Author: Bugg, D. Dates: 17/04/2007; 6/07/2007 Venues: MOPED Conference; HOPAC 2007 Conference
In this paper I propose to examine the work of the DPPs in Australia in the 20 or so years we have been in existence and the way our roles have been shaped as we have moved into the 21st Century. 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 system in this Country in the 20th Century. The structure of prosecuting systems in this Country had changed little until the last two decades of the 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 Government but were seen 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, trials took 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 single 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 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 Director of Public Prosecutions in Tasmania the position which I held until 1999 when I was appointed the 5th Commonwealth Director of Public Prosecutions.
At the time the Victorian Bill was introduced in 1982 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 prosecution process 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 his paper “Prosecutorial Discretion Australia Today” published in 1996 Michael Rozenes QC the then Commonwealth Director of Public Prosecutions 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 policing and investigative function. That brief acknowledgment 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, 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:
- To be, and to be seen to be, independent of the Police;
- 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;
- To provide flexibility to take account of local circumstances;
- To continue prosecutions while, and only while, they are in the public interest;
- To conduct cases vigorously and without delay;
- To undertake prosecution work effectively, efficiently and economically;
- To seek to improve the performance of the criminal justice system as a whole.2
In this Country however there was a clear recognition of the objective of independence from the political process, the correction of any 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 most committals in this Country ensured an ongoing contact and interaction between police and the emerging DPP. That involvement has caused some commentators to conclude that the State DPP's are not truly independent in the exercise of the prosecution role in their jurisdictions.
The Success of the DPP
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.3 Whilst the early establishment of the independent status of the DPP in each jurisdiction was important the creation of these offices soon led to collegiate activity among the Directors. The first notable national achievement flowing from this contact was the adoption of uniform guidelines for the exercise of the prosecutorial discretion in 1989/90. 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? Secondly, having decided whether a prima facie case existed, a further and more demanding 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 a qualitative analysis of the evidence. Thirdly, having satisfied himself or herself “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 guidelines then listed factors which may 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 establishment of uniformity, the publication of the guidelines and the process of deliberation provided the community at large and legal and special interest groups and politicians alike with the reassurance that the DPP’s would endeavour to achieve 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). While clearly maintaining the object of independence the DPP’s had quickly and without direction taken a significant national step in addressing other criticisms of the prosecutorial process. The roles of prosecutors in the 21st Century and their relationships with other criminal justice stakeholders are best examined in light these rapid and dramatic developments. I propose to concentrate on the roles of prosecutors in the context of stakeholders and the importance of those roles to the issues we will discuss over the next three days.
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 and paid expenses and then largely forgotten. The charter of victims rights identified and caused many of us to concentrate on the need to communicate with victims at an early stage and keep them informed and assist them in achieving and maintaining evidentiary quality and credibility. Likewise, relatives of victims, the most immediate support group for survivors, required consideration and inclusion in the contact and support functions which we had developed. Legislation has overcome many of the “judicial discounts” of the “complainant” and the absence of corroboration of her complaint. Likewise stale or recovered matters have been assisted and their otherwise stale prosecutions facilitated. We have been funded 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 victims, their families and counsellors/advisers. Protections must be put in place within our 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? It is mostly work which would have previously fallen to the police and while our decisions to prosecute have become more complex in these areas I believe that it is important to still 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. Do the added vulnerabilities of these witnesses impact upon the publication of reasons for not prosecuting or the mechanisms of transparency and accountability we have in place? I think they do and it is important that we give consideration to these issues as this Conference progresses.
Police and Investigative Agencies
The traditional position of 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. Pre-charge consultation between police and prosecutor is, in my view, to be encouraged. It will be interesting to see what developments have taken place in England and Wales with the expanded pre-charge consultation in that jurisdiction. I think such consultation avoids errors in the charging process, which in turn produces pleas in appropriate matters and ensures that the correct level of criminality is reflected in the charges. This in turn will lead to savings in time and expense within the criminal justice system. It has been my experience that a police officer responsible for laying charges will tend, as a matter of prudence, to charge the more serious crime, knowing that the matter will be reviewed by the DPP in due course. The tension that a later reduction in charge causes prosecutor and victims and their families has not helped maintain a high level of public confidence in the decision making of the DPP. With regulators and to some extent police their input should be sought if the decision is to not prosecute, before a final determination is made. They have a vested 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 and 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 the closer relationship is important. Regular and recorded liaison meetings at a senior level are necessary, oversight and review of individual Offices approach and objectivity is also called for. Structures which ensure liaison and consultation will vary from one jurisdiction or location to another, but I encourage structured and closer relationships between prosecutor and investigator. If properly established and overseen they will not impact adversely upon the independence of the DPP.
