“A nightmare scenario is that a DPP decides that a matter will not go to trial. Thereafter, the accused embarks on a series of sexual assaults before being arrested, tried and convicted. There is bound to be media where a little bit of hindsight hysteria goes a long way.” HUGH SELBY looks at the pressure to prosecute on directors of public prosecutions. 

In the ACT, the Higgins/Lehrmann 2022 trial saga spilled over into the 2023 Sofronoff Inquiry, which led to the resignation of our Director of Public Prosecutions (DPP).

The Higgins/Lehrmann saga from 2019 to today has revealed the pitfalls and opportunities for complainants, accused, police, lawyers on both sides, and media in an evolving social milieu. 

The core change has been the pressure to accept a dubious paradigm that anyone who alleges sexual misadventure is telling the truth. For those receiving and acting on complaints a “willingness to listen and evaluate dispassionately” (highly desirable) has been replaced with a demand to accept the bonafides of the complainant.

Those who have followed the Higgins/Lehrmann adventure will have seen how the bonafides of the key players as to what, if anything, untoward happened in a Parliament House office one night in March 2019 is now far from clear.

In a few years we might look back and be grateful that the Higgins/Lehrman journey pricked the bubble on the over reliance upon caricatures of “the good victim”.

Meanwhile, this never-mind-the-inconsistencies approach to evaluating allegations has led to ostracism of those who prefer to deal with the evidence available in each instance, and not to accept as self-evidently persuasive a bare assertion of victimhood delivered well with either stoicism or tears.

That said, social movements influence all of us, including investigating police, prosecutors, defence lawyers, judges, jurors and media.

The influences create a prejudice, albeit a currently “acceptable” one. Its acceptability drives imperfect decision making because to go with the flow is easy, while to go against the tide is career defeating.

Prosecution offices are not immune. They are hierarchical, competitive career institutions. Decisions to go, or not go to trial, reflect not only prosecution guidelines (considered below) but also prevalent social mores.

Criticism of prosecutions

DPPs hold their office under a statute, typically dating from the early and mid-1980s. Despite the short history, our most recent DPP is not the first DPP to be forced from office. Various “unfortunate events” have led others in other states to resign.

In 2023 and this year there has been repeated media attention to decisions made by the NSW and Victorian DPPs. The media criticism focuses upon: taking unwinnable “sexual assault” cases to trial; making complaints to judicial commissions against judges who have criticised prosecutor decisions to bring such unwinnable cases to court; and, the lack of independent scrutiny of DPPs.

That’s not all. Last year, the Victorian DPP declined to accept the recommendations of the inquiry conducted by former High Court Justice Geoffery Nettle as to charges to be laid in the aftermath of the exposure of the running by Victoria Police of a defence lawyer, Nicola Gobbo, as an informant about her clients.

Also in the mix have been the controversial Commonwealth prosecutions of whistleblowers, including Witness K (an intelligence officer), Bernard Collaery (former ACT attorney-general and local lawyer who acted for Witness K), David McBride (an ADF legal officer) and Richard Boyle (an ATO officer). 

These are controversial because each of them exposed alleged wrongdoing, each of them acted in the public interest, each of them ought – in the opinion of many – to have received the benefit of no prosecution because it was not in the public interest to prosecute, and each of them has, instead, been persecuted. 

In Australia, to be a whistleblower is to become a victim. 

Only Collaery’s prosecution, after many court appearances, has been withdrawn. The Commonwealth attorney-general has taken a see-nothing, hear-nothing, do-nothing approach – notwithstanding his capacity to end all these embarrassing cases and persuade his Cabinet colleagues that Witness K should be pardoned. 

The work of career prosecutors

Every state, the two territories, and the Commonwealth have a DPP who heads an office known as ODPP, employing lawyers with experience that ranges from little to decades. 

A DPP is expected to have long experience in criminal litigation, both trial and appellate work. A DPP may, or may not, have prior organisational leadership experience.

Experience has shown that a DPP should be appointed for one, non-renewable term (usually between seven and 10 years). In some parts of Australia this lesson is still ignored.

Some states, not all, have their ODPP focus upon higher court work. They employ police prosecutors to prepare and run cases in the magistrates/local court. 

While there used to be experienced police officers who took additional training for those prosecutor positions, there are now “accelerated” training programs for law graduates who wish to start with a short period of uniform policing followed by police prosecutor training.

Police prosecuting may be a full-time career, or it may be a pathway to becoming a lawyer within an ODPP, joining a private law practice or becoming a barrister.

Other prosecutor career paths are to work with specialist regulators, such as the National Heavy Vehicle Regulator or state and local government regulatory enforcement bodies. 

