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Talbot, Anna --- "Criminal justice: DPP complaints and oversight mechanisms" [2016] PrecedentAULA 66; (2016) 136 Precedent 40


CRIMINAL JUSTICE: DPP COMPLAINTS AND OVERSIGHT MECHANISMS

By Anna Talbot

‘Anybody that is given statutory independence and that cannot be subject to any external reviews is at risk of failure in its decision-making processes. When the decisions being made are critical to the lives of the individuals involved, be they the complainant or accused, and are being made on behalf of the entire community it is relevant to ask whether the current structure, with absolute immunity from review of any decision, is appropriate. Experience suggests that an absence of review increases the risk of administrative failure. - The Royal Commission into institutional responses to child sexual abuse.[1]

Being a victim of a crime can have lasting and lifelong consequences. As well as any physical injuries they might have sustained, victims of crime might suffer ongoing psychological consequences.

In such circumstances, the punishment of perpetrators can offer real peace of mind and even healing to victims. Knowing that the person who has caused such trauma is being punished, and cannot inflict more pain, can provide comfort. It can also contribute to a sense that justice has been done. Conversely, if prosecutors make a decision not to prosecute, that can cause more trauma to victims and their families. Such a decision can be taken for any number of reasons. It might not be in the public interest to prosecute, there might be insufficient evidence, there might be a question about the reliability of witnesses’ evidence, or the accused might be unfit to stand trial.

Sexual crimes, in particular, can be difficult to prosecute.[2] There are rarely witnesses besides the victim, and other evidence can be scant. Decisions not to prosecute in sexual crimes, including historical and child sex abuse, have been common in the past, often compounding the deep trauma that can be caused by crimes of this nature. Victim credibility has also historically presented a hurdle to prosecution, leaving some victims feeling as though they were under investigation rather than the person who committed the crime against them. A significant delay in reporting the crime, which is common in cases of child sex abuse, can also make prosecution difficult.

This article examines the current position regarding reviewability of decisions not to prosecute, in light of the work of the Royal Commission into institutional responses to child sexual abuse (the Royal Commission) on this issue to date. It compares the position in Australian jurisdictions with that in England and Wales, which is informed by European Directives.[3]

ROYAL COMMISSION CASE STUDY 15

In Case Study 15, the Royal Commission examined the role of the Director of Public Prosecutions (DPP) in Queensland, with respect to its decision not to prosecute a number of sexual assault allegations made against a swimming coach, Mr Volkers. In that case, three women came forward with allegations of abuse many years after it allegedly took place. The women were abused between the ages of 12 and 14, in the mid- to late-1980s. Police investigations commenced in 2001 and Volkers was arrested in March 2002 for the abuse of two of the three eventual complainants. A committal hearing the following July committed Volkers to stand trial.[4]

The trial did not proceed. The Queensland DPP, Ms Leanne Clare, issued a ‘no true bill’ on 18 September 2002, discontinuing the prosecution.[5] This followed a meeting between the Deputy DPP Mr Paul Rutledge and Volkers’ lawyers, where the latter provided the former with a series of 20 statements from people who were allegedly willing to give evidence in support of Volkers. This evidence was accepted on the condition imposed by Volkers’ lawyers that it could not be provided to the Queensland Police Service. The existence of these supporting statements appear to have influenced the decision to discontinue the prosecution, with the charge discontinuance form referring to them,[6] as well as in the reasons used to explain a second decision not to prosecute.[7]

However, the 20 statements were not referred to in the letters given to the victims explaining that the prosecution was not proceeding, except by the oblique reference that ‘Mr Volkers trained in excess of 1,000 young female swimmers over many years without any complaint to police until recent times’.[8] One of the victims, Ms Gilbert, was told verbally of the statements, including that the police had agreed that they would not interview the sources of the statements.[9] Given that another reason for discontinuing the prosecution was the reliability of the evidence of one of the victims,[10] the DPP’s acceptance of statements taken by the defence team that could not be verified is concerning.

