PROFESSIONAL CAREER - CROWN PROSECUTOR AT CANBERRA AND PROSECUTOR FOR THE QUEEN FOR VICTORIA
Crown prosecutor in the Federal Capital Canberra, 1979-1978
The author carried out the duties of Assistant Crown Prosecutor at Canberra from 1969 to 1978. During two of those years he acted as Senior Crown Prosecutor. In 1977, he was admitted to the Victorian Bar and was invited by the Victorian Solicitor-General to apply for an appointment as a Prosecutor for the Queen in Victoria.
Prosecutor for the Queen in the State of Victoria, 1978-1993
In 1978, the author was appointed by the Governor in Council to be a Prosecutor for the Queen in the State of Victoria. As the title suggests, the office of Prosecutor for the Queen is an old one. Owing to the circumstances in which Australia was settled as an English colony in 1788, it was impractical to preserve the ancient institution of the Grand Jury, and that office was undertaken by independent officers appointed as Crown Prosecutors in New South Wales and Prosecutors for the Queen in Victoria. The office of Prosecutor for the Queen is a statutory office and the appointment is made by the Governor in Council at Her Majesty's pleasure.
Acting in the role of the Grand Jury, a Prosecutor for the Queen examines evidence taken at committal proceedings before magistrates, selects the appropriate charge or charges, and signs a presentment (or indictment ) that will be placed before a superior court when an accused person appears for arraignment.
Prosecutors for the Queen also accept responsibility to prosecute in jury trials for the most serious crimes and to argue cases before the Victorian Court of Criminal Appeal.
Involvement in reform of the criminal justice system
During his time in office as Prosecutor for the Queen the author argued in public lectures and published articles that insufficient weight was given by the criminal justice system to the harm done by criminals to victims of crime and their families, and that low sentences frequently awarded for the most serious crimes reflected that lack of concern for the victims of crime and diminished the important deterrence factor in punishment. He pointed to average sentences of four years for rape, two years for armed robbery, and one year for burglary to support his argument for heavier sentences that would reflect community unease about unduly lenient penalties. In this context of lenient penalties, the author condemned the reclassification of many serious crimes, such as robbery, as ones that could be heard by magistrates, and thereby attract much lesser penalties.
At public lectures and in published articles, the author called for legislation to give Victorian police adequate time to question suspects and to give police the power to take fingerprints and body samples from suspects reasonably suspected of having committed serious crimes.
These were unpopular causes in the 1980s, and the author incurred the displeasure of the government and many lawyers for pursuing these causes publicly. However, the public, the media and police were generally supportive of his concerns and proposals for reform. The police in Victoria now have powers that are taken for granted in most Western countries. Sentences for serious crime have also gradually increased to levels that cause less concern to the public.
The author was concerned by pre-trial practices in Victoria that he felt were likely to produce unfairness to both accused persons and victims of crime. Faced with resignations by many of the most competent and dedicated solicitors in the office of the Director of Public Prosecutions (DPP), the author strongly criticised a culture that had developed in the office of the DPP that encouraged rapid turnover of cases at the expense of careful and adequate preparation for trial. Associated with this rapid turnover culture, were practices such as very late briefing of counsel to prosecute, financial disincentives for time spent preparing cases for trial, withdrawal of briefs of evidence from Prosecutors for the Queen who declined to sign presentments without additional investigation, and an attitude that slipshod preparation could be repaired at the trial. Even criticism by the Court of Criminal Appeal that cases were being presented for trial without adequate preparation and without any evidence to support some charges failed to alter the entrenched culture at the DPP office. During the 1980s, a consistently low conviction rate at trial in superior courts of roughly 45 per cent also failed to produce any apparent change in the rapid turnover culture at the DPP office.
The author was also concerned by an increasingly common practice of routine charge bargaining between prosecution and defence. He argued publicly that it was secretive, denied the jury its province, and had the potential to deny justice to victims and undermine public confidence in the criminal justice system.
To prove that charge bargaining was unjustified in many cases, and that adequate preparation would produce much higher conviction rates before juries, the author requested briefs to prosecute in the most difficult cases that the solicitors in the office of Director of Public Prosecutions could find. Fourteen trial briefs in all were produced, and they included murder involving a defence of insanity, a case of "date rape", a case of incest in which the victim's complaint had been delayed for several years, a sequence of armed robberies based on complex circumstantial evidence, and fire insurance fraud based on circumstantial evidence. The author rejected all offers to plead to lesser crimes as unjustified. In twelve of those fourteen cases the accused was convicted of the most serious charge by a the jury. That was a conviction rate of 85 per cent!
Charge bargaining came under greater scrutiny as a result of the author's public criticism. However, his efforts to change the rapid turnover culture in the office of the Director of Public Prosecutions made no apparent impression on either the Director or the government of the time. In 1993, the author decided that it was time to retire from public office and spend more time with his wife Dianne.