By Karl Hoerr -
A review of adult sexual assault cases in New South Wales has found that in the majority of matters, the guidelines for prosecution were properly applied.
However the review, conducted by the NSW Office of the Director of Public Prosecutions did identify 11 instances where Prosecution Guidelines were not appropriately applied and has outlined a number of opportunities for improvement.
The review was ordered by DPP Sally Dowling SC, in response to public comments by judges of the NSW District Court, suggesting that sexual offence prosecutions were not being properly pursued.
In August 2024, the Judicial Commission upheld a series of complaints by the DPP against District Court Judge Robert Newlinds SC, who had criticised the Director during a sexual offences case, in which the accused was acquitted.
Judge Newlinds had stated he was deeply concerned there was an “unwritten policy” at the ODPP “…to the effect that if any person alleges that they have been the subject of some sort of sexual assault then that case is prosecuted without a sensible and rational interrogation of that complainant…”
In its decision, the Judicial Commission said it was “deeply concerned” about what it found to be “improper comments … of a highly adverse and generalised nature that were made without evidence, notice or an opportunity to respond.”
It went on to describe the judge’s interventions as “hot-headed, impulsive and undisciplined”.
The Judicial Commission also upheld separate complaints about Judge Peter Whitford, finding he had used one of his judgments “as a tool for public criticism of the Director and the ODPP” and that this “fell short of the appropriate standards of a judicial officer”.
The Prosecution Guidelines include a two-stage test for the decision to prosecute, being 1) can it be said that there is no reasonable prospect of conviction on the admissible evidence? and 2) is the prosecution in the public interest?
The review examined 327 matters listed for trial or special hearing in the District Court from April to December last year. Seventeen cases were discontinued, nine of these on evidentiary grounds and the remainder on discretionary and evidentiary grounds. The review says the discontinuance rate was consistent with the average between 2018 and 2023.
“The Review found a consistently high standard of legal analysis concerning the question of whether to proceed with sexual offence prosecutions.”
“The small number of matters where the Prosecution Guidelines were not appropriately applied involved particularly legally and factually complex issues including intoxication of complainants and complexities in the evidence relevant to issues of consent,” the review report states.
Recent changes to the law, including on the issue of consent, as well as other legal changes impacting prosecutions, are referenced in the report.
According to the report, the conviction rate for adult sexual offences in NSW (by way of plea or trial) has been comparatively consistent for the past 20 years, averaging 58 per cent.
On the question of a complainant’s credibility, the report notes that in situations where there may be such issues, this doesn’t necessarily mean there are no reasonable prospects of conviction.
“It is important to note that satisfaction of the Prosecution Guideline test, namely, that it cannot be said that the matter does not have reasonable prospects of conviction, should not be equated to the proposition that a conviction is certain or more likely than not, and a verdict of not guilty does not mean that there has been a failure to apply the Prosecution Guidelines,” the report states.
The report outlines several areas of possible improvement, including considerations of intoxication and consent. It identified some confusion about the applicable legal test for charge certification. “In some matters there was insufficient analysis by the Charge Certifier, potentially due to workload and time constraints.”
Further training on charge certification, intoxication and consent has been recommended. The report also recommends changes to the Memorandum of Understanding with NSW Police regarding timeframes for brief service and further police training on disclosure.
Dowling says the people of NSW should be reassured by the findings. “The Review demonstrates that the ODPP is prosecuting sexual assault matters in line with the NSW Prosecution Guidelines,” she says. “The Review is a transparent, educational and informative analysis of the process of prosecuting sexual assault in New South Wales.”