When the DPP dropped the charges, significant media interest ensued. The Crime and Misconduct Commission (CMC) decided to investigate the circumstances surrounding the investigation to assess whether there was any official misconduct.[11] It commenced its investigation in late 2002 and published its report in March 2003.

The CMC did not have authority to review the decision to prosecute itself. Its remit was confined to assessing whether there was evidence of misconduct in the Queensland Police Service or the Office of the DPP, or whether there had been any political interference in the decision not to proceed with the charges.[12] It found ‘more defects than one would normally expect to find in an examination of a matter of this kind... [however] the case falls short of official misconduct’.[13]

In December 2012, Queensland Police re-opened the investigation of its own initiative, ultimately giving the DPP three further volumes of evidence on Volkers.[14] A second prosecution was considered. Ms Clare sought advice from the NSW DPP, Mr Cowdery QC. Mr Cowdery QC proceeded to share the brief with his colleague, Ms Cunneen (then NSW Senior Crown Prosecutor), and asked for her advice in the matter. This was a highly unusual request, with neither of the NSW prosecutors having previously or since provided advice in such a context. The nature of the request was linked to the high profile the case already had in Queensland.[15]

Ms Cunneen provided lengthy reasons for advising that a second prosecution should not proceed, which were provided to Ms Clare in March 2004 with Mr Cowdery QC’s approval. The Royal Commission notes a number of concerns with the reasons provided. They included reliability of victim testimony based on the opinion of Ms Cunneen’s understanding of anatomy of a 12 year old body, which emerged as ‘misinformed medically’.[16] The 20 statements supporting Volkers which were not provided to the police were also relied on. Ms Cunneen further suggested that the abuse was so minor that prosecutions could corrode public confidence.[17] On the basis of this advice, Ms Clare did not recommence prosecution.

The Commissioner of the Queensland Police Service wrote to the three victims, Ms Rogers, Ms Boyce and Ms Gilbert, stating that he had received advice that the original decision to discontinue the prosecution was the correct one and the new evidence did not justify re-charging Volkers.[18] While Ms Gilbert met with Ms Clare, who explained her reasons for discontinuing the prosecution, the Office of the DPP did not contact any of the victims or the Queensland Police to seek their views prior to making the decision not to proceed. This was contrary to the Queensland Director’s Guidelines, which required that the ‘views of the victim be recorded and properly considered prior to any final decisions, but those views are not determinative’.[19]

In addition to concerns regarding Ms Cunneen’s advice, the Royal Commission detailed a number of concerns that it had with the procedures followed by the DPP in twice coming to the conclusion not to prosecute Volkers. These concerns included accepting unexamined evidence from the defence and a failure to adequately record reasons for decisions not to prosecute.[20] In addition to problems in the decision-making process, communication with the victims, and their access to information, were considered to be inadequate.

In the absence of any formal means of review, one of the complainants explored the possibility of bringing a private prosecution.[21] The application for leave to bring the private prosecution was refused by the Supreme Court, in part in deference to the DPP’s decision not to proceed. The primary reason for not granting leave was the risk that the trial would be seen as a contest between the victim and the accused.[22]

CURRENT LAW IN AUSTRALIA

Traditionally in Australia there is no avenue to review a decision not to prosecute. This is underpinned by both legislation and case law. Even though a decision to prosecute is an administrative decision, these decisions are not subject to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).[23] In the High Court’s consideration of the issue, Gaudron and Gummow JJ considered why the decision not to prosecute is not amenable to judicial review:

‘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.’[24]

While no successful challenge has been mounted to date, judicial support for reviewing all administrative decisions, including those related to prosecution, has been expressed. This point was raised by French CJ in 2012 in a dissenting opinion, for example, when he raised ‘the question whether there is any statutory power or discretion of which it can be said that, as a matter of principle, it is insusceptible of judicial review’.[25]

The main concerns relating to judicial review of decisions not to prosecute appear to centre on separation of powers and judicial resources. These issues are explored in more detail below. However, as the Royal Commission has shown, in certain circumstances the power to review these decisions could improve the perception and actuality of justice.

