Prior to 1982, there was no ‘independent’ prosecutorial service in Australia.  Summary prosecutions were conducted by police (and, presumably, regulator) prosecutors, and indictable prosecutions were controlled by Attorneys-General.

Today, there are two different approaches to criminal prosecution.  In the States, summary prosecutions are initiated and conducted by the investigatory agency, without consultation or supervision by the relevant DPP.  In the Commonwealth and ACT, however, an investigatory agency is expected to refer briefs to the DPP before any summary charge is filed (except where it is impracticable), and, indeed, the DPP’s staff will draft the charges, arrange for the informant to sign them, then the DPP’s staff will file the charges and conduct the entire summary prosecution. In the Northern Territory, a hybrid model has developed.

As for indictable matters, there is, similarly, a great divide in approach.  In the Australian states, investigatory agencies will generally file indictable charges without consulting the DPP, (though agencies have a right to request advice from the DPP at any time) and at some later stage – perhaps not until the committal process is completed – the DPP will take over conduct of the prosecution.  According to Corns, this system of police prosecutions is unique, among common law jurisdictions, to Australia and New Zealand.

Why the different approaches?

Review of the various explanatory memoranda introducing Australian DPP bills reveals that the establishment of each DPP office was a response, primarily, to  keep Attorneys-General out of the prosecutorial decision-making process (Krone, 1999, 4.2; Rozenes, 1996, 3).  (Though, many of the DPP-creating Acts maintained the Attorney-General’s power to direct the DPP, which is rather puzzling; this is the case for the Commonwealth DPP – a situation Rozenes endorsed during his tenure as DPP.)  It may come as some surprise, that Ministerial oversight of prosecution agencies conducting summary prosecutions, was, apparently, not part of that concern.  In fact, as Rozenes observed, in some jurisdictions, the enabling legislation actually prevented the new DPP from becoming involved in summary prosecution; in other jurisdictions, there simply wasn’t the funding available for the DPP to conduct summary prosecutions even if they wanted to (Rozenes, 1996, 3).  So, each DPP office was established on a belief that only serious crime – indictable crime – required the input of a DPP.

As a result, the default position, when the various DPP offices were established, was that summary prosecution would continue to be conducted by prosecution agencies.  It would only be in those jurisdictions where there was a will to bring summary prosecution within the DPP role, that that would occur.  It happened in the Commonwealth and the ACT; and DPPs in Victoria, NSW, Tasmania and Queensland have called for similar changes in their own jurisdictions (unsuccessfully).  But why?  What was  the rationale for the change and the reform proposals?

All the arguments I’ve reviewed have been made in the context of police prosecutions.

The Rationale for Removing Police Capacity to Prosecute Summary Offences

According to Corns,

over the last three decades, no less than four Royal Commissions of Inquiry, three Commissions of Inquiry, and several other government-appointed Reports have all strongly recommended that the power of the police to conduct summary prosecutions should be abolished and responsibility transferred to an independent prosecution agency… (Corns, 1999, 1)

There are many concerns about police prosecutions, some of which are simple (they aren’t conducted by lawyers), some of which are complex (there’s an increased risk of corruption).  Acknowledging that this is a simplification, I would formulate the key concerns as follows:

1:  Lack of legal training

Lack of legal training of police prosecutors, resulting in improper assessment of merits of case and improper conduct of case.  Or, if the prosecutor is legally trained, she isn’t a lawyer and so isn’t bound by a lawyer’s primary duty to the court (Corns, 1999, 21; Rozenes, 1996, 3; Kones, 1999, 6).

