Author: Bugg, D. Date: 8/08/2004 Venue: Keeping justice systems just and accountable - a principled approach in challenging times : The International Society for the Reform of Criminal Law 18th Annual Conference, Montreal, 8-12 August 2004
Independence and accountability of prosecutors has been a topic of discussion and debate in Australia for the last two decades. That is so because all jurisdictions in Australia, commencing with Victoria in 1982 and followed by the Commonwealth (Federal Government) in 1983 have legislated to establish the independent Office of Director of Public Prosecutions to be responsible for the prosecution of all offences on indictment in those jurisdictions. (Offices in some jurisdictions have a broader function which includes the prosecution of summary offences in Magistrates Courts). It is appropriate that this Conference considers, within its broad Theme, the independence and accountability of the prosecutor and ethical standards applied in prosecution practice. In addressing these issues I speak primarily from my experience as a Director of Public Prosecutions in Australia. I was first appointed the Director of Public Prosecutions for Tasmania in 1986. I served in that Office until 1999 when I was appointed Director of Public Prosecutions for the Commonwealth, the fifth person to hold that Office. In Tasmania the Office of Director of Public Prosecutions not only prosecuted all indictable offences before the Supreme Court (the only Trial Court in that State) but also conducted a number of summary prosecutions, for regulatory agencies, in the Magistrates Court and all civil litigation on behalf of the State. In this paper I will consider the topics for this plenary in the following order:
The State of Victoria established the first Director of Public Prosecutions in Australia (Director of Public Prosecutions Act (Victoria) 1982) and was followed by the Commonwealth in 1983 (Director of Public Prosecutions Act (Commonwealth) 1983. When the Victorian Bill was before Parliament the second reading speech emphasised the need for the prosecution process to be independent of Government and the Attorney General. In other Australian jurisdictions mention was also made of the expectations of improved standards and efficiencies in the Prosecution Service but the reason given most emphasis was the independence of the Prosecution Service from Government, or the political process. Australian prosecution services had, prior to these initiatives, been the subject of well-placed criticisms “the process of prosecutions in Australia at both State and Federal level is probably the most “secretive, least understood and most poorly documented aspect of the administration of criminal justice.””. (1) In Tasmania the Government had established an Independent Prosecuting Office under the Crown Advocate Act 1973 but in 1986 that State also followed the trend in other Australian jurisdictions by amending that Act slightly and changing the name of the Office to Director of Public Prosecutions. Interestingly the focus in 1986 was not independence from Government, as elsewhere, perhaps because that position had already been achieved when the Office of Crown Advocate was established in 1973, for that very reason. One of the amendments to the Tasmanian Legislation in 1986 was the removal of the imposed duty upon the then Crown Advocate to provide advice and representation to Police, the stated purpose of this amendment being the recognition of the independence of the DPP from the policing and investigative function. Footnote 1. (Australian Law Reform Commission “Sensing of Federal offenders” Report No 16 at page 61). That brief acknowledgement of an independence of function between the prosecutor and the investigator provided the only note of similarity between what was happening in Australia and the rather substantial move in the United Kingdom, in that same year, to establish the Crown Prosecuting Service headed by the DPP. The goals in the UK were much broader. In launching the Crown Prosecuting Service on the 1st of October 1986 the DPP in England, Sir Thomas Hetherington, summarised its main objectives as follows:
1. To be, and to be seen to be, independent of the Police.
2. To ensure that the general quality of decision making and case preparation is of a high level, and that decisions are not susceptible to improper influence.
