicle suffered serious injuries.

The defendant was charged with a singleoffence of “negligent driving occasioninggrievous bodily harm”, in which theprosecution relied on the injuries caused toboth victims. The Magistrate held that thecharge was invalid because reliance oninjuries to two victims was duplicitous, andthat the prosecution was only entitled to relyon the injuries to one victim.

The DPP sought judicial review of theMagistrate’s decision in the Supreme Court.The Supreme Court granted the reliefsought, holding that a single charge wasappropriate even though grievous bodilyharm had been caused to more than onevictim. The court noted that s 42(1)(b) of theRoad Transport (Safety and TrafficManagement) Act penalised the act ofdriving if it possessed the forbiddencharacteristics of being negligent andhaving caused grievous bodily harm, towhomever that harm may have beencaused.

After 5 years of operation there has been aCCAl decision providing guidance on theoperation of Drug Proceeds Orders madepursuant to s 29 of the Confiscation ofProceeds of Crime Act (CoPoCA). In R vHall [2013] NSWCCA 47, Hall was chargedwith supplying cannabis between (s 25(1)Drug Misuse and Trafficking Act 1985) andknowingly dealing with the proceeds ofcrime (s 193B(2) Crimes Act 1900). TheDPP applied for an order for forfeiture ofcash $4,110. under s 13(2)(a) of CoPoCA.A Drug Proceeds Order was also sought inrespect of benefits derived by therespondent from the commission of the drugtrafficking offences of $54,750 (s 13(2)(b) ofthe Act).

In the District Court the Judge said that s 29:

"really provides the court with the power,where any person has been convicted of anoffence involving drug trafficking, toconsider whether he has at any time in thepast obtained a benefit in connection withdrug trafficking, although not in connectionwith the offence for which he was dealt withby the court”.

The evidence from the investigating policeofficer was that Hall had volunteered to thepolice that he had been involved in thesupply of drugs for “nearly 12 months”before the commission of the offence, dailyhalf and ounce - $150,200. However HisHonour concluded that because he couldnot make any meaningful assessment fromthe available material, he declined to makea drug proceeds order.

On appeal by the DPP, the CCA determinedthat the position under the Act is made plainby the contrast between the power in s 18concerning forfeiture and s 24 concerningpecuniary penalty orders and the power in s29. Both s 18 and s 24 provide that inappropriate circumstances the court maymake an order, clearly providing discretionto the court. By contrast s 29 provides that acourt must undertake the task insubsections 29(1) (a), (b) and (c). Thewords of obligation in the preamble can onlybe understood as obliging an order to bemade in accordance with s 29(1)(c)provided that the assessment contemplatedby s 29(1)(b) has been made. Section29(1)(a) requires the court to determinewhether a defendant has derived anybenefit in connection with drug trafficking atany time. If the court believes that adefendant has so benefited it must assessthe value of that benefit (s 29(1)(b)) andorder the defendant to pay a pecuniarypenalty equal to the amount so assessed: s29(1)(c).

The information before the court did notenable the precise amount of the benefit to

36

the respondent from his drug trafficking tobe assessed. However, the admissionsmade by the respondent clearly providedinformation from which an assessmentcould be made. His Honour should havemade that assessment. The CCA concludedon the balance of probabilities that therespondent was trafficking to at least theextent of $70 per day for nearly twelvemonths (being the $50 of cannabis hesmoked plus an additional sale of at least$20). Hall is seeking leave to appeal to HighCourt.

The Court of Criminal Appeal Unit

During this past year, the Court of CriminalAppeal has dealt with a number of highprofile appeals. in Graham Reeves ([2013]NSWCCA 34), an obstetrician andgynaecologist at Bega and Pambula DistrictHospitals, became widely known as the"Butcher from Bega" as a result of theremoval by him of genitalia from one of hisfemale patients during an operation. (Hewas also convicted of indecently assaultingtwo other patients during medicalexaminations - one of these convictions wasquashed on appeal). The appeal againstconviction was dismissed. The Court wasnot satisfied that Mr Reeves honestlybelieved that the complainant hadconsented to the operation. The Crownsuccessfully appealed against the manifestinadequacy of the sentence initiallyimposed.

CCA Sentence Appeals by Crown

The CCA also refused leave for Phung Ngo([2013] NSWCCA 142) to appeal against hislife sentence, imposed in November 2001for the murder of Mr John Newman in 1994.The Court rejected the admission ofevidence from the 2009 Patten Inquiry intoMr Ngo's conviction, which was sought to beled so as to establish that the murder hadnot been committed with a political motive.

In 2013 the CCA also heard a convictionappeal by Percy Small ([2013] NSWCCA165), who was convicted of culpablenavigation under the influence. Six people(out of 14) were killed when a workboatcollided with a fishing boat in SydneyHarbour in 2008. Mr Small was at the helmof the workboat at the time, although he didnot have a boat licence and had been apassenger on the boat when he wassummonsed to take the helm by the manwho was, at the time, master of vessel. Theappeal raised the issue of whether or not MrSmall was "navigating" the boat, and theCourt held that he was.

Another high profile conviction appeal heardin 2013 was an appeal by a Catholic Priest(BJS) ([2013] NSWCCA 123) against hisconvictions on 11 counts against 4 victimsover a 5 year period. One of the live issuesin the appeal was the impact ofhypnotherapy and whether any of thevictims had been the subject of recoveredmemories. Competing expert evidence fromtwo experts was assessed, and the Courtultimately dismissed the appeal.

The Court (constituted by a 5 Judge Bench)in an interlocutory appeal filed by the Crownof XY ([2013] NSWCCA 121) confirmed adecision of Shamouil (reported at 66NSWLR 228) which was held to bemanifestly wrong by the Victorian Court ofAppeal in relation to how trial judges shouldapply s137 of the Evidence Act in relation tomatters they must assess when faced withan application to exclude evidence.

37

The restrictive approach adopted in NSWwas confirmed as being the law.

