THE PURSUIT OF JUSTICE 25 YEARS OF THE DPP IN VICTORIA The OPP thanks the following people for their contribution: Adriaan Bendeler, Suzette Dootjes, Bruce Gardner, Michael Hoyle, Frank Mattea, Catherine Nicols, Ann Strunks, Carol Stuart and Dr Marg Flatman. Additional research: Tracey Archer (OPP) Produced with support from The Department of Justice (www.justice.vic.gov.au) and The Victoria Law Foundation (www.victorialaw.org.au) Writing and editorial services: Jacqueline Flitcroft Design: X2 Design © This publication is copyright. Other than for the purposes of and subject to the conditions prescribed in the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquires should be addressed to the publishers. www.opp.vic.gov.au CONTENTS Foreword CHAPTER 1 CHAPTER 2 CHAPTER 3 CHAPTER 4 PAGE 6 PAGE 8 PAGE 10 PAGE 16 PAGE 22 BEFORE THE TURBULENT CONTROVERSY THE DPP PIONEERS TIMES AND CHANGE 4 THE PURSUIT OF JUSTICE CHAPTER 5 CHAPTER 6 CHAPTER 7 CHAPTER 8 PAGE 28 PAGE 34 PAGE 40 PAGE 46 STABILITY NEW LOOKING TO THE WAY BALANCE DIRECTIONS THE FUTURE AHEAD AND GROWTH THE PURSUIT OF JUSTICE 5 Foreword The Director of Public Prosecutions (DPP) commands Solicitor and staff of the Office of Public Prosecutions, as a unique and crucial position within Victoria’s criminal well as members of the Victorian Bar. Without a doubt, justice system – and within our democratic tradition. In Victoria’s justice system has benefited from having fact, since 1982, when Victoria pioneered in Australia prosecuting barristers, solicitors and support staff of the the creation of an independent prosecution service highest calibre – people who have valued and protected and transferred prosecutorial decisions from Executive the independence of the office, and who have applied Government to an independent DPP, successive DPPs the law impartially and in the public interest. have provided leadership in the conduct of criminal As this anniversary book shows, Victoria’s DPPs have prosecutions. Victoria’s DPPs have provided this not only served the interests of justice, they have also leadership – both nationally and internationally – with served and protected the Victorian community. It is an independence, integrity and impartiality. impressive record and important tradition – providing Since that time, of course, there have been major a strong foundation for Victorians to enjoy a fair and changes in the practice of prosecutions, the criminal law independent prosecution service well into the future. and the operation of the courts; with prosecuting a more complex task than it was a quarter of a century ago. The fundamental principle behind the creation of the DPP, however, remains the same: that decisions to prosecute – and, equally, decisions not to prosecute – should be The Honourable Rob Hulls made free from political interference and considerations. Deputy Premier and Attorney-General This is why the present Government enshrined the of Victoria DPP’s position in the Constitution Act 1975. Going from strength to strength, our public prosecution service continues to enjoy a national and international reputation for excellence. That reputation is built upon the dedication of the Crown Prosecutors and staff of the Office of the DPP and, since 1994, the Rob Hulls image reproduced with the permission of the Parliamentary Library, Parliament of Victoria. 6 THE PURSUIT OF JUSTICE CHAPTER 1 BEFORE THE DPP In 1983, Victoria became the first jurisdiction in Australia to establish a Director of Public Prosecutions, following the enactment of the Director of Public Prosecutions Act 1982 by the Victorian Government led by Premier John Cain, who was also Attorney-General. Victoria’s leadership in creating an independent DPP is acknowledged as one of the most important developments in the administration of justice in Australia. Prior to the creation of the DPP, prosecutions for done by men “as it was considered that the material in indictable offences in Victoria were handled by the many cases was far too unsavoury for a woman’s eyes”. Criminal Law Branch (CLB) of the Crown Solicitor’s A small number of Crown Prosecutors conducted Office. When a person was committed for trial, the the vast majority of prosecutions, with very few cases branch prepared the case and briefed Crown Prosecutors prosecuted by external counsel. Trials were generally or private counsel. All prosecutions were instituted in the completed quickly and, although the right of appeal name of the Attorney-General, who could refuse to give against sentence was given to the Crown in 1971, consent to initiate particular prosecutions. appeals were rare. Prosecutorial discretion was based primarily upon In 1983, Victoria’s first Director of Public whether there was sufficient evidence to justify the trial or Prosecutions, John Harber Phillips QC, reported that to raise a strong