3. To provide flexibility to take account of local circumstances.
4. To continue prosecutions while, and only while, they are in the public interest.
5. To conduct cases vigorously and without delay.
6. To undertake prosecution work effectively, efficiently and economically.
7. To seek to improve the performance of the criminal justice system as a whole.
(2) At the time legislation was introduced in the various Australian jurisdictions to establish the Office of Director of Public Prosecutions there was not the same emphasis of correction of any other perceived problems in the Prosecution Services but there was clear recognition of the objective of independence from the political process and to, a lesser extent, independence from the Police or investigator. Footnote 2. “The Case for the Crown” Joshua Rosenburg 1987. In Price v Ferris (3) Kirby P (as he then was) said: “What is the object of having a Director of Public Prosecutions? Obviously it is to ensure that a high degree of independence in the vital task of making prosecution decisions and exercising prosecution discretions. Its purpose is illustrated in the present case. The Court was informed that, in the prosecution of a police officer, it is now normal practice in this State for the prosecution to be “taken over” from a private prosecutor or informant and conducted by the DPP. The purpose of so acting is to ensure that there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and to answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour. Analyses by law reform and other bodies have demonstrated conclusively how vital are the decisions made by prosecutors: see eg Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15) (1980) Canberra, AGPS at 61f. Decisions to commence, not to commence or to terminate a prosecution are made independently of the courts. Yet they can have the greatest consequences for the application of the criminal law. It was to ensure that in certain cases manifest integrity and neutrality were brought to bear upon the prosecutorial decisions that the Act was passed by Parliament affording large and important powers to the DPP who, by the Act, was given a very high measure of independence: cf discussion X Connor, “Victorian Director of Public Prosecution”: (1994) 68 ALJ 488. The power to “take over” proceedings must be understood against the background of these realities.” Footnote 3. (1994) 74 ACRIM R 127 at p130 In Price v Ferris a Police Inspector had commenced criminal proceedings which were subsequently taken over by the DPP in New South Wales pursuant to powers provided to him under the Director of Public Prosecutions Act 1986 (NSW). The information was dismissed by a Magistrate. The DPP appealed that dismissal but a Judge at first instance held that the Police Inspector named in the proceedings had no standing to bring the appeal and refused to substitute the DPP as the appellant. The subsequent appeal by the DPP to the Court of Criminal Appeal of New South Wales was dismissed by a majority on the basis that once the Director of Public Prosecutions had taken over the prosecution he took over the whole matter, and hence an appeal in the name of the Police Inspector was misconceived. “Manifest independence, .. integrity and neutrality” (Kirby P) have been goals championed by most DPP’s I have had the privilege to work with over the last eighteen years. Simple assertions from some commentators and even Directors that a Prosecution Service, however structured, must be independent, without more, tend to confuse the issue. We hear them usually in support of claims for increased funding, to oppose restructuring or to rebuff criticism of a nolle prosequi or sentence appeal or lack thereof. Independence does not, per se, guarantee absolute freedoms and protections in all aspects of the work of the independent prosecutor. My experience of prosecutions has been within the “Australian model” but during my time as a Director of Public Prosecutions I have enjoyed the privilege of meeting with prosecutors and Heads of Prosecuting Agencies from most countries. At those meetings we have compared our own systems and following such comparisons I am sure that we have all better understood those other systems but usually maintained that our own model best suited our particular jurisdiction. But within most models it can be said that prosecutors enjoy relative independence in exercising their “prosecutorial discretion”. The prosecutorial discretion is, in my opinion, the area in which discussion of the independence of prosecutors should focus. The decision to prosecute, to not prosecute, to discontinue a prosecution, to appeal a sentence, to indemnify a witness or give a witness an undertaking or assurance and, in other jurisdictions decisions pursuant to specific statutory provisions (e.g. The DPP’s consent to prosecute for conspiracy) (4) all involve the exercise of a discretion, which is commonly referred to as the prosecutorial discretion. Matters such as control over budgets and sufficiency of funding, staffing levels, industrial issues concerning staff and their terms and conditions of employment will impact on how we do our jobs. But these are issues which impact on any Public Office including the Courts. They do not take away independence in the exercise of discretions, they may restrict our capacity to function efficiently, but that is another issue. In exercising their discretion Prosecutors should be independent of influence, pressure or persuasion from those who have an interest in the outcome of that decision. It is not just Governments, but Police Services, any other Investigative Agency, the Court, and victims or the families of victims from whom the Prosecutor should be not only independent but seen to be independent. How do you ensure this independence and reassure the community that the prosecutor functions in these critical areas, independently of Government, the Police, regulators and victims and the family of victims? In many instances this reassurance will become