The CCA also heard an appeal by theCrown under s 107 of the Crimes (Appealand Review) Act 2001, which allows theCrown to appeal against a directed verdictby a trial Judge. This was only the secondtime the Court has dealt with an appealunder that provision. The appeal wassuccessful and the Court directed that thematter proceed to a new trial.

Group 6

Group 6 is responsible for the prosecution ofcomplex matters including cases involvingpolice officers who are charged with criminaloffences. Group 6 also provides advice tothe Director concerning the commencementof proceedings arising out of ICAC inquiriesand proceedings from the Police IntegrityCommission.

After entering into a revised Memorandumof Understanding with the ICAC in May2011, Group 6 has greatly reduced itsoutstanding advice work. It now completesrequests for advice (including large volumebriefs) within a 6 to 12 month period inaccordance with the Memorandum ofUnderstanding.

One of the cases prosecuted by Group 6 thisyear involved a police officer (DPP vOsborn) who was charged with threeoffences contrary to s 91K of the Crimes Act,being offences of filming a person engagedin a private act without their consent for thepurpose of obtaining sexual arousal orgratification. The charges related to thecovert filming of sexual encounters betweenthe defendant and three women (onseparate occasions) who he had metthrough online dating websites. The videoswere recorded using a spy camera installedin a bedside alarm clock located in hisbedroom. The defendant uploaded the

videos to his mobile phone and showedthem to other officers at the Police Station.

The defendant did not deny filming thesexual encounters without the knowledge orconsent of the women involved. However,he gave evidence that the recordings weremade in order to prove to his youngercolleagues that the stories of his sexualexploits were true and that 'the old man's stillgot it'. He claimed that the recordings werenot made for sexual arousal or gratification.This argument was rejected by theMagistrate who found that the element ofsexual gratification was satisfied by thedefendant's desire to prove his sexual virilityto his friends and colleagues. The defendantwas convicted on all counts.

The Witness Assistance Service(WAS)

This year marked the 20th anniversary of theWAS. The WAS provides services to victimsand witnesses, to assist in minimising thestress for victims and witnesses who areinvolved in prosecutions and meet therequirements in the NSW Charter of VictimsRights.

In the last year the WAS providedassistance in many large multiple victim andhigh profile matters, including the QuakersHill Nursing Home tragedy. The handling ofthis case was a reflection of the WAS’sproactive model of service delivery,involving early contact, informationprovision, interagency liaison and acoordinated multi-disciplinary teamapproach to witness support, the ODPP,WAS, the NSW Police Force and HomicideVictims Support Group.

The WAS also continued to provide servicesto victims and witnesses across the Stateduring the year, and has adapted its serviceto meet the challenge of the number ofpriority matters exceeding the number of

38

WAS officers available. During 2012-2013there were 2,250 new referrals, 55 morematters than last year. There are currently30 WAS officers including 3 Aboriginal WASOfficers and 3 Senior WAS Officers.Initiatives introduced by WAS for 2012-2013include:

the piloting of the placement of theAboriginal Witness Assistance Officer(Country West) in Sydney and providingan outreach service.

sharing caseloads as a way of providinga service to all priority matters. This isbeing trialled in Penrith, Parramatta andSydney.

training has been provided on"Supporting Victims and Witnessesunder Cross Examination". This hasbeen provided to WAS Statewide, someexternal agencies (eg. Mission Australia)and also presented at the National WASconference.

The priority matters handled by WAS were:

child sexual assault 44.1% (child andadult survivor),

adult sexual assault 13.7%, physical assault of children 2.3%, homicide 7.8%, and dangerous driving matters involving

death 4.6%.

These matters accounted for 72.4% (1,629)of new registrations during 2012-2013. Inaddition, 14.1% of all WAS registrationswere identified as being domestic or familyviolence related crimes and 141 mattersinvolving aboriginal victims and witnesseswere registered. Of the Aboriginal victimsand witnesses receiving a service, 34%were in child sexual assault matters; 9.2% inadult sexual assault matters; 33.3% inphysical assault matters (generallydomestic and family violence relatedmatters); and 14.2% in homicide mattersinvolving the death of the primary victim.

Sexual Assault Prosecutions

The prosecution of sexual assault trials andsummary hearings continues to be asignificant component of the work of theODPP. In June 2013 the ODPP had 1,025sexual assault matters on hand. Of these,520 (adult – 209; child – 311) werecommitted for trial. This represents 25.6% ofall trials currently on hand.

The Sexual Assault Review Committee(SARC) hosted by the ODPP and chaired byAmy Watts, the Assistant Solicitor (Legal), isan interagency committee that meetsquarterly to discuss legal and proceduralissues that arise in the matters weprosecute. The SARC continues to agitatefor reform in relation to separation of trialsinvolving multiple complainants and oraccused persons despite R v Ellis ([2003]NSWCCA 319). The separation of suchtrials invariably weakens the Crown case,requires complainants at times to giveevidence multiple times and considerablylengthens the prosecution process andinvariably the cost.

SARC also examined the issue of crossexamination of children and vulnerablewitnesses and identified the need forlegislative provisions to enable the use ofwitness intermediaries in the court processso that vulnerable witnesses have anunderstanding of the questions being askedof them when giving evidence and beingcross examined.

In June 2013 Amy Watts the Chair of SARCwas awarded a Churchill Fellowship toinvestigate models of registeredintermediaries for child victims andwitnesses in the criminal justice system.She will be travelling to Ireland, the UnitedKingdom, Austria, Norway and Iceland laterin 2013.

During the past year the ODPP has made118 referrals on behalf of complainants to

39

NSW Legal Aid’s Specialist Sexual AssaultCommunications Privilege Service. ThisService provides representation forcomplainants who wish to claim privilegeover their counselling records when theserecords are subpoenaed by the defence.

