Inquiry forces NSW ODPP to dump rape cases

The NSW prosecution office dropped 17 rape cases following an almost year-long audit into sexual assault matters.

NSW Director of Public Prosecutions Sally Dowling SC. Picture: AAP

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The NSW prosecution office dropped 17 rape cases following an almost year-long audit into sexual assault matters across the state, and will consider adding further accountability checks and lawyer training to ensure baseless cases do not make it to trial.

While chief prosecutor Sally Dowling SC maintained many of the cases that were discontinued would have been dropped during the regular trial process, the long-awaited audit found 11 of 327 rape cases committed last year did not adhere to prosecution guidelines.

The audit, which was sparked following extensive reporting in The Australian of severe criticism from a group of District Court judges of ODPP practices, also found there were “opportunities for improvement” in regards to the credibility of complainants ­affected by alcohol at the time of the alleged assault.

“The review found a consistently high standard of legal analysis concerning the question of whether to proceed with sexual offence prosecutions,” a 41-page document released by the ODPP on Wednesday reads.

“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 ODPP audit was announced in March last year after five District Court judges criticised Ms Dowling’s office for running sexual assault cases that had no prospect of securing a conviction. Ms Dowling made formal complaints against two of the judges – Robert Newlinds and Peter Whitford – in the NSW ­Judicial Commission.

The NSW Judicial Commission in August upheld a complaint made by Ms Dowling against Judge Newlinds, who had accused her office of making “lazy and perhaps politically ­expedient” referrals of meritless rape accusations to court.

It also partially upheld a complaint against Judge Whitford, who accused her office of prosecuting matters “without ­apparent regard to whether there might be ­reasonable prospects of securing a conviction”.

The report said the percentage of matters dropped last year was consistent with the “average rate of discontinuance of sexual assault matters from 2018 to 2023”.

“This suggests that the matters discontinued under the review would have been identified through the ODPP’s standard procedures requiring that the decision to prosecute be considered throughout the lifecycle of the matter, particularly in the course of preparing for trial,” the ­report read.

The report also said that of the 11 matters that did not comply with prosecution guidelines, there were “no findings of misconduct or egregious breaches”.

“Decisions about whether to commence or continue prosecutions are complex; each matter is unique and must be considered on its merits,” it said.

“The prosecution guidelines do not envisage every possible scenario that may arise in criminal proceedings. They are not intended to, and do not, provide a formula which can be applied to individual cases to yield a particular outcome.”

The report said the ODPP it would consider implementing “a fourth-tier review” before rape charges proceed to trial, adding a further check to its three-stage system.

Currently, an ODPP solicitor with carriage of the matter considers the brief, then a senior managing solicitor undertakes a review, and lastly the matter is briefed to either a crown prosecutor or solicitor advocate.

The ODPP also identified a need for further training in cases “where the complainant’s recollection is limited or fragmented due to intoxication, where the complainant ‘gives in’ to the sexual act, and where inconsistencies in accounts may impact the ­assessment of the credibility of the complainant”.

A draft of the review was audited by former England and Wales DPP Sir Max Hill KC and University of Wollongong law professor Julia Quilter.