Author: Bugg, D. Date: 31/08/2007 Venue: Rule of Law: the challenges of a changing world, Brisbane, 31 August – 1 September 2007
In this paper I examine, with different focus, issues which I discussed at the Heads of Prosecuting Agencies Conference (HOPAC) in Quebec in July 2007. The statutorily independent prosecuting service undertaken by the Office of the Director of Public Prosecutions (DPP) was not established in Australia until the last quarter of last century. Much has been written and said about the Office since then. I will not repeat what has already been said, some of it by me, within the scope of this paper but for the purpose of opening my consideration of the topic for you it is my view that the move to establish Independent Prosecuting Offices in the various jurisdictions of Australia brought about one of the more significant improvements to the criminal justice systems in this Country in the late 20th Century and, in my view, more clearly defined the important role the prosecutor plays in maintaining the Rule of Law. The structure of prosecuting systems in this Country had changed little until the last two decades of the 20th Century. Situated as they were within the traditional frame-work of the “Law Offices” of Government the prosecution services in Australia were and were seen to be part of Executive Government, but were also perceived by many to be undertaking their work at the direction of Government. Prosecutions invariably followed a charging process undertaken by the investigator (the Police) without reference to or consultation with the prosecuting authority of the jurisdiction concerned. Summary prosecutions and committals were in the main conducted by serving police officers with little or no direction from the prosecuting authority. The committal test, prima facie case, was applied consistently throughout the Country without any qualitative analysis of the evidence or the application of any identifiable or regulated public interest factors. There were no significant economic constraints in the trial process, some may say there was no need for them at that time, as trials took considerably less time and Legal Aid was not available to the extent it was to become in the 1970’s and ‘80s. Prosecutions therefore usually followed the committal order and any additional legislative guidance for the exercise of any prosecutorial discretion differed little from the committal test e.g. see s310(4) (Tasmania Criminal Code 1924): “Before filing an indictment a Crown Law Officer shall satisfy himself that there is evidence against the defendant sufficient to put him on his trial or raise a strong or probable presumption of his guilt.” The proximity of the prosecution to Government and the Law Offices which acted for and advised Government was seen as the most important reason for establishing a separate Independent Statutory Office responsible for the conduct of prosecutions. In 1973 Tasmania became the first State to establish an Independent Prosecuting Office, (Crown Advocate) pursuant to the Crown Advocate Act 1973. At that time all prosecutions in that State were undertaken by professional staff permanently employed in the Solicitor-General’s Department. The Crown Advocate Act provided little direction as to the relationship between the Attorney-General, the Solicitor-General and the Crown Advocate and the Act did not provide the Crown Advocate with a power to publish or issue guidelines and in its original form imposed a statutory duty upon the Crown Advocate to advise and represent Police. Victoria established the first Director of Public Prosecutions (“DPP”) (see DPP Act 1982) and was followed by the Commonwealth in 1984. Tasmania changed the name of the Office of Crown Advocate (and the Act) to DPP in 1986. It was on this name change that I was appointed the first DPP in Tasmania, the position which I held until 1999 when I was appointed the 5th Commonwealth Director of Public Prosecutions. Independence In 1982, when the Victorian Bill was introduced, the second reading speech emphasised the need for the prosecution process to be independent of Government and the Attorney-General. Mention was also made in some of the other jurisdictions of the expectations of improved standards and efficiencies in the prosecution service but the reason given most emphasis was independence of the prosecution service from Government. The ‘departmental’ prosecution offices had, prior to these initiatives, been the subject of criticisms concerning their lack of transparency “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.”  In his paper “Prosecutorial Discretion Australia Today” published in 1996 Michael Rozenes QC the then Commonwealth DPP referred to that criticism as “a general comment on the prosecution system applying in Australia at that time” which was “perhaps not that wide of the mark”. Interestingly in 1986 the amendment effected in Tasmania removed from the old Crown Advocate Act the obligation to provide advice and representation to Police, the stated purpose to recognise the independence of the DPP from the police and their investigative function. That acknowledgment of the DPP’s independence of function from the police provided the only note of similarity between what was happening in Australia and the rather substantial move in the United Kingdom, at that time, to establish the Crown Prosecuting Service headed by the DPP. The goals in the UK were much broader. In launching the Crown Prosecution 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 ] In this Country however while there was a clear recognition of the objective of independence from the political process, the goal of correcting other perceived problems in the prosecution services was not emphasised to the same extent although some saw the need for independence from Police as important. In Price v Ferris (1994) 74 A Crim R 127 at p130 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 in exercising prosecution discretion”. The continuation of the involvement of police in summary prosecutions and their conduct of committals for some State offences in Australia ensured an ongoing involvement of the police in the prosecution process. The prosecution process in some States was therefore not truly independent of the Police. Early DPP Goals If the sole purpose of establishing the Offices of DPP was to ensure independence in the exercise of the prosecutorial discretion, then the exercise was an undoubted success. The prosecutions undertaken by Ian Temby QC, John McKechnie QC (WA) and the political bribery prosecution (Tasmania) and a number of high profile cases in other jurisdictions reassured the community that it was being served by officers who were free from political influence in the conduct of prosecutions. The existence of that independence suited most Governments as well, particularly when faced with mounting criticisms of the criminal justice system not only arising from the outcome of trials but also the refusal by the DPP to continue some prosecutions. In fact the level of independence of the Office became a significant issue in Victoria in 1994 when a Bill to amend the DPP Act in that State surfaced and was the subject of significant criticism from all quarters.  