The ODPP also cooperated with the NSWOmbudsman’s audit into 35 child sexualassault matters involving Aboriginalchildren for their report “Responding to childSexual Assault in Aboriginal Communities”A report under Part 6A of the CommunityServices (Complaints, Reviews andMonitoring) Act 1993 December 2012.

The Research Unit and the Library

The Research Unit regularly publisheslegislation updates, new decisions and casenotes for all ODPP lawyers. It also assistsindividual lawyers with particular research

questions. This year a register of all theinquiries dealt with by the Research Unitsince 2003 was published on the intranet toassist other lawyers with similar questions.A similar register of Library inquiries hasalso been published since 2009.

One of the many challenges of prosecutingcases, particularly in remote courts acrossNSW, is providing ODPP lawyers with up todate legal resources that can be easilycarried and accessed while the lawyer is notonly away from the Office but is also on theirfeet in court. This year a number of ODPPlawyers piloted the use of iPads equippedwith online criminal law references andeBook versions of loose-leaf referencebooks. Overall the feedback from stafftesting the products was extremely positiveand use of the eBook licences wasextended to lawyers to use on their owndevices.

In Burns v The Queen [2012] HCA 35, the High Court considered criminal liability inconnection with manslaughter. The appellant obtained a dose of methadone from a clinic. Thatafternoon the deceased went to appellant’s unit to purchase methadone from the appellantand her husband. The appellant and her husband supplied him with methadone. Shortlyafterwards the deceased was found to be unresponsive, and the appellant’s husband walkedhim around the room and told him he intended to call an ambulance. The deceased refusedthe offer of an ambulance. The appellant then said that the deceased could not stay. Herhusband asked the deceased to leave, and then accompanied him out of the unit.

The deceased’s body was discovered the next day in a toilet block behind the appellant’s unit.The likely cause of death was a combination of methadone and olanzapine, a drug thedeceased had been prescribed.

The appellant was convicted of manslaughter. At her trial, the prosecution case was left to thejury on two possible bases. The first basis was that the supply of the methadone was anunlawful and dangerous act which caused the death. The second basis was that the appellant'sfailure to seek medical attention for the deceased was a grossly negligent cause of his death.

The appellant appealed unsuccessfully to the CCA, and then by leave to the High Court. TheHigh Court allowed the appeal and directed the entry of a verdict of acquittal.

The High Court noted that, the first basis on which the case was left to the jury was not in factavailable, as while the supply of drugs to another may be an unlawful act it is not in itself adangerous act. Any danger lies in ingesting what is supplied. There was no evidence that theappellant had administered the methadone to the deceased.

On the second basis the High Court noted that criminal liability does not fasten on the omissionto act, save in the case of an omission to do something that a person is under a legal obligationto do. The appellant’s relationship with the deceased (as the supplier of a prohibited drug tohim) did not of itself impose upon her an obligation to act to preserve his life. Further, she hadnot voluntarily assumed care of him nor secluded him such as to deny him the opportunity thatothers would assist him.

40

Recovery of proceeds of crimeConfiscation of Proceeds of Crime Act 1989 (CoPoCA)

The Director of Public Prosecutions may commence proceedings for the forfeiture of assets andpecuniary penalty orders pursuant to CoPoCA after a conviction has been recorded. In NSWthe Crime Commission also has responsibility for taking confiscation proceedings under theCriminal Assets Recovery Act 1990; such proceedings are not conviction based. The CrimeCommission usually commences proceedings in matters where there are significant amountsthat may be forfeited to the State.

On 1 January 2008 amendments to CoPoCA commenced, providing greater power to the NSWPolice Force and ODPP in relation to freezing tainted property and the confiscation of theproceeds of drug trafficking. From 1 January 2008 to accommodate the amendments, the ODPPhas made a number of administrative changes to the way proceedings pursuant to CoPoCA arehandled. Prosecution Guideline 30 was also amended to highlight the obligations of all ODPPlawyers and Crown Prosecutors to identify and pursue confiscation action where appropriate.

Resources

The ODPP receives recurrent funding of $310,000 per annum to fulfil the obligations requiredunder CoPoCA. This funding is partly applied to the position of a full time confiscation lawyer inSydney with the remainder being applied to other related resources required in the area,including information technology development and training.

Performance and Statistics

During the 2012/2013 financial year there was a moderate rise in the number of applicationsmade pursuant to the Act. Particulars appear in the following table and graph.

2009/10 2010/11 2011/12 2012/13

Number of Orders Applied for (FO,PPO & DPO)

214 247 262 274

Number of Orders Granted 199 240 240 265Number of Forfeiture Orders (FO) 188 226 223 257Number of Pecuniary PenaltyOrders (PPO)

7 4 9 4

Number of Drug Proceeds Orders 19 10 8 3Percentage of matters whereapplication was successful

93% 97% 92% 97%

Total Estimated Value of propertyconfiscated (Millions)

$1.8 $2.6 $2.1 $1.1

41

Number of Applications and estimated value

Cash was the most common property confiscated, followed by motor vehicles. Computers usedin child pornography, mobiles phones, and hydroponics equipment were also forfeited.

Estimated value of property confiscated by region

Between 1 July 2012 and 30 June 2013, 2,019 matters were identified on CASES whereconfiscation action warranted consideration.

Cost efficiency

Costs were awarded against the ODPP in 2012/13 in 81 matters. This is a slight reduction from83 matters in 2011/12. The total value of costs orders made in 2012/13 was $1,104,884.

