As he bids farewell to the Sofronoff Inquiry, HUGH SELBY says there are insights and recommendations in the Inquiry Report that are gems. “They have been ignored in the media because they do not sparkle or glitter. Their value, however, is like industrial diamonds: strong, reliable and essential to get the job done,” he says.

This article comments upon the following topics:

1.     The presumption of innocence;
2.     Charging and going to trial;
3.     Disclosure to both prosecution and defence;
4.     Defence access to a prosecution witness;
5.     Guidelines for retrials; and,
6.     The search for the next DPP.

I have chosen them because they will have lasting effects within our criminal justice system – influencing the conduct of police, lawyers, judges and magistrates. The last topic is not covered in the report but is a consequence of the inquiry outcomes.

Those with a passion for criminal law and practice should read the Inquiry Report which can be found here.

1. The presumption of innocence

The Report (from paragraphs 703 t0 722) lays out age-old principles that are fundamental to our criminal justice system.

Nevertheless, they are forgotten by police, prosecutors, judges and media when some current passion blinds too many of us to essential, but inconvenient truths.

As Commissioner Sofronoff reminds us: “The maintenance of the presumption [of innocence] does not require torturing one’s mind actually to believe, against the available information, that an accused person is innocent. Rather, the presumption of innocence requires an accused person to be treated within the criminal justice system ‘as if his guilt is an open question’. (paragraph 706).

“Importantly, faithful adherence to the principle has the consequence that not only will convictions be taken seriously, but an acquittal… has a real meaning and will be taken equally seriously by the community (paragraph 712).

To give one example of why these statements are so important: those judges who conduct judge-alone trials, acquit the defendant, and then say and/or write, “but if this was the civil standard of proof then I would have convicted you” have cast aside the presumption. Such judicial conduct should not be tolerated, but it is – because there is no way to correct it. (A suggested solution for judicial correction was offered in an earlier article )

2. Charging and going to trial

The inquiry uncovered that our police and prosecutors are using different tests in making the decision to charge and then go to trial. Among police there were varying interpretations of the police test.

Many Australian jurisdictions have promulgated a written prosecution policy for police. In Queensland, the policy reflects exactly the same policy that the DPP applies. It too requires consideration of whether there are reasonable prospects of success followed by a consideration of whether a prosecution would be in the public interest. The credibility of witnesses is a relevant factor (paragraph 132).

The existence of a reasonable prospect of success at trial is a necessary first condition that must be met before there can be a prosecution, but it is not enough. The public interest must also be considered. (This factor was recently discussed in an article about the Commonwealth prosecuting of whistle blowers).

In taking that factor into account, many aspects of the proposed proceeding as well as its ramifications must be considered.

The ACT DPP’s guidelines specify many of these factors but the categories are not closed and depend entirely upon the circumstances of the particular case being considered (paragraph 123).

The question that a prosecutor asks is not, “can I get a conviction?” but, “is there a reasonable prospect of conviction?”.

That question can be put more specifically, “does the evidence show that there is a reasonable prospect that a jury, properly instructed, could convict?” The answer to that question should not depend upon the personality or prejudices of the person who is posing it (paragraph 127).

A particular problem arises when the evidence gives rise to a potential for an attack upon the credibility of a crucial witness.

Rarely can it be said that the credibility of a witness is so defective that it can be said that there are no reasonable prospects of success.

One example of an exceptional case of that kind, in which a prosecutor might have concluded that the lack of credibility of a vital witness meant that “there was no reasonable prospect of a conviction”, was reported in “The Australian” last month. In R v Barrett a NSW Supreme Court judge ordered that there never be a trial because, in her opinion, the principal Crown witness was such a “serial liar and fabricator of evidence… that police refused to continue taking statements from him”.

This was a case in which a prosecutor ought to have concluded that the case was not just weak: it was a case in which there was no reasonable prospect of success because of the unanswerable problem of credibility of the crucial witness (paragraph 129).

There can be well-founded differences of opinion between highly competent lawyers as to whether or not to go to trial. In the ACT the decision to put David Eastman on trial a second time, after his earlier conviction was found to be defective, was hotly debated. He was acquitted at that second trial.

Recently there was a publicised dispute between former High Court Justice Nettle and the Victorian DPP as to prosecuting police who had been involved in the notorious use of defence solicitor Nicola Gobbo as a police informant about her clients.

Mr Nettle – who had conducted a special investigation – was adamant that they should go to trial. The DPP was adamant that she would not take them to trial, her decision reflecting as one factor the lack of credibility of the disgraced Ms Gobbo who would be a key witness for any prosecution.