Whilst the early establishment of the independent status of the DPP in each jurisdiction was important the creation of these offices provided an opportunity for collegiate activity among the Directors. The first notable achievement flowing from this contact was the adoption of uniform guidelines for the exercise of the prosecutorial discretion in 1989/90. Faced with lengthening trials and increased trial numbers, Directors as a group acknowledged for the first time that resource implications were a relevant factor in determining whether or not some prosecutions should proceed and that the mere laying of a charge did not ensure the continuation of the prosecution. The guidelines, when published, commenced with a quotation from Sir Hartley Shawcross QC’s statement to the House of Commons in January 1951 as Attorney-General when he said: “It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should … prosecute whenever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest. That is still the dominant consideration.” The guidelines followed that quotation with an acknowledgment that “this Statement is equally applicable to the position in Australia. The resources available for prosecution action are finite and should not be wasted pursuing inappropriate cases, a corollary of which is that the available resources are employed to pursue with some vigour those cases worthy of prosecution”. The Guidelines directed all prosecuting agencies through a three-stage process in determining whether or not a prosecution should proceed. Firstly, was there a prima facie case or other primary test applicable in that jurisdiction? A quantitative test. Secondly, having determined that a prima facie case existed, a further and more demanding qualitative test was applied in the following way: “In deciding whether the evidence is sufficient to justify the institution or continuation of a prosecution the existence of a bare prima facie case is not enough. A prima facie case is a necessary but not sufficient condition for launching a prosecution. Given the existence of a prima facie case it must be understood that a prosecution should not proceed if there is no reasonable prospect of a conviction being secured before a hypothetical reasonable jury properly instructed (ie an impartial jury) or magistrate in the case of summary offences. This decision requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence. The prosecutor should also have regard to any lines of defence which are plainly open to, or have been indicated by, the alleged offender and any other factors which, in the view of the prosecutor, could affect the likelihood or otherwise of a conviction. This assessment may be a difficult one to make, and of course there can never be an assurance that a prosecution will succeed. Indeed, it is inevitable that some will fail. However, application of this test dispassionately, after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds.” The test, expressed in that negative form took the pre-prosecution assessment of the evidentiary strength of the case against the accused to a much higher level than that previously applied and incorporated what I have, on another occasion, described as a qualitative analysis of the evidence. Thirdly, when satisfied “that the evidence is sufficient to justify the institution or continuation of a prosecution, the prosecutor must then consider whether, in the light of the proven facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued. It is not the rule that all offences brought to the attention of the authorities must be prosecuted.” The public interest test, so imported into the guidelines, acknowledged that public interest factors would vary from case to case and that whilst many such factors would militate against a decision to proceed with the prosecution there are public interest factors which operate in favour of proceeding e.g. the seriousness of the offence and the need for deterrence. The Directors settled a non exhaustive list of factors which we considered arise for consideration in determining whether the public interest requires a prosecution. For completeness I will set out each of the public interest factors published in the guidelines. (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. The guidelines acknowledged, without criticism, in a climate strongly critical of the criminal justice system and the escalating costs of trials that there were factors which would otherwise justify the discontinuance of a prosecution. Victims and their lobby groups could better understand the factors regarded by prosecutors as important in the deliberative process and defence and legal aid lawyers had a better understanding of that deliberative process for the purpose of making nolle or no bill submissions and advising their clients. The stricter test required an independent review of the evidence, post committal. It was seen to be so effective in weeding out “non prosecutable” matters that one State (NSW) applied the reasonable prospects of conviction test to committing Magistrates. I have spent some time considering the publication of uniform guidelines as it is worthy of note that not all States, at that time, had established an Office of Public Prosecutions and a decade had not elapsed since the appointment of the first DPP in Victoria. Whilst the role of the prosecutor and