2:  Lack of impartiality

Prosecutors must “divorce the ideological and organisational values of police investigators from one of the most sensitive decision-making processes within criminal justice administration.”   When he was Commonwealth DPP, Michael Rozenes QC made the following observation:

Decisions relating to the conduct of a prosecution must be made dispassionately, and it may be asking too much of human nature for a police prosecutor, who is part of the same organisation that investigated the offence, always to achieve the necessary degree of detachment no matter how honest and conscientious he or she may be.  (Rozenes, 1996, 3)

Corns is more blunt:

Both the prosecutor and the investigator… share the same formal organisational values and beliefs, as well as the more informal police “culture”… Put plainly, the police prosecutor has a professional conflict of interest.  (Corns, 2013, 227)

Corns cites (Corns, 2013, 230) former Victorian Chief Magistrate Ian Gray’s comments to The Age in 2012 that

an ”obvious problem” was that [police] prosecutors were not genuinely independent from fellow police who investigated the same cases.

and concludes that even if that conflict could be avoided, the public perception of “possible bias or partiality” is a serious problem with the police prosecution arrangement (Corns, 2013, 227).  He previously argued the public must perceive prosecutors as independent to avoid a “suspicion of alliance.” (Corns, 1999, 21)  That phenomenon was described in the Review of the Criminal Justice System in Northern Island as “the suspicion of alliance between the police and the court”, created by “the regular employment of the same police officers as advocates for the prosecution” (at 4.16).  It concluded:

“it is critical … that the prosecuting authority is independent from the executive.” (Report of the Criminal Justice System Review, 2000, 4.4)

3:  Lack of transparency and consistency

The argument goes that, whereas DPP decisions to continue or discontinue prosecutions are transparent, police prosecutor discretion is “not nearly so visible”. (Kones, 1999, 5)  Furthermore, inconsistency between DPP and police practice and policy is undesirable (Corns, 1999, 22) and unfair (Kones, 1999, 5).

4:  Lack of cost efficiency

It is more expensive to run police prosecutions than DPP prosecutions, because there is an unacceptably high number of failed prosecutions, or prosecutions may be run inefficiently, increasing costs.  (Corns, 1999, 21-22)  During his tenure as Commonwealth DPP, Michael Rozenes QC said:

Any claim that the continued use of police prosecutors in the summary courts can be justified on the grounds of financial expediency is, in my view, illusionary. From my own experience as Commonwealth DPP I have no doubt that the involvement of an independent prosecuting authority from the outset makes it far more likely that the unpromising cases will be weeded out at an early stage. … The involvement of the DPP at the earliest possible stage will lead to not only an overall saving in the resources that must be devoted to the prosecution of offences but it will lessen the burden on already over stretched court resources.  (Rozenes, 1996, 3-4)

5:  Corruption

A fear of corruption underpins many of the enquiries into the merits of separating police and prosecutions, and is often given as a reason why such separation is desirable.   (See, e.g., Corns, 1999, 22; NSW Independent Commission Against Corruption Report 1994;  Final Report of the Investigative Practices Review, 1988, 118; The Lusher Report, 1981)  Although there have been reports of police corruption generally (see, e.g., the Queensland Fitzgerald Report, which reads like a critique of Gotham City; see also, the recent report on corruption by Chartered Accountants Australia and New Zealand), in reports looking specifically at proposed separation of police from prosecution, I have not been able to locate any concise description of the corruption that is feared,  or evidence of corruption manifesting in police prosecutions except in unusual and isolated cases.  In fact, when the Fitzgerald Inquiry catches its breath after decrying the moral corruption of the Queensland police and Queensland citizens’ apathy in the face of it, to suggest the transfer of prosecutorial power from police to the DPP, the only reasons cited are efficiency arguments (see p238).  There is no mention of corruption – though surely, within a corrupt police force, prosecutions are necessarily tainted by that corruption.
ICAC describes corrupt conduct as “deliberate or intentional wrongdoing, not negligence or a mistake. It has to involve or affect a [NSW] public official or public sector organisation.”
Adopting this definition, presumably the fear is that the prosecutors who conduct summary prosecutions will have friendly relationships with the investigators who conducted the relevant investigations, and may be inclined to enable or disguise misconduct by investigators – and vice-versa.  Perhaps this is especially risky in environments where prosecutors have an involvement in providing advice to investigations, and are therefore vulnerable to developing a particular attachment to a developing case, or the investigators involved, or a particular dislike for the person under investigation.  Even a policy of assigning one internal lawyer to advise the investigation and another to conduct the prosecution may not avoid this risk (as the peer-review process has well-recognised limitations).  The theory must be that the separation of the investigator’s office from the DPP’s office would minimise these risks to the extent practicable.

