Prosecutor’s Discretion to Initiate or Maintain Indictment Salient, Say Judges

In two recent decisions of the District Court of New South Wales – each decided upon an application for a costs’ certificate by an acquitted accused – the learned judges made comments concerning the need for a prosecutor to exercise an independent subjective discretion as to whether or not an indictment ought be preferred, initiated and proceeded with to trial, having regard to prospects.  The decisions are Martinez v R [2023] NSWDC 552 – per Newlinds SC DCJ – and the second is R v Smith (a pseudonym) [2024] NSWDC 41 – per Whitford SC DCJ. 

Following delivery of the decision in Martinez, the Office of the Director of Public Prosecutions advised that a complaint would be made about Newlinds DCJ to the NSW Judicial Commission. In that regard see also the item further below in this section of Hearsay concerning Acting Justice Lazry of the Supreme Court of Victoria against whom a complaint was made by the ODPP of Victoria after a decision of his Honour staying prosecution upon an indictment.

In Martinez the reasons included the following:

JUDGMENT: EX TEMPORE

1. HIS HONOUR:  I am going to grant a certificate, and I am in a position to give reasons now, so I will do that.

Introduction

2. This is an application for a certificate for costs arising from criminal proceedings pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW).  The relevant criminal proceedings were constituted by an indictment alleging four counts of sexual intercourse without consent, with knowledge that there was no consent, in breach of s 61I of the Crimes Act 1900 (NSW).
3. The Applicant was arrested on 3 June 2021 and was refused bail. Ultimately by order of the Supreme Court of New South Wales they were granted bail on 17 February 2022 after they spent approximately 8 months in custody. In my judgment they did not commit any crime and should never have been prosecuted. This prosecution is a miscarriage of justice. That has occurred largely as a consequence of the prosecutor – relevantly the Office of the Director of Public Prosecutions either not properly considering its power to prosecute, or if it did, by wholly misapplying the law. On any basis the decision to prosecute and continue to prosecute was legally wrong.

…

83. It may seem strange that in a trial where the Applicant has been so comprehensively acquitted by the jury that I consider the trial was unfair to them, but I am sorry to say that I do.  I do think that the trial was unfair because the Applicant was not able to put before the jury the true history of the Complainant’s complaints thus putting into context all of her evidence and the circumstances of her conduct before the jury. If the jury had known the full picture of the Complainant’s history of accusing men of rape in similar circumstances, the time of deliberation would have been measured in minutes.
84. However, my point is not that.  My point is, if it be right that the evidence was properly excluded, and if it be right that there was not sufficient circumstances to justify a permanent stay, then the only “check and balance” left in the system to prevent an injustice was prosecutorial discretion. That discretion was sadly lacking here. I do not believe it was properly considered at all. Rather, I think the prosecution took the lazy and perhaps politically expedient course of identifying that the Complainant alleged she had been sexually assaulted and without properly considering the question of whether there was any evidence to support that allegation, just prosecuted so as to let the jury decide.

…

95. Most importantly, 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 to at least being satisfied that the complainant has a correct understanding of the legal definition of sexual assault or sexual intercourse without consent.

…

97. It seems to me that if those who had made the decision to commence these proceedings had fully understood the Complainant’s idiosyncratic and wrongheaded application of the law to the facts that she understood them to be, then that person or persons would have given absolutely no weight to the fact that she was alleging sexual misconduct, but rather would have judged the matter on the objective evidence such as it was which should have led to a very different conclusion. If no effort was made to work that out, then 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 8 months in gaol for a crime he did not commit.

…       

(emphasis added)

The full decision in Martinez may be found here.

In Smith, the court wrote:

JUDGMENT

1. On 30 June 2022, Simon Smith* (see [84] below) was committed for trial in this Court. He was arraigned in the Court on 29 July 2022 and entered pleas of not guilty to two counts of sexual assault charged on an indictment of that date.
2. From the outset, Mr Smith maintained that the issue at trial was to be consent. This was revealed to the prosecution by way of case management obligations in the Local Court, as well as in this court.
3. The trial was initially listed to commence in July 2023. Due to counsel for Mr Smith contracting COVID-19, as well as the unavailability of judges at the time, the trial was adjourned to 19 February 2024.
4. On 19 February 2024 a fresh Indictment was presented and Mr Smith was arraigned and entered a plea of ‘not guilty’ to the sole count of sexual intercourse without consent, with knowledge that there was no consent, contrary to s 61I of the Crimes Act 1900 (NSW). A trial commenced on that day before me and a jury.
5. The jury retired to consider its verdict at 1:10 pm yesterday, 26 February 2024. A short time later, at 2 pm, I received a note indicating that the jury had reached a unanimous verdict. The jury found Mr Smith not guilty.
6. Pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW), an application is now brought on behalf of Mr Smith for a certificate which will enable an application to be made to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings.

…

66. During the hearing I made a number of observations to the Solicitor Advocate appearing on the instructions of the Director of Public Prosecutions, as to what I perceived as an apparent want of merit in the prosecution case. It was accepted by that advocate that the prosecution case was “not the strongest of matters”. That was delightfully understated, even at that juncture in the proceedings. An exchange between us at p 63 of the transcript on 20 February was in the following terms.

