NSW District Court judge Peter Whitford launches attack on ‘meritless’ rape cases

Another NSW judge has launched a scathing critique of the state’s DPP for bringing ‘baseless’ rape accusations before court, urging other judges not to ‘remain silent’.

Another NSW judge has launched a scathing critique of the state’s Director of Public Prosecutions for bringing “meritless” rape accusations before the court.

Another NSW judge has launched a scathing critique of the state’s Director of Public Prosecutions for bringing “meritless” rape accusations before the court, urging judges not to “remain silent” on cases with no reasonable prospects of a conviction.

District Court judge Peter Whitford, in a costs order delivered on Tuesday, said that “time and time again” sexual assault proceedings are brought before the courts by the Office of the Director of Public Prosecution “without apparent regard to whether there might be reasonable prospects of securing a conviction.”

He said these convictions are often at the expense of the “stress and disruption” of the accused, as well as the “anxiety, stress, humiliation and distress” of the complainant.

Judge Whitford’s brutal attack has made waves across NSW legal spaces, and further exposed concern among judges as to the impact of the MeToo movement on the ODPP’s assessment of rape cases, with some believing a pattern is emerging in which prosecutors prefer to take a “believe the victim” stance and push a matter before a jury, rather than sacking impossible cases.

He is the fifth NSW judge in less than a year to bring this issue to the fore, and the second in just three months after NSW District Court judge Robert Newlinds blasted “lazy and perhaps politically expedient” referrals of unverifiable rape allegations.

The subject of Judge Whitford’s cutting remarks was a “meritless” case brought against a Sydney man who had consensual sexual intercourse with a female friend he had met on Tinder in 2019.

The man, pseudonymously named Simon Smith, and the complainant had been out to drinks in the inner west suburb of Rozelle, before returning to his home that he shared with housemates in Balmain. While the complainant claimed she could not remember much of that night, Mr Smith said the pair had engaged in oral sex before she woke up angrily, stormed out of the apartment and ordered an Uber.

At trial, the prosecution relied on an “entirely circumstantial” case, relying on a DNA match from Mr Smith found in the complainant’s vagina, the indication from Mr Smith that sexual intercourse was not going to be an issue at trial, and the evidence of a blood alcohol expert.

The jury delivered a unanimous verdict of not guilty on Monday, after less than an hour of deliberation.

Judge Whitford, in his judgement, said that the solicitor advocate’s admission that the prosecution’s case was “not the strongest of matters” was “delightfully understated”, and took aim at NSW DPP Sally Dowling’s chambers for repeatedly prosecuting “weak” cases.

He gave express support to Judge Newlinds judgement in Martinez v Rex, saying “the similarities between that trial and this are substantial.”

“On any reasonable view, the prosecution case in the present matter was even weaker than the one with which His Honour (Judge Newlinds) was concerned. It is at least the recent experience of this Court that time and time again proceedings are brought without apparent regard to whether there might be reasonable prospects of securing a conviction,” Judge Whitford wrote.

District Court Judge Robert Newlinds

“It is made plain, in many of those cases, that they are brought and maintained on the instructions of ‘the Director’s chambers’ ... without apparent regard to any views which might be held by the person likely best placed to assess the strengths and weaknesses and merits otherwise of the prosecution, being the Solicitor Advocate or Crown Prosecutor, salaried or otherwise, briefed in the matter.”

Judge Whitford said “far too frequently” the ODPP abandons 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.”

“The expense of a criminal trial, not to mention the time which members of the community are called upon to devote to it as jurors, cannot be overstated. A criminal trial demands the expenditure of an enormous amount of predominantly public funds,” he wrote.

“Furthermore, each meritless proceeding that is conducted delays the resolution of other matters with a more worthy claim on that public expense and the devotion of the time of the Court and members of the community and the legal profession.”

He encouraged other judges to “expose” problems with the administration of criminal justice in NSW.

“If judges remain silent in individual cases where a prosecution without reasonable prospects has been brought and maintained, then there is likely no prospect of a remedy for a problem that appears now to be endemic,” he wrote in the judgement.

Judge Whitford ultimately awarded the costs order to Mr Smith, ruling that the prosecution was unreasonable and “had no evidence from the complainant that she did not consent to sexual intercourse with the accused.”

Last week, The Australian revealed Judge Grant had fired stinging criticism of Ms Dowling accusing her of the most blatant “judge shopping” he had seen in 35 years in the law, in a bid to stop him imposing lenient sentences on two 15-year-old boys.

Ms Dowling has lodged a complaint against Judge Grant with the Judicial Commission alleging he “might not bring an impartial and unprejudiced mind” to sentencing one of the boys.