DPPs have enormous power in the justice system, ACT barrister Jack Pappas writes, agreeing with SA’s legal fraternity that such power should be closely watched and subject to independent oversight.
Watchdog needed for prosecutors
By Barrister Jack Pappas
The Law Society of South Australia has suggested* the need for an independent body to review prosecutorial decisions made by its director of public prosecutions. For a range of reasons, we also need one in the ACT.
The position of director is a powerful and an important one in our criminal justice system. The director represents not only “the Crown” or the government, but the public, and is required and expected to act with absolute fairness and impartiality, and without regard to interest groups or wealthy or influential individuals.
The director is not meant to win at all costs, but rather to present to the court in an objective and dispassionate manner the evidence gathered by investigators for adjudication of guilt or innocence by a judge or jury. The director is expected to be a model litigant and one who will not take advantage of the Crown’s often superior position, who discloses all the evidence to an accused person, for good or for bad, and who does not engage in sharp practice.
All of those matters, those rules, expectations and conventions are an important part of ensuring a fair trial according to law and of ensuring that the individual accused is not crushed by the superior resources of the state.
At present some decisions by directors are clogging up our criminal justice system and resulting in unfairness, significant irrecoverable expense and inestimable stress to ordinary members of the public who, when acquitted, have no comeback.
The office consists of the director and members of staff. The director has control of the office and is given the functions of instituting and prosecuting criminal proceedings and also “causing proceedings to be brought to an end”. The director has an absolute right to take over and conduct or discontinue privately instituted criminal proceedings which can still be instituted by any citizen of the ACT in their own name.
The director and the director’s staff enjoy immunity from any action, suit or proceeding in relation to things done in good faith in purported exercise of any power, function or duty under the Director of Public Prosecutions Act or any other law.
I have practised as an advocate, principally in the ACT, but also extensively elsewhere in Australia for more than 35 years. In recent times I have seen things done and not done by DPPs which, to my mind, are a long way from the fair and dispassionate role they are meant to play.
Very recently I was involved in a matter arising out of a single-vehicle motor accident which saw a man charged with assault – carrying a maximum penalty of two years’ imprisonment – and a number of other charges which were capable of being dealt with in the Magistrates Court. The accused man indicated at an early stage that he would defend all charges.
Shortly thereafter the DPP preferred another more serious charge, which could be dealt with only in the Supreme Court because it carried a maximum penalty of 20 years’ imprisonment. That additional charge came with an indication the director would accept a plea of guilty to a single count of common assault in discharge of all matters.
The ACT DPP’s prosecution policy provides that: “Under no circumstances should more serious charges be laid in order to provide scope for ‘plea bargaining’.”
Human Rights Act protection?
The ACT Human Rights Act provides that: “It is unlawful for a public authority to act in a way which is incompatible with a human right or in making a decision to fail to give proper consideration to a relevant human right.”
The act provides that everyone charged with a criminal offence has a right to be presumed innocent and is entitled to a number of minimum guarantees including: “Not to be compelled to testify, against himself or herself, or to confess guilt.”
To grasp my point, you need to understand that a person acquitted of criminal charges in the ACT Magistrates Court has a reasonable expectation of securing an order that their costs be paid by the informant. The informant is usually a police officer and they don’t pay personally, the government does.
If, however, you are acquitted of a serious criminal charge in the Supreme Court, you cannot recover an order for costs. It’s impossible. It can’t be done.
The final piece of the puzzle is provided by the Magistrates Court Act which requires that Magistrates Court charges must travel with the Supreme Court charges into the Supreme Court.
Thus, in the case in point, the accused was faced with agreeing to plead guilty to a charge of common assault, which he had already denied, or being swept into the Supreme Court on the greater charge where he would be exposed to a significant irrecoverable legal cost burden and the theoretical possibility of a long prison sentence.
There are many circumstances one can imagine, short of being beaten with a rubber hose, which might cause someone to confess their guilt and even to do so falsely.
In this case, an application was made to permanently stay the Supreme Court charge as an abuse of process and a good deal of time, and I must say money, was spent in an attempt to modify the director’s behaviour.
After that application was filed, the director backtracked and dropped the 20-year charge.
The original matters will now proceed to hearing in the Magistrates Court where the accused can hope to recover a reasonable proportion of his costs if he successfully defends them.
Whilst I acknowledge the seriousness of sex crimes I must observe there is sometimes an air of zealotry about the way in which they are prosecuted in the ACT. Even the most obviously flawed, inconsistent and weak cases are persisted with because it seems that such alleged crimes attract much publicity and often no-one seems prepared to say “this case just doesn’t enjoy reasonable prospects of success”.
I am aware of a recent matter in the Supreme Court that proceeded although all three children involved gave different accounts to police, and preliminary cross-examination about what was said to have been done to the alleged female victim turned up even more inconsistencies. Further, the genesis of the complaint could reasonably be traced to an ill-founded observation by the parents of the young girl and some of their friends that the accused “looked like a paedophile”.
The accused man was exonerated after a lengthy trial which, I suspect, left him financially crippled. Numerous cogent written submissions made to the DPP pointing out the weaknesses in the case had fallen on deaf ears.
More than 20 years ago the Federal Court of Australia determined that the ACT Supreme Court could not award costs in favour of an accused who had been committed for trial but in respect of whom the DPP chose to proceed no further.
The arguments presented were complex and somewhat convoluted.