The examples outlined below show that reviewing decisions not to prosecute does not necessarily require recourse to judicial review. England and Wales have introduced an effective merits review scheme that appears to have obviated the need for judicial review of these administrative decisions. In cases like that outlined above, such a scheme could have identified and remedied many of the flaws that gave rise to two apparently problematic decisions not to prosecute. Reliance on untested evidence, the assumption that a victim’s testimony was unreliable, following unusual methods in making a decision whether to prosecute by having recourse to NSW prosecutors’ advice, and the reliance by a prosecutor of their own assumptions as to medical matters that they had no expertise in could all be remedied by the matter being looked at afresh by a formal merits review procedure. Further, the experience of victims could be less piecemeal and more satisfactory if there was a formal procedure to be followed, and avenues to remedy any failures available.

ENGLAND AND WALES

In England and Wales, decisions by prosecutors have been formally reviewable under the Victims’ Right to Review Scheme (VRRS) since 2013, following the 2011 Court of Appeal decision in Killick.[26] The VRRS offers full merits review to victims who are dissatisfied with decisions not to prosecute. In that case it was held that victims should have a right to review where prosecutors make a decision not to prosecute, which is subject to clear procedures and time limits, and that victims should not be required to pursue judicial review.[27]

The England and Wales Crown Prosecution Service (CPS) defines victims as a ‘person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct’. Included in this definition are relatives of people whose deaths were caused directly by criminal conduct, and parents or guardians of direct victims under the age of 18.[28]

Accompanying the VRRS is a Code of Practice for Victims of Crime, which was introduced by the Ministry of Justice in October 2015.[29] This Code provides clear information to victims regarding what they can expect from the CPS, and how to engage with the VRRS.

These measures provide a clear framework for engaging with victims of crime, including the role of victims in ensuring a decision not to prosecute is based on sound reasoning. From April 2014 to March 2015, a total of 1,674 appeals were received by the VRRS. Of these, 210 were upheld. A total of 126,589 decisions amenable to review were made during that period, meaning that the proportion of total decisions that were overturned was 0.17 per cent. The majority of those decisions were offences against the person and sexual offences.[30]

The procedure is designed to be straight forward for victims. They are informed that the VRRS is available when they are told of the decision not to prosecute. They can then lodge their appeal by making a phone call or sending an email or letter.[31]

The first review is done by a local manager. If the reviewer agrees with the initial decision, they will give the victim a more fulsome written explanation for the reasons behind the decision not to prosecute. If the victim is dissatisfied with the decision, they are also told how they can seek review in that letter. If the local manager disagrees with the initial decision, they can overturn it immediately.[32]

If the victim is still dissatisfied, they can take their complaint to the Appeals and Review Unit (ARU), where it will be reviewed by a lawyer not connected with the original area. The victims can provide further information if they choose to, but there is no requirement for that, or any formal invitation for them to make further submissions. Further information is usually provided by the victim. The reviewing lawyer can look at the case afresh and try to build a prosecution. These lawyers are specialists, who have undergone training as to how to prosecute complex cases. The victim is again provided with a full set of reasons as to why the decision remains the same or why it has been changed once the review is complete.[33]

The review team feed back to the local area where they overturn decisions not to prosecute, to assist with ongoing development at the local level.[34] When considering whether to overturn a decision not to prosecute, lawyers from the ARU can go back to the investigating police and examine how the investigation itself was conducted. They have generally found the police to be very co-operative.[35]

In addition to the VRRS, any member of the public can lodge a complaint about a decision not to prosecute, or any other point of dissatisfaction with the CPS, using the standard complaints process. These could be from defendants, witnesses, MPs or any other member of the public.[36] That mechanism does not include a formal capacity to challenge a decision not to prosecute, although the CPS can review the decision not to prosecute in response to a complaint again if it chooses to.[37]

