NSW DPP launches audit amid claims of ‘meritless’ rape prosecutions

Prosecutors will audit all sex assault cases committed for trial after criticism from judges who claim ‘meritless’ prosecutions are being pushed into courts.

The Downing Centre court complex in Sydney. Picture: AAP

Senior prosecutors will audit every sexual assault matter currently committed for trial in NSW after a spate of criticism from state judges who said “meritless” rape cases were being brought before courts by the Office of the Director of Public Prosecutions.

NSW Director of Public Prosecutions Sally Dowling SC, however, said she “didn’t accept” that there was a failure of her office in the application of prosecution guidelines and she had called an audit to “satisfy myself that there wasn’t a problem”.

The audit comes after The Australian revealed that a fifth judge had launched a critique on the DPP, 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.”

During a budget estimates hearing at NSW parliament on Wednesday, Ms Dowling revealed an audit would be carried out on cases pertaining to sexual assault – including rape – following the latest rebuke of the ODPP by judge Peter Whitford in February.

All matters now committed for trial would be audited by senior, experienced prosecutors to reassure her that guidelines were being followed, Ms Dowling said, when pressed on the matter by Liberal MLC Susan Carter.

“(That) is to make sure every brief that is going to trial now in every sexual assault matter in the state satisfies the tests in the prosecution guidelines,” she said.

“It’s always appropriate to self-examine and consider whether we are doing things properly.

“The audit has been called to investigate this issue … (although) I don’t accept that there is a failure of the application of the guidelines.

“I’m doing an audit in response – as any prudent manager would do – to satisfy myself that there isn’t a problem. And if there is, (the audit is designed) to fix it.”

Director of Public Prosecutions Sally Dowling SC.

Ms Dowling said there were no “secret policies” pertaining to prosecuting rape or sexual assault cases and any such assertion was “preposterous”.

She also revealed a register was kept of “judicial criticism” where analysis was done on matters to ­either reassure or investigate “what went wrong”.

Ms Dowling revealed she had not received “any direct complaint” from the five judges who aired concerns about the ODPP’s approach to rape cases, and the comments made by the judges were “unwarranted and misguided”.

In December, NSW judge Robert Newlinds said the prosecution took a “lazy and perhaps politically expedient” approach and failed to examine the degree of evidence in a rape trial.

In the estimates hearing, Ms Dowling said those criticisms were “very offensive” to the hundreds of solicitors and prosecutors in her office.

“The view taken within my ­office was that those comments were unjustified,” Ms Dowling said.

On Monday, The Australian revealed how Ms Dowling, in an email obtained by this publication, urged staff to apply the guidelines with “due care and diligence” but reaffirmed that she “strongly rejected (the) contentions”.

Judge Whitford was the fifth NSW judge in less than a year to speak out against so-called “meritless” rape allegations, and the second in three months.

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, thereby 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 and with the inevitable result of an ­acquittal”.