Sunday, June 18, 2023

Public prosecutors pushing ‘doomed to fail’ rape cases, say District Court judges

Judges have warned that public prosecutors are putting sexual assault cases before courts without the required scrutiny, due to their fear of being criticised for dismissing a victim’s claim, and instead are choosing the “easy” option of letting a jury decide.

In extraordinary comments that raise questions as to the impact of social and political campaigns on independent state pro­secutors’ determination of public interest in bringing rape cases to trial, two recent NSW District Court judgments have highlighted a trend of “unmeritorious” cases being brought before courts, risking miscarriages of justice.

The cases have highlighted what the judges - Penelope Wass and Gordon Lerve - say are stark examples of the abrogation of the prosecutor’s responsibilities amid courts increasingly hearing a proportion of rape cases that are “doomed to fail”, with one judge slamming prosecutors for putting “incredible and dishonest allegations of sexual assault through the criminal justice system”.

Now, NSW District Court acting judge Paul Conlon has added his voice to concerns, telling The Weekend Australian judges have “unfortunately in recent times seen many examples of cases being pursued with no reasonable prospect of conviction with the inevitable result of an acquittal.”

Judge Conlon also slammed the handling of former Liberal staffer Brittany Higgins’s rape ­allegations against Bruce Lehrmann, saying the case was “doomed” because the claims had been made public before it reached court, and he ­attacked Anthony Albanese’s and Scott Morrison’s “incredible naivety” in apologising to her in parliament.

Speaking to The Weekend Australian, Judge Conlon said the pursuit of cases without the prospect of conviction was ultimately damaging for genuine victims, who may be put through the trauma of an ill-fated trial.

“There is a prosecution guideline, which is still a guideline as I understand it, in every DPP around the country, that if on a professional assessment a view is reached that there was no reasonable prospect of a conviction, then such a matter should not be brought to court,” said Judge Conlon, who was a Crown prosecutor for 20 years before being ­app­ointed to the bench in 2006, where he became well-known for his tough sentencing of rapists and extensive work in reforming the justice system to support child sex assault victims. He retired in 2018 as a judge but still serves as an acting judge, and is also the chair of the NSW Rugby League.

“Prosecutors have a duty to the community not to bring persons to trial on suspect evidence,” Judge Conlon said.

“Unfortunately in recent times, judges like myself have seen many examples of cases being pursued with no reasonable prospect of conviction with the inevitable ­result of an acquittal.

“Accordingly it would seem to me that the initial critical assessment process in respect of the available evidence is simply not undertaken.

“It’s easier for prosecuting authorities to send the matter to court and let the jury decide. They then don’t have to confront the difficult task of telling a complainant that the matter will not proceed and explaining why that decision has been reached. There is a belief they will also escape criticism by allowing the matter to go to court.”

The comments are in line with grave concerns documented by fellow NSW District Court colleagues Judge Wass and Judge Lerve in two matters in the past six months in costs determinations. Judge Wass said in the matter of R v DS, in which an accused was acquitted by a jury after 25 minutes, that “such was the state of the evidence that I formed the view during the trial that had the jury returned a verdict of guilty on any count, I would have presided over a clear miscarriage of justice”.

While Judge Wass did not criticise the individual prosecutor in the case, who had acted “impeccably and with fairness”, she warned that police had formed an “imperfect and entrenched point of view regarding the allegations” and suggested the trial should never have been run at all.

“The officers of the Director of Public Prosecutions who prosecute on behalf of the Crown enjoy the power to prosecute in the public interest,” Judge Wass said.

“They also carry the duty in wielding that power – given the lives that it disrupts and the damage it can cause – to do so with the appropriate circumspection and responsibility.

“A prosecutor is required to do more than shepherd incredible and dishonest allegations of sexual assault through the criminal justice system, leaving it to the jury to carry the burden of decision making that ought to have been made by the prosecutor.