The Head of the ARU for the CPS, Ms Angela Deal, describes sexual assault cases as ‘amongst the most difficult cases that we deal with’.[38] Acknowledging this complexity, all lawyers reviewing these cases are rape specialists, who have undergone intensive two-day courses and have prosecuted or prepared for prosecution two rape cases under the supervision of other rape specialists.[39]

Although judicial review of prosecution decisions is possible in the UK, the High Court has not granted any leave for review of cases since the VRRS was established. There has also been a reduction in the number of applications for judicial review in this time.[40]

Anecdotally, Ms Deal believes that the quality of all prosecutions decision-making has been enhanced by the existence of the VRRS, although there is no data available to verify that. As well as providing feedback to the areas whose decisions have been reviewed, the unit provides training for prosecuting rape and serious sexual offences, and information about regular issues it confronts. As such, a centre of expertise has developed.[41]

In deciding whether to bring a prosecution or not, prosecutors also point out the importance of distinguishing between the credibility of the victim from the credibility of the allegations. This means that a number of complaints that might not have been prosecuted previously, because the victims were considered unreliable witnesses due to addiction for example, are now prosecuted if the allegations are credible. Since making this distinction, there have been a lot more successful prosecutions in child sex abuse cases, such as those involving grooming offences.[42]

THE EUROPEAN DIRECTIVE

Underpinning the system in England and Wales is the European Directive 2012/29/EU, which establishes minimum standards on the rights, support and protection of victims of crime (the EU Directive).[43] Article 11 requires that member states ensure that victims have the right to review decisions not to prosecute.

The Directive also seeks to ensure that officials working with victims are adequately trained to facilitate respectful and professional encounters.[44] It refers to violence against women, children and other vulnerable groups throughout, highlighting the importance of catering for the needs of these groups. It points out that ‘it is essential that reliable support services are available to victims and that competent authorities are prepared to respond to victims’ reports in a respectful, sensitive, professional and non-discriminatory manner. This could increase victims’ confidence in the criminal justice systems of Member States and reduce the number of unreported crimes.’[45] The benefit of this requirement can be seen in the training that all reviewing specialists receive in England and Wales.

This Directive provides a useful benchmark in assessing how well victims’ rights are protected by the Australian system.

ROYAL COMMISSION ROUND TABLE

In April 2016, the Royal Commission conducted a round table with representatives of Commonwealth, state and territory prosecutions offices and victims’ rights offices, including all Directors or Deputy Directors of Public Prosecutions. This round table examined the procedures in place for all jurisdictions in Australia when making decisions whether or not to prosecute alleged perpetrators and the role of victims in prosecutions processes. It compared these procedures with those that exists in England and Wales, as outlined above.

The Office of the DPP is a relatively new one in Australian jurisdictions. The first independent DPP was established in Victoria in 1982,[46] followed by all other jurisdictions including the Commonwealth. Prior to this, prosecutions were instituted in the name of the relevant attorney-general, who could withhold consent for prosecutions if they chose.[47] This meant that in politically sensitive cases there was no independent body to pursue prosecutions in the absence of political will. If there was an individual with sufficient interest to pursue a politically unpopular prosecution, private prosecutions were (and still are) available, although the requirements that must be met vary across jurisdictions. In any case, private prosecutions would be stressful, time consuming and costly for victims or other interested parties. The existence of an independent body that can bring prosecutions without fear of political consequences and without an undue burden on victims is an incredibly valuable development across Australia.

While the office is no doubt invaluable, the fact remains that the decisions made are not always correct in the first instance, as the Volkers case demonstrates. A clear merits review procedure would be an important evolution of the valuable role DPPs play.

When compared with the clear rights and protocols that exist in Europe, England and Wales, the various Australian systems appear haphazard. Different jurisdictions have different levels of formality and victim engagement in review options. While all provide some avenues for review, all would benefit from clearer procedures. As can be seen from Case Study 15, in which the Queensland DPP’s Procedures on victim engagement were not followed, the existence of procedures itself does not ensure that they will be implemented. A formal review mechanism would be much more likely to achieve compliance. Uniformity across jurisdictions would also be a positive development.