Police prosecutors, and those employed by regulators, must follow the directions given by their superiors. They do not have the independence – to expect to be heard on a decision to prosecute or to withdraw a prosecution – that has been a hallmark of Crown prosecuting in NSW.

The Crown Prosecutor (Crown) receives the prepared trial brief from the ODPP lawyer. S/he then reviews that brief before signing on behalf of the DPP and presenting the indictment at the start of the trial. 

Because a Crown is also subject to the professional conduct rules they have a paramount duty to the court. Presenting the indictment signifies their personal belief in the correctness of bringing the charges set out in the indictment document before the trial court. 

The duality of being subject to DPP direction and the professional conduct rules will create a tension whenever a Crown believes that one or more charges on the indictment are inappropriate and/or that the case should not be brought to trial.

Although the police charge alleged criminals, that charge or charges may be changed by those preparing for the hearing (be that in the Magistrates/Local, District/County Court, or Supreme Court).

Such changes to the charge/s reflect an assessment by the person/s preparing the case for hearing of how the evidence gathered by police meet the legal components of a possible charge. 

Determining the right charge/s is a skill that reflects each and all of legal acumen, on-the-job experience, the quality of mentoring and sufficient time.

Within an ODPP, those lawyers who evaluate the police work expect, over some years, to assist Crown prosecutors at trial and on appeal, to appear in court on pre-trial hearings, on sentencing (when the accused has pleaded guilty or been found guilty), and then to run trials as “solicitor advocates”.

Solicitor advocates who perform well will be offered a renewable position as a Crown, the first year often being probationary. Barristers outside the ODPP may also be appointed.

In NSW and Victoria successful Crowns may seek appointment as judges to the District/County, or Supreme Courts.

The renewable-term feature of Crown appointments was introduced in response to some Crowns being work shy, or not up to the mark, but glued to their position. Good reform – providing…

The solution to one problem creates other issues. For example, s/he accepts appointment as a Crown at age 46. S/he is re-appointed at 53. They are not offered a judicial appointment. 

Hence at 60 they need to be reappointed. Early retirement is not an option. They need the endorsement of the DPP for that reappointment. Being out of step with the perceived values of the DPP and ODPP management may create some risk – best avoided by marching to the tune of the times.

Being frank and fearless is admirable, especially in others.

To prosecute or not to prosecute

The guidelines to determine whether to prosecute or not to prosecute are easily accessed on ODPP websites. The contents vary little from one ODPP to another.

NSW ODPP guidelines relevant for this article are: 

The decision to prosecute involves two questions:

• Can it be said that there is no reasonable prospect of conviction on the admissible evidence?

• Is the prosecution in the public interest?

The public spat in Victoria about whether or not to prosecute police over the Gobbo Affair reflected strongly held, but incompatible answers to the first question. 

Less experienced observers can learn from this episode that good lawyers can, for sound reasons, answer the same question very differently.

Determining whether… there is no reasonable prospect of conviction requires evaluating the likely strength of the admissible evidence the prosecution would present…, bearing in mind that the prosecution has to prove each element of the offence beyond a reasonable doubt.

The following matters should be taken into account:

• are there reasonable grounds to believe any evidence might be excluded;

• whether the prosecution witnesses are available, competent, compellable and reliable; and,

• the credibility and reliability of other admissible evidence in the prosecution case.

At first blush this might seem quite straight forward; however, its application can be difficult, as the following shows:

Will it be total denial or a claim of consent? 

An accused who is well advised before being interviewed by police is likely to say nothing or very little. It follows that the prosecution officer must guess as to what arguments for exclusion and what lines of defence and cross-examination may be raised by the defence.

• For example, will the accused deny any sexual contact with the complainant? If there is no scientific evidence to support the claimed contact this argument counters the alleged rape, but to what extent? If the complainant offers a poor explanation as to why they did not attend a sexual assault centre or report to police, then their believability is damaged, perhaps to the extent that going to trial is “unwinnable”.
• Or, will the accused admit sex but claim that both parties consented? 
• Will the accused go further and show that the complaint was lodged because the complainant had and has mental issues that distort their memory, or because the complainant chose to concoct a false complaint for some other purpose such as seeking attention, denying the accused access to a child, ensuring that a new partner can move into the home because the accused is in jail, or just revenge for real and imagined slights? 

The sources and types of evidence 

Prosecution officers will liaise with the investigating police (who are often in specialist “sexual assault” teams) where follow-up evidence is needed.

Apart from any scientific evidence of sexual contact (such as DNA, fingerprints, hair and fibres being transferred between clothing) other, often used evidence, are records of phone calls and the content of texts, social media contact, emails, and what the accused says during a “pretext call”to the complainant.

A pretext call is made by the complainant, lawfully recorded by police, and is designed to have the accused admit their offence when talking to the complainant.

