The Devastating Impact of Criminal Prosecutions

By Blake O’Connor and Ugur Nedim

37-year-old Ian Jeffrey Wells (pictured), a volunteer firefighter with the Rural Fire Service, says he is again being dragged before the courts after being acquitted in relation to a fatal crash in 2012.

The case is a reminder that even after being vindicated by the ‘justice’ system, criminal proceedings can still impact the lives of those prosecuted, even everyday heroes like Mr Wells.

In October 2012, Mr Wells was performing his duties as a volunteer firefighter. Whilst travelling from one emergency to another, tragedy struck. A Toyota Corolla hit the back of the fire truck he was driving, tragically killing the driver, Mrs Mihailidis, and severely injuring her passenger. At the time, Mr Wells had activated his emergency lights and moved the truck into a turning bay.

He was charged with ‘dangerous driving occasioning death’, an offence which carries a maximum penalty of 10 years’ imprisonment.

The Proceedings

After what he described as four years of ‘hell’, Mr Wells was ultimately found not guilty of the charge against him.

However, the anxiety, stress and cost of the ordeal took an enormous toll on his personal life and health.

Mr Wells lost his job with a large retail group as he struggled to provide for his wife and two young children, and cope with the stress of serious criminal proceeding.

Despite this, Mr Wells remained a volunteer firefighter, helping to protect his community throughout the course of the proceedings.

Now, Mr Wells says the Director of Public Prosecutions has advised that he will be brought back before the courts, for reasons unclear to him. Wells told the Gosford Advocate:

“The Crown has not advised (why). Once again I’m in limbo … the matter has been put down to the first of July. I thought it would have been over”.

One might have thought that, having been acquitted, the rule against ‘double jeopardy’ would have allowed Mr Wells to get on with his life.

That rule generally prohibits a person from being prosecuted twice over the same set of events. However, the rule has been diluted in recent years to allow for a subsequent prosecution in certain limited circumstances.

Court Trauma

Sadly, the uncertainty, stress, cost and reputational effects of criminal prosecutions can lead to devastating, and even permanent, consequences for many who are ultimately found not guilty.

Loss of employment, relationship pressures and financial costs can lead to serious mental health conditions such as chronic anxiety and depression, which can last a lifetime.

Perhaps the frustration can be compounded for those who are innocent – and at a loss as to why the prosecution insists on persecuting them.

Decision to Prosecute

When deciding whether to commence or continue a prosecution, police and the DPP are supposed to follow certain rules, which are contained in the DPP’s prosecution guidelines.

Those rules say a prosecution is to be commenced or continued if it is in the ‘public interest’ to do so.

The question of whether a prosecution is in the public interest is resolved by asking the following questions:

  • Is the admissible evidence available capable of establishing each element of the offence?
  • Can it be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law?

And if not,

  • Are there discretionary factors that dictate that the matter should not proceed in the public interest?

The first question is called the ‘prima facie’ test, and requires consideration of whether a reasonable jury properly instructed about the law could find the defendant guilty.

The second question requires the prosecution to evaluate the admissible evidence that is available, and strength of the case in light of the anticipated course of proceedings.

The third requirement requires consideration of many factors, which can include:

  • The seriousness of the alleged offence or how trivial it may be.
  • Whether the prosecution would be perceived counter-productive.
  • Circumstances that would not allow for a fair trial.
  • Whether the alleged offence considerably concerns the general public.
  • The need to maintain public confidence in the Parliament and courts.
  • The staleness of the alleged offence.
  • The prevalence of the alleged offence and the need for deterrence.
  • The availability of any alternatives to prosecution.
  • Whether the alleged offence is triable only on indictment (in the presence of a jury).
  • The likely length and expense of a trial.
  • If the conviction would be regarded as unsafe and unsatisfactory.
  • If found guilty, the sentencing options available to the court.
  • Whether the conviction would be unduly harsh or oppressive.
  • The degree of responsibility of the alleged offender in connection with the offence.
  • Any mitigating or aggravating circumstances.
  • The youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the alleged offender, a witness or a victim.
  • The alleged offender’s antecedents and background, including culture and language ability.
  • If the alleged offender is willing to cooperate in the investigation or the prosecution of others, or the extent to which the alleged offender has assisted.
  • The attitude of a victim or sometimes a material witness to a prosecution.
  • Whether it is likely that a confiscation order will be made against the offender’s property.
  • Any entitlement or liability of a victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken.
  • Whether or not the Attorney General’s or Director’s consent is required to prosecute.

Case Law

Prosecutors have certainly breached these rules in the past, leading to harsh rebuke by the courts.

This was the case in MG v R where the NSW Court of Criminal Appeal (NSWCCA) found that a Crown Prosecutor had ‘either deliberately or without sufficient reflection, breached the rules’.

Again, in Wood v R, the NSWCCA quashed the conviction of Gordon Wood who was convicted of killing his then partner Caroline Byrne in a highly publicised case. The Court was highly critical of the way in which the prosecution failed to fairly put matters to the jury, and had engaged in ‘dangerous reasoning’.

Getting Criminal Charges Dropped

Given the range of factors the prosecution is required to consider before commencing or continuing with a prosecution, there is often scope for a defendant’s legal team to stop a prosecution from being brought, or getting charges dropped, through making written submission to the DPP, or the police as the case may be.

These letters are called representations and can be instrumental in quickly securing favourable outcomes for clients.

Indeed, a criticism that is often made of criminal defence lawyers is that they allow cases to drag on from court-date to court-date while doing little in between, unnecessarily allowing cases to proceed to jury trials for their own financial gain – a situation that can be directly against the interests of clients.

This certainly does not need to occur – a good defence lawyer will be familiar with prosecutorial guidelines and often use them to bring about speedy and cost-effective resolutions for their clients.

The situation with Mr Wells is unclear in so far we do not know why he is being brought back to court.

But given what he has already been through, one would hope his legal team does everything possible to stop any further prosecution in its tracks.

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