Reviewability of decisions not to prosecute was considered at length by the Royal Commission round table. The real strength of the system in England and Wales, according to participants, was the combination of reviewability, victim engagement, and the clear procedures that exist concerning both reviewability and engagement.[48]

Most Australian jurisdictions incorporated automatic review into the initial decision-making process, by way of a supervision. Before a decision not to prosecute is taken, the lawyer with carriage of the matter will usually consult at least with their supervisor and often more senior colleagues will review the file and decision-making process. This contrasts with the procedure in England and Wales, whereby review of the first decision-maker is only undertaken as a part of the review process.[49] There is a capacity to review decisions not to prosecute in the first instance across the jurisdictions. Victims’ access to information about this avenue varied, however, undermining the value of the system.

The existence of human rights legislation was flagged as a possible mechanism facilitating judicial review of decisions not to prosecute. South Australia’s Commissioner for Victims’ Rights, Michael O’Connell APM, noted that the persuasive law from Europe may give rise to successful arguments for judicial review in the ACT in Victoria.[50]

There was no consensus on whether judicial review would be useful in Australia. Some participants expressed concerns about the separation of powers, if the judiciary were in a position to review the cases that were to be ultimately brought before it. The loss of prosecutorial discretion was also a concern for some. Others did not consider these factors problematic, noting that the courts had a valuable role in overseeing the decision-making process.[51] The SA Commissioner for Victims’ Rights believed that judicial review should be an option, suggesting that failure to allow judicial review of this decision would leave prosecutors above the law.[52]

In addition to examining reviewability of decisions in relation to prosecutions, other key issues that emerged centred on communication with victims and transparency as to systems, reflecting rights found in the EU Directive.[53]

In terms of communication, Victoria’s Victims Charter obliges the DPP to keep people informed as to how cases are progressing. The victim will always be consulted about a decision to discontinue a case, if that is being considered.[54]

The SA DPP explained that written reasons come in at the end of the process, with all communication prior to that point having been verbal. He warned against using written reasons too often throughout the process at the expense of other forms of communication, although they were provided earlier to victims who requested them.[55] In contrast, NSW Deputy Senior Public Defender Kara Shead pointed out that she had experience of explaining reasons to victims in some detail but the victims not hearing or understanding what she had said. In that context, she felt written reasons were valuable.[56] In the NT, language barriers meant that the focus was generally on verbal communication, although efforts were made to use interpreters. It was felt that there were no written words that could overcome these barriers.[57]

With regard to access to information and transparency, representatives from all jurisdictions agreed that the DPP should have written policies for decision-making and consultation with victims and the police, and there was general agreement that those policies should be published. While sensitivity to the potential for some material to be damaging to victims was encouraged (for example where credibility is in issue),[58] publishing clear guidance was considered very useful for those whose role it was to review those decisions, as well as enhancing accountability and transparency.[59]

CONCLUSION

The experience both in Australia and England and Wales points to the value of allowing a full merits review of decisions not to prosecute. The position in Australia, that such decisions are not appropriate for judicial review, is not universally supported. The Volkers case demonstrates value in having merits review available. In that case, some of the best prosecutors in Australia appear to have based their decision on flawed evidence and reasoning.

Full access to judicial review is not, however, required to ensure rigour in administrative decisions whether or not to prosecute. In addition to improving outcomes in individual cases, merits review in England and Wales appears to have led to an improvement of prosecution procedures overall, including greater public confidence in the system and the development of a centre of expertise for prosecuting difficult and complex cases. Australian jurisdictions do have more oversight at first instance than in England and Wales. Providing access to separate, expert prosecution lawyers by way of merits review is the key ingredient to success in England and Wales; this is absent in Australia.

As well as more rigorous prosecutorial decision-making, victim engagement is key to a successful prosecutions system. Again, there is much to be learned from the formality of the system in England and Wales, which is informed by the European human rights framework. To that end, it is possible that victims in Australian jurisdictions with human rights protections may find success in seeking to review problematic decisions not to prosecute now. Human rights legislation would benefit victims in all jurisdictions. All jurisdictions, further, would benefit from a thorough review of procedures and implementation of a merits review scheme similar to the VRRS. The benefits would be greatest if nationally uniform.