42

Matters where costs were awarded against the ODPP

2008/09 2009/10 2010/11 2011/12 2012/13

Criminal Procedure Act 59 35 35 49 64Costs in Criminal CasesAct

5 14 17 12 13

"Mosely" Orders 5 1 9 10 3Crimes (Appeal&Review) Act

0 4 1 11 1

CoPoCA 2 1 0Total number of orders 69 54 64 83 81Total Value of ordersmade ($'000)

535 352 1,288 1,933 1,105

Number of matters dealtwith by ODPP

17,023 16,862 16,254 15,736 16,347

Number of costsawarded where fault ofprosecution

12 6 18 6 12

Percentage of matterswhere costs orders weremade due to the conductof the prosecution

0.07% 0.04% 0.11% 0.04% 0.07%

Value and number of costs orders awarded against the ODPP

Costs awarded against the ODPP: Applications for adjournment

The Criminal Procedure Act provides for costs to be awarded against the prosecutor in the LocalCourt where an adjournment of proceedings is sought. There is no power in the District Courtto make an order for costs against the Crown as a condition of granting an adjournment: R vMosely (1992) 28 NSWLR 735. However in an appropriate case the Court can ask the Crownto agree voluntarily to pay costs in an application for adjournment by the Crown.

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The following table sets outs a comparison between,2008/9, 2009/10, 2010/11, 2011/12,2012/13 where costs were awarded on prosecution applications for adjournment.

Matters where costs were awarded on adjournment

2008/09 2009/10 2010/11 2011/12 2012/13Mosely Orders 5 1 9 10 3Criminal Procedure Actother adjournments

9 15 4 5 4

Adjournment because fullbrief not served - CriminalProcedure Act

11 5 7 1 7

Other costs orders 44 33 44 67 67Total 69 54 64 83 81

Government Information (Public Access)Act 2009 NSWName of agency

Office of the Director of Public Prosecutions (ODPP)

Period

1 July 2012 to 30 June 2013

Contact

Right to Information OfficerA/Deputy Solicitor (Legal)Telephone (02) 9285 8669

Summary

The ODPP is an agency under the Government Information (Public Access) Act 2009 (GIPAAct). Pursuant to section 43 and clause 1 of Schedule 2 of the GIPA Act, information in respectof the ODPP’s prosecuting functions is “excluded information”.

In the period 1 July 2012 to 30 June 2013 the ODPP received 2 valid and 16 invalid applicationsunder the GIPA Act for access to documents. The ODPP was consulted by 2 Agencies pursuantto section 30 of the Act.

Pursuant to s7(3) of GIPA the ODPP is obliged to review its program for the release ofgovernment information. In the period 1 July 2012 to 30 June 2013 the Right to InformationOfficer has been involved in developing a new website for the ODPP. All information publishedby the ODPP is being reviewed in connection with this project. No new information has beenreleased in this period. The new website is expected to be launched by October 2013.

44

Statistical information about access applications

Table A: Number of applications by type of applicant and outcome*

Accessgrantedin full

Accessgrantedin part

Accessrefusedin full

Informationnot held

Informationalready

available

Refuse todeal with

application

Refuse toconfirm/deny

whetherinformation is

held

Applicationwithdrawn

Media 0 0 1 0 0 0 0 0Members ofParliament

0 0 0 0 0 0 0 0

Private sectorbusiness

0 0 0 0 0 0 0 0

Not for profitorganisationsor communitygroups

0 0 0 0 0 0 0 0

Members of thepublic(application bylegalrepresentative)

0 0 6 0 0 0 0 0

Members of thepublic (other)

0 0 10 0 0 0 0 0

*More than one decision can be made in respect of a particular access application. If so, arecording must be made in relation to each such decision. This also applies to Table B.

Table B: Number of applications by type of application and outcome*Accessgrantedin full

Accessgrantedin part

Accessrefusedin full

Informationnot held

Informationalready

available

Refuse todeal with

application

Refuse toconfirm/deny

whetherinformation is

held

Applicationwithdrawn

Personalinformationapplications

0 0 17 0 0 0 0 0

Accessapplications(other thanpersonalinformationapplications)

0 0 1 0 0 0 0 0

Accessapplicationsthat are partlypersonalinformationapplicationsand partly other

0 0 0 0 0 0 0 0

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*A personal information application is an access application for personal information (asdefined in clause 4 of Schedule 4 to the Act) about the applicant (the applicant being anindividual).

Table C: Invalid applications

Table D: Conclusive presumption of overriding public interest against disclosure:matters listed in Schedule 1 to Act

Number of timesconsiderationused*

Overriding secrecy laws 0Cabinet information 1Executive Council information 0Contempt 0Legal professional privilege 0Excluded information 0Documents affecting law enforcement and public safety 0Transport safety 0Adoption 0Care and protection of children 0Ministerial code of conduct 0Aboriginal and environmental heritage 0

*More than one public interest consideration may apply in relation to a particular accessapplication and, if so, each such consideration is to be recorded (but only once per application).This also applies in relation to Table E.

Table F: Timeliness

Number of applications

Decided within the statutory timeframe (20 days plus any extensions) 18

Decided after 35 days (by agreement with applicant) 0

Not decided within time (deemed refusal) 0

Total 18

Reason for invalidity No of applicationsApplication does not comply with formal requirements (section 41 of theAct)

0

Application is for excluded information of the agency (section 43 of the Act) 17Application contravenes restraint order (section 110 of the Act) 0

Total number of invalid applications received 17Invalid applications that subsequently became valid applications 0

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Table G: Number of applications reviewed under Part 5 of the Act (by type of review andoutcome)

Decision varied Decision upheld Total

Internal review 0 0 0

Review by Information Commissioner* 0 2 2Internal review following recommendationunder section 93 of Act

0 0 0

Review by ADT 0 1 1Total*The Information Commissioner does not have the authority to vary decisions, but can make

recommendations to the original decision-maker. The data in this case indicates that arecommendation to vary or uphold the original decision has been made by the InformationCommissioner.