the duties thereof during the trial process were sufficiently clear, the adoption and publication of nationally uniform guidelines for the exercise of the prosecutorial discretion provided the community at large and legal and special interest groups and politicians alike with the reassurance that the DPP's would endeavour to maintain uniformity in this important part of the criminal justice system by a process which was both transparent and consistent with the attainment of quality in the “decision making and case preparation” and that the decisions of prosecutors were not “susceptible to improper influence” (that other significant goal of the Crown Prosecuting Service in the UK). The Independent Prosecutor and the Rule of Law My examination of the evolution of the statutorily independent DPP throughout Australia and the early goals which were achieved in that first decade demonstrate the role independent prosecutors play in upholding the Rule of Law. Adopting, in a summary form, the words of others who have spoken at this Conference it would be fair to say that the common understanding of the Rule of Law is that all persons are equal before the law, that governments are subject to the law which should ensure that executive power is not exercised arbitrarily. The Guidelines or prosecution policies required objective consideration of available evidence, an ethical adherence to principle and decision making which was both unbiased and either uninfluenced by or independent from Government or Police. In other words fairness, integrity and impartiality are integral to the proper decision making of independent prosecutors. The role of the DPP and therefore his or her function in maintaining the Rule of Law is sometimes not understood by the public through confusing statements by commentators. It is sometimes claimed that “the DPP should investigate this”, we do not have any investigative function or power. Those powers reside with the investigative agencies, the Police or regulator/investigator, who at the conclusion of an investigation refer matters to the DPP for consideration of the evidence for prosecution. In the case of the Commonwealth DPP more than forty federal agencies with investigative or regulatory powers and functions who refers briefs to my Office which will prosecute the matters if there are reasonable prospects of conviction on the evidence gathered and no public interest reasons for not prosecuting (the Prosecution Policy). The goal of every DPP is to consider every matter referred to the Office according to the same principles and applying the law equally in determining whether or not a prosecution should continue. Presupposing the existence of an investigative function for the DPP may lead to public concern that there is inconsistency of treatment of all persons by the DPP. A recent example of this followed publicity after my decision to not prosecute a prominent businessman for Corporations offences because on the available and admissible evidence there was no reasonable prospect of conviction. One commentator, an academic, suggested that my Office did not prosecute well resourced defendants or difficult matters as it was more intent on achieving a high number of convictions and a high conviction rate. To support this point the academic referred to the fact that my Annual Report disclosed that my Office had, in the previous year, prosecuted nearly 4,000 people for social welfare fraud but only approximately 200 people for Corporations offences. This lead the author to conclude that those numbers demonstrated that my Office was targeting people on welfare for prosecution rather than the “big end of town” to boost the number of persons prosecuted and the conviction rates obtained. To put it plainly this was an assertion that my Office had abandoned the Rule of Law. The conclusion drawn was quite wrong and sadly misleading. The facts, not referred to at the time which demonstrate the underlying errors in the author’s reasoning are: 1. The DPP has no investigative function or powers and prosecutes all matters referred to the Office which satisfy the Prosecution Policy. 2. Commonwealth Agencies or Departments refer matters to the DPP for prosecution quite independently of one another and in accordance with the regulatory or enforcement imperatives of the particular agency. 3. The percentage of total DPP resources utilised for prosecuting social security fraud is almost the same as that used to prosecute Corporations/commercial matters. The suggestion that my Office had a choice in the matters it prosecuted was quite wrong. All persons are equal before the law and maintenance of the Rule of Law by independent prosecutors is assured by rigorous adherence to the Prosecution Policy in considering all matters which are referred to the prosecutor by investigators. Many prosecution decisions made by independent prosecutors are not reviewable by the Courts and it is important to maintain public confidence in the fairness, integrity and impartiality of prosecutors. Criticisms based on clumsily constructed reasoning are unhelpful. “Analyses by law reform and other bodies have demonstrated conclusively how vital are the decisions made by prosecutors…. 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.” (See Kirby P as he then was in Price v Ferris (supra). The Independent Prosecutor, the Rule of Law and relationships with criminal justice stakeholders The roles of prosecutors and their relationships with other criminal justice stakeholders have also evolved in the last two decades. As with the publication of uniform prosecution guidelines, enhancements and changes have been made to the trial process and the roles of prosecutors have brought prosecutors closer to other criminal justice stakeholders. When first appointed independence, consistency and transparency were what the new DPPs spoke about and endeavoured to establish. I believe that it is no longer sufficient to simply assert independence of the DPP because the evolution of the roles of the independent DPPs and their relationships with other criminal justice stakeholders may, without further explanation, blur the dividing lines of responsibility and interaction. I will explain by examining the stakeholder relationship changes which have occurred over the last 20 years.