necessary where the proximity of the prosecutor to the other “players” in the criminal justice system is close and lacking defined lines of separation or independence (e.g. precharge liaison units where police and prosecutors work under the one roof as a “team” and prosecuting offices within “Crown” agencies which also represent Government and advise it on policy matters). By comparison the statutorily independent office provides the manifestation of independence, which will assist perceptions of, and therefore confidence in, the independence of the prosecutor. Footnote 4. S11.5(8) Criminal Code Act 1995 (Cwlth). To understand the importance not only of a claim of independence but a clearly defined independence of a Prosecuting Service from other interested parties one only needs to examine the extent to which the role of prosecutors has changed in the last three decades. Public sector resources are now less plentiful, trials are more costly to run and, despite technology, considerably longer backlogs impinge on all our work. Victims have been given long overdue recognition, investigators now seek the assistance of and reassurance from prosecutors before charges are laid and Courts seek greater input from the prosecutor in what was previously seen as a detached or neutral role. (See for example, presentence submissions and comment) (5) In addition, with greater sophistication of criminal behaviour and the covert nature of organised crime, there is now reliance upon accomplice or indemnified witnesses and plea discussions are, in many jurisdictions, opened by invitation from the prosecution. (6) All these changes have imposed obligations upon Prosecution Services to use their best endeavours to conserve resources, to make decisions about cases which will not be prosecuted, to avoid the prosecution of weak cases, the raising of impractical issues, to identify pleas at an early stage, to assist the Court in sentencing and to simplify prosecutions and, where necessary, improve the strength of prosecutions by relying on accomplices, some of whom may be indemnified, as key Crown witnesses. Few of these prosecutorial decisions are open to public or judicial scrutiny. The prosecutor, with a statutory guarantee of independence, is today in a very powerful position. Footnotes 5. Everett & Phillips v The Queen (1994) 181 CLR 295. 6. See the “Best Practice Model” developed between the Australian Directors of Public Prosecutions and Directors of Legal Aid in 1997/98 and “Pleading Guilty: Issues & Practices” (AIJA Publication 1995) Kathy Mack BA, JD,LLB & Sharyn Roach Anelen BA (Hons), MA, Phd, LLB (Hons). By the mid 1980s in Australia, long prosecuting experience had demonstrated that a bare prima facie case was, without more, unlikely to attract a verdict of guilty from the community’s representatives, the jury, even though the committing Magistrate was only required to find evidence to that standard in order to commit an accused person to stand trial. In those circumstances there was little point in continuing to prosecute all cases committed to trial. Limited resources would otherwise be wasted and Court Lists cluttered with what good sense demonstrated were unmeritorious cases, or cases where the prospects of a conviction were not, on an objective assessment, reasonable. In Australia in 1989/90 the Directors of Public Prosecutions and the Heads of Prosecuting Agencies in States which, at that time, had not established an Office of Director of Public Prosecutions, met to settle a uniform test or standard by which these cases could be culled or removed from Court lists and the decision to prosecute would also be uniform throughout the eight trial jurisdictions in Australia. We all agreed on a uniform test or guideline which was a three-stage process requiring first sufficient evidence to establish a prima facie case. If this was not possible a prosecution would not proceed. If a prima facie case was found the prosecutor had then to undertake a qualitative examination of the evidence to determine whether that evidence, when presented before a reasonable jury, properly directed, would give rise to a reasonable prospect of conviction. If the prosecutor concluded after that examination that there was no reasonable prospect of conviction the prosecution would not proceed. If, on the other hand, there were found to be reasonable prospects of conviction, the prosecutor had to then decide whether or not in all the circumstances a prosecution was in the public interest. We settled upon a number of factors which would be used in determining whether or not it was in the public interest to continue. To give a better understanding I set out the full list which we settled and which remains today. (a) the seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only; (b) any mitigating or aggravating circumstances; (c) the youth, age, intelligence, physical health, mental health or special infirmity of the alleged offender, a witness or victim; (d) the alleged offender’s antecedents and background; (e) the staleness of the alleged offence; (f) the degree of culpability of the alleged offender in connection with the offence; (g) the obsolescence or obscurity of the law; (h) whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute; (i) the availability and efficacy of any alternatives to prosecution; (j) the prevalence of the alleged offence and the need for deterrence, both personal and general; (k) whether the consequences of any resulting conviction would be unduly harsh and oppressive; (l) whether the alleged offence is of considerable public concern; (m) any entitlement of the victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken; (n) the attitude of the victim of the alleged offence to a prosecution; (o) the likely length and expense of a trial; (p) whether the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so; (r) whether the alleged offence is triable only on indictment. Clearly, the taking of this last step will, on occasions, be at risk of causing controversy. If that