Table H: Applications for review under Part 5 of the Act (by type of applicant)

Number of applications forreview

Applications by access applicants 2

Applications by persons to whom information the subject ofaccess application relates (see section 54 of the Act)

2

DelegationsThe Attorney General has delegated to the Director, by orders published in the GovernmentGazette, authority to consent to prosecutions for particular offences. Such delegation is permittedby Section 11 (2) of the Director of Public Prosecutions Act 1986. Section 11 (6) provides. TheDirector shall notify the person who gives an authorisation under this section of the giving orrefusal to consent under the authorisation. The giving and refusals of consent pursuant to theseauthorisations for the year 2011 - 2012 are as follows:

Consent given

* Section 66F(3), Crimes Act 1900 (sexual intercourse with person with cognitive impairment)x 4

* Section 61M(1)/(3)(e), Crimes Act 1900 (aggravated indecent assault of person with cognitiveimpairment) x 4

* Section 78A, Crimes Act 1900 (incest) x 10

* Section 327, Crimes Act 1900 (perjury) x 1

Consent refused

* Section 7(1), Surveillance Devices Act 2007 (unlawful installation / use / maintenance of alistening device) x 1

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Report of the General Manager, CorporateServicesBernard O’Keeffe B. Bus FCPAChief Financial Officer & General Manager, Corporate Services

Bernard O’Keeffe joined the NSW Public sector in 1977 and worked in a number of finance roleswith the Government Printing Office and Department of Education and Training then joinedArnott’s Biscuits in 1988 as the Cost and Management Accountant. From that point on Bernardheld a variety of CFO, senior financial, business management and business consulting roles inthe private sector including a multi-national company. He was appointed Chief Financial Officerof the ODPP in June 2009 and the General Manager, Corporate Services in 2010. Bernard wasappointed to the Advisory Board for the NSW Public Sector Community of Finance Professionalsin 2010 and the NSW Public Sector Committee for CPAs Australia in 2011.

Overview

Corporate Services were successful inimplementing initiatives that focused onstaff, technology, business tools, policiesand processes. All initiatives were designedto improve productivity and advance theprovision of services.

Corporate Services Highlights

Health and Well Being

Building on progress already made, theOffice continues to further develop andstrengthen Health & Well-Being strategiesfor all staff. This has included the provisionof information sessions for both managersand staff and the introduction of a fluvaccination program. The numerous trainingsessions held focused on mental health andwere a huge success. Both the trainingsessions and flu vaccination program willcontinue to form part of the ODPP’s healthand well-being strategy into the future.

In 2012/13 the Office saw a reduction inWorkers Compensation claims.

During the year staff participated in a statewide people matter survey, the results ofwhich will assist in the development of theagencies future plans and priorities.

Management Development

The Office commenced a ManagementDevelopment Program that is module basedand focuses on the key aspects of being asuccessful manager. This program willcontinue throughout the coming year withfurther development made to the modules toensure continued success. The programhas been positively received by themanagement team.

Staff Awards

Many staff received 10 and 20 year ServiceAwards this year, which demonstrates thededication of our staff and their desire tocontinue working with the NSW ODPP. Asin previous years, Excellence Awards wereissued for outstanding service and theywere presented by the Director at an all staffaddress that was broadcast to all ODPPOffices simultaneously.

We strive to be an innovative

centre of excellence that is

effective and efficient

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Training

A revamped training program in 2012 hasdramatically increased learning anddevelopment opportunities for staff at alllevels to assist them in achieving theirrequired professional development. Lastyear the number of training programs heldincreased by 50% with attendees at coursesincreasing by 61.5%.

Staff Security

Security within the office and Courts isalways a high priority to ensure the on-goingsafety of our staff in their workplaces.Throughout the year we have continued towork closely with the Courts and Sheriff toprovide the best security possible in anenvironment where various interestedparties have easily available access.

Corporate Governance,Procurement and FinancialAccountability

Finance

In 2012/13, the Finance team met allstatutory obligations on time and paid over5000 invoices. 100% of payments to smallbusiness were made on time and 98% oftotal payments were paid on time. Workcommenced on implementing a new onlinepurchasing card system to capture andstreamline transactions.

The Business Intelligence tool enabledefficiency gains to be made in budgetingand at month end through the use of betteranalysis and enhanced reporting systems.

Procurement and Cost Savings

The Office successfully met a range ofbudget savings requirements during2012/13. Cost savings initiatives focusedon better utilisation of the motor vehiclefleet, contract reductions in utilities andoptimisation of our labour costs.

Other procurement strategies includedpurchasing recycled or ‘green’ products andrecycling furniture and equipment where theOffice business needs were notcompromised.

The Procurement Team were innovative inchanging from individual supply providers toservice providers that can ‘package’ atimproved prices and reduce waiting time forservice calls on building and equipment.

The Office continues to carefully manage itsenergy and water needs and again achieveda 5-star NABERS rating for the SydneyOffice and 4.5-star NABERS ratings for theParramatta Office.

Information Management andTechnology

The Technology team continued to providestable, reliable and secure operationalsystems as well as improving the use oftechnology for video conferencing andstreaming of multimedia training materials.

Technology

To improve the productivity of a mobileworkforce, the Office commenced work onthe development of a mobile device tabletplatform to enable staff to connect to theODPP network. These devices will includesmart phones and mobile tablet devices.

Business Intelligence

A Business Intelligence (BI) tool wasimplemented to enable the ODPP to betterand more quickly analyse, monitor, manageand report on organizational performance.The tool has proven to be a success and willcontinue to be further developed for wideruse. BI provides a significant improvementin data access and reporting capability andis expected to greatly assist the Office over

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time to better manage the operation andresources.

Other achievements

Continued implementation of strategiesto deliver the savings in ICT expenditurerequired under the Treasury’s NSW ICTExpenditure Review Project for 2012/13onwards.

Maintain the certification of the IM&TInformation Security ManagementSystem (ISMS) under the ISO/IEC27001:2005 standard.

Implement the interface betweenJusticeLink and the business systemsof ODPP for the ‘Joined up Justice’project.

Implementation of the BusinessIntelligence and Reporting System.

Development of the new ODPPwebsite.

Disaster Recovery technical proceduresdeveloped and tested.

Human ResourcesHealth and Well-being

The Office remains committed to theprevention and management ofpsychological injury by providing ongoingtraining and education on related well-beingtopics and constantly seeking newopportunities to improve psychological well-being for staff.