The continuing obligation to disclose relevant material in the possession of the Crown (investigator/prosecutor) is probably the most contentious area of the work of prosecutors today. I say contentious because of the potential areas of conflict between prosecutors, the police, the defence, the accused and the Courts that this obligation causes. The interaction between and compatibility of data collection and identification systems, the transparency of dealings and document retention and the representation, or ‘Crown’ responsibility, of prosecutors for the conduct of investigators all contribute to making this one of the truly difficult areas of development of the role of prosecutors in the 21st Century. Not only must we have in place systems and arrangements with investigative agencies which limit the risk of damage to the integrity of the prosecution process but we must also, in our representative capacity, bear responsibility for the conduct of investigators both before the Court and in the eyes of the defence Bar. I cannot see this area of difficulty changing until a satisfactory position has been achieved which requires accused persons, through their representatives, to identify matters which are at issue in the trial and provides the Court with the ability to sanction for non-compliance with that requirement. In any adversarial system the relationship between the representatives of the adversaries will be a fragile one. The prosecutor is required to disclose, particularise and produce while there is no corresponding requirement upon the defence. The overwhelming majority of defence counsel, in my experience, cooperate and facilitate the resolution of points and matters which are not in issue and these matters invariably result in simpler disposition. The overwhelming majority of matters which go to trial suffer from the absence of a requirement for defence disclosure, at least in the form of what the issue or issues in the trial will be.
We have moved a long way in the last three decades from the traditional role of the prosecutor both in the charging and trial process and probably, more significantly, in the sentencing process. The first prosecution policies produced in Australia contained prohibitions against the prosecutor inviting plea negotiation dialogue with the defence. The introduction of initiatives (in Australia the Best Practice Model 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 the bidding” in plea discussions. Discipline must be applied to these procedures. Authorisations need to be tight and conduct reviewable through a transparency of dealings. 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. 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 are tendered by the defence. These changes in practice require a review of the way in which we not only do our work but also train our people to conduct cases. Prosecutors have not been negotiators nor have they been encouraged to be initiators in the sentencing process.
Our relationship with Judges and Courts Administrators has also changed significantly in the last two decades. Calls for shorter trials, more efficient use of Court time and earlier identification of pleas and simplification of indictments has elevated the levels of responsibility, and authorisation, of non advocate case officers and created a need for administrative structures within our Offices which we have not previously faced. This changing face of our obligations as prosecutors brought about by changes within Court practices, budget constraints and so forth, also require a review of the way in which we do our work and interface with the Courts.
The Public and Politicians
One of the much vaunted advantages of the Office of the Director of Public Prosecutions in this Country was, as stated earlier, independence from the political process. I think as we have progressed many of us have come to see independence from the political process as a less clearly defined line than that which was first argued. 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. Whilst 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. We should consult with and inform our first law officers in relevant circumstances if tensions through misunderstandings are to be avoided. I fail to see that such dialogue, if properly managed, can have any adverse impact upon the independence of the DPP from the political process. In my own jurisdiction the Director of Public Prosecutions Act provides the 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 and 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. However the power still exists. 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. Once that point is made we are accountable to the public as to how 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 how we spend its money but more concerned with how we exercise the prosecution discretion and conduct ourselves in the day to day work of the Office. This has imposed upon us the difficult decision of publication of reasons for non prosecution. Rarely are we called upon to account for a decision to maintain a prosecution but the most contentious decisions in which prosecutors are involved are the decisions to not prosecute. Do we publish our reasons, or explain them in someway to the public? Our interaction with the public, though the media and the political process is an important part of the work of Prosecuting Offices. If we lose public confidence the exercise of our discretions (in the main non-reviewable) will not have that essential ingredient for acceptance, public confidence. Our accountability to the public imposes obligations upon Prosecuting Offices to have readily availably sources of explanation for decisions and access to media outlets in a controlled way. There is a fine line over which I think we can make ourselves too accessible. Not all decisions to not prosecute can be easily explained to the public. Vulnerable witnesses may not be credible, witnesses may be reluctant to give evidence and evidence may have been corrupted. Whatever policy is ultimately adopted by the Prosecuting Office we must have in place mechanisms and a process of training our staff to ensure that a tight and reviewable policy of dealing with the public and the media is followed. Likewise access to information by politicians should not be regarded as automatic and the same mechanisms of control should be put in place. Not all prosecutors are suited to these roles. Reputational management is a topic on our agenda which will provide an opportunity to consider this issue in more detail.
There is a greater tendency to amend legislation or introduce legislation to overcome perceived inadequacies and this in turn involves prosecutors in making submissions or comments upon drafting and Bills to an extent not seen before. Expertise is reduced in drafting offices and our own staff are seen as best qualified to have input in these areas, particularly where legislative draftsman have little practical experience of Courts, trials and the trial process. Skilling is both broader and more demanding and in these areas the change in focus of the role of the prosecutor imposes demands on trainers, managers and persons responsible for the maintenance of the independence of the Office.
I have tried to focus on areas of development and change, as I have seen it over the last twenty one years as a DPP, to focus our attention upon the subjects which we will discuss over the next three days. There are many areas which I have not covered but I am not speaking to an audience which is unfamiliar with the day to day work of prosecutors. I did not see my brief requiring a descent into such detail. I believe that the Offices of Independent Prosecutors have achieved very much in the last three decades. In many instances that achievement has been obtained without specific goals and this has enabled Directors and Chief Prosecutors to develop their own reform agenda in a way which has accommodated the evolution of the investigation and trial process. There is an ongoing need to examine our interface between or our relationships with investigators, defence lawyers and the Courts. We should be the initiators as I think we are in the best position to detect change or the need for change and to facilitate its implementation. We have the widest and most direct contact with the criminal justice stakeholders. Footnotes 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