“Only in the ACT” is becoming an unfortunate phenomenon in this country. Weird things happen in the Labor-Greens run territory. Only in the ACT would a corruption commission investigate not the chief prosecutor whose misconduct has now been confirmed by two judges in separate forums but the man who uncovered the wrongdoing.
Only in the ACT would one encounter more institutional silence over yet another major debacle. This week’s news that the office of the Director of Public Prosecutions stuffed up another major criminal case – this time involving convicted child sex offender Stephen Mitchell – should be the last straw for those concerned with the administration of the justice system in the ACT.
Prosecutors told three child victims that Mitchell faced a maximum prison sentence of 25 years, and that if they accepted the plea deal then he would spend a very long time in prison for the crimes he committed against them as children. In fact, the victims should have been told that Mitchell faced a seven-year maximum sentence – the law at the time of offending.
Had two of these women – Sophie Vivian and Odette Visser – known the truth, they would not have walked away from insisting Mitchell be prosecuted for the most serious charges of sexual penetration.
As Vivian told The Australian: “There was a lot of pressure placed on us by the prosecutors to accept those plea deals. The way it was sold to us was, this is really great, it’s a really serious charge … don’t worry, it’s a really big sentence, he’s f..ked – those were the words we were given.”
While the ODPP was busy dealing with rape allegations by Brittany Higgins against Bruce Lehrmann, prosecutors failed to properly prosecute the man facing charges of multiple sex crimes against several children.
Senior prosecutors in the ODPP have blamed overworked staff, a lack of training and a drafting issue. Another case of “only in the ACT”.
Prosecutors knew about the correct application of the sentencing laws in May 2022. They negotiated the plea deal with Mitchell in November 2002. This six-month period between May and November 2022 fell squarely within the chaos of the Lehrmann trial. As Visser told The Australian, “It doesn’t take a genius to figure out what they were more distracted with. And six child victims were put on the backburner again.”
As one senior criminal prosecutor told The Australian, “these women have been let down on a number of levels by the office of the DPP but also by the criminal justice system more broadly.”
Both acting director Anthony Williamson and new director Victoria Engel admitted the shocking mistakes made by ACT prosecutors. But Vivian and Visser want Engel to find out what went wrong by asking those in charge at the time. That includes former DPP Shane Drumgold.
This scandalous child sex crime screw-up warrants a full inquiry. Not an internal review. The spectre hanging over the ODPP has not budged an inch since Drumgold’s resignation following the public board of inquiry report.
Given the seriousness of Drumgold’s misconduct, ACT citizens – and everyone forced to endure this spectacle – deserve to know whether one prosecutor went rogue, undermining the fair trial of Lehrmann. Or is it bigger?
In other words, is there a deeper cultural problem with the prosecuting arm of the ACT criminal justice system? If so, what are they? Incompetence? An overzealousness to pursue cases that should not reach a courtroom that in turn distracts from serious cases?
Drumgold’s disastrous time at the ODPP has left too many unanswered questions. Was the chief prosecutor driven by politics when he made unhinged claims against former defence minister Linda Reynolds? Did the interests of child sex victims run second to an internal political agenda? Is the ODPP expected to mirror the politics of the ACT Labor-Green government, making the prosecutorial arm of the criminal justice system a primarily political body rather than a key legal institution? Why was Williamson, acting director after Drumgold resigned, hauled into Attorney-General Shane Rattenbury’s office to explain why he was discontinuing meritless cases?
The background to these unanswered questions includes judges in NSW hearing applications by acquitted defendants to be reimbursed for their legal costs.
Several of them have expressed concerns that prosecutors are wrecking the lives of innocent people by prosecuting cases that should never reach court. In another case of only in the ACT, there is no costs jurisdiction for judges in similar cases to expose what’s happening in the territory.
In any case, ACT Chief Minister Andrew Barr, the Attorney-General and ACT Integrity Commissioner Michael Adams need not strain their necks to look over the border. They need only look under their noses. Senior prosecutors say there is a pipeline of highly suspect cases in the ODPP, taking resources from matters that should be investigated, prosecuted and tried. It takes years for a sex case to reach court – and meanwhile lives are wrecked.
One prosecutor told The Australian last week that prosecutors inevitably – consciously or subconsciously – try to synch themself with the attitude and the disposition of the director of the day.
That means if “the director of the day has an appetite to weed out matters that are not supported by evidence, then prosecutors will feel empowered to say to the director (who has power to discontinue cases) that in the interests of justice the case should be dropped. But if they think that the director is a run-them-at-all-costs type of director, they’ll be too scared to do that. They’ll decide that they’re just not going to raise it with the director.”
Now another shocking debacle sits right under the noses of those in power, this time involving a man guilty of multiple child sex crimes who may walk out of prison years earlier because of mistakes first made by the ODPP. The botched plea deal happened at the same time as the Lehrmann prosecution. Why did Drumgold take carriage of the prosecution of Lehrmann but not a multiple child sex offender? In what circumstances should a director run a case given that it necessarily means their focus on other cases may be compromised?
What more does it take for the ACT government – even a Labor-Greens one – to take these fundamental issues about the proper administration of justice seriously?
The ACT Integrity Commission doesn’t have to sit around waiting for a referral. It has proactive powers to initiate an investigation. The definition of corruption and systemic corruption in the ACT Integrity Commission Act is wide enough to cover not only the misconduct of Drumgold as confirmed now by two inquiries but also the possibility that Drumgold presided over systemic corruption.
Other questions need to be asked about the response of the ACT government to the failures exposed by the Sofronoff inquiry and the review by Justice Stephen Kaye. For example, section 62 of the act requires mandatory notification by public service heads of matters reasonably suspected to involve serious corrupt conduct or systemic corrupt conduct. Has any such notification been made? If not, why not? Failure to notify under section 62 is an offence under section 65.
So where is the ACT Integrity Commission? Oh, that’s right. It is busy going after the bloke who exposed Drumgold’s misbehaviour. Only in the ACT.
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