The Role of the Office

Introduction

The Office of the Director of Public Prosecutions was created by the Director of Public Prosecutions Act. It commenced operations on 21 January 1991. The principal functions of the Director are to institute, prepare and conduct criminal cases on behalf of the Crown before the Supreme Courts and the Courts of Summary Jurisdiction of the Northern Territory and the High Court of Australia. Those functions extend to all ancillary appellate work and cover the prosecution of all defended indictable matters before the Courts of Summary Jurisdiction and such other defended summary matters as are deemed appropriate. The Office has taken over most of the functions of the Attorney-General in relation to the prosecution of offences.

Role of the Office

The purpose of establishing the Office of the Director of Public Prosecutions (hereinafter referred to as the Office) was to ensure professionalism and independence in the institution, preparation and conduct of criminal prosecutions in the Northern Territory. The creation of a Director of Public Prosecutions system in 1991 was a revolution in the administration of criminal justice in the Northern Territory. The day to day control of criminal prosecutions has passed from the hands of the Attorney-General to the Director of Public Prosecutions and hence from the political to the professional arena. There is now a Director of Public Prosecutions for each State and Territory and for the Commonwealth. It is clear therefore that the institution of this statutory position has found favour with governments of all political persuasions.

Crime has increasingly become the focus of media and public attention. Politicians, victims' organisations, civil liberties and police lobby groups are all extremely vocal in commenting on the day to day operation of the criminal justice system. Hitherto, Attorneys-General have had the sole burden of making ultimate prosecutorial decisions. They have had the responsibility for determining whether to prosecute or discontinue a prosecution, whether to institute an appeal against the leniency of a sentence, whether to accept a plea to lesser or fewer charges, or whether to grant immunities from prosecution. Prosecutorial decisions made by politicians both here and abroad can become subject to distortion or misconstruction if they are drawn into the ambit of party political debate. Such debate may be misconceived or allegations of bias totally groundless. Nevertheless, in either situation public confidence in the administration of the criminal law is eroded. Decisions on whether or not to prosecute politicians, police officers, senior public servants and other prominent public figures can cause particular difficulty. Not surprisingly, the public often finds it difficult to understand or accept that in his or her prosecutorial role, the Attorney-General acts completely independently from government. Hence, the appointment of an independent law officer can be seen not only to be desirable but also as a substantial safeguard of the rights of every citizen.

Independence

The Director of Public Prosecutions, as created by the Northern Territory legislation, has complete independence in decision-making. This independence has been attained by appointing the Director upon the terms and conditions of office accorded to a Supreme Court judge and by the appointment of the Director until the age of 65 years or for a fixed term. In the latter case, the appointee is eligible for reappointment. In addition, the Office has had substantial administrative independence.

Accountability

This independence does not mean, as it should not, independence of the control of Parliament. The Director is accountable to Parliament through the Attorney-General. Except as provided in the Act there is general freedom for the Director to act independently of any direction from the Attorney-General. There are provisions which require consultation with the Attorney-General and the Attorney-General may, after consultation, issue directions as to a general policy to be followed in the performance of a function of the Director. There is a requirement that any such direction shall be in writing and shall be included in the Annual Report of the Director to Parliament. In order to maintain consistency between the Attorney-General and the Director, the Director shall not, without the consent of the Attorney-General, perform a function inconsistently with the action of the Attorney-General in relation to a function which is vested in both of them. If, in such a case, the action of the Attorney-General precluded the Director from taking any action he would otherwise have taken, the Director is obliged to refer to that occurrence in the Annual Report to Parliament.

The independent functioning of this Office is a matter of great priority. I believe it has not been affected or brought into question in any way during the current year.

Since the establishment of the Office, there has been no single instance where the Attorney-General has exercised his authority in any matter in which there is a concurrent jurisdiction. The convention has already developed of allowing the Office to function as a separate decision-making authority. In consequence the prosecution service in the Territory has been completely independent both in practice and in theory. I have followed a practice of consultation with the Attorneys-General on an informal but fairly regular basis. It is a means whereby I can understand the policy of the government and proposals for legislation. In turn, I can inform the Attorney-General, and hence the Parliament if required, of the operations of the Office. Such consultations do not affect the independent performance of the functions of the Office.

In the result, I am able to report to Parliament that there is in existence an independent prosecution service which forms an integral part of the criminal justice system in the Northern Territory. That independence is a substantial safeguard against corruption and interference in the criminal justice system.

Professionalism

Professionalism in the Office has been achieved by staffing the Office with lawyers experienced in the criminal law whose duties involve appearing in court and the preparation and conduct of cases encompassing the full criminal calendar. To ensure that professionalism is maintained I have encouraged participation in and attendance at appropriate conferences and meetings. Some of those are detailed elsewhere in this Report.

I have endeavoured to set high and demanding standards and leadership for those engaged in the prosecution service so as to ensure above all a continued public and professional confidence in the administration of criminal justice within the Northern Territory.