Anna Talbot is the Legal & Policy Adviser for the Australian Lawyers Alliance. PHONE (02) 9258 7700 EMAIL anna@lawyersalliance.com.au.


[1] Royal Commission into institutional responses to child sexual abuse, Report of Case Study No. 15, 2015 (Case Study 15 Report), 99.

[2] Ombudsman New South Wales, Issues Paper 8: Experiences of police and prosecution responses, submission No. 16, 11.

[3] While the recent referendum in the UK means that European law may soon play less of a role in the UK, the law that exists regarding victims of crime and prosecutions continues to be underpinned by a European Directive.

[4] Case Study 15, see above note 1, 6-8.

[5] Ibid, 43.

[6] Ibid, 44.

[7] The Crime and Misconduct Commission reviewed the decision not to prosecute due to the extensive media coverage that followed the dropping of the initial charges. It found flaws in the decision to discontinue the first prosecution: Case Study 15 Report, 8.

[8] Case Study 15, see above note 1, 48.

[9] Ibid, 47.

[10] Ibid, 51.

[11] Ibid, 48-9.

[12] Ibid, 49.

[13] Ibid, 54.

[14] Ibid.

[15] Ibid, 60-1.

[16] Ibid, 93

[17] Ibid, 16.

[18] Ibid, 89.

[19] Ibid, 90.

[20] Ibid, 94-5.

[21] Ibid, 91.

[22] Ibid, 21.

[23] Schedule 1 stipulates that: ‘decisions to prosecute persons for any offence against a law of the Commonwealth, a State or a Territory’ are not covered by the ADJR Act.

[24] Maxwell v The Queen (1996) 184 CLR 501, 534.

[25] Likiardopoulos v The Queen [2012] HCA 37, [4].

[26] R v Christopher Killick [2011] EWCA Crim 1608.

[27] UK Crown Prosecutor Service, Victims’ Right to Review Scheme, (2016) http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/.

[28] Ibid.

[29] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/476900/code-of-practice-for-victims-of-crime.PDF.

[30] UK Crown Prosecutor Service, Victim Right to Review April 2014 – March 2015, http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/vrr_data/vrr_data_2014_2015.pdf.

[31] Royal Commission into institutional responses to child sexual abuse, Public Hearing – Criminal Justice DPP complaints and oversight mechanisms, Round Table transcript 29 April 2016 (Criminal Justice Transcript) , 24.

[32] Ibid, 24-5.

[33] Ibid,19-20, 24-5.

[34] Ibid, 27.

[35] Ibid, 37.

[36] Ibid, 14.

[37] Ibid, 15.

[38] Ibid, 30.

[39] Ibid, 30-1.

[40] Ibid, 32.

[41] Ibid, 32, 34, 36.

[42] Ibid,17-18. The Royal Commission has also looked into prejudicial assessments as to competence, credibility and reliability faced by victims with a disability: Case Study 38, Opening Address by Counsel Assisting, week 2, [9].

[43] Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and prosecution of victims of crime, and replacing Council Framework Decision 2001/220/JHA.

[44] Ibid, [61].

[45] Ibid, [63].

[46] Director of Public Prosecutions Act 1982 (Vic). This Act has been superseded.

[47] Director of Public Prosecutions Victoria, the Pursuit of Justice, (2008) http://www.opp.vic.gov.au/Resources/Publications/Publications/dpp25th_book-29oct08, 8.

[48] Criminal Justice Transcript, see above note 31, 81, 85-6.

[49] Ibid, 102.

[50] Ibid, 76.

[51] Ibid, 79.

[52] Ibid, 77.

[53] Ibid, 95.

[54] Ibid, 92.

[55] Ibid, 96.

[56] Ibid, 97.

[57] Ibid, 70.

[58] Ibid, 66.

[59] Ibid.


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