The Office is in the final stages of preparinga new performance management systemwhich will have a specific focus on drawingattention to psychological well-being relatedissues. It will include indicators that ensurestaff welfare is given appropriate priority inthe management of performance andworkload.

The Office introduced a ‘Flu Vaccination’program this year, with a total of 232 staffparticipating across the state. The overallsuccess of this program in relation to the

reduction in sick leave absences will bemeasured in the coming years; however theimmediate boost in staff morale will ensurethat the program remains a regular WH&Scommitment for the Office.

Public Service Commission ‘State of theSector’ Report

Following the results of the Public ServiceCommission’s ‘State of the Sector’ report,the Office focused attention on the area ofbullying, with office-wide training programsfor managers and information sessions forall staff being delivered by the Anti-Discrimination Board. These programswere well received and continue to reinforcethe Office’s commitment to dignity, respectand professionalism in the workplace.

Workers Compensation

The Office continues to work onpreventative and early interventionstrategies to effectively manage workerscompensation claims and this year thereturn to work process and performance inthis area was outstanding.

There was a:

53% reduction in the Number ofCompensable Injuries (compared to theprevious year);

66% reduction in the Average Cost ofClaims (target being 5%); and an

8.4% reduction in Average Time onWeekly Benefits – Section 36 (first 26weeks).

(It is worth noting that the Office had a 118%increase in this measure last year)

The ongoing development andimprovement in monthly WH&S reporting tothe Management Committee and ExecutiveBoard has assisted in reiterating ourcommitment to a broader strategic approachto injury prevention and management.

50

Equal Employment Opportunities Statistics

A. Trends in the Representation of EEO Groups

% of Total StaffEEO Group Benchmark

or Target2009 2010 2011 2012 2013

Women 50% 62% 61% 60% 61.9%

62.3%

Aboriginal people and TorresStrait Islanders

2.6% 0.8% 0.7% 0.8% 0.7% 1.0%

People whose first languagewas not English

19% 16% 16% 16% 14.8%

14.9%

People with a disability N/A 5% 5% 5% 5.9% 5.4%People with a disabilityrequiring work-relatedadjustment

1.5% 2.2% 1.9% 1.8% 2.1% 1.7%

B. Trends in the Distribution of EEO Groups

Distribution IndexEEO Group Benchmark

or Target2009 2010 2011 2012 2013

Women 100 83 85 86 85 85Aboriginal people and TorresStrait Islanders

100 N/A N/A N/A N/A N/A

People whose first languagewas not English

100 89 91 91 91 91

People with a disability 100 94 94 95 96 94People with a disabilityrequiring work-relatedadjustment

100 N/A N/A N/A N/A N/A

Notes:1. Staff numbers are as at 30 June 2013 excluding casual staff.

2. A Distribution Index of 100 indicates that the centre of the distribution of the EEO group acrosssalary levels is equivalent to that of other staff. Values less than 100 mean that the EEO grouptends to be more concentrated at lower salary levels than is the case for other staff. The morepronounced this tendency is, the lower the index will be. In some cases the index may be morethan 100, indicating that the EEO group is less concentrated at lower salary levels.

3. The Distribution Index is not calculated where EEO group or non-EEO group numbers are lessthan 20.

51

Equality and Diversity Achievements

Indigenous Recruitment

This year the Office was successful inrecruiting a targeted Indigenous LegalDevelopment Programme placement.

Professional Learning Programs

Included in the professional learningprograms offered to staff this year were thefollowing topics specific to equity anddiversity:

Working with Refugee Survivors Bullying and harassment prevention Understanding of Islam and Muslims Working with clients from Afghanistan,

Iran and Iraq Managing psychological Injury or

illnesses and difficult behaviours formanagers

Notable Statistics

11% of staff are working part time 62% of all employees are female 8% of new starters are under the age

of 25 33 was the average age of new starters

Chief Executive Service and Senior Executive Service

Number of CES/SESPositions

Total Total Total Total Total Total Total Total

Level: 30June2006

30June2007

30June2008

30June2009

30June2010

30June2011

30June2012

30June2013

SES Level 1 3 2 3 3 3 3 3 3SES Level 2 3 2 3 3 2 2 2 2SES Level 3 - - - - - - - -SES Level 4 - - - - - - - -SES Level 5 - - - - - - - -SES Level 6 - - - 1 1 1 1 1StatutoryAppointmentsUnder the DPP Act* 4 3 4 4 4 4 4 4Positions filled bywomen

2 1 3 4 3 4 4 4

* The Director of Public Prosecutions, Deputy Director of Public Prosecutions and Solicitorfor the Public Prosecutions are statutory appointees, appointed under the Director of PublicProsecutions Act 1996

Staff Numbers 30June2006

30June2007

30June2008

30June2009

30June2010

30June2011

30June2012

30June2013

Statutory Appointed &SES

105 100 97 94 92 90 89 84

Lawyers 324 311 299 301 300 320 319 319Administration &Clerical Staff

225 219 216 211 210 212 209 214

Total 654 630 612 606 602 622 617 617Staff Profile used to prepare above statistics

52

Corporate Governance

Risk Management and InsuranceActivities

Risk Management

A Fiduciary and Governance Controlinternal audit was conducted this year.

The Office accepted the improvementrecommendations made by the internalauditor.

Insurance Activities

Motor Vehicles

The Office’s 2012-13 Motor Vehicle claimstotaled 24, representing an averagedamaged/lost net cost in claim payments of$2,460 per vehicle. In comparison to the2011-2012 financial year, there was anincrease of 6 claims, however there was adecrease in the net damage/lost cost pervehicle of $2,340.

Property

In 2012-2013, there were a total of threeProperty Claims for the Office. Of the twoclaims relating to the loss of laptopcomputers, one was accepted and the otherdeclined. The third claim was as a result ofwindstorm damage to the Penrith Office’sbalcony cover and was accepted.

