Here are the five things you should know happened this fortnight.

Too Much Winning?

This fortnight, the Victorian OPP has recorded, with apparent pride, that guilty outcomes were achieved in more than 90% of serious criminal matters prosecuted by the DPP in 2016/17. This is the highest level on record. Its target is 86% guilty outcomes – though it has exceeded its target for at least the past four reporting periods. Since the 2008/09 financial year, in which it recorded 84.5% guilty outcomes, there was only one year in which its rate of guilty outcomes did not increase.

A similar pattern is observed for the NSW OPP, which recorded guilty outcomes in 77% of matters in 2010/11 but by 2015/16 reported 87% guilty outcomes.

So what is the ideal rate of guilty outcomes? Communities generally feel anxious when rates are too high: it may suggest a less-than-rigorous testing of cases by courts. On the other hand it may indicate prosecutorial reluctance to bring difficult cases to trial. Our test for exercise of the prosecutorial discretion is twofold: sufficient public interest in the case, and a reasonable prospect of success. Arguably, if prosecutors require more than a “reasonable prospect of success” when assessing cases for trial, they impermissibly usurp the judicial fact-finding role. So we have to ask: what is the gap between “reasonable prospect” and “beyond reasonable doubt”? And is it reflected in a 90.1% rate of guilty outcomes?

Then of course, a regulatory context gives these questions a particularly interesting complexion. Prosecution is reserved as the ‘big stick’ in the regulatory ‘enforcement pyramid’ favoured by most regulators. It may be that it is especially important for regulators to achieve guilty outcomes when they use that tool, as acquittals would reduce the ‘latent deterrence’ effect of the power to prosecute. Yet, regulators use the same two-prong test for prosecution as all Australian DPPs. Is the ideal rate of guilty outcomes in part determined by the identity of the prosecutor?

* I have to qualify the title of this news item by acknowledging a popular maxim: “The Crown never wins.” The propriety and value of a prosecution is not determined by verdict, but assessed according to the conduct of the case by the prosecutor.  But perhaps the overall rate of convictions achieved by a prosecution service does have something important to say.

Litigation All-Sorts

Licence Cancellation: “ASIC has cancelled the Australian financial services (AFS) licence of Financial Stewards Pty Ltd (Financial Stewards) for failing to co-operate with an ASIC surveillance.”

Infringement Notice: “AAMI has paid $43,200 in penalties after ASIC found it had made false or misleading statements on its website and in radio advertisements for home insurance.”

Injunctions: Injunctions were among the orders made against Lukeleo Pty Ltd in civil proceedings brought by the Commissioner for Consumer Affairs (South Australia) for misleading conduct via telemarketing.

Enforceable Undertaking: ASIC has now formalised its EUs with ANZ and NAB, which were foreshadowed in the BBSW litigation against them.

Deferred Prosecution Agreement: The National Financial Prosecutor of France has announced the President of the Paris Court has agreed to France’s first “DPA” (the French version is a “Judicial Agreement in the Public Interest) with HSBC Private Bank Swiss; under the agreement, the bank will “pay €300 million to settle the criminal charges against it, without admission of guilt. … The €300 million amount is among the highest amounts ever imposed by French criminal justice.  It is reported to be comprised of a €158 million fine and an amount of €142 million to be returned to French tax authorities.  Prosecutors have said the €158 million fine is the maximum provided for by the law (i.e., 30% of the bank’s average annual turnover over the previous three years).”

Prosecution: Terminix LP and Terminix USVI will pay a total of US$9.2 Million in criminal fines, community service and restitution payments for their role in the illegal application of fumigants in residential properties, causing serious illness, following a US EPA prosecution.  Meanwhile, Canadian drycleaners Lorick Ventures Inc (who go by “McCleaners”), were fined $10,000 for two charges of contravening chemical regulations, in a prosecution brought by Environment and Climate Change Canada. Here in Australia, Wambo Coal Pty Ltd has been sentenced for water pollution and breach of licence offences to fines of $62,000, a publication order and costs. Environment Protection Authority v Wambo Coal Pty Ltd [2017] NSWLEC 152.

Justice Delayed

“Tobacco companies will now have to admit — on national television — that smoking kills.” Well bowl me over with a feather.  Why now?  “In 1999, the US Department of Justice filed a racketeering lawsuit against tobacco companies. In 2006, US District Judge Gladys Kessler ruled that tobacco companies must pay for ads admitting wrongdoing. But tobacco companies held up the ruling through appeals, obtaining major concessions that, for example, let them avoid having to admit that they deliberately lied and manipulated in previous marketing campaigns for cigarettes.  And, crucially, the tobacco companies managed to delay the advertising campaign long enough that it now seems like a relic of an old era: As more people get their news and entertainment from digital outlets and streaming services, the ad campaign will air on network television and print newspapers.”

Familiar Face in a New Place

The Honourable Justice Robert Redlich has been appointed as the IBAC Commissioner for a five year term, commencing 1 January 2018.

The Most Difficult Sentence

This week the Law Report looked at the current Victorian proposal to introduce a Sentencing Guidelines Council.

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