The role of the victim in the criminal justice systems of most countries was, until the last decade or so of the 20th Century, very much that of a witness, a person called to Court, cross-examined, paid expenses and then largely ignored. The Charter of victims rights and the discussion it generated identified and caused many of us to concentrate on the need to communicate with victims at an early stage, to take steps to protect the integrity of their evidence and keep them informed of the progress of the matter. Likewise, relatives of victims, the most immediate support group for survivors, required consideration and inclusion in the contact and support functions which we developed. Legislation has removed much of the judicial qualification of the evidence of the “complainant” and difficulties caused by the absence of corroboration. Likewise stale or recovered matters have been assisted and otherwise stale prosecutions facilitated. Cases are being prosecuted now which may not have been prosecuted two decades ago. There has been funding to establish victims and vulnerable witness units but we must now guard against the risks of perceived loss of objectivity as we consider prosecutions in close liaison with investigators, victims, their families and counsellors/advisers. Protections must be put in place within prosecuting offices to avoid the risk of over conferencing witnesses, the allegation of coaching and impact of the victim’s rights to compensation on their credibility. Do we need to separate these functions from the core work of the office to protect the office from complaints of bias? The work would previously fallen, in the main, to the police and while our decisions to prosecute have become more complex in these areas I believe that it is important to maintain prosecutorial oversight and involvement in this work with victims and vulnerable witnesses. Once we accept that we must also consider what facilities we put in place to assist our staff who deal with victims, traumatised witnesses and their families to not only maintain a balance and objectivity about their work but also to maintain effectiveness within the Office. Victims, or their families, must be kept informed through the prosecution process including discussion about changes to charges and obtaining a statement about the impact of the crime upon the victim, or victims, for the sentencing court. The particular vulnerabilities of victims and some witnesses impact upon the publication of reasons for not prosecuting and therefore the mechanisms of transparency and accountability we have in place. It is important that we give consideration to all these issues as we strive to maintain public confidence in and accountability for our maintenance of the Rule of Law.
Police and Investigative Agencies
The traditional position of the prosecutor’s clear separation and independence from the police/investigator has moved greatly in the last decade or so. My own Office has, for a long time, worked closely with the regulator/investigator both pre-charge and subsequently. That is more the consequence of prosecuting federal regulatory offences while the States prosecute, in the main, crimes against the person or property, where arrest before charge is a common occurrence. There are real advantages in pre-charge consultation between police and prosecutor. It will be interesting to watch the developments taking place in England and Wales with the expanded pre-charge consultation between police services and the CPS in that jurisdiction. Pre-charge consultation should reduce errors in the charging process, and ensure that the correct level of criminality is reflected in the charges which should also facilitate earlier pleas in appropriate matters. This in turn will lead to savings in time and expense within the criminal justice system. If the correct charge is laid at the outset, the tension that a later reduction in charge causes between prosecutor and victims and their families is also avoided. The input of regulators and police should be sought, if the decision is to not prosecute, before a final determination is made. They have an important interest in the matter in the sense that they have investigated it or have a regulatory imperative or focus which should be considered. This does not, and should not be seen to, impact upon the independence of the prosecutor. It is an understood step, providing the investigator with an opportunity to comment upon but not manage a non-prosecution outcome in the same way victims’ views are sought. The final decision remains that of the prosecutor, other factors are merely taken into account. Management of this closer relationship is important. Regular liaison meetings at a senior level are necessary, oversight and review of an individual Officer’s approach and objectivity is called for. Structures which ensure liaison and consultation will vary from one jurisdiction or location to another, and, if properly established and overseen, they will not impact adversely upon