Sally Dowling SC took office as NSW Director of Public Prosecutions in August 2021. Just over a year later, in September, 2022, she was put on notice by the District Court that there was something “troubling” about the way her organisation had applied its prosecution policy in a sexual assault case.
That warning is outlined in a decision by judge Penelope Wass in a case known as R v DS.
Her assessment of the problems inside the Office of the DPP is remarkable for the similarity it bears to this month’s critique of Dowling’s office by another judge, Robert Newlinds.
Wass did Dowling a favour. The judge handed the relatively new DPP an opportunity to change things so the rest of her 10-year term of office might be free from criticism over the way it deals with sexual assault.
Had that warning been addressed Newlinds might not have found it necessary to make his own criticism of the ODPP and point out that an innocent person had spent eight months in custody on a sexual assault charge that should not have been laid.
Those who might be tempted to side with Dowling have missed the point.
The criticism by Newlinds is perfectly in line with the District Court’s longstanding concern about the way these cases are being handled by prosecutors.
What was he to do? Ignore the fact that an innocent person had been incarcerated? Ignore the principled stance of his own court? Ignore the law?
Given the earlier remarks by Wass, it is extraordinary that prosecutors in NSW still conducted themselves in a ways that fell short of the standards demanded by the courts.
In our system of justice, the judiciary has an obligation to ensure that officers of the court – including prosecutors – understand and comply with the requirements of the law and the requirements of their all-important prosecution policy.
The combined criticism of Wass and Newlinds must now raise doubts about the manner in which the Office of the DPP has been conducting itself in other, less publicised, cases of sexual assault.
Those doubts need to be resolved.
This is much more than a tiff between lawyers. The discretion of prosecutors is an important “check and balance” that prevents injustice.
The evidence in the cases that came before these judges meant there was no possibility of obtaining a conviction.
That is why both judges took the extraordinary step of ordering legal costs against the Crown.
The lesson from these cases is clear.
Unless prosecutors meet the standards demanded by the courts there is a risk that innocent people will frequently be charged and held in remand over conduct that, in the view of the courts, falls short of criminality.
Such a nightmare scenario demands that Dowling takes positive steps to reassure the community that her prosecutors will, from now on, be singing from the same song book as the judges.
If she fails to address this problem, the government has an obligation to intervene.
Here’s a suggestion: It’s never too late for Dowling to take up the suggestions in the judgment Wass handed down more than a year ago.
This is what the judge said:
“A prosecutor is required to do more than shepherd incredible and dishonest allegations of sexual assault through the criminal justice system, leaving it to the jury to carry the burden of decision making that ought to have been made by the prosecutor …
“The bringing and continuation of unmeritorious cases in abrogation of the prosecutor’s responsibilities, or, to use the language of the provision [of the DPP’s prosecution policy], in failing to make an evaluation and act accordingly, 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,” Wass said.
She described the police investigation in that case as “woeful” and said she had formed the view during the trial “that had the jury returned a verdict of guilt on any count, I would have presided over a clear miscarriage of justice”.
The judge noted there were problems with the complainant’s evidence and there was never any prospect that a jury, acting reasonably and following legal directions, could properly accept the complainant’s account.
This was a clear warning, given 15 months ago, that the ODPP needed to lift its game.
Yet despite that, another hopeless case came before Newlinds.
The person before him had spent eight months in custody awaiting a trial that, according to Newlinds, was bound to result in an acquittal.
“The charges ought never have been laid, let alone proceeded with,” he said in his judgment in a case known as R v Martinez.
“This prosecution is a miscarriage of justice,” he said.
“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, wholly misapplying the law,” Newlinds said.
The truly remarkable aspect of this affair is the way Dowling responded.
She actually tried to turn the focus on Newlinds by giving notice that she would be complaining about him to the NSW Judicial Commission.
The real focus should be on Dowling and her prosecutors.
Will they now change their ways?
And who instructed the solicitor advocate to launch and then persist with the prosecution before Newlinds after the judge said the Crown’s case was “hopeless”?
Newlinds tried, without success, to extract that name.