“All prosecutors, and all judges, should heed Portia’s words in The Merchant of Venice: ‘The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath…’ Legal columnist HUGH SELBY sees lessons for lawyers and others everywhere.

The hokus-pokus and the flim-flam just keeps on coming. This week we had our local Greens pretending that they are a party that has principled values. 

They have had their heads in the power trough for years. With power comes responsibility. 

They can’t pretend that they don’t have shared responsibility with Labor for the problems we, the voters, face of excessive public debt, complacency about gambling, problematic health services, shortfalls in education and inadequate housing stock. Now, they want us to believe it wasn’t them. Greenwashing has a whole new meaning here in the national capital. The irony screams.

As it does with that shrill trumpeter of “the rule of law”, aka The Australian newspaper. Earlier this week it ran an article that was at pains to minimise the findings of the three-member Conduct Division (headed by the NSW Chief Justice) that reported in great detail on the unacceptable conduct of Judge Robert Newlinds, a NSW District Court judge. 

It was so unacceptable that – but for their compassion and willingness to give him a fresh chance – he would have been referred to the NSW Parliament for removal. I wrote about this earlier, it’s here. If you read only The Australian’s take on the affair you’d wonder what all the fuss was about. Their readers are being misled. Whitewashing is what they were about. 

Why? Because part of the justified criticism of the judge was his ill-informed, off-the-cuff, criticisms of the prosecutor and colleagues in the NSW Office of the Director of Public Prosecutions. Those were criticisms that were music to the ears of the “let’s get ’em for being woke in prosecuting sex allegations” coterie. 

There has been criticism by other judges, much more experienced than the one they chose to dust up with a feather, of some NSW DPP decisions to take sexual assault matters to trial. 

The DPP, Sally Dowling SC, is reported to have responded with an audit of the outstanding “sexual assault” matters, some 300 of them. Apparently, although that audit is not yet finished, there have been less than 20 matters where the decision to go to trial has been reversed. 

Anyone with no knowledge as to how decisions to prosecute are made can interpret that result as either, “See, there’s no real problem”, or “Those doing the audit are part of the problem and even they – with their pro-prosecution prejudice – knew that those were doomed. How many more would an independent audit group have found?”

Which shows that one needs to know something about the applicable policy, and the atmosphere within which it is being applied, before attempting to interpret the audit results.

Tests before deciding to go to trial

The decision to prosecute involves two questions:

• Can it be said that there is no reasonable prospect of conviction on the admissible evidence?

• Is the prosecution in the public interest?

Whether there is no reasonable prospect of conviction requires assessing the likely strength of the admissible evidence the prosecution would put before the fact finder, bearing in mind that the prosecution must prove each element of the offence beyond a reasonable doubt.

In sexual assault matters the elements include the identification of the alleged assailant, a sexual act, as well as whether there was consent to the act or acts.

Those in the ODPP making the decision to prosecute must consider:

• Are there reasonable grounds to believe any evidence might not be allowed because the rules of evidence will exclude it?

• Whether their witnesses are available, competent, compellable and reliable (a term discussed below);

• The credibility and reliability of other admissible evidence (such as forensic science – eg, DNA, blood testing, fingerprints – or psychology evidence about the behaviour of victims of sexual assault) in the prosecution case; and,

• any defence open to, or indicated by, the accused. This may, for example, include, “I wasn’t there”, or “it was consensual, or I was entitled to believe it was consensual, for these reasons…”. 

Is there an innocent explanation?

Because the defence doesn’t have to tell the prosecution what its defence will be (other than “alibi”, that is, “I wasn’t there. I was at….”) the astute prosecutor has to imagine themself as an astute defence lawyer: “What defence can I run at this trial?” The ability to ask and answer that question varies from one prosecutor to another.

The prosecution must be able to exclude beyond a reasonable doubt any reasonable hypothesis that points to the accused being innocent. Such an hypothesis can appear in several ways:

• It may be obvious from the witness statements collected by the police investigators. This includes any interview of the accused;

• It may be included in written submissions put to the ODPP by the defence before any trial. However, if defence lawyers don’t trust the skills or values of the prosecutors then they will not make submissions. Once bitten, twice shy; and,

• At trial it may be made plain in the defence opening address, in the prosecution putting as evidence the audio-visual record of any police interview of the accused, in any defence cross-examination of prosecution witnesses, and in closing address. To be clear, it is not necessary for the accused to give evidence for an hypothesis of innocence to arise. Of course, if the accused does give evidence then the prosecution will seek to show the hypothesis to be fanciful when it is cross-examining.

‘Reliability’ is in the eyes of the beholder

The ability of any litigation lawyer to evaluate the “reliability” of a witness is variable, being dependent not only upon experience, but also the attitudes of that lawyer, and – oh, surprise, surprise – luck!

How any witness will “perform” in the witness box is a mystery, solved only when they are in that box. Performance during a police interview, or during a conference with a lawyer, is not a failsafe predictor about in court performance.

The unexpected happens to witnesses in court. Some fall apart while others find never before seen strengths. Some shrivel and some bloom.