the independence of the DPP and will not undermine public confidence. Disclosure The continuing obligation to disclose relevant material in the possession of the Crown (investigator/prosecutor) is one of the more contentious areas of the work of prosecutors today. I say contentious because of the potential for tensions between prosecutors, the police, the defence, the accused and the Courts that this developing obligation causes. The interaction and compatibility of data collection and the technology of investigative tools, the transparency of dealings and complexity of document retention systems all add to the burden imposed by the representative capacity, or ‘Crown’ responsibility, of prosecutors for the conduct of investigators. I see this as one of the truly testing areas in the evolution of the role of prosecutors in the 21st Century. Not only must we have in place systems and arrangements with investigative agencies which ensure the integrity of disclosure and the prosecution process but we must also, in our representative capacity, bear responsibility for disclosure compliance of investigators both before the Court and in the eyes of the defence Bar. If prosecutors are seen as having this representative capacity and are then subject to orders for non-compliance, their independence and impartiality from those agencies or offices for whose conduct the Courts will hold them accountable must be clearly defined and recognised by the courts, particularly when the effect of such orders casts the prosecutor in a representative capacity.
We have moved a long way in the last two decades in our roles as prosecutors and probably none more so than in the plea and sentencing process. The prosecution policies produced in Australia contained prohibitions against the prosecutor inviting plea negotiation dialogue with the defence. The introduction of initiatives such as the Best Practice Model (1996/7) and Case Conferencing have blurred the lines of separation between defence and prosecution in this area. Informality is encouraged and prosecutors are invited to open discussions on plea. These procedures must be clearly defined and authorisations need to be tight and conduct reviewable through a transparency of dealing. This is made more important to satisfactory outcomes in this area by the requirement to keep victims and/or their representatives informed.
The sentencing process is now one where Courts in many instances, (particularly in a national practice such as mine, which prosecutes in 8 different jurisdictions in courts which operate under different procedures) seek assistance from the prosecutor in sentencing. The failure of a prosecutor to participate in discussions with the Court about appropriate sentence levels has, in some instances, been seen by Appellate Courts as a bar or estoppel to successful Crown appeals when an unduly lenient sentence has been imposed and the Crown has not assisted the Court when such a sentence was indicated. I consider that we have reached a stage where prosecutors should be more involved in the sentencing process and not just rely upon the facts and any prior record of the accused and stay silent whilst generously helpful references and expert reports, now produced in most sentence hearings, are tendered to the Court. I realise that in Commonwealth matters, where sentencing consistency across eight jurisdictions, involving some Judges who are not overly familiar with Commonwealth sentencing law, assistance and the involvement by prosecutors is often encouraged by the Court to an extent which goes beyond that which occurs when the same Courts deal with State offences. To give full effect to this evolving process we must regularly review our procedures to ensure consistency and maintain distance or independence. Prosecutors have not been negotiators nor have they been encouraged to be initiators in the sentencing process. The Courts Our relationships with Judges and courts administrators have also changed significantly in the last two decades. Calls for shorter trials, more efficient use of Court time and earlier identification of pleas, simplification of indictments and statutory sentence discounts have seen the implementation of case management regimes and elevated levels of involvement of prosecutors and defence counsel in pre trial processes. Victims and other stakeholders have an interest in the outcome of these processes and their ‘stake’ in the proceedings should not be ignored. The DPP is obviously an independent party but many pre trial processes are often conducted in the absence of these stakeholders, and while they are useful steps in attempting to achieve efficiencies, the prosecutor’s role will involve engagement with defence counsel and the Courts where there is a focus on achieving an outcome, by way of some compromise. Quite often that is not possible, but either way we must always be mindful of our independence, and the need to be seen to be independent in upholding the Rule of Law as discussed previously.