controversy is the reasoned response of an objective community or its representatives then the likelihood of that occurring will be a factor which may cause the decision maker to conclude that the prosecution is in the public interest. The changes over the last three decades, to which I have referred, have created an environment in which decisions are now being taken to remove matters from the Court even where committing Magistrates had directed the accused to stand trial, and in some cases, where evidence sufficient to obtain a conviction exists but, in all the circumstances it is not in the public interest to continue the prosecution. By way of example in Tasmania during thirteen years as Director the statistics over the last few years showed that about 15% of matters committed to stand trial were resolved by my decision to not proceed to trial but rather either discontinue the matter completely or alternatively remit it to the Magistrate’s Court for disposition on summary charges. Ignoring decisions which were made in relation to pleas of guilty and other matters this figure compared with the distribution of trials amongst the six Supreme Court Judges in that State at 2.5% of matters per Judge. In other words a single Director discontinued or redirected as many matters as they were tried on pleas of not guilty by the entire Court in that State. The High Court in Australia has recognised the independence of the role of the prosecutor in a number of matters. In Maxwell v R (7) Dawson & McHugh JJ said: “The decision whether to charge a lesser offence, or to accept a plea of guilty to a lesser offence than that charged, is for the prosecution and does not require the approval of the Court. Indeed, the Court would seldom have the knowledge of the strength and weaknesses of the case on each side which is necessary for the proper exercise of such a function. The role of the prosecution in this respect, as in many others, “is such that it cannot be shared with the Trial Judge without placing in jeopardy the essential independence of that Office in the adversary system”” and later at page 26 Gaudron and Gummow JJ said: “It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process, particularly, its independence and impartiality and the public perception thereof would be compromised if the Courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what”. Footnote 7. (1996) 135 ALR 1 at 9 It is important for a Prosecution Service, and particularly the persons within that service empowered to make these decisions, to not only be independent when making those decisions but also to be seen to be so. The independent exercise of this broad prosecutorial discretion can have such a significant impact on Police, victims, accused, witnesses, Courts, Legal Aid providers and the profession generally, that the Prosecution Service must be accountable for its decisions. How comfortably does accountability sit with independence?
The relationship between independence and accountability is clear. The level of responsibility which a Prosecution Service has within a criminal justice system and the continuation of the freedom which a prosecutor must have to maintain that responsibility requires the prosecutor to be accountable for the way in which the prosecutorial discretion is exercised. I am not referring to accountability in the sense of curial sanction or an inter partes process but rather accountability to the “interested parties”, (the Courts, the community, the community’s representative, Parliament and the Attorney General, victims, police and the accused). The old criticism that the Australian prosecution process “was the most secretive, least understood and most poorly documented aspect of the administration of criminal justice” make an appropriate starting point for a consideration for accountability “as a DPP is independent from other participants in the criminal justice system, so also is the DPP linked in a relationship with mutual accountability and responsibility.” (8) I will focus my consideration on the Australian Model of an Office given prosecutorial powers and functions by Parliament pursuant to a specific statute. In many of the Australian jurisdictions there is retention of the residual power of the First Law Officer, the Attorney General, to undertake or effect that for which the office holder was traditionally responsible, the bringing of prosecutions on indictment. So also are there accountability mechanisms. Pursuant to the Director of Public Prosecutions Act (Commonwealth) 1983 the Director is: (i) required each year to prepare and furnish a report to the Attorney General with respect to the operations of the Office during the year ended the 30th of June; and the Attorney General is required to lay a copy of that Report before each House of the Parliament within 15 sitting days after the Report is received by him. (9); (ii) required, if requested to do so by the Attorney General, to consult with the Attorney General with respect to matters concerning the performance of the Director’s functions or the exercise of the Director’s powers and, likewise, the Attorney General is, if requested to do so by the Director, required to consult with the Director with respect to matters concerning the performance of the Director’s functions or the exercise of the Director’s powers (10) . Footnotes 8. J McKachnie QC “Directors of Public Prosecutions – Independent & Accountable” October 1996 9. S33 Director of Public Prosecutions Act 1983; 10. S7 of the Director of Public Prosecutions Act 1983. In addition the Commonwealth Director of Public Prosecutions in Australia is subject to such directions or guidelines as the Attorney General, after consultation with the Director, gives or furnishes to the Director by instrument in writing. (11) The directions or guidelines encompassed within S8 of the Director of Public Prosecutions Act 1983, although not limited, in generality, may: (a) Relate to the circumstances in which the Director should institute or carry on prosecutions