“The bringing and continuation of unmeritorious cases in abrogation of the prosecutor’s responsibilities … in failing to make an evaluation and act accordingly imposes a burden not only on the criminal justice system, but on all of those involved in it, including complainants and, not the least of whom, any person against whom that prosecution either commences or continues.”

In February, Judge Lerve, who is also a former prosecutor, said he had presided over a number of sexual assault trials during the Covid-19 pandemic which he believed were “doomed to failure from the outset”.

The concern expressed by judges follows the furore over the Lehrmann case in which ACT DPP Shane Drumgold came under heavy scrutiny amid conflicts with the police over the decision to take the case to trial.

Judge Conlon slung criticism at the mishandling of the Lehrmann matter, saying the case was destined to fail as soon as it was aired in the public domain.

He condemned Mr Morrison and the Prime Minister for apologising for a crime which had not been proven, saying the option to stop proceedings before it went to trial due to the huge publicity of the matter was valid.

“In the Lehrmann/Higgins case, that was doomed to failure as soon as it was thought appropriate to ventilate the issues in the public domain and attempt to influence public opinion,” he said.

“The role played by some sections of the media in that process was breathtaking in its stupidity. As was the incredible naivety of the two leaders of our country (Mr Morrison and Mr Albanese) in issuing apologies on the floor of parliament before one word was spoken in evidence. The fundamental and important principle of an accused person’s presumption of innocence was simply ignored and cast aside.


Liberal women’s committee condemns John Pesutto’s expulsion of Moira Deeming, demanding he apologise

The Liberal Party’s Federal Women’s Committee has passed a motion expressing concern at the actions of John Pesutto and his Victorian leadership team in relation to expelled MP Moira Deeming, and demanding he apologise and reinstate her.

The motion was carried on Friday morning with the support of the Queensland and WA women’s committee presidents, but was opposed by those in NSW and Victoria.

It states that Mrs Deeming’s expulsion was “without basis”.

“Women have a right to participate in the political process without fear of cancellation,” the motion reads.

“The silencing of women has no place in the Liberal Party. The Federal Women’s Committee demands the immediate reinstatement of The Honourable Member Moira Deeming MLC and a full apology from Opposition Leader John Pesutto.”

Mrs Deeming was last month expelled from the parliamentary Liberal Party after speaking at a March “Let Women Speak” rally that was gatecrashed by neo-Nazis.

The protest was organised by British feminist activist Kellie-Jay Keen’s group Standing for Women UK, which campaigns against what its supporters see as the infringement of transgender rights upon those of women and children.

Transgender rights activists held a counter-protest, and a third group, of masked men dressed in black, taunted the transgender protesters and performed the Nazi salute on the steps of state parliament.

Mr Pesutto initially attempted to expel Mrs Deeming in March, but was forced to resort to suspending her for nine months amid a lack of support from colleagues.

In seeking to make the case against Mrs Deeming, Mr Pesutto circulated a 15-page dossier of social media screenshots and media reports — mostly relating to Ms Keen — accusing the MP of “organising, promoting and participating in a rally with speakers and other organisers who themselves have been publicly associated with far right-wing extremist groups including neo-Nazi activists.”

Mrs Deeming’s anger at what she regards as an unfair public shaming culminated last month in her giving notice that she would be suing Mr Pesutto for defamation, alleging the Opposition Leader accused her of being a “Nazi sympathiser and Nazi associate”, and used that as a basis to “threaten and bully” her.

Having subsequently been expelled from the parliamentary party in May after a second expulsion motion was moved against her, Mrs Deeming has since issued two more defamation concerns notices.

The Australian understands she has made a decision not to file her Federal Court case against Mr Pesutto until after the Warrandyte by-election, so as not to be accused of damaging the Liberal Party’s prospects in the seat being vacated by retiring MP Ryan Smith, who holds a 4.2 per cent margin.