We may learn in coming months that some of the judicial criticism of NSW ODPP decisions was caused because prosecution witnesses who had seemed “reliable” pre-trial fell apart at trial.

We may, or may not, learn that some of those in the ODPP making recommendations to go to trial didn’t have what it takes to objectively assess key “witness reliability”. Perhaps they will improve with training, perhaps not. 

The interpersonal skills to work with witnesses, like the skills necessary to bring back diners to an eatery, or instil confidence in patients or clients, reflect temperament, training, organisational values demonstrated from the top, and – critically – the ability of the professional to make the witness feel valued, even when it is necessary to give that witness unwelcome news or probe for information that is embarrassing ( as is common in sexual assault matters).

A likely shortfall in witness reliability fails the prosecution requirements of its witnesses, and it highlights a likely successful defence attack. This means that the second test of “the public interest in prosecuting” is not engaged. 

The public interest test

Where the first test is satisfied then prosecutors must turn their minds to the question, “Is it in the public interest to prosecute?” With most, but not all, sexual offence cases the alleged prevalence of these crimes, public concern and the need to deter such conduct satisfies the test.

But there are much more difficult cases, such as this year’s case in the ACT Supreme Court where a hospice resident accused, aged in his 90s, was sentenced for the pillow suffocation murder at home – nine months earlier – of his much loved but dementing wife of 69 years. The complete sentencing remarks in [2024] ACTSC 134 can be found here. 

The DPP guidelines on the “public interest” also direct attention to other factors including: “accused-related factors” such as their age and health; “victim-related factors” such as their age, health, and need for protection; “sentencing factors” such as the likely outcome, which in murder cases is full time imprisonment; and, “other” which includes, among others, consideration of unreasonableness, options other than going to a hearing, and community perceptions that prosecuting the case in court brings the law into disrepute.

There is more to law than bringing a hammer to crack a head that is already on the path to another world, one that is free of pain, grief and loneliness. Contemporary law does not require that common decency and sense are ignored.

Unfortunately, the sentencing remarks do not include any information as to why our ODPP pressed ahead with this prosecution of a dying man. There is nothing as to whether the ODPP considered starting the proceedings and then seeking to adjourn them until the accused passed on (where, depending upon his beliefs, he may have faced another trial).

There is nothing as to what, if any, wishes were expressed by the dying accused. 

Did he, for example, seek to have justice run its usual course with no regard to his imminent demise? Did he ask for another approach? Was he beyond expressing a rational opinion or understanding by the time of the sentencing? (He had earlier entered a plea of guilty and nothing in the sentencing remarks suggests any doubt about his mental capacity to have done so.)

The sentencing remarks do include that, because of a failure by the defence to share some expert opinion, the DPP requested an adjournment which was refused by the sentencing judge (paragraph 54). Opportunity briefly open. Opportunity closed.

Although the judge gave reasons at the time of refusing the adjournment application they are not included in the sentencing remarks. That is to be regretted because they may have shed some light as to what principles of law and what values were in play.

All prosecutors, and all judges, should heed Portia’s words in The Merchant of Venice: “The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath. It is twice blessed: It blesseth him that gives and him that takes… And earthly power doth then show likest God’s when mercy seasons justice…

“In the course of justice none of us should see salvation. We do pray for mercy, And that same prayer doth teach us all to render the deeds of mercy. I have spoke thus much to mitigate the justice of thy plea, which if thou follow, this strict court… must needs give sentence ‘gainst the merchant there.”

Everyday values matter

To err is human. This is so regardless of whether one is an elected politician enjoying the fruits of being in power, a journalist for mainstream media straying from being true to the facts, an overworked, insufficiently experienced, but keen and ambitious prosecution lawyer, or a retiree who dabbles in writing about legal matters.

But, thankfully, there is always scope and means for our self-improvement, summed up by a late-blooming chef as she accepts the award of three Michelin stars in a current Netflix drama ( La Grande Maison -Tokyo, Episode 11) from Japan: “I couldn’t go on (to be better as a chef).

“The reason is simple. I didn’t put in enough effort.

“The people who made me realise that were my amazing staff.

“They taught me everything. To have passion. To never give up. To always put the customer first. And, of course, to believe in yourself.

“I believe our job is to be an incredible profession.”

To which, if time on the podium had permitted, she could have added the lessons emerging from this powerful “foodie” drama of the power of forgiveness, compassion, self-reflection, sharing and humility.

None of those are taught to lawyers, but they all enrich our legal system when any of them are applied, as was done by the NSW Conduct Division in its report last week of the judge’s misconduct and the best response to it.

Fingers crossed that ODPPs are actively promoting those values too, to ensure that prosecutors are seen to contribute not just law but wisdom to another incredible profession.

Addendum

In memoriam for my late mum, who would have been 100 this week. A geriatric social worker until she quit at age 79 she repeatedly begged me to smother her with a pillow if I found her on the floor. Luckily for me, but not for her, I never did.

Hugh Selby is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.