6:  It’s incompatible with their core function

It has been argued that  police were never meant to handle prosecutions, and now that there are DPPs, police should be relieved of that function.    (Corns, 1999, 23)  Explanations are generally vague:

The police function is too important to be allowed to overlap into prosecution work. Police work is basic to the proper functioning of any modern community and the police have enormous power.  (Enderby, 21)

Ultimately, this sounds like the efficiency argument dressed in new clothes.  However, it is a matter that might differentiate police and regulatory agencies, so I have listed it separately.

Conclusion

None of the above really captures what must be at the heart of this discontent.  Surely the core of each of these concerns is this: that summary crime is just as important as indictable crime; that people accused of summary offences deserve the same treatment as people accused of indictable crime; that all the matters that motivated the implementation of a DPP’s office in each Australian jurisdiction also apply to summary crime.  In particular, if it is inappropriate for an Attorney-General to have conduct of prosecutions, then, it is also inappropriate for other members of government, or their staff, to have conduct of prosecutions.

The heart of the arguments opposing these must be that in fact, there are substantial qualitative differences between summary and indictable crime that make conduct of summary prosecution by the DPP’s office either unnecessary, or undesirable.

These arguments have all been raised in the context of police prosecutions. Do they apply equally to non-police prosecutors, the regulators?

For further discussion, see: Corporate Crime Critiques – Should Regulators and Investigators be Prosecutors? Part 2

References

Chartered Accountants of Australia and New Zealand “Are Australia and New Zealand Corrupt?” (August 2015).

Christopher Corns, Public Prosecutions in Australia (Lawbook co., 2013)

Christopher Corns, ‘Police Summary Prosecutions: The Past, Present and Future’ (Paper presented at the History of Crime, Policing and Punishment Conference convened by the Australian Institute of Criminology, Canberra, 9-10 December 1999).

Commission to Inquire into the New South Wales Police Administration (the Lusher Report) 1981 at 238-258.

Criminal Justice System Review Group, ‘Review of the Criminal Justice System in Northern Ireland’ (Northern Ireland) (30 March 2000).

Keppel Enderby QC, ‘Problems associated with the institution and conduct of prosecutions in the Australian Capital Territory’ (Paper presented at The Second Symposium on Law and Justice in the Australian Capital Territory, Canberra, 26 March 1977).

Fitzgerald Royal Commission of Inquiry (Qld) (1989) at 235-238;

Tony Krone, ‘Police and Prosecution’ (Paper presented at the 3rd National Outlook Symposium on Crime in Australia, convened by the Australian Institute of Criminology, Canberra, 22-23 March 1999).

NSW Independent Commission Against Corruption Report 1994 at 53.

Michael Rozenes QC, ‘Prosecutorial Discretion in Australia Today’ (Paper presented at the Prosecuting Justice conference convened by the Australian Institute of Criminology, Melbourne, 18 April 1996)

Second Report of the Criminal Law and Penal Methods Reform Committee of South Australia, “Criminal Investigation”, 1974, p168-176.

Stewart Royal Commission into Drug Trafficking (1983) at 258;

Street Royal Commission into Certain Committal Proceedings Against K Humphrey (1983) Appendix 14, at 99.

Welsh and Cameron, Final Report of the Investigative Practices Review, 1988 (Western Australia).

Wood Royal Commission of Inquiry (NSW) 1997 at 316.

As indicated in “About this Blog”, any views I express on this site are my own, and do not reflect the views of my employers, past or present.  

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