Miscellaneous

The 2012-2013 reporting period saw theOffice with zero miscellaneous claims.

Credit Card Certification

During this financial year, credit card usewithin ODPP was in accordance withPremier & Cabinet Memoranda, Treasurer’sdirections and award conditions for travelrelated expenses.

Recruitment Statistics2006/07 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13

SeniorExecutiveService

0 0 1 0 0 0 0

StatutoryAppointed

0 0 0 0 0 3 0

CrownProsecutors

2 1 0 2 0 5 2

ProsecutionOfficer(Lawyers)

25 19 28 18 32 33 21

ProsecutionOfficer(Admin)

41 45 48 35 50 49 29

Total 68 65 77 55 82 90 52As per Workforce Profile, all new starters within the financial year

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Credit card use

Credit card use within ODPP is largelylimited to: Claimable work related travel expenses;

and Expenditure for minor purchases where

the use of credit cards is a more efficientmeans of payment.

Monitoring credit card use

The following measures and practices areused for providing guidelines and monitoring

the efficient use of credit cards withinODPP: Officers are issued with a credit card

monthly statement to verify and certifythat all expenses were incurred forofficial purposes. Acquittals areexamined and authorised by officers withappropriate financial delegation;

As a minimum, annual reviews of usagelevels and appropriateness of credit cardlimits are conducted; and

A half-yearly report is submitted toTreasury certifying that credit card use inthe ODPP is within set guidelines.

Consultants

(a) Consultancies each engagement costing more than $50,000: Nil(b) Consultancies each engagement costing less than $50,000:

Categories Total number of engagements Cost Exc. GSTInternal Audit 1 $6,525Human Resources 1 $9.997Management 1 $6,000Total consultancies each engagements costing less than $50,000 $22,522

Overseas Travel Information

L Babb SC 29-31 May 2013Hong Kong

Head of Prosecuting Agencies ConferenceAirfare $5,337.98, Accommodation $2,079.81

$7,417.79

TOTAL $7,417.79

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Government Energy Management Plan(GEMP)

The Office continues to practice soundenergy management with the Sydney Officeachieving a 5-Star NABERS rating for thesecond successive year.

The ODPP is committed to assisting theGovernment in attaining its energymanagement goals by purchasing energywithin the Government’s 776 and 777contracts and by continuing to practice andpromote the following energy managementmethodologies:

Lighting and Utilities

Energy efficient purchases and usage Practice of energy saving methodologies Waste elimination when not in use Improvement of energy management

during refurbishments

Equipment

Energy efficient star-rated purchases Provision of operational training Improvement of energy management

during refurbishments

Energy

Purchasing within the Government’s 776and 777 contracts at the mosteconomical price

The ODPP’s ongoing goals under theGEMP include:

Assisting the Government to achieve areduction of State-wide total energyconsumption for government buildingsby attaining the highest tenancy star-rating possible;

Upgrading the energy efficient facilitiesat every opportunity and when lightingupgrade to efficient sensor operatedsystems can be affected;

Purchasing electricity within Governmentcontracts 776 and 777 to ensuremaximum savings;

Continuing to purchase equipment thatcomplies with energy star-ratingrequirements and reducing overallequipment numbers by consolidating toMulti-Function Devices (MFD);

Increasing staff awareness of energymanagement by publishing best practicemethodology and provision of facilities(i.e. placement of power points withinreach so they can be turned-off easily atthe close of business); and

To obtain the first Nabers rating for ourGeorge Street, Parramatta premises.

The Manager, Procurement and Facilitiesmanages the daily GEMP related tasks, withthe General Manager, Corporate Serviceshaving overall responsibility for the energymanagement of the Office.

Waste Reduction and Purchasing Planand Recycling (WRAPP)

Procurement strategies throughout the yearfocused on:

Waste reduction; Utilise Government contracts to

purchase recycled or ‘green’ products(carbon neutral) products; and

Recycle or reuse furniture andequipment where possible.

Facilities exist within the Sydney,Parramatta and Lismore offices to haverecycled office products such as paper,cardboard and co-mingled items collected.Other offices located in multi-tenantedbuildings do not have lessors that supportrecycling and waste reduction or providespace for storage and collection of recyclingitems.

55

Strategies to Recycle and Reduce Waste

To ensure the reduction of waste recycling,the Office follows established Governmentand agency strategies or negotiatedcontracts. Strategies adopted are:

Paper wastes

Multi-function devices (MFDs) that offerdouble-sided copying

Concise instructions and training in theuse of copying machines and printers

Multi-destination (internal) envelopes Enhancement of our waste products and

stationery recycling and reuseachievements

Equipment

Reduction of equipment through thepurchase of MFDs that combine thecopy, printer, facsimile and scanningfacilities

Expired MFDs are traded in at the expiryof their serviceable life (5 years) andreused as re-engineered machines orstripped for parts

Expired serviceable computers arerecycled for the use of appropriate partsor re-engineered as usable machines

Toner Cartridges

All toner cartridges are collected andrecycled where possible

Furniture

Furniture is re-used, sold at auction,tender or transferred to otherGovernment Departments

Electricity

A lighting replacement programme wasundertaken in the 2012-2013 year. Fiveoffices were fitted out with T5 energyefficient tubes and adaptors. All ODPPoffices now have T5 lighting which savesenergy and is estimated to last five timeslonger than the older bulbs

Photocopiers have power reducebuttons

Air conditioning plant is fitted with timersto limit operation only to business hours

Energy efficient hot water systems areused in bathrooms and kitchens

Electricity contract 777 and 776 arebeing utilised where available

Water

Water efficient taps in are usedbathrooms and kitchens

Auto flushing systems in the men’s toilets Showers are fitted with water saving

heads Hydra boil or mini boil hot water units are

installed to eliminate water wastage

56

Environmental Strategies

Printed Stock

Stock Item Recycled EnvironmentalAccreditation

ElementalChlorine

Free

Wood FibreSustainable

Forests

Archival ISO14001International

StandardFolders 40-60%

Letterhead

ComplimentsSlips

BusinessCards

Envelopes 80-90%Brochures 30%

Soy based inks are used in preference to solvent based products for printing of stock wherepossible.