Objectives

My predecessor on assuming office as Director set a number of objectives for this Office. These were said to be designed to assist in the improvement of the quality of life in the Northern Territory community by providing an independent criminal prosecution service which operates:

1. without fear or favour
2. in a manner which is both fair and sensitive to public interest
3. effectively and
4. efficiently.

The objectives, more fully stated, are published hereafter in this Report. They have been maintained by me in conjunction with the Mission Statement which is set out earlier in the Report.

Guidelines

Included with this Report are a number of separate guidelines. They deal with separate issues. They are included in this Report pursuant to section 25 of the Director of Public Prosecutions Act. They are intended to be followed in the performance of the Director's functions.

Issues as to whether a prosecution should proceed, a plea offer be accepted, an appeal be instituted, or an indemnity be granted arise daily for resolution by a Director of Public Prosecutions. All the Directors in Australia met on a number of occasions in the early nineties in an endeavour to reach agreement upon a common set of criteria to be used in determining the vital question as to whether or not a prosecution should proceed. As a result of those meetings, agreement was reached in formulating universal guidelines capable of consistent application throughout Australia. That agreement, to which my predecessor was a party, is reflected in the guideline The criteria governing the decision to prosecute. All guidelines are constantly kept under revision and they will be amended or changed from time to time as the circumstances require. Where agreement is reached between the States and the Commonwealth upon common guidelines for other purposes those agreements will also be reflected in new guidelines. New guidelines have been inserted this year to take account of the government’s policy in respect of domestic violence cases.

These guidelines are intended to provide Crown prosecutors and others engaged in law enforcement with clear directions for the making of various decisions which arise in respect of prosecutions. They ensure a better co-ordinated and more consistent approach to the prosecution of serious offences throughout the Northern Territory. They were designed, however, so as not to preclude the degree of flexibility necessary to enable prosecutors to cope with variations between individual cases.

They also set standards against which the performance of prosecutors and the operations of the Office may be measured. Additionally, they are designed so as to create a public awareness and understanding of the policies, procedures and decision-making criteria adopted by the Office. As such, it is hoped that they contribute significantly to community confidence in the administration of criminal justice.

The public is entitled to expect justice and good levels of service and has to be reassured that only those who need to enter the system should do so; that the guilty are convicted and that the innocent are acquitted. It is our constant aim to gain the wholehearted support of the public. We are endeavouring to set new standards to ensure that members of the public, whether they be witnesses, victims, jurors or defendants, all be treated fairly and courteously. We need to be, and be seen to be, efficient, courteous and just. I do my best to ensure that more than lip service is given to these objectives.

The guidelines and policies set out in this Report contain the principles and criteria by which it is determined whether or not someone should be prosecuted. In every case referred to this Office, we first review the evidence. We must be satisfied that there is admissible, substantial and reliable evidence, that a criminal offence has been committed by an identifiable person, and that there is a reasonable prospect of that person's conviction. Secondly, if we are satisfied that the evidence provides a reasonable prospect of conviction, we must then consider whether the public interest requires a prosecution.

During recent years, the Directors of Public Prosecutions have at the regular meetings often discussed the vexed question of prosecutorial disclosure. After much discussion, common general guidelines were arrived at and these were issued to prosecutors pursuant to section 25 of the Act early in the current reporting year. Some slight modification of the universal guidelines has been made to account for local Northern Territory conditions. These guidelines appear later in the Report.

Also issued during the year (and set out in this Report) is the draft policy and procedures for witnesses, interpreters and translators.

In order that the reader may gain an appreciation of the role of this Office in a typical case, included in the Report is a section which charts in skeletal fashion the normal progress of a matter from the date a defendant is charged until the date of final disposition by the court.

Publication of reasons

Where the Director decides to exercise the power conferred by the Act to decline to proceed further with a prosecution reasons may be given to any enquirer with a legitimate interest in the matter. For example, the person said to be the victim of the alleged offence or those responsible for the investigation will normally be informed. It is acknowledged that the media have a legitimate interest in the administration of justice and where a person has been publicly committed for trial there usually will be no objection to the reasons for any decision not to proceed with such a trial being made public. Those reasons will be stated in general terms.

However, reasons will not be given where to do so might give rise to further harm or serious embarrassment to a victim, a witness or to the accused, or where such a step might significantly prejudice the administration of justice. Similarly, even where reasons are given it may be necessary to limit the amount of detail disclosed. Under no circumstances will the Director engage in public debate concerning the reasons.

Reasons will not normally be given for a decision to discontinue proceedings before there has been any public hearing. To do so would involve publishing allegations against members of the community in circumstances where there is insufficient evidence to substantiate them or, for some other reason, a prosecution would not be justified. This policy should not be regarded as an inflexible rule. It may be appropriate to provide reasons in some circumstances even when there has been no public hearing. Where, for example, the arrest and charge has attracted significant public interest it may be necessary to consider providing at least some explanation for the decision to terminate the prosecution.