Liberal Party members are set to meet on Sunday to preselect a candidate to run in the by-election, which is expected to take place in August or September, after Mr Smith retires on July 7.

Mr Pesutto faced a walkout from angry Liberal Party members at last month’s Liberal state council meeting and has variously been condemned for his treatment of Mrs Deeming by the United Nations special rapporteur on violence against women and girls, former Prime Minister John Howard, and a transgender Victorian councillor.

Mrs Deeming said she, her husband and their four children had “suffered unjustly” as a result of her attendance at the “Let Women Speak” rally.

“(We) are extremely grateful to the Federl Liberal Women’s Committee for their public show of support,” Mrs Deeming said.


Coal is a four-letter word

Coal is a four-letter word for Labor/Green governments in Australia where it can’t be used in polite company. Thank goodness it can still be exported and its royalties used to fill the Treasury coffers of our governments.

Queensland is the latest state to benefit from soaring global demand and sky-high prices for our high-quality thermal and metallurgical coal. The coal industry is the goose that is laying the golden egg but Queensland Treasurer Cameron Dick is doing his best to strangle the poor fowl, just like his fellow Queenslander Jim Chalmers running the federal Treasury.

Last year Mr Dick imposed a new coal royalty rate regime which is the highest in the world. Yes, it yielded a bumper return this year, but as surely as night follows day, it will deter new investment. As Mrs Gina Rinehart observed in The Speccie last month, despite very high commodity prices, the investment in mining is much less than in the last mining boom a decade ago. High royalties, high taxes, sovereign risk, and red and green tape as far as the eye can see explain why companies are far more hesitant to invest in Australia these days.

Mr Dick is happy to crow about delivering the largest surplus of any Australian state government in the history of this country. Revenue from coal royalties more than doubled, soaring from $7.2 billion last year to $15.3 billion this -financial year.

Like Mr Chalmers, Mr Dick will use some of that revenue to cut the cost of electricity bills with government rebates. This is a testimony to the cloud-cuckoo land in which they live. Electricity prices wouldn’t be soaring if Australia wasn’t engaged in a reckless race to shut down its coal-fired power stations as soon as possible.

Federal Minister for Energy and Climate Change Chris Bowen never tires of telling anyone who will listen that wind and solar provide the cheapest energy. We should have guessed that Mr Bowen puts climate ahead of energy. He needs to take a trip to Denmark where around 50 per cent of electricity is supplied by wind and solar power and ponder why Denmark has some of the most expensive electricity in the EU. Here’s a hint. Wind and solar energy isn’t cheap once you include the cost of the subsidy provided by the sale of renewable energy certificates, and the costs of backing up intermittent power with dispatchable power to balance the grid when intermittent energy vanishes. And it isn’t cheap when you include the cost of transmissions lines.

It’s a sad day when Chinese communist dictator for life, Xi Jinping talks more sense on energy than Australian ministers. In 2020, Xi Jinping vowed to make China carbon-neutral by 2060, a decade later than Australia’s quixotic commitment. Then in 2021, China suffered huge power outages because its central government, like Australia’s, capped power prices. When costs rose power plants did the logical thing and cut supply rather than operate at a loss.

But unlike in Australia, the Chinese government did a radical reality check. China relies on coal for more than half of its energy. Heeding a report from the Centre for Research on Energy and Clean Air which advised that technologies for storing clean energy are simply not yet mature enough to be deployed at the scale necessary to expand the use of renewable energy, Xi said that coal would remain a mainstay of China’s energy mix that would be hard to change in the short term.

So while Australia hurries to close down its coal-fired power stations, local governments in China approved more new coal-fired power stations in the first three months of 2023 than in the whole of 2021, with more than 20 gigawatts of new plants approved.

To put that in context, Eraring, the largest coal-fired power plant in Australia, provides less than 3 gigawatts of power and authorities are rushing to shut it down in 2025, seven years earlier than planned.

