Chief prosecutor surrenders

- State to audit all rape trials in response to judges' complaints.

What a turnabout. The true state of our stinking, rotten criminal justice system is being exposed. The NSW Director of Public Prosecutions, Sally Dowling SC, last night called for an audit of all NSW sexual assault cases committed for trial. Her surprise backdown comes after months of fiercely denying that her office was failing to follow proper guidelines for prosecuting these matters, choosing instead to give most alleged victims their day in court.     

Over the last six months five senior NSW district court judges have blown the whistle on the way our rape trials are being mishandled. They called out the actions of Dowling and her staff for pushing unmeritorious cases into court – which were often thrown out by juries.

Last week District Court Judge Peter Whitford really went to town, pointing out that pushing through such cases risks “drawing the criminal justice system into disrepute.”

He said there is “something disturbingly Orwellian, even surreal” about the Office of the Director of Public Prosecutions (ODPP) publishing guidelines which base the decision to proceed on “rational, professional, interrogation of the merits of the case and the prospects of conviction,” but then, choosing to operate by reference to “opaque, even secret, policies” which undermine these guidelines.

Of course, the secret policies he alludes to are based on believe-all-women justice where a victim’s allegations alone are sufficient to warrant going to trial.  

Whitford called on other judges to speak out about this problem “that now appears to be endemic,” saying this is the only prospect of a remedy to this concerning problem.

The Director of Public Prosecutions, Sally Dowling, was initially quick to bite back. “The judge’s comments are unfounded and inflammatory, and are unequivocally rejected,” Ms Dowling responded.  

Then, last week Dowling seemed to have a rethink, sending an email to all her staff cautioning them against running meritless rape cases and urging them to axe matters that have “questions of credibility and reliability” or “continuation of the prosecution is not in the public interest”, according to a report in The Australian. 

Next came the announcement of the audit. Well, folks, don’t hold your breath awaiting proper reform. We’ve seen this all before. Seven years ago, in the UK there was a huge scandal after a series of very public rape prosecutions collapsed - due to withholding of exculpatory evidence by the prosecution. Amusingly, during the whole kerfuffle, the  Metropolitan Police announced that they were ditching their previous practice of “believing all victims.”

The DPP, Alison Saunders was forced to resign and an audit was held into the recent 2017 cases, which like the proposed NSW audit, dealt only with cases set for trial, not those already determined. The resulting report was an “disgraceful exercise in obfuscation” according to British researcher, Rick Bradford whose excellent book, The Empathy Gap, contains a forensic examination of this report and subsequent political action.

A report from the Justice Select Committee was scathing about the ongoing problems with disclosure errors, where prosecutors routinely withhold evidence from the defence, just as we saw with DPP Drumgold in the Higgins trial. “Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction,” said the Select Committee report. 

But as Bradford explains, “making progress against the feminist state is like pushing water uphill: inevitably it comes right back again.” He reports that UK feminists were quickly on the march again demanding more men be sent to prison and politicians like Boris Johnson responded by promising targets on the police to refer more “high quality rape cases” as well as targets on prosecutors to prosecute both a greater volume of cases and a greater proportion of cases.

Interestingly, Sally Dowling’s response to Judge Whitford’s comments claims that the fact that sexual assault conviction rates haven’t gone down undermines judges’ assertions that the DPP is pushing through unmeritorious cases. The DPP is arguing that if the cases are so feeble, more would have failed and the conviction rate would have fallen.

This is a disingenuous argument, as it ignores the fact that for decades feminist lawmakers have been changing the rules to make convictions easier to obtain; undermining the accused’s traditional legal protections in order to nail more men. For example, the introduction of draconian requirements for affirmative consent and restricted cross-examination, measures to make it harder to include exculpatory evidence from mobile phones, and deny juries relevant evidence of a complainant’s sexual history, including previous false allegations. 

Juries everywhere are being bullied by ideologues arguing they should always believe the victim. It’s actually a miracle that the conviction rate isn’t higher than it is, given the efforts the feminists have made to