HIS HONOUR: Mr Borosh, it’s my understanding that this case bears a degree of similarity to another case with which Ms Orman-Hales might have some familiarity, a case which attracted some notoriety in the media and an adverse costs order before Christmas.

SOLICITOR ADVOCATE: Yes, your Honour.

HIS HONOUR: The similarity as I understand it extends to the identity of the toxicologist called by the prosecution.

SOLICITOR ADVOCATE: Yes, your Honour.

HIS HONOUR: Who I understand, gave evidence in that case in chief, to the effect that notwithstanding an alcoholic blackout, someone can function at a very high level and appear to all those around them to be fully functional. I anticipate she’d likely give the same evidence in this case.

SOLICITOR ADVOCATE: Yes, your Honour.

HIS HONOUR: On what basis would you sustain a conviction in a case like that?

SOLICITOR ADVOCATE: The prosecution says it is open to the jury to conclude either the complainant was asleep or unconscious or that it was apparent to the accused that the complainant was well affected by alcohol, and they could take that into account in assessing that she was not in a fit state to consent.

HIS HONOUR: You must have a very different conception of “beyond a reasonable doubt” to that which I hold, Mr Borosh.

SOLICITOR ADVOCATE: No, your Honour. I’m operating at the concept of prima facie case at this point. I accept, your Honour, that it may not be the strongest of matters. But it is fairly common for an alcohol-related matter.

HIS HONOUR: Difficult to accord it reasonable prospects of success, I would have thought. But others may have a different view.

SOLICITOR ADVOCATE: I understand what your Honour is saying.

HIS HONOUR: There’s a lot of public resources being devoted to it, Mr Borosh – and the time– and attention of a jury.

SOLICITOR ADVOCATE: I can’t comment on policy, your Honour.

67. The case to which I was referring in that exchange was the trial of Martinez which reached its conclusion in the costs judgment of his Honour Judge Newlinds SC (Martinez v Rex [2023] NSWDC 552). The similarities between that trial and this are substantial. On any reasonable view, the prosecution case in the present matter was even weaker than the one with which his Honour was concerned.
68. 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.
69. I make these observations for the purpose of endorsing some of the remarks of Newlinds SC DCJ in Martinez as to the difficulties to which this trend gives rise in the efficient conduct of the business of the Court and the problems generally to which it gives rise in the administration of criminal justice in this State.
70. His Honour’s observations warrant some express support, in my view, in circumstances where in the absence of clear recognition of a problem by judges, there is a substantial risk that it will go unremedied. Leaving aside any question of expression, lest it be thought that his Honour’s observations somehow represented idiosyncratic and unwarranted criticism of the conduct of matters before this Court, it seems to me important that the issues be exposed wherever they are encountered in individual cases.
71. There were two significant problems highlighted by his Honour.
72. The first concerns the intolerable conflict with which representatives appearing in trials are burdened, between their instructions on the one hand and their obligations to the Court and by extension to the administration of criminal justice generally on the other. Those representatives are, as his Honour remarked, 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.
73. The second relates to the fact that for all practical purposes prosecutorial discretion is, in the majority of cases, the sole “check and balance”, as his Honour described it, 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.
74. 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. The concluding remark in the passage from the transcript in this case which I have earlier recited (at paragraph [66] above), offers some implicit support for that conclusion. If that conclusion is correct, it is a matter of profound concern for the administration of criminal justice in NSW. There is something disturbingly Orwellian, even surreal, about a significant public institution publishing guidelines, expressed to transparently reflect the general principles according to which it is said to operate in its core function, only then to operate in that core function by reference to opaque, even secret, policies which appear to be dissociated from, and to undermine, the published guidelines.
75. The expense of a criminal trial, not to mention the time which members of the community are called upon to devote to it as jurors, cannot be overstated. A criminal trial demands the expenditure of an enormous amount of predominantly public funds. Furthermore, each meritless proceeding that is conducted delays the resolution of other matters with a more worthy claim on that public expense and the devotion of the time of the Court and members of the community and the legal profession.
76. It also should not be overlooked that the only experience many community members have of the criminal justice system is through serving as a juror. If they are called upon to spend days, sometimes even weeks, resolving a matter that is patently without merit, they leave with an unfortunate, to say the least, view of the criminal justice system. There is a real risk that the commencement and maintenance of cases that have no reasonable prospect of succeeding risks drawing the criminal justice system into disrepute.
77. There is also a risk of significant and inappropriate stress and disruption being caused to an accused, sometimes over a long period and even extending to a deprivation of liberty as occurred in Martinez, from the initiation and maintenance of prosecutions which have no merit.
78. Equally, perhaps in many cases more, significant, is the fact that the anxiety, stress, humiliation and distress that will frequently be associated with a complainant’s involvement in the criminal justice system can be profound. In many cases, that involvement necessarily will be sustained for long periods as a matter proceeds through the courts. Quite properly, in recent years much has been done to ameliorate the difficulties confronting complainants. The reality, however, is that there are limits to what can be done, if the conduct of a fair trial for persons accused of serious crimes is a consideration, as it must be. I do not think it is an overstatement to suggest that it is bordering on cruel to subject a complainant to the experience of a criminal trial, if a reasoned and objective professional assessment of the prospects of securing a conviction concludes that the prospects are less than reasonable.
79. For all these reasons, it seems to me that problems in the administration of criminal justice in the State, where they exist, need to be exposed. If judges remain silent in individual cases where a prosecution without reasonable prospects has been brought and maintained, then there is likely no prospect of a remedy for a problem that appears now to be endemic.
80. At the conclusion of all the evidence in the present case, indeed at the conclusion of the prosecution case (if not also earlier), my own view was that the only rational verdict that a jury could deliver was one of not guilty. Whilst there was evidence which might, conceivably and purely theoretically, support an inference in favour of proof of the two disputed elements, consent and knowledge, there was no rational basis for concluding that other rationally available inferences inconsistent with guilt were capable of being excluded on the evidence.
81. In all the circumstances, the fact that the prosecution was instituted, and maintained, either without any or any proper professional advertence to whether there existed reasonable prospects of securing a conviction, or in spite of such advertence, fortifies my conclusion that it is appropriate that a certificate issue. There is nothing about the case, in those circumstances, which warrants the exercise of a residual discretion against the grant of a certificate where the statutory test is otherwise satisfied.
82. Taking into account all of the circumstances that I have outlined I have decided that it is appropriate that I exercise the discretion in favour of the applicant and grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967.
83. I direct that the Applicant prepare a certificate, show it to the prosecutor, and send it to my chambers so that in due course it may issue.
84. *Where the allegations against him are not only unproven, but in my view unprovable, and in order to spare him further distress, embarrassment and humiliation than he may already have suffered on account of them, of my own motion, but with notice to the parties and an opportunity to make submissions, I propose to make a non-publication order protecting the accused’s identity. In my assessment the public maintenance and potential continued ventilation of those allegations through the publication of these reasons is liable to add to such distress and embarrassment as he likely already has suffered. Where those allegations are unprovable and were pursued in the circumstances I have outlined in these reasons, the circumstances are, or at least should in the ordinary course be, properly described as exceptional within the meaning of s 8(3) of the Court Suppression and Non-Publication Orders Act 2010. Accordingly, and additionally, I order that there be no publication of any information which might identify the applicant, for the reasons just expressed.

