ACT director of Public Prosecutions Victoria Engel SC has upped the ante — dangerously so in the view of many in the legal profession — in a very public bid for further funds for her office.
Causing most concern to the legal fraternity was the suggestion, reported in The Canberra Times, of the “extreme step” that “eventually I expect I will have to… stop appearing in certain types of prosecutions or to set quotas”.
This is not just another squall in an ACT teacup: precedent is everything in the law. As we approach the 50th anniversary of the dismissal of the Whitlam Government, we might reflect on the example of a NSW premier appointing a non-Labor senator to a Labor casual vacancy in February 1975. That ground-breaking breach of convention was followed later that year with the appointment of the Bjelke-Petersen stooge Pat Field, stacking the Senate against the wishes of the voters at the 1974 election and providing the trigger for the blocking of a budget, the corruption of a governor-general and the sacking of the prime minister.
Might not hard-pressed state DPPs be tempted to adopt this new ACT stance, which is, in the view of some in the legal community, tantamount to “threatening and blackmailing” the ACT Government which was returned to power only a year ago?
Far from being starved of funds, the DPP had what some describe as “a huge injection” last year, in addition to its base funding. This had allowed the appointment of two or three new Crowns (the senior level of prosecutor) and about five Crown advocates (the second tier), leaving an office with more prosecutors than it ever had, some say.
A number of barristers are a loss to explain how this squares with the DPP unilaterally already having dropped regulatory prosecutions (infringement matters) even though the DPP Act (1990), in Sections 6 and 11, makes provision for the office to run them.
Senior prosecutors from the time of the restructure, that led to the DPP running all lower court matters as “a uniform prosecution service”, were saddened by the recent change.
The slack has been taken up by the ACT Government solicitor’s office, but I’m told the DPP’s three assigned staff to the area remain with the prosecution service.
All concede that there are increasingly more matters arising for criminal prosecution, but lawyers say that, similarly increasingly, the DPP is persisting in running “rubbish” cases.
Barrister John Masters, of Blackburn Chambers, recently defended a kidnapping charge, for two weeks, “for what, at best, amounted to a breach of a Family Court order that would have been dealt with in an hour by the Family Court”.
“The co-accused, who was originally a child protected by the order, was also prosecuted as he had turned 18 and assisted his brothers to see their mother …” Masters said. “Having served as a DPP myself, part of my responsibility was to properly prioritise what to prosecute and to properly exercise my discretion.
“An increase in the budget only finances the attitude of ‘let’s prosecute everything and leave it to the jury’…
“If there is an increase in the DPP budget, there will need to be a corresponding increase for Legal Aid.”
The DPP told the Times of a 17% increase in family-violence matters last financial year and a 23% increase in sexual-violence matters – 170% up on five years ago.
The Australian Federal Police Association was reported as saying that inadequate funding in the face of such rises was “not fair to victims”, but what of those people unfairly accused in matters which senior lawyers say should not have been run?
Former DPPs, they say, had taken a more active role in filtering out unmeritorious cases, keeping their budgets intact for matters more in accord with the office’s over-arching two guidelines:
- Does the evidence offer reasonable prospects of conviction?
- If so, is it in the public interest to proceed with a prosecution?
The DPP is seen now as running everything that police charge in the family-violence or sexual-offence areas – and police have been charging much more since a recent review of their own previous approach.
This does not necessarily mean that such violence is on a horrifying rise, simply that more people are coming forward with complaints – and there is no longer anyone manning the gate. “Let the court decide” has become both the police and prosecution mantra.
Some magistrates and judges, I am told, are less than impressed but, of course, being part of the judicial arm of government, they cannot speak out.
The DPP is a statutory office-holder and so firmly a member of the executive. She is certainly speaking out, leading one barrister to question what would become of the ACT if all other such office-holders, including, say the police commissioner, were to do the same, saying that they, too, may simply choose not to have their offices perform all of their allotted functions.
Others in the legal community have questioned the DPP management approach, which has seen a tipping of the delicate balance between guarding against prosecutors going “rogue” versus investing those, especially in the lower courts, with some of the discretion they used to have.
When a prosecution case sours, with elements of the charged offence obviously not made out on the evidence, it used to be common for the prosecutor on her feet in court to fall on her sword. Now, the application is often for an adjournment so that the prosecutor can have withdrawal of the charge “authorised” or “signed off” by a superior.
This micro-management, I’m told, has extended to “conduct money”, the relatively small amounts (typically of the order of $30-$50) paid to often impecunious witnesses (including complainants) who have been subpoenaed to attend court. Multiple sources have said the DPP has decreed that it be paid only when people ask for it, notwithstanding that Court Procedure Rules’ Approved Form 6.10 (Subpoena to give evidence) clearly states, “You need not comply with the subpoena unless conduct money is handed or tendered to you a reasonable time before the date when your attendance is required.”
The AFPA’s support for the DPP’s budget pitch was swift and strong. Maybe the association should have looked closer to home, to reinstituting the old ACT system, still extant in NSW and elsewhere, of having police prosecute matters in the local or magistrates’ courts.
Many believe that the NSW sergeants who do so, with a somewhat truncated formal legal education but with a galaxy of life experience, produce fairer results, wielding greater autonomy more wisely and running busy lists more efficiently than the professional prosecutors across the border, fresh in court from law school, and increasingly kept on a tight rein by their boss.
Against that, though, is the “uniform prosecution service” view previously mentioned, which has two great benefits:
- It removes the spectre of the prosecutor (almost always a sergeant) and the police witness (often simply a constable) being in the same control-and-command structure.
- The lawyer-prosecutor is bound by ethical obligations that the police prosecutor, sound and canny as she may be, is not.
More the pity, then, to see a threat to the further fracturing of the DPP office with that “extreme step” of quotas or a cessation of DPP appearance in as-yet-unspecified “certain types of prosecution”.
The views expressed in this article may or may not reflect those of Pearls and Irritations.
Andrew Fraser is the principal of Fraser Criminal Law and has worked in criminal law in the Canberra region for more than 15 years. Before beginning legal practice, Andrew was a journalist for close to 30 years with the Canberra Times and the Sydney Morning Herald, including stints in the Federal Parliamentary Press Gallery. He is also a former news editor, chief of staff and political correspondent of the Canberra Times.