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


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


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


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


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


“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


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


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