for offences; (b) relate to the circumstances in which an undertaking should be given under S9(6) (a use indemnity to a potential witness); and (c) be given or furnished in relation to particular cases. Should a direction be given by the Attorney General under S8 of the Commonwealth Director of Public Prosecutions Act 1983 the Attorney General is required to cause a copy of the instrument to be published in the Gazette and a copy also to be laid before each House of Parliament within 15 sitting days after the time of giving the direction to the Director. Thereby creating a transparency of dealings in this potentially sensitive area. In the twenty years of operation of the Office of the Commonwealth Director of Public Prosecutions in Australia there have been four S8 directions given by the Attorney General and they have related to procedures and not particular cases and in those four instances there has been no concern that the independence of the Office, particularly in relation to the exercise of the discretion of the Director, has been interfered with in any way. Footnote 11. S8 of the Director of Public Prosecutions Act 1983. Of course if the Attorney General disagrees with any decision of the Director to not prosecute he could, in most Australian jurisdictions undertake that prosecution himself through retention of residual powers as First Law Officer. The implications of such a step are significant, opening suggestions of political interference, or questions of “when is this likely to happen again?” etc. My experience has been that Attorneys General and Governments generally prefer to rely upon the “independent role” of the DPP and the expertise of the Office to avoid entry into public debate about discontinuances and appeals against sentence. We are of course also talking about relationships and that is a matter for each Director and Attorney General. A relationship of confrontation or mistrust is unhelpful, to say the least; but any relationship or understanding should also keep in mind the need to avoid the risk of criticism of “political closeness”. I have found that the Annual Report to Parliament and my appearance before Parliamentary Committees provide the opportunity for Parliamentary scrutiny of the conduct of my Office. Regular meetings with the Attorney General provide the opportunity for discussion and explanation about decisions which may give rise to concern. The community, Parliament, Police and victims need to understand why particular decisions have been made. The need to have a level of transparency in that decision making process is well understood. In Australia the Prosecutorial Guidelines settled in 1989/90 went a long way to explaining the process and also ensured that the policy behind those guidelines was applied as consistently as possible throughout the country. The explanation of reasons for a particular decision will go some way to providing transparency in the exercise of the discretion and it will overcome complaints of secrecy. However it is not always possible to give reasons particularly where the decision is to discontinue a prosecution based on a lack of creditability of the principal witness (in for example a prosecution for rape). In high profile cases the reasons will be demanded by media outlets the less responsible of whom will wish to sensationalise the matter and not let the facts trouble them too much. In dealing with the media it is important to establish a settled policy as to when media releases or press statements will be made, what they will contain and what they will not contain. I have tended to limit statements in my present role because the prosecutorial function at a Commonwealth level is less victim oriented than at a State or Territory level where the prosecutors deal primarily with crimes against the person. In jurisdictions where there is little precharge consultation between police and prosecutor, particularly involving crimes against the person, (and I can understand that there is quite often the need to lay charges without the opportunity for such consultation particularly where persons are arrested as the scenes of robberies etc) there is quite often, subsequently, the need to re-evaluate the charge when all available evidence is obtained and that charge is reduced. In those circumstances it is the lot of the unfortunate independent prosecutor to explain, particularly to the victim or families of the victim (where for example a charge of murder is reduced to one of manslaughter or discontinued completely because of the inability to rebut a defence of self defence reasonably open on the evidence) why this decision has been made. The Charter of Victims Rights imposes certain obligations upon prosecutors and police officers. Most Australian States and Territories have now either formally adopted the terms of the Charter or have applied them in the policies adopted by relevant Agencies, Departments and Prosecuting Offices. In 1986 the General Assembly of the United Nations adopted and published the “Basic Principles of Justice for Victims of Crime and Abuse of Power” following its congress in 1985 on the Prevention of Crime and Treatment of Offenders. The Principles attempted to define the basic rights or entitlements of victims in relation to criminal investigation, court proceedings and provision of information. Those Principles have commonly been called the “The Charter of Victims Rights”. The Charter recognises that a victim (as defined) shall have the right …:1. To be dealt with at all times in a sympathetic, constructive and reassuring manner with due regard to the victims personal situation, rights and dignity.2. To be informed upon request about the progress of investigations being conducted by police (except where such disclosure might jeopardise the investigation).3. To be advised upon request of the charges laid against the accused and of any modifications to such charges and the reasons for such modifications, and where appropriate, the reasons for charges not being laid.4. To be