The DPP, as it’s commonly known, is the leading prosecuting authority in the state of New South Wales. It has in its care the prosecutions of serious criminal conduct in the state. Most offences are prosecuted in the Local Courts, usually by Prosecutors employed by the NSW Police and who answer to the Commissioner of Police.
DPP Lawyers, on the other hand, answer to the independent Director who is free from political interference or interest. Successive DPPs have upheld that tradition – with Reg Blanche and Nicholas Cowdery leading a fiercely independent office that guarded its adherence to principle over convenient answers to the popular press.
Something of a new style has been experienced in recent years with an approach as different to the past conventions as it is seemingly hostile toward defendants. Superficially, having the lead prosecutor of a state having intensive focus and vigorous pursuit of its prosecutions are good things. But they are not enough. All power must be tempered by discretion, as much in the legal system as it is anywhere else (including in politics, law enforcement, education and health). Wherever people have a position of power, leading the way with staunch authority untempered by restraint and individualised approaches runs the risk of appearing or being authoritarian.
History is stained by examples of authoritarian prosecution. It’s surely enough to refer to that history to have people see the need for a careful approach to the work of prosecution.
It’s not only I that would say as much. The law has often had to comment on the fact that it has never been the case that all cases proceed no matter what. Sometimes cases cannot proceed because the evidence is not there, is not available or because to proceed would bring the law into disrepute.
The reason we have principles like those is that it is necessary for some clarity to be given to the public as to what it is that motivates the decisions of a prosecutor who is otherwise cloaked in professional privilege and largely inaccessible to an ordinary citizen. The ordinary man or woman on the street is no slight issue because if the criminal justice system is to work, it has to be able to work for any person who choses to represent themselves.
When talking with young lawyers recently, I was asked, “why on earth would anyone ever decide to represent themselves?” The answer is obvious – because they have no money, no means to pay for representation by another, they can’t qualify to get Legal Aid or perhaps because they don’t have the strength to involve themselves in a process that is both terrifying and (mercifully) entirely foreign to most citizens.
But the question asked, by a practising lawyer, is more revealing and significant. It shows that even among lawyers, there is a misconception as to citizen’s rights in this state. In Australia, you don’t have a right to a lawyer. You can get one if you want, but there is no promise or right to have one provided for you. The United States we are not.
So for the system to work, it has to operate in the most efficient and prejudice-free manner for people who have no access to a lawyer. How do such people avail themselves of the process of negotiation with the DPP? How do they seek that the Director use his discretion to terminate a prosecution that has no evidence or insufficient evidence or where there is something else wrong that means it can’t proceed? How indeed.
The PR suggests that the DPP operates at a level of transparency. It doesn’t reveal its decision making process (or at least, rarely does so) but it has publicly-stated principles that everyone can know that the DPP will take into account when deciding how it proceeds to do the work of the leading prosecutor for the state of NSW.
Except saying that something is so, doesn’t mean that it is. A principle is a statement, it is not necessarily an answer that explains the prosecution of an individual. At times, the manner of prosecution can seem completely bereft of adherence to stated policy, in which case it falls to the individual defendant to attempt to wrangle with the significant independence of the DPP.
I say “significant” independence because it is more than just a government department that doesn’t have to answer (notionally) to Government or other external influences. It is an organisation in which people who have been granted senior status within the legal system of NSW have the power to make decisions that are largely un-reviewable.
Of course, every prosecution that goes to court ends up being heard by a judge or a jury where it can be judged as we would all expect and hope. But that doesn’t resolve the need for transparency as to what it is that motivates the Director and his/her deputies. It doesn’t attend to the requirement that, for the system to maintain a powerful and independent prosecutor, it must be seen to be objective and rigorous – not interested in the outcomes it achieves (save for the preservation of justice).
The High Court of Australia has had occasion to remind practitioners that it isn’t for a prosecutor to tell the court what a sentence should be. Yet that continues to happen, daily, in the courts of NSW. Magistrates frequently ask both Police and DPP prosecutors what they think of a defendant’s plea submissions and listen intently to submissions that suggest another outcome is not appropriate and that another is preferred. It is hard for the average citizen sitting and listening to such submissions and the judgement that flows, not to conclude that the urging of the prosecutor has had some role in the decision handed down. That is to be avoided.
We are moving into a time when the role of the prosecutor will become ever more significant and central to the operation of the criminal justice system. Our prosecutors are not elected and they are not necessarily representative of the community. Yet they are entrusted with the power to prosecute any member of the community and can seemingly do so without too much in the nature of having to answer to that community.
If only there was a way to ensure that prosecutors did their job right. Costs used to be an available remedy for a prosecution that was egregious. But the reality is that costs are either not available at all in trials or they are not able to be obtained by a court system that seems reluctant to impose costs orders against the prosecution or with a parliament that has made the test for getting costs so high as to be impractical. Costs orders used to serve as a disincentive for proceeding at all costs. They could still so operate, but for the most part, prosecutions continue in this state, over the course of months or years, with little apparent regard for the financial realities involved.
Moreover, recent events have harmed our system of justice. The Lindt Cafe siege victimised in the most traumatic way a group of our fellow citizens. Its effects will continue to resonate through our community history for years to come. One way in which it will continue to have an impact is by the spectre it presents in every judicial and prosecutorial decision being made today, tomorrow and for years to come. No one wants to be the magistrate who gave someone bail who then went on to murder citizens. No one wants to be responsible for terminating a prosecution of someone who turns out to be bad. No-one wants to confront the possibility that decisions we make today may haunt us in the future.
But if we are to live freely and within a system that allows for investigation and prosecution of individuals by the enormously resourced state, we must be sure to make our decisions in the here-and-now the most rigorous and honest we can. Our bona fides today are in fact our best guard against a dark future. But in the present, there seems to be a real risk that we make bad decisions today so as to try to fortify against badness in the future.
The justice system requires justice now, not deferred in the hope that it will be achieved in the long run. Decisions, both prosecutorial, judicial and discretionary must be fearlessly made, focussed over the integrity of the decision in the present moment. It is the present situation that we can hope to know most about and thereby be most informed in our decision making. The future will be what it may. The past is unchanging. The present is all we have – so lets hope the legacy of the Director of Public Prosecutions will be not a tower of babbling inaction but one of fearless, merciful and adroit promotion of the interests of justice for all.
Aaron Kernaghan is the Principal Lawyer at Kernaghan & Associates Lawyers and has worked as a criminal defence lawyer, a prosecutor at the NSW DPP, and in various government policy roles. He is a special counsel at Kernaghan & Associates, working as a trial lawyer and as counsel at Royal Commission, Special Inquiries and coronial hearings. He is a co-founding member of the Royal Commissions and Inquiries Law Group.