3. Disclosure to both prosecution and defence

The Report recommends legislation to codify the scope and content of the obligation of disclosure owed by the prosecution in criminal proceedings.
That suggestion is too narrow. Experience shows that the “disclosure obligations” start with the police and then continues for the prosecution. Hence any legislation must bind both police and prosecutors. I suggest that it must also make clear that a failure to disclose will entail:

a. A decision by the trial judge if the non-disclosure is discovered during the trial, or the appeal court if the non-disclose is uncovered post trial, as to whether the non-disclosure could or could not significantly affect the course of the trial and its outcome;

The Report reminds us that a prosecutor’s duty of disclosure is aptly described as a “golden rule”. The duty of disclosure serves to ensure that the trial of an accused is fair. In part, the duty reflects the imbalance of resources, as between the prosecution and an accused, to investigate a matter.

A fair trial requires not only that the accused should have access to material in the prosecution’s possession that sets out the prosecution case, but also material which may bear upon the defence of the charges (paragraph 273).

The failure of a prosecutor to comply with this obligation may lead to a miscarriage of justice. A failure to disclose material that should be disclosed will not automatically result in a conviction being set aside. However, a demonstrated failure normally has the effect that, on an appeal against conviction, the burden will shift to the prosecution to show that there would inevitably have been a conviction even if proper disclosure had been made.

This is often an insuperable burden because appellate judges are loathe to speculate what a hypothetical jury might do (paragraph 274).

The principles as stated in the Report are clear.  However, the failure to follow them is inevitable whenever the seeking of a conviction (the desired end) overrides proper process (the means).

For example, if a police officer conducts three interviews with an important witness but only discloses two of them to the prosecution – because the third one conflicts with the police case – then the prosecution, the defence, the judge and the jury are all misled.

4. Defence access to a prosecution witness

The adage “there is no property in a witness” is well known, but some lawyers are keen to keep their witnesses away from their opponents.

Prosecutors, as agents of justice, should be acutely aware of the need to facilitate access between their witnesses and the defence.

A witness is always able to decline an invitation to interact with the other side. However, for police investigators and experts, the chance to discuss their work with the other side should generally be welcome.

This is because where work has been well done then sharing it with the opponent is likely to influence a decision that there be a plea of guilty or to limit the topics of cross-examination and so run a better trial.

 5. Guidelines for retrials

The Report recommends (Rec 9) that the Prosecution Policy be updated to provide a process for recording retrial decisions. The policy would include the following:

1.     the considerations required before seeking a retrial;
2.    who should be consulted prior to making a decision;
3.    the process to request submissions or representations from the defence about the retrial considerations;
4.    a procedure to record the decision and the consideration taken into account (including the weight given to particular matters where relevant);
5.    the timeframe in which a decision should be made following the end of a trial without a verdict; and
6.    a review process to ensure decisions are made with due consideration of all the relevant factors.

To which might be added that there should be a timeframe for a decision when an accused successfully appeals their conviction and the appeal court leaves it to the DPP to decide whether to have a retrial or not.

This will be an improvement upon the present unsatisfactory process that lacks both transparency and accountability. I have written in an earlier article that the lack of any accountability for ODPP decisions is an odd contrast to the openness and accountability imposed upon judges and other decision makers.

Only legislative change can cure these problems. Meanwhile the Report recommendation is a useful step.

Let us hope that there will be no repeat of an ACT trial judge saying to a prosecutor: “Don’t come back for a retrial”, followed by the prosecutor immediately telling the police: “We’re coming back” while they are still inside the court building. So much for consultation and due care.

6. The search for the next DPP

As Commissioner Walter Sofronoff KC wrote: “Grave mistakes made by public authorities are an affront to a nation’s values.” (paragraph 711).

The culture of a workplace reflects the values of those in charge.  The Inquiry uncovered multiple instances of conduct by the DPP that were out of step with procedural and advocacy norms. They can be characterised as “grave mistakes”. Given that he held his position for some years there are justified concerns as to an ingrained adverse effect upon a desirable culture within the prosecutions office.

Hence the next DPP must rebuild the office so that the fundamental problems identified in the report do not recur, and basic skills of criminal procedure and advocacy are learned and applied.

To start an office from scratch is challenging. To go into an office that is defensive and then successfully change its work culture is more challenging.

The appointee must be exceptional not only as a lawyer but in their “people skills”.  He or she will be an experienced criminal advocate – both prosecuting and defence, good enough to be a judicial appointment at the end of their term, a team builder, a fair and trusted manager, committed to building the skills of their staff and re-establishing community trust.

Our government should pay what is needed to get the right person and keep them in the job for at least two years, preferably three.

“CityNews” legal commentator and former barrister Hugh Selby wrote brilliant, running commentary on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. The “CityNews” coverage of the inquiry, including his daily reviews, is here.

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

Best to read the whole Inquiries Act, Mr Barr