advised upon request of the reasons for accepting a plea of guilty to a lesser charge.5. To be advised of the entering of a nolle prosequi, the filing of a no bill or the adjournment of charges sine die when the decision is taken not to proceed with charges, and, upon request, the reasons for taking such action.6. To have property held by the Crown for the purposes of investigation or evidence returned as promptly as possible. Inconveniences to victims should be minimised wherever possible.7. To be informed about the trial process and of the rights and responsibilities of witnesses.8. To be protected from unnecessary contact with the accused and defence witnesses during the course of the trial.9. To not have his/her residential address disclosed unless seemed material to the defence.10. To not be required to appear at preliminary hearings or committal proceedings unless deemed material to the defence.11. To have his/her need or perceived need for physical protection put by the prosecutor before a bail authority which is determining an application for bail by the accused person.12. To be advised upon request of the outcome of all bail applications and be informed of any conditions of bail which are designed to protect the victim from the accused.13. To have the full effects of the crime upon him/her made known to the sentencing court by the prosecutor in matters relating to offences of sexual assault or other personal violence.14. To be advised upon request of the outcome of criminal proceedings and be fully appraised of the sentence when imposed and its implications.15. To be notified upon request of an offender’s impending release from custody, where the offender has been imprisoned in relation to offences of sexual assault or other personal violence. Paragraphs 3, 4 and 5 bring the prosecutor into contact with the victim or the family of a victim particularly where decisions are made to either not proceed or to vary the charges originally laid by the police. I believe that it is important for detailed explanations to be given wherever possible to the victim or families of the victim in an attempt to explain as fully as possible the decision making process and the reasons for the decision. When I was a State Director of Public Prosecutions I would always visit the family of the deceased at their home and explain to them well in advance of any court process, any decision I was making which would reduce a charge of murder or result in no proceedings at all and my reasons for it. I would give them ample opportunity to discuss the matter with me and also to obtain legal advice should they wish to do so to have further explained any issues I may have discussed with them. I found this process of explanation to be one which removed most of the difficult decisions I had to make in this area from the front pages of the local press. The most difficult decision in the exercise of the prosecutor’s discretion is, in my experience, the decision to not proceed further with a matter. It would be very easy to leave it up to the jury but if you are satisfied that on all the available and admissible evidence there is no reasonable prospect of conviction you cannot, in all conscience, take the “easy way out” and prosecute that matter before a jury. If, with the trained experience of a prosecutor, the conclusion is that there are no reasonable prospects of conviction I do not see how a prosecutor can press a jury to find that the accused is guilty beyond a reasonable doubt on all the evidence. Most decisions to not prosecute or vary charges will be uncontroversial and not require explanation. The tendency to offer explanations in every case in my view invites speculation for those cases where you are unable to offer an explanation for the reasons I have suggested previously. In relationships with Police and Investigating Agencies prosecutors should recognise the interest of those Agencies in the outcome of matters investigated by them and seek input from them when a position is reached where there is not sufficient evidence for the matter to proceed. The Police Service or Investigating Agency should be given the opportunity to examine the prospects of obtaining further evidence and likewise have an input but, in the end, the decision when all available evidence has been obtained, is that of the prosecutor and the prosecutor alone. The Office of the Commonwealth Director of Public Prosecutions in Australia undertakes prosecutions referred to it by approximately forty Regulatory Agencies. Some of the larger Agencies, The Australian Securities & Investment Commission, The Australian Federal Police, The Australian Customs Service, The Australian Taxation and Centrelink all have individual Memoranda of Understanding with my Office which deal with issues such as delivery of Briefs and the relationships between our Offices when matters are referred to my Office for prosecution. There is a standard form of Memorandum of Understanding to cover the relationships with smaller Agencies but all provide for discussion and explanation concerning decisions made by my Office in the exercise of the prosecutorial discretion. They are all based on the standards of the Prosecution Policy of the Commonwealth, which I have referred to previously as the Uniform Guidelines settled nationally in 1989/90. The independent prosecutor is accountable, as I have endeavoured to explain, to the community, the community’s representatives and the victims of crime. Likewise the prosecutor is accountable to the Courts and to the accused and the accused’s representatives. While the relationship between Prosecuting Offices and representatives of the accused and the accused are, through the steps taken in the prosecution process, reasonably well defined and vary little from one jurisdiction to the other they tend, in the main, to be governed by procedural rules or practices and the rules of the professional bodies in each jurisdiction. However the underlying requirement of any prosecuting service is to ensure fairness