(emphasis added)

The full decision in Smith may be found here.

The Australian newspaper reported on 4 March 2024 a response by the ODPP following the decision in Smith:

NSW chief prosecutor Sally Dowling SC has cautioned her staff against running meritless rape cases and urged them to axe matters that have “questions of credibility and reliability”, as she comes under fire from multiple judges who claim her office prosecutes sexual assault cases that have no hope of securing a conviction.

The warning comes as a staff member from within Ms Dowling’s office told The Australian the judges were “correct” in their claims, blowing the whistle on a culture in which they said junior solicitors felt pressured to progress with unverifiable allegations.

The Australian revealed last week that a fifth judge had launched a critique on the Office of the Director of Public Prosecutions, saying that “time and time again” sexual assault proceedings were brought before the courts “without apparent regard to whether there might be reasonable prospects of securing a conviction.”

Judge Peter Whitford wrote in a costs judgment that “far too frequently” the ODPP abandoned its own guidelines on a worthy prosecution “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”.

In response to the judgment, Ms Dowling sent an all-staff email saying she expected workers to “continue applying the guidelines with due care and diligence at every stage”.

“You may be aware of recent judgments suggesting that the ODPP is bringing proceedings without proper regard to the merits of the case and the prospects of conviction,” she wrote in the email, obtained by The Australian.

“While I strongly reject such contentions, it is timely to remind lawyers of your obligations under the Prosecution Guidelines, particularly Chapter 1 ‘The decision to prosecute’.”

She proceeded to remind workers that the ODPP’s prosecution guidelines were “the only policy which determines whether a prosecution is initiated and maintained … Prosecutors are obligated to apply the guidelines in every case, regardless of the type of offending alleged.”

Ms Dowling also said matters should be discontinued “if, after critical engagement with the admissible evidence including questions of credibility and reliability, a view is formed that there are no reasonable prospects of conviction, or otherwise that the continuation of the prosecution is not in the public interest”.

“If such a view is reached at any stage following committal, a report should be prepared and submitted to the director’s chambers for consideration,” she wrote.

“I expect all ODPP staff and crown prosecutors to continue applying the guidelines with due care and diligence at every stage.”

As to the complaint against Newlinds DCJ previously announced by the ODPP as to be lodged following his decision in Martinez, Arthur Moses SC, a former President of the Bar Association of New South Wales, was quoted in the Australian newspaper on 9 March 2024:

“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”.

Queensland, at present, harbours no Judicial Commission. The Guidelines issued by the Queensland Director of Public Prosecutions under s 11(1)(a)(i) of the Director of Public Prosecutions Act 1984 (Qld) – in which the guidelines as to initiation and maintenance of prosecution are contained in clauses 4 and 5 thereof – may be found here.