“Context evidence” is another feature of criminal trials. The purpose of this evidence is to set the scene so that the later evidence and the connections between pieces of evidence can be understood by the fact finder (usually a jury, but sometimes a judge sitting alone). 

To this mix must be added an assessment of how the jurors will respond to the evidence. At one extreme there are stories about how in some places jurors will ignore the evidence, preferring to be guided by local sentiment to acquit an accused.

More acceptable is the idea that jurors, as our representatives, are well able to evaluate the truth, falsity or uncertainty of allegations of sexual assault because of their collective life experience and using information about the range of behaviours of victims. 

Will some evidence be excluded or allowed?

With few exceptions the prosecution must disclose all its evidence to the defence who may raise various objections to the use of it at trial. The time for making objections and the reasons are variable. They may argue that the evidence is not relevant or that it is excluded by a rule.

As an example, consider text messages between complainant and accused before and after the alleged sexual assault. There may be few messages or there may be thousands.

• The content of some messages may be relevant as showing the state of mind of either or both parties at a particular time. There may, however, be a plethora of messages that are not directly relevant, but create a context.
• Decisions about what the jury will see and not see of those messages can be influenced by the point in the trial when the issue of their use is raised. Perceptions of the relevance of text messages can change in light of other evidence.

In other words, the likely outcome of a trial is not fixed: there is a changing reality as witnesses give and are tested on their stories. The prospects of conviction or acquittal can change repeatedly. 

The test must also take into account any defence open to, or indicated by, the accused.

The defence may make written submissions to the ODPP (called “representations”) arguing that there should be no trial or that the present charges should be replaced with less serious charges.

Bear in mind that most criminal cases are resolved by pleas of guilty. The earlier in time that a plea of guilty is made the more the sentence discount that will be given to the accused.

Naturally the accused wants to reduce their likely time in prison by pleading guilty to the least serious charges that they can persuade the ODPP to accept. 

Consideration should also be given to:

• any inferences that may be drawn from circumstantial evidence
• whether the prosecution is able to exclude beyond a reasonable doubt any reasonable hypothesis consistent with the accused being innocent
• any other matter that could impact on the prospects of conviction.

If the first test is satisfied, consideration must be given to the second test, whether a prosecution is in the public interest.

For lack of any alternative pathway “prosecution of sexual offences” is likely to be in the public interest. That is quite different to the position of whistleblowers.

Workplace factors

The quality of decisions to prosecute or not reflects both skill and environment.

Any decision reflects not only the innate skills, training and experience of the decision makers but also the quality control measures such as supervision, review, and random audit.

But that’s not all. Being asked to make too many decisions in too little time, because caseloads are too high, entails poor decisions no matter what quality measures are in place.

Yet another obstacle to good decision making is responding to relentless pressures, such as political, media, and social media, to “get with current values”.

A decision not to prosecute when the complainant wants to go to trial has become ever more “brave” ( ie, asking for trouble).

A nightmare scenario is that a DPP decides – for good, objective reasons – that a matter will not go to trial. Thereafter, the “lucky” accused embarks on a series of sexual assaults before being arrested, tried and convicted. There is bound to be media that “if only the first complainant had been given their day in court”. A little bit of hindsight hysteria goes a long way, especially in risk-averse organisations.

With such possibilities of an ODPP being hung out to dry, it is easy to grasp the convenience of letting a jury decide.

Those who wish to assert the overarching primacy of competent, independent judgement are at odds with the organisation’s reality: to survive there must be compromise. Such compromise will anger those (prosecutors, defence counsel, even judges) for whom yesterday’s well developed, quality focussed principles still matter first and foremost.

Recent media has attacked the NSW DPP following complaints from judges that some “unwinnable” cases have been brought to trial.

Given the propensity of some media and some politicians to loudly beat hollow drums, perhaps the only surprise is that the number of publicised judicial complaints about “unwinnable” cases is few.

Perhaps, despite all community pressures, overworked ODPP staff are doing the right thing nearly always. Allegations to the contrary require good evidence.

Complaining

Apparently, both the NSW and Victorian DPPs have taken to lodging complaints with their state’s judicial commission against those judges who have dared to be critical of prosecution conduct in cases run before them.

The decision to prosecute or not prosecute cannot be reviewed by the courts, or by any other body. Without judicial criticism the community would be unaware that some ODPP decisions were less than ideal.

If a DPP wants to complain about judges then s/he can have no objection to also having DPP conduct reviewed by an independent body. Don’t hold your breath waiting for our DPPs to embrace this proposal.

Meantime, the DPPs should ponder the reasons for highly regarded, and experienced judges, being openly critical. They might also remember that our former DPP’s woes started when he chose to complain about others. It did not end well.

Former barrister and CityNews legal columnist Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.