Information and Technology

Report of the C.I.O on Major IM&T Projects during 2012/2013

JusticeLink and Joined up Justice (JuJ)

The JuJ Data Exchange Project was successfully implemented in the ODPP in October 2012.

JuJ is a joint project between the ODPP and Legal Aid NSW (LANSW) to develop and implementlinks between the agencies to access and share information with the JusticeLink system.JusticeLink is the case management system which manages cases through the Local, District,Supreme and Children’s Courts.

ICT INFRASTRUCTURE UPGRADES

Wireless Network

This project successfully set up segregated wireless networks at all ODPP offices in March 2013.

The wireless networks were a pre-requisite for the iPad extended trial project and are needed tosupport mobile devices over the Wi-Fi network.

Citrix Access Gateway and Integration with New Citrix XenApp 6.5

In March 2013 this project successfully implemented the Citrix Access Gateway to improve theuse of remote access using RSA keys. The project also upgraded existing software allowingintegration with the Gateway.

57

ESX Servers Upgrade

ESX is computer virtualisation software that runs on server hardware and provides anenvironment for multiple numbers of virtual servers. The result will be a reduction in the numberof physical servers needed to support the work of the ODPP, greater flexibility and reduced costs.

ESX was successfully implemented in the Head Office server farm and at the Disaster Recoverysite at Penrith in April 2013.

Upgrade of Storage Area Network (SAN)

Upgrading the Storage Area Network (SAN), which is the core storage facility for all ODPPinformation systems, has increased the amount of available storage and extended its life.

This project was successfully completed in June 2013.

INFORMATION MANAGEMENT & TECHNOLOGY PROJECTS

Email Archiving

In September 2012 this project was implemented to provide an automatic solution which archivesemails on a rolling schedule in order to meet Premier’s Memorandum M2004-14 and the StateRecords Act. All archived emails are easily accessible and restored from secure storage.

Business Intelligence and Reporting (BIR)

Phase one of a Business Intelligence and Reporting (BIR) system was completed in August2012, enabling the ODPP to analyse, monitor, manage and report on its organisationperformance more efficiently. Additional development to the system continued up to December2012.

Further enhancements to the BIR system are planned for 2013-14.

iPad Extended Trial

This project involved providing iPads to a select number of ODPP business users where accessto ODPP information systems was required when they were mobile. The results of the extendedtrial showed that iPads were an efficient and effective use of technology for the staff that usedthem.

The project was successfully completed in June 2013 and the results of a post implementationsurvey analysed and reported to the ODPP Executive Board in July 2013.

ODPP Website

The ODPP website has been re-developed using Sitefinity software as the Content ManagementSoftware (CMS), with the structural re-development now complete.

Site content is currently being updated by the various business areas and implementation of thelive site is expected in November 2013.

58

Consolidation of Objective Services

This project consolidates all Objective Document Management Services from 9 regional officesto a single service at Head Office, which will result in an improved response time in opening andsaving documents store in the system. Successful consolidation of these services will alsoenable a migration of the Integrated Document Management System (IDMS) to back-endmanagement system TRIM in 2013-14.

Development of this project was completed in June 2013 and implementation is scheduled forAugust 2013.

Security Certification

The Information Management & Technology (IM&T) Security Management System for theactivities of the IM&T Branch was re-certified in August 2012.

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Head Office175 Liverpool Street (level 15 Reception)SYDNEY NSW 2000 DX 11525Locked Bag A8, SYDNEY SOUTH NSW 1232 Sydney DowntownTelephone: (02) 9285 8606 Facsimile: (02) 9285 8600

Regional OfficesCampbelltown DX5125 Parramatta DX8210Level 3, Centrecourt Building 4 George Street101 Queen Street PARRAMATTA NSW 2150CAMPBELLTOWN NSW 2560 PO Box 3696, PARRAMATTA NSW 2124PO Box 1095, CAMPBELLTOWN NSW 2560 T: (02) 9891 9800 F: (02) 9891 9866T: (02) 4629 2811 F: (02) 4629 2800

Dubbo DX409 Penrith DX8022Ground Floor, 130 Brisbane Street Level 2, 295 High StreetDUBBO NSW 2830 PENRITH NSW 2750PO Box 811, DUBBO NSW 2830 PO Box 781, PENRITH POST BUSINESST: (02) 6881 3300 F: (02) 6882 9370 CENTRE NSW 2750

T: (02) 4721 6100 F: (02) 4721 4149Gosford DX7221Level 2, 107-109 Mann Street Wagga WaggaGOSFORD NSW 2250 Level 3, 43-45 Johnston StreetPO Box 1987, GOSFORD NSW 2250 WAGGA WAGGA NSW 2650T: (02) 4337 1111 F: (02) 4337 1133 PO Box 124, WAGGA WAGGA NSW 2650

T: (02) 6925 8400 F: (02) 6921 1086Lismore DX7707Level 3, Credit Union Centre Wollongong DX27833101 Molesworth Street Level 2, 166 Keira StreetLISMORE NSW 2480 WOLLONGONG NSW 2500 POBox 558, LISMORE NSW 2480 PO Box 606,T: (02) 6627 2222 F: (02) 6627 2233 WOLLONGONG EAST NSW 2520

T: (02) 4424 7111 F: (02) 4224 7100Newcastle DX7867Level 2, 51-55 Bolton Street Note: Each Office is open Monday to FridayNEWCASTLE NSW 2300 (excluding Public Holidays) from 9:00am toPO Box 779, NEWCASTLE NSW 2300 5:00pm. Appointments may be arranged T:(02) 4929 4399 F: (02) 5926 2119 outside these hours if necessary