NSW DPP Sally Dowling warns staff against ‘meritless’ rape cases

NSW Prosecutor Sally Dowling cautions her staff against running baseless rape cases, amid claims from judges her office prosecutes cases that have no hope of securing a conviction.

NSW chief prosecutor Sally Dowling SC.

NSW chief prosecutor Sally Dowling SC has cautioned her staff against running meritless rape cases and urged them to axe matters that have “questions of credibility and reliability”, as she comes under fire from multiple judges who claim her office prosecutes sexual assault cases that have no hope of securing a conviction.

The warning comes as a staff member from within Ms Dowling’s office told The Australian the judges were “correct” in their claims, blowing the whistle on a culture in which they said junior solicitors felt pressured to progress with unverifiable allegations.

The Australian revealed last week that a fifth judge had launched a critique on the Office of the Director of Public Prosecutions, saying that “time and time again” sexual assault proceedings were brought before the courts “without apparent regard to whether there might be reasonable prospects of securing a conviction.”

Judge Peter Whitford wrote in a costs judgment that “far too frequently” the ODPP abandoned its own guidelines on a worthy prosecution “in favour of simply letting a jury (or a judge sitting alone) decide the merits of a case, without any professional examination of either the reasonable prospects of securing a conviction or the public interest in pursuing the prosecution”.

In response to the judgment, Ms Dowling sent an all-staff email saying she expected workers to “continue applying the guidelines with due care and diligence at every stage”.

“You may be aware of recent judgments suggesting that the ODPP is bringing proceedings without proper regard to the merits of the case and the prospects of conviction,” she wrote in the email, obtained by The Australian.

“While I strongly reject such contentions, it is timely to remind lawyers of your obligations under the Prosecution Guidelines, particularly Chapter 1 ‘The decision to prosecute’.”

She proceeded to remind workers that the ODPP’s prosecution guidelines were “the only policy which determines whether a prosecution is initiated and maintained … Prosecutors are obligated to apply the guidelines in every case, regardless of the type of offending alleged.”

Ms Dowling also said matters should be discontinued “if, after critical engagement with the admissible evidence including questions of credibility and reliability, a view is formed that there are no reasonable prospects of conviction, or otherwise that the continuation of the prosecution is not in the public interest”.

“If such a view is reached at any stage following committal, a report should be prepared and submitted to the director’s chambers for consideration,” she wrote.

“I expect all ODPP staff and crown prosecutors to continue applying the guidelines with due care and diligence at every stage.”

Judge Whitford was the fifth NSW judge in less than a year to speak out against the so-called “meritless” rape allegations, and the second in three months after judge Robert Newlinds blasted “lazy and perhaps politically expedient” referrals of unverifiable rape allegations.

The Australian revealed in June last year that two other NSW District Court judges – Penelope Wass and Gordon Lerve – had also highlighted a trend of “unmeritorious” cases being brought before courts, risking miscarriages of justice.

NSW District Court acting judge Paul Conlon at the time told The Australian that judges had “unfortunately in recent times seen many examples of cases being pursued with no reasonable prospect of conviction with the inevitable result of an acquittal”.

One staff member from within the ODPP, whose role precludes them from being named, said the issue was systemic, and young prosecutors were often pressured to press on with rape cases even when they knew they had no hope. The staff member said “at a guess, at least 80 per cent of cases proceed even if there are issues with the complainant’s credibility or even if the complainant is ambivalent about giving evidence”.

“Once charges are laid, it is very hard to have the prosecution terminated,” they said.

The staff member said the judges were “completely correct” in what they have asserted, adding that “it seems to be about taking the word of a complainant most of the time when they provide a statement to police”.

“Even if it’s not the director herself making the final call in every case, it’s coming from the top,” they said.

A statement from the ODPP on Friday said Judge Whitford’s comments were “unfounded and inflammatory, and are unequivocally rejected … There is no basis for the judge’s suggestion that there has been an increase in the number of sexual assault cases proceeding to trial on insufficient evidence.

“Conviction rates for sexual assault matters in NSW have remained consistent over the past five years, and Australian Bureau of Statistics data show that NSW consistently records a conviction rate equivalent to the national average in sexual assault matters.”

The statement said Judge Whitford’s “remarkable assertion that there are ‘opaque, even secret policies’ applicable to sexual assault prosecutions” is “completely baseless and is rejected”.

“The prosecution obligation to ensure that an accused person receives a fair trial is a central pillar of our criminal justice system and is one that is integral to all decision making at the ODPP,” it read.

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