One of the first claimed reasons for the Office of the Director of Public Prosecutions in this Australian jurisdiction was, as I have said, independence from the political process. I think as we have progressed many of us have come to see independence from the political process as less clearly defined than that which was first claimed. I say this because many jurisdictions in Australia have, whilst legislating to create independent statutory Offices of Director of Public Prosecutions, retained a residual power in the first law officer to indict and appeal. While that power is rarely exercised its existence or retention serves to qualify a claim of independence from the political process in jurisdictions where the Attorney General is an elected Member of Parliament and, usually, a Member of Cabinet. There have been instances in some State jurisdictions where sentences have been appealed by Attorneys General after disagreements with the DPP. There should be regular consultations with First Law officers if tensions through misunderstandings are to be avoided. I fail to see that such dialogue, if properly conducted, can have any adverse impact upon the independence of the DPP from the political process. For my Office, the DPP Act provides the Federal Attorney General with the power to give directions to me in relation to matters of practice, cases generally and individual cases. When a direction is given it must be in writing, following required discussions, and then the direction must be tabled in Parliament and gazetted. In the twenty three years my office has been operating there have only been four directions and none of them have related to individual cases, they have all involved either a direction as to procedural matters to facilitate legislation or to simplify the role of the Office within the Parliamentary Committee process. They were quite uncontroversial and readily accepted by the director at the time as they were seen to be of assistance in facilitating the work of the Office. In policy matters prosecuting offices are called upon more and more for input into and assistance with proposals to amend legislation and the Bills to implement those amendments. Expertise is not always available in Parliamentary Counsel Offices to cover the more practical and operational aspects of proposed legislation and prosecutors are seen as an appropriate source for input in these areas. Skilling is both broader and more demanding and in these areas the change in focus of the role of the prosecutor imposes demands not only on trainers and managers but also the Director and other persons responsible for the maintenance of the independence of the Office.
Our accountability to the public is something about which many of us have written in the past. But we are accountable, we are creatures of statute and we are funded through the public purse. We are accountable to the public for the way we spend its money. We are all required to report to the Attorney General and to Parliament on an annual basis as to our performance and the expenditure of our budget. In the main the public, in my experience, is little concerned about the expenditure of its money but very concerned with how we exercise the prosecution discretion and conduct ourselves in the day to day work of the Office. This gives rise to the difficult question of publication of reasons for non prosecution. Rarely are we called upon to account for a decision to maintain a prosecution, the matter is before the Courts and the law of contempt takes over. The most contentious decisions in which prosecutors are involved are almost always the decisions to not prosecute. Do we publish our reasons, or explain them in someway to the public? Our interaction with the public, through the media and the political process is an important factor influencing the work of the DPP. Our accountability to the public imposes obligations upon Prosecuting Offices to have readily availably sources of explanation for decisions and access to media outlets, but in a controlled way. There is a fine line over which, I think, it is easy to step whereby we can make ourselves too accessible. Not all decisions to not prosecute can be readily explained to the public. Vulnerable witnesses may not be credible, witnesses may be reluctant to give evidence and evidence may have been corrupted. Proceedings have been discontinued and a person is then entitled to the presumption of innocence, extended debate about a decision to not prosecute risks cutting across that presumption. Whatever policy is ultimately adopted by the Prosecuting Office, it must have in place mechanisms and a process of training staff to ensure that a tight and reviewable policy of dealing with the public and the media is followed and consistency in decision making not affected. Bald assertions of independence will not always be sufficient and ultimately will erode public confidence if perceptions are otherwise. To re-assure the community on issues of fairness, integrity and impartiality some, but not all decisions will have to be explained. Tensions between our obligations to the public and our duty to protect vulnerable witnesses and issues of privacy will often arise, but those tensions should not bear upon consistency.
I have focussed on areas of development and change, as I have seen them, over my twenty one years as a DPP, to direct our attention to the subjects which I think risk confusing those initial claims of independence and which require close attention if they are not to lessen public confidence in our maintenance of the Rule of Law as I have explained it I believe that Independent Prosecutors have achieved very much in the last two decades. In many instances that achievement has been obtained without directed goals and this has enabled Directors and Senior Prosecutors to develop a reform agenda in a way which has accommodated the evolution of and changes in the investigation and trial process. That said there will always be an ongoing need to be aware of and critically examine our relationships with all criminal justice stakeholders.
1 See Australian Law Reform Commission “Sentencing of federal offenders” Report No. 15 at page 61 2 “The case for the Crown” Joshua Rosenburg 1987. 3 See “Victorian Director of Public Prosecutions” Xavier Connor (1994) 68 ALJ 488