The Rules Relating to Commencing and Discontinuing Criminal Prosecutions in NSW

by Ugur Nedim & Sonia Hickey
Evidence

The Office of the Director of Public Prosecutions (DPP) in Victoria is facing a barrage of criticism after withdrawing the criminal charges against a de-frocked Catholic Priest.

The complainant, now in her early 60s, has spent nearly a decade trying to bring the case to court. She alleges that the former Australian provincial leader of the Order of the Blessed Sacrament, Thomas Knowles, sexually assaulted her when she was in her early 20s, and that they had a ‘secret’ relationship which lasted 14 years.

Psychological reports opined that the complainant had been “groomed” since she was 19-years of age.

The priest’s interaction with the complainant and another woman, both his parishioners, was known to The Catholic Church.

After an internal investigation was finalised in 2016, the Church apologised for what it described as a “long-term inappropriate relationship” with Mr Knowles, and provided a confidential financial settlement. Mr Knowles was subsequently defrocked.

Because of her age at the time of the alleged offence, the woman’s complaints fell outside the scope of the Royal Commission into Institutional Responses to Child Sex Abuse.

But she contacted police earlier this year and Thomas Knowles was charged with two counts of sexual assault in May.

Insufficient evidence

However, after reviewing the admissible evidence available in the case, the DPP has determined that it won’t continue the prosecution.

The reasons for the decision include the 35-year delay in reporting the allegations to police, the amount of time she had spent with Mr Knowles after the alleged sexual assaults, and the lack of evidence that the relationship was anything other than consensual.

Despite the reasons behind this decision, victims’ groups have expressed the view that such complaints should nevertheless be prosecuted and the matters left for determination by the courts.

Defence lawyers, on the other hand, have welcomed the decision – pointing out that those against whom the evidence is weak should not be put through the enormous stress, anxiety, uncertainty and financial cost of a jury trial.

Power imbalance

The complainant’s allegations suggest a power imbalance between her and the then priest, as well as shining a spotlight on the hypocrisy within the Church – whose clergy have been caught out on many occasions failing to practise what they preach.

The complainant maintains that her interactions with Mr Knowles were not consensual, and has described the relationship as “toxic” and “abusive.”

She says she was extremely shy and vulnerable, a personality influenced by a severe orthopaedic condition that caused her to walk with an abnormal gait.

Expert report

American priest Father Thomas P. Doyle, prepared an expert report for the complainant’s case.

He is well regarded for his work in the 1980s uncovering the issue of sexual abuse by Catholic Priests in the United States.

The priest’s report opined that that ‘the betrayal of trust meant this was not a normal boy-girl relationship, any more than a relationship between a doctor and his patient or client and their therapist’.

DPP guidelines

DPP guidelines are sets of rules which prosecuting lawyers are meant to follow when conducting criminal prosecutions.

The guidelines in New South Wales relate to a range of matters and circumstances, including:

When will the DPP prosecute a criminal offence in New South Wales?

It is the policy of DPP’s across the nation to prosecute criminal offences only where this is in the public interest.

In New South Wales, this rule is enshrined in Guideline 4 which commences with the following quote from Sir Hartley Shawcross QC, who was the Attorney General of the United Kingdom and Nuremberg trial prosecutor:

“It has never been the rule in this country … that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should … prosecute ‘wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest’. That is still the dominant consideration.”

The Guideline proceeds to make clear that the following three matters are to be considered when determining whether a prosecution is in the public interest:

  1. Whether the available evidence is capable of establishing the offence.
  2. Whether there is a reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) that is properly instructed as to the law.
  3. Whether discretionary factors nevertheless dictate that the matter should or should not proceed.

The discretionary factors that are relevant to considering point 3 are listed as:

  • The seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only;
  • The obsolescence or obscurity of the law;
  • whether or not the prosecution would be perceived as counter-productive; for example, by bringing the law into disrepute;
  • Any special circumstances that would prevent a fair trial from being conducted;
  • Whether or not the alleged offence is of considerable general public concern;
  • The necessity to  maintain public confidence in such basic institutions as the Parliament and the courts;
  • The staleness of the alleged offence;
  • The prevalence of the alleged offence and any need for deterrence, both personal and general;
  • The availability and efficacy of any alternatives to prosecution;
  • Whether or not the alleged offence is triable only on indictment;
  • The likely length and expense of a trial;
  • Whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory;
  • The likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the court;
  • Whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive;
  • The degree of culpability 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;
  • Whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;
  • The attitude of a victim or in some cases a material witness to a prosecution;
  • Whether or not and in what circumstances 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; and/or
  • Whether or not the Attorney General’s or Director’s consent is required to prosecute.

The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case.

Matters that are irrelevant

The Guideline makes explicitly clear that the decision on whether to prosecute must not be influenced by:

  • the race, religion, sex, national origin, social affiliation or political associations, activities or beliefs of the alleged offender or any other person involved (unless they have special significance to the commission of the particular offence or should otherwise be taken into account objectively);
  • personal feelings of the prosecutor concerning the offence, the    alleged offender or a victim;
  • possible political advantage or disadvantage to the government or any political party, group or individual;
  • the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution or otherwise Involved in its conduct; or
  • possible media or community reaction to the decision.

The Guideline further makes clear that the State’s resources are not unlimited and should not be wasted pursuing inappropriate cases.

These are the matters that a prosecutor is meant to weigh up when deciding whether to initiate, or to continue with, a criminal prosecutions in New South Wales.

Getting criminal charges withdrawn or downgraded

That being the case, a good criminal defence lawyer will often address relevant matters when preparing and sending what are known as representations to the prosecution; which are written submissions which call for the discontinuation of criminal proceedings, the downgrading of charges and/or avenues of redress which do not involve charges being pursued.

The Royal Commission

Since the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse uncovered 4,444 allegations of abuse involving 1,800 Catholic Church figures and referred more than 2,500 cases to authorities, legislative changes have been implemented to make it easier for complainants to come forward, and for cases to be pursued either through criminal or civil courts.

And while many alleged offenders have indeed faced criminal prosecution, it is also important to bear in mind that a person is innocent until and unless he or she is proven to be guilty in a court of law, that enormous public expense goes into any jury trial, that a defendant facing the enormous resources of the government will often be at a significant disadvantage (especially if he or she is not well-off financially) and that criminal prosecutions based on insufficient evidence can lead to grave injustice.

Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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