Justice Richard Cooper recognised the concern of the judge at first instance that the accused had been put to what was described as “a serious detriment in the matter of costs”, however, he added that the remedy to the situation could only be found in statutory law reform.
There has been no such reform since.
In NSW, although the system is by no means perfect, there is at least an avenue by which a successful defence might result in the payment of costs. In that state, a judge may give a successful defendant a certificate to the effect that, had the prosecutor before the proceedings were instituted been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings and that any act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable.
Such a certificate does not result in the award of costs but can be given to the Department of the Attorney-General’s who may, in his absolute discretion if he thinks the making of a payment is justified, determine the amount of costs that should be paid, which payment is then payable out of consolidated revenue.
The unfairly accused and improperly prosecuted citizens of the ACT have no such recourse.
The director and prosecutors have nothing to fear from independent oversight and possibly much to gain in terms of delivering prosecutorial services to the citizens of the territory in accordance with the norms and mores of fearless but fair advocacy which were, prior to 1990, the hallmark of prosecution.
Jack Pappas is a Canberra barrister. He is a member of Civil Liberties Australia. Original article: http://tinyurl.com/qaodpp6
The Pappas article attracted letters to the Canberra Times in the days following:
Letters to the editor
Same rules for all
July 10, 2015
While I have only had 25 years’ experience as an advocate, my first 12 years of practice was as a prosecutor in the ACT DPP. Fundamentally, prosecutors need to act dispassionately and objectively – firmly but fairly – and only prosecute appropriate charges when there is a reasonable prospect of obtaining a conviction.
Like Jack Pappas (“Time to appoint a watchdog”, Times2, July 6, p1), I too have noticed what appears to be a watering down of these principles in recent years with a win-at-all-costs approach emerging where cases that objectively have no reasonable prospects of success are pursued with a vigour bordering on zealotry at times.
While views will differ as to the need for independent oversight of the DPP, there should be no question that all lawyers who prosecute should be subject to the same rules and standards of conduct as other legal practitioners.
However, because of a loophole in the Legal Practitioners Act, DPP prosecutors (as government lawyers) are not required to hold practising certificates and are therefore not amenable to the same disciplinary processes applicable to other legal practitioners.
The absurdity of this is that the Barristers Rules, which provide rules for the conduct of barristers when acting as prosecutors, do not apply to ACT DPP prosecutors who do not hold a barrister’s practising certificate. Anyone wishing to complain about the conduct of a prosecutor cannot simply go to the Law Society or Bar Association like they can in relation to the conduct of any other legal practitioner.
Accordingly there is an increasing perception (rightly or wrongly) among those who practice criminal law in the territory that prosecutors do not feel too constrained by rules of conduct that only apply to prosecutors with practising certificates.
If an independent watchdog for the DPP is not on the government’s radar, I would urge the attorney to at the least take steps to ensure prosecutors are subject to the same rules of conduct and discipline as other legal practitioners (and other prosecutors). Justice not only needs to be done but needs to be seen to be done.
– Steven Whybrow, barrister, Canberra City
Desperate need for independent watchdog
It is a sad fact but our DPP is in desperate need of an independent watchdog to review its decisions. Time and time again the ACT DPP is running matters that have little or no prospect of success.
Ultimately these clients are acquitted but only after they and the community have incurred substantial, irrecoverable cost. On multiple occasions I have written to the Director’s Office highlighting the insurmountable flaws in various cases only to have them continue blindly with prosecutions doomed to fail.
No one in our community is well served by this zealous approach.
– Peter Woodhouse, partner, Ben Aulich & Associates, Canberra City
Long time waiting for justice explanation
With reference to the article “Time to appoint a watchdog” by Jack Pappas (Times2, July 6, p1), I am still waiting, after seven years of legal proceedings, to find out the legal grounds for a prosecution which turned out to be based on fabrication of evidence and false statements. The ACT Attorney-General has repeatedly refused to order an investigation over a miscarriage of justice in case SC 428 of 2007.
– Andre Vatarescu, Braddon
In an article accompanying the Pappas opinion piece, the Canberra Times reported:
ACT director of public prosecutions needs independent oversight: Jack Pappas
July 6, 2015 By Michael Inman
Jack Pappas wants an independent body to review prosecutorial decisions made by the ACT office of the DPP and costs orders introduced for those unfairly or improperly prosecuted in the Supreme Court. – Canberra Times photo
Independent oversight of Canberra’s prosecutors and a costs recovery mechanism in the ACT Supreme Court could improve the administration of justice in the capital, a veteran defence barrister says.
Jack Pappas, a defence advocate with 35 years’ experience, has urged the ACT Government to establish an independent body to review prosecutorial decisions made by the ACT Office of the Director of Public Prosecutions.
Mr Pappas said the territory justice system should also introduce costs orders for those unfairly or improperly prosecuted in the Supreme Court.
But ACT Attorney-General Simon Corbell said the two proposals were not under consideration.
“The independence of the Office of the Director of Public Prosecution is an important element of the role and its functions,” Mr Corbell’s statement said.
“The ACT is not considering a mechanism for independent review of the DPP’s prosecutorial decisions.
“Costs are not available in the ACT Supreme Court as these matters are subject to significant scrutiny by the DPP, the defence and the ACT Magistrates Court through the committal process.
“The government is not currently considering allowing costs to be awarded in the ACT Supreme Court.”
ACT Director of Public Prosecutions Jon White declined to comment, the Canberra Times reported.