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Chief prosecutor surrenders

By Bettina Arndt - posted Monday, 18 March 2024

What a turnabout. The true state of our stinking, rotten criminal justice system is being exposed. The NSW Director of Public Prosecutions, Sally Dowling SC, last night called for an audit of all NSW sexual assault cases committed for trial. Her surprise backdown comes after months of fiercely denying that her office was failing to follow proper guidelines for prosecuting these matters, choosing instead to give most alleged victims their day in court.

Over the last six months five senior NSW district court judges have blown the whistle on the way our rape trials are being mishandled. They called out the actions of Dowling and her staff for pushing unmeritorious cases into court – which were often thrown out by juries.

Last week District Court Judge Peter Whitford really went to town, pointing out that pushing through such cases risks "drawing the criminal justice system into disrepute."


He said there is "something disturbingly Orwellian, even surreal" about the Office of the Director of Public Prosecutions (ODPP) publishing guidelines which base the decision to proceed on "rational, professional, interrogation of the merits of the case and the prospects of conviction," but then, choosing to operate by reference to "opaque, even secret, policies" which undermine these guidelines.

Of course, the secret policies he alludes to are based on believe-all-women justice where a victim's allegations alone are sufficient to warrant going to trial.

Whitford called on other judges to speak out about this problem "that now appears to be endemic," saying this is the only prospect of a remedy to this concerning problem.

The Director of Public Prosecutions, Sally Dowling, was initially quick to bite back. "The judge's comments are unfounded and inflammatory, and are unequivocally rejected," Ms Dowling responded.

Then, last week Dowling seemed to have a rethink, sending an email to all her staff cautioning them against running meritless rape cases and urging them to axe matters that have "questions of credibility and reliability" or "continuation of the prosecution is not in the public interest", according to a report in The Australian.

Next came the announcement of the audit. Well, folks, don't hold your breath awaiting proper reform. We've seen this all before. Seven years ago, in the UK there was a huge scandal after a series of very public rape prosecutions collapsed - due to withholding of exculpatory evidence by the prosecution. Amusingly, during the whole kerfuffle, the Metropolitan Police announced that they were ditching their previous practice of "believing all victims."


The DPP, Alison Saunders was forced to resign and an audit was held into the recent 2017 cases, which like the proposed NSW audit, dealt only with cases set for trial, not those already determined. The resulting report was an "disgraceful exercise in obfuscation" according to British researcher, Rick Bradford whose excellent book, The Empathy Gap, contains a forensic examination of this report and subsequent political action.

A report from the Justice Select Committee was scathing about the ongoing problems with disclosure errors, where prosecutors routinely withhold evidence from the defence, just as we saw with DPP Drumgold in the Higgins trial. "Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction," said the Select Committee report.

But as Bradford explains, "making progress against the feminist state is like pushing water uphill: inevitably it comes right back again." He reports that UK feminists were quickly on the march again demanding more men be sent to prison and politicians like Boris Johnson responded by promising targets on the police to refer more "high quality rape cases" as well as targets on prosecutors to prosecute both a greater volume of cases and a greater proportion of cases.

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This article was first published on Bettina Arndt.

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About the Author

Bettina Arndt is a social commentator.

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