or probable presumption of guilt, with no the Victorian Government led by Premier John Cain consideration given to the concept of public interest or to had two main objectives in creating the DPP: “firstly, the resource implications of decisions to prosecute. the removal of the process of criminal prosecution John Buckley (who worked in the CLB prior to from the political arena; and secondly, the creation of a becoming Solicitor to the DPP in 1983) recalled that more efficient system for the operation and conduct of when he started at the branch, it had a staff of around prosecutions in the superior courts.” i 20, none of whom were legally qualified. “Depositions The Victorian Government stated clearly its were recorded in longhand,” he said, “and intentions when introducing the legislation into presentments and further presentments were often Parliament in 1982, noting that “a major aim of the Bill dashed out on the morning of the hearing.” There is to remove any suggestion that prosecutions in this were no women working in the branch. Typing was state ... can be the subject of political pressure”.ii 8 25 YEARS OF THE DPP IN VICTORIA Stephen Carisbrooke (later Deputy Solicitor and Acting Solicitor apparent for somebody qualified to perform the functions of a for Public Prosecutions) was working in the Department of Justice Solicitor, especially as the DPP himself remained a member of the at the time and was instrumental in the development of the Bill. Bar. From the beginning, therefore, the Solicitor to the DPP was also “With the change of government in 1982, one of the first things expected to manage the office of the DPP. on the Cain Government’s agenda was the introduction of the While there have been significant changes to the powers and DPP legislation to remove criminal prosecutions from the political operations of the DPP since 1982, it is widely recognised that the process,” he said. move to establish an independent prosecuting service was one “We tried to make the legislation as simple as possible,” said of the most significant improvements made to Victoria’s – and Carisbrooke. “Our instructions were to only include what was Australia’s – criminal justice system. necessary to provide the DPP’s powers and achieve the required In the 1980s and early 1990s, the Commonwealth and all other administrative changes. It was designed as an orderly transfer and states and territories followed the lead set by Victoria in 1982 and that is what it turned out to be.” established Directors of Public Prosecutions appointed by statute. The origins of that legislation go back four years to 1978. John Alongside changes to the DPP, the nature of prosecutions Cain was in his first term in the Victorian Parliament, a member of in Victoria has also evolved over the last 25 years. Modern the Shadow Cabinet, and in London. Sir John Rossiter, the Victorian prosecutors now need to be familiar with other branches of Agent General, arranged for him to see the key people in the Office the law, such as commercial law and family law. New areas of the Home Secretary and examine the British DPP model, which of prosecutions have emerged, including computer crime and had been in existence since the early 1900s. confiscation of the proceeds of crime. Prosecutors are now more Cain said that research and discussion showed that the model supportive of victims; they need to keep abreast of developments had worked well in the United Kingdom for some 70 years. The in forensic science; and they must be familiar with the use of material he brought back helped him convince his party’s Law technology in acquiring and presenting evidence. Reform and Civil Rights Committee and Conference, and it The volume of matters handled by Victoria’s prosecution became party policy. As such, the Victorian Act was modelled on service has increased dramatically, as has the range and this UK research. complexity of cases. Importantly, however, the Victorian Act went further than While the nature and scale of prosecuting in Victoria has the UK model by completely removing prosecutions from the changed, the fundamental principle behind the role of the DPP political process. remains the same as in 1982: that the conduct of prosecutions The Act ensured the best people would be attracted to the job should be independent of the government of the day. and their independence entrenched by providing that the DPP Twenty-five years after Australia’s first DPP was appointed, would enjoy the same tenure, salary and benefits as a Supreme this principle remains the cornerstone of a sound system of justice Court judge. Moreover, they could not be removed by a whim and a free, democratic society. It continues to be essential to of government. maintaining the Victorian community’s trust in the fairness and The Act received Royal Assent on 21 December 1982.