Whatever the imagined benefit might be to the environment, it will be drowned in the increased emissions in China. But the scarcity of baseload power in Australia will drive up prices and provide a profit bonanza for energy generators, many of whom are foreign-owned. Australian power bills will go up, imposing pain on consumers and driving businesses broke or offshore. What we no longer produce we will have to import from countries like China and India. It makes no sense but it seems our governments are determined that we learn this lesson the hard way.


Chronically flawed justice in Australia

With the exception of two or three of our tastier fish species, I doubt if anything in Australia has taken a more comprehensive battering in recent years than our criminal justice system.

It would be nice to say that the wrongful imprisonment of Kathy Folbigg is a rare blot on a nation’s otherwise exemplary judicial record. But I suspect most of us were less shocked by her acquittal last week than we were by her conviction twenty years ago.

It wasn’t always thus. Ned Kelly may have a certain Robin Hood allure for modern Australians, but few of his contemporaries would have questioned the integrity and competence of the police who arrested him or the judge who hanged him.

And even 100 years later, the faith of most Australians in the courts was still strong enough to withstand the reversals of the Lindy Chamberlain case – with even those who still think she did it conceding that the discovery of new evidence damaged the prosecution narrative.

But the miscarriages of justice which have done most to undermine our confidence in our legal system in recent times were not exposed by the discovery of new evidence or, as in the Folbigg case, overturned by advances in science.

The decision to charge Cardinal Pell was always, and by any evidentiary measure, ludicrous, and the fact that it was eventually adjudged to be so by the High Court, after the man had spent more than a year in prison, should reassure nobody.

It was obvious from the get-go that what was really on trial was not so much an elderly man as a global patriarchy – of which Cardinal Pell just happened to be a figurehead. And what became clear as the case progressed first through the criminal and then the appeal courts was that a substantial proportion of the Victorian judiciary were also of this opinion, and were determined that the verdict which had already been delivered across the tables of Toorak dining rooms, and amplified by an overwhelmingly left-leaning local media, should not be gainsaid by due process – at least, not on their watch.

It is hard not to see parallels between the Pell acquittal and the decision of the Director of Public Prosecuter to abandon the prosecution of Bruce Lehrmann. And in the latter case the publication of all those texts and emails and the making of all those speeches raises even more glaringly obvious questions about the ability of public servants and senior legal figures to conduct themselves with integrity and objectivity.

It is now a matter of public record, for example, that ACT police never thought there was enough evidence to convict Mr Lehrmann, and that they advised Shane Drumgold, the ACT Director of Public Prosecutions, not to press charges. Mr Drumgold has yet to give an adequate reason for ignoring this advice, and until he does, it will be hard not to conclude that he was motivated by the same fear which presumably motivated Scott Morrison to publicly apologise (on our behalf) to Brittany Higgins weeks before the trial even started, and which persuaded the Federal Attorney-General and Federal Finance Minister to sign off on Miss Higgins’s $2m+ Commonwealth compensation package within three days of her claim being lodged.

That is to say, it is hard not to conclude that all these respected figures were more concerned about being seen to believe a woman’s claim to have been sexually assaulted than being seen to believe in habeas corpus and the presumption of innocence.

The systemic failure which led to Chris Dawson not being convicted of the murder of his wife for 30 years, it must be said, was not the result of the divided loyalties of lawyers and officials. It was mainly just the incompetence and laziness of NSW police, and it’s no exaggeration to say that if it hadn’t been for the endeavour of a single journalist Dawson would still be a free man today.

As free, indeed, as all the murderers and rapists who we may assume have escaped justice in Queensland in the past few years because the evidence with which police and prosecutors hoped to convict them was deemed insufficiently strong by a pathology lab whose boss, as we now know, had raised the admissibility bar to cut costs.

If there are any aspiring Ned Kellys in Australia today I cannot imagine them being greatly deterred by the men and women in uniforms, white coats and wigs.




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