to the accused and open professional relationships between the representatives of the accused and the prosecutor. I have not found this to be a problem at all however the major area of difficulty in satisfying the requirement of accountability to the accused and his or her representatives and to the Court has been in the area of disclosure of relevant or unused prosecution material obtained or seized during the investigation. The disclosure process is one in which, once the prosecution has commenced, the prosecutor is accountable to the accused, his counsel and the Court, for the disclosure of relevant material in the possession of the authorities and the Prosecuting Office. I find this process an area of considerable difficulty, especially in investigations involving more than one Agency and relating to a significant paper or scientific trail. Recently two prosecutions run by my Office stalled because of poor disclosure. In one (in New South Wales) the problem was the fault of the Investigative Agency where further and allegedly relevant documents were presented when jury addresses had commenced. In the other (in South Australia) the fault was a combination of poor disclosure by the investigator to my Office and confused communication by my Office to the Court as to the reasons for incomplete disclosure. In both cases the prosecution was stayed pending payment by my Office of the costs of the defence, thrown away. Disclosure Certificates, where the officer in charge of the investigation or more senior officer certifies that all relevant and discoverable material has been provided with the Brief are being used more by prosecutors in Australia. They do provide a reassurance to the prosecutor but without a compulsory two stage disclosure process I cannot see how a prosecutor (or investigator) will know precisely what of all the materials seized will be relevant or admissible in a trial. Until there is some better understanding of what the nature of the defence might be, relevant material may be treated as irrelevant because of unawareness of a particular aspect of the defence case. However I do trust that by the commentary I have indicated where, I believe, proper accountability mechanisms exist to balance the independence of the DPP with the lack of close oversight or review of the exercise of these very far reaching discretions.
Ethics in Prosecution Practice
Much of what I have said already about the exercise of the prosecutorial discretion is dependent upon a well trained professional and ethical Prosecution Office. Fundamentally it is the responsibility of a Director to ensure that his staff, professional and support, and the counsel retained to prosecute matters are both qualified and well trained and, importantly, know their duties as prosecutors and apply proper standards in the performance of those duties. It is not sufficient for a set of “commandments” to be placed in positions of prominence. I doubt whether anyone would have read, understood and applied the Ten Commandments if they had been chiselled in milestones of the highways and byways of their time. There must be an educational process and there must be a set of standards which form part of that process. The Courts have defined the duties of the prosecutor at common law and, more recently, the United Nations (12), the International Criminal Court (13) and the International Association of Prosecutors (14). I have prepared an attachment to this Paper which sets out the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors adopted by the International Association of Prosecutors in April 1999. It is an addendum to the Human Rights Manual for Prosecutors compiled by Marnix Alink and edited by Professor Edgbert Myjer, Barry Hancock (General Counsel of the IAP) and Nicholas Cowdery QC, President of the IAP. As the Human Rights Manual for Prosecutors was, in part, contributed to by my fellow speaker, Daniel Bellemare QC I trust that he will provide some background to the compilation of this text, which was published in 2003. I do however draw your attention to the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors which has received general acceptance by most members of the International Association of Prosecutors as a standard for attainment of all prosecutors. Footnotes 12. United Nations Guidelines on the Role of Prosecutors 13. Code of Professional Conduct for Prosecutors of the International Criminal Court 14. Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors (adopted by the International Association of Prosecutors in April 1999) Earlier this year an attempt was made to combine the Standards (IAP) and the United Nations Guidelines in an attempt to provide a Guideline for my Office nationally. The first draft was produced in twenty six pages. There has been no formal adoption of that draft at this stage. I believe that the attachment is indicative of not only of the standards which prosecutors should strive to achieve but also indicative of the responsible attitude prosecutors take to the privileged role they play in the criminal justice systems of the world. Not only are prosecutors subject to the critical overview of their seniors through their training process but also through processes such as the in-house advocacy training I have introduced to my Office and the professional rules and codes of conduct applicable to them as practitioners within their own jurisdictions. The conduct of prosecutors, in terms of any suggested breach of ethical standards, is subject to the scrutiny of the Courts and, in an adversarial system, there is no doubt the vehicle of challenge and critical review. If appropriate standards are not observed by a prosecutor and a review of the trial process determines that the trial has miscarried or that the accused has been deprived of a chance of acquittal reasonably open to him there is the appellate review process which will not only identify, through definition of ethical standards, that breach but also redress the injustice.
Thank you for your attention.