OVERZEALOUS
PROSECUTIONS IN THE WAKE OF
#METOO?
JANET ALBRECHTSEN
The Australian 8 March2023
“Quis custodiet ipsos custodes?” asked Roman poet Juvenal.
The custodes were bodyguards to the Roman emperor, their role to watch
over and protect him. But who watches over the watchmen, asked Juvenal.
The same question could be asked of prosecutors.
Who watches over these prosecutorial guardians of Lady Justice? Every day,
hundreds of prosecutors across the country exercise the enormous powers of
the state against individual citizens. There is a judicial commission that
hears complaints against the nation’s judges. Incredibly, in Australia, there
is no similarly independent body to hear complaints about prosecutors.
There are Bar associations and law societies and legal services
commissioners, but let’s not turn this into a comedy piece. These bodies
have dealt themselves out of the serious job of regulating prosecutors –
because, to date, it has been left to judges to tell us what’s going wrong with
prosecutors.
And it has come about from costs judgments in which wrongly charged
defendants have sought costs from the NSW government under the Criminal
Costs Act 1967. The startling concerns from courageous NSW judges should
be a warning to all Australians.
To understand the depth of judicial concerns about the NSW Office of the
Director of Public Prosecutions, it pays to set out in detail what they said.
In September 2022, in R v DS, District Court judge Penelope Wass noted that
a not guilty verdict after 25 minutes of jury deliberations was delivered with
“befitting alacrity”.
The judge said there was “never any prospect that any jury, acting reasonably
and following the legal directions given, could properly accept the
complainant beyond reasonable doubt, even without consideration of the
(defendant’s) account”.
The judge finished her judgment awarding costs with this: “The bringing and
continuation of unmeritorious cases in abrogation of the prosecutor’s
responsibilities … imposes a burden not only on the criminal justice system
but on all those involved in it, including complainants and, not the least of
whom, any person against whom that prosecution either commences or
continues.”
In another sexual assault case, in February last year, R v Cowled; R v Wilson,
judge Gordon Lerve expressed his concerns that too many sexual assault
cases coming to court in recent years “were in fact doomed to failure from
the outset”. Later that year, the same judge granted costs to a defendant in a
sexual assault case that the judge said was as “doomed to failure”.
In a costs case in March 2023, involving sexual assault allegations against a
father – R v SGH – Wass found that another unreasonable prosecution had
been launched.
In R v Kane, a complaint of sexual assault made by a woman diagnosed with
mental health disorders and a history of documented lies proceeded to court,
only to be dropped by the DPP mid-trial – but only after a second “no bill”
application by the defendant’s barrister raised concerns about the lack of
evidence and the credibility of the complainant.
That case, too, should never have reached a courtroom. Prosecutors
confirmed as much when they agreed to pay costs. Had costs been disputed,
the ODPP might have received another judicial bollocking.
Like the one given by judge Robert Newlinds in December last year, when he
said, at the end of yet another successful costs application, in R v Martinez:
“I do wish to record that I am left with a deep level of concern that there is
some sort of unwritten policy or expectation in place in the Office of the
Director of Public Prosecutions of this state to the effect that if any person
alleges that they have been the subject of some sort of sexual assault then
that case is prosecuted without a sensible and rational interrogation of that
complainant so as to at least be satisfied that they have a reasonable basis for
making that allegation, which would include at least being satisfied that the
complainant has a correct understanding of the legal definition of sexual
assault or sexual intercourse without consent.”
Newlinds said: “The prosecutor failed to perform the important role of
filtering hopeless cases out of the system and has thus been the primary
cause of this applicant spending eight months in jail for a crime he did not
commit.”
Sally Dowling was appointed head of the NSW ODPP in August 2021. She
responded to Newlinds’ judgment by announcing publicly that she would
lodge a complaint about his judgment to the NSW Judicial Commission.
Many senior and high-profile barristers have told Inquirer that her response
is chilling.
They include former NSW Bar Association president and prominent Sydney
silk Arthur Moses SC, who says: “I am troubled as to whether the making of
these type of complaints to the judicial commission may have a chilling
effect on judicial officers expressing their concern about the conduct of cases
before their court. If that happens, it would be most regrettable and would be
contrary to the public interest. There needs to be transparency on why
prosecutions fail and judges should not be cowered into silence if they have
concerns about the conduct of prosecutions.”
Moses says “on no view could it be said that any of these judges have engaged
in conduct that falls within section 15 of the Judicial Officers Act. Judges are
entitled to explain publicly their views and concerns in relation to the
conduct of cases that come before her or him. That provides the judiciary
with the opportunity to communicate with litigants and the public to explain
what has occurred in the courtroom. This enhances public confidence in the
administration of justice.” Moses is concerned that if judges don’t speak up
about why prosecutions fail – where there is not enough evidence – “the
public may gain a false impression that procedural safeguards which ensure a
fair criminal trial should be eroded to make it easier for a prosecutor to
secure convictions rather than focusing on whether it was proper in the first
place for a person to be prosecuted”.
The overriding duty of a prosecutor is to the court – not to the ODPP or to
Dowling. If a prosecuting barrister realises a case is so weak that it should be
discontinued, or should never reach court, they are duty-bound to return the
brief, or discontinue the case if it has reached court.
Instead of complaining about the judge, the NSW chief prosecutor should
reflect on what Newlinds, an experienced former barrister, described as a
“substantial flaw in the system” where prosecutors running weak cases are
not able to discontinue cases without seeking a direction from the ODPP.
Newlinds said: “This apparent policy of the DPP … puts all advocates
appearing on the DPP’s instructions, but more importantly those of them
that are actually employed either by the DPP or some related entity, into a
position of intolerable conflict.”
Dowling’s foolish and disturbing complaint against Newlinds didn’t frighten
District Court judge Peter Whitford. Two weeks ago, in R v Smith, Whitford
repeated Newlinds’ concerns.
Whitford said: “It is at least the recent experience of this court that time and
time again proceedings are brought without apparent regard to whether
there might be reasonable prospects of securing a conviction. It is made plain
in many of those cases that they are brought, and maintained, on the
instructions of the Director’s chambers, whatever the entity so described
might embrace by way of decision-making, without apparent regard to any
views which might be held by the person likely best placed to assess the
strengths and weaknesses and merits otherwise of the prosecution, being the
Solicitor Advocate or Crown Prosecutor, salaried or otherwise, briefed in the
matter.”
In especially pointed remarks, Whitford said he wanted to endorse what
Newlinds said in Martinez because “this trend the judges are witnessing risks
undermining the efficient conduct of the business of the court and the
administration of criminal justice in this state”.
Whitford said unless judges spoke up, there was a “substantial risk” that two
troubling issues also raised by Newlinds wouldn’t be remedied. The first
concerns the “intolerable conflict” imposed on prosecutors between their
instructions from the leadership cabal within the ODPP and their obligations
to administration of criminal justice.
“Prosecutors are professionally obliged to form their own individual,
subjective views as to whether proceedings should be commenced and
continued, and have an obligation (regardless of instructions) not to
commence or proceed with cases if they form the view that they have no
prospects of success,” Whitford said.
The second issue raised in Smith, as in the other cases, concerns
prosecutorial discretion. It was, said the judge, “the sole ‘check and balance’
in ensuring that scarce public resources are not needlessly devoted to futile
prosecutions.
“Far too frequently, not just in this case, or in the case of Martinez, but also
in numerous others, including some that have been the subject of reported
public and private comment elsewhere, one cannot help but conclude that
any reliance upon the Director’s own published guidelines has been
abandoned, or at least abandoned in some categories of case, in favour of
simply letting a jury (or a judge sitting alone) decide the merits of a case,
without any professional examination of either the reasonable prospects of
securing a conviction or the public interest in pursuing the prosecution.”
Whitford wasn’t finished. “The court’s accumulating experience suggests
there was nothing frivolous, nor indeed unique, about the deep level of
concern expressed by Newlinds SC DCJ that there has developed within the
Office of the Director of Public Prosecutions of this state some sort of
unwritten policy or expectation to the effect that certain categories of case
are now prosecuted without, or perhaps in spite of, a rational, professional
interrogation of the merits of the case and the prospect of securing a
conviction. I share that concern,” he said.
It is troubling that these issues arise in one category of case – sexual assault.
The legal response to the #MeToo movement must not be a lower standard
for charging to satisfy a drive to bring an unpopular group of defendants into
court more easily.
Given what is at stake, Dowling’s response to this judicial crisis of confidence
in the ODPP has been nothing short of dismal.
After Whitford’s damning judgment, she sent an email to prosecutors in her
office saying she expected them “to continue applying the guidelines with
due care and diligence at every stage”.
That’s a curious response. Dowling is responsible for the prosecutorial
culture in her office. Dowling has the power to end unmeritorious
prosecutions. Instead of appearing to blame staff, she should be supporting
her staff by repeating the judge’s observations that the prosecutors have a
duty to the court, not to the ODPP.
Next, Dowling told the NSW estimates committee on Wednesday she “didn’t
accept” that there was a failure of her office to properly apply prosecution
guidelines. Yet this newspaper has reported that prosecutors in Dowling’s
office are concerned that “once charges are laid, it is very hard to have the
prosecution terminated”.
What on earth is going on in the ODPP?
She simultaneously announced an audit of all current rape cases to “satisfy
myself that there wasn’t a problem”. What kind of audit? Who is doing it?
Who will see the result, apart from Dowling? Is it external and independent?
Anything less is a cop-out response to the deeply troubling issues raised by
NSW judges.
The raw figures provided by the ODPP to Inquirer show an upsurge in
successful costs applications from 2017, around the time the #MeToo
movement ramped up, until last year, ranging between 20 and 34 – excepting
the 2020-19 financial year when there were only nine. Inquirer is waiting for
a breakdown from the ODPP to show how many of these relate to sexual
assault cases.
These figures aside, across the country there are too many unanswered
questions about who keeps prosecutors accountable.
We are left with judges, so concerned about what they are seeing, using
judgments in costs applications to lift the lid on the serious prosecutorial
discrepancies when it comes to sexual assault cases. It is an unsatisfactory
way to keep prosecutors accountable. After all, a costs application can top up
the bank account but it doesn’t come close to making amends for the
destruction to a defendant’s life.
Spare a thought for the citizens of the ACT where a defendant wrongly
charged of a serious offence has no recourse for even financial
reimbursement. A prosecution may be wholly lacking in merit but a
successful defendant in the ACT will not only suffer inevitable reputation
damage but possibly be bankrupted.
Take the case of Alex Matters. This young man faced court on sexual assault
charges despite pleas from his barrister that the evidence was too weak and
the trial would cause harm to the complainant given discrepancies in her
own evidence. And that is exactly what happened. The complainant was
unnecessarily humiliated. The defendant was acquitted, but not before his
life was turned upside down.
Matters has no recourse to a costs order against the ACT ODPP. His barrister,
Steven Whybrow SC, told Inquirer the ACT should have a criminal costs act
similar to the NSW legislation.
“If the prosecution is going to continue to run cases that don’t have
reasonable prospects of success, then there needs to be some legislation to
allow an accused person to recover costs for those particularly egregious
cases where they should never have been run. We have cases like Martinez
and Smith, where the jury’s out for an hour, and a defendant is acquitted,”
Whybrow told Inquirer.
“Matters is a classic example. That’s a case which should never have been
run.”
Whybrow says whereas fairness is the primary purpose of laws granting
costs, NSW illustrates how those laws now serve a broader purpose
“providing judges with a vehicle to make comments about those
prosecutions which should never have been brought or continued”.
In 1940, US attorney-general Robert H. Jackson reminded a gathering of
prosecutors that “the spirit of fair play and decency should animate the
federal prosecutor”. Jackson told the prosecutors that even when “the
government technically loses its case, it had really won if justice has been
done”. Jackson warned them that “any prosecutor who risks his day-to-day
professional name for fair dealing to build up statistics of success has a
perverted sense of practical values, as well as defects of character”.
Presciently for the #MeToo era, Jackson said the greatest danger was “in
times of fear and hysteria” when the “crying for scalps” led to politically
motivated prosecutions of a group of people deemed to be unpopular.
We certainly don’t have a Robert Jackson in Macquarie St.
When NSW upper house MP Tania Mihailuk asked NSW Attorney-General
Michael Daley on Wednesday whether the scathing remarks from judges
warranted a parliamentary inquiry, Daley responded: “Not at this time, no.”
His intransigence is bizarre. Dowling was appointed by a previous
government. The administration of justice in NSW is under a cloud. A person
facing an allegation of sexual assault should be entitled to the same
protections from the law and from prosecutorial overreach as a person facing
an allegation of any other crime. But that does not seem to be the case. In
addition to reading Jackson’s speech, Daley and Dowling should tune into
The Wigs – the excellent podcast hosted by Stephen Lawrence, a criminal
barrister and NSW Labor MP, along with practising barristers Emmanuel
Kerkyasharian, Felicity Graham, and Jim Minns – where all these critically
important issues about prosecutorial powers, discretion and accountability
are analysed at length.
Clearly, there needs to be a NSW parliamentary inquiry into concerns by
judges about “lazy and perhaps politically expedient” sexual assault
prosecutions – to quote Newlinds one final time. There needs to be a properly
independent audit of current sexual assault cases in the NSW ODPP. There
need to be reforms requiring that prosecutors individually certify and take
responsibility for a prosecution meeting the proper standard before it is
launched.
We need to get the bottom of this question: is the concentration of gross
injustices perpetrated on sexual assault defendants evidence of some
political decision to treat these cases differently? And if so, whose decision
was that – Daley, Dowling or someone else?
Most important, there needs to be a permanent body that oversees the
behaviour of prosecutors.
Other states and territories can’t afford to turn a blind eye either. It would be
foolish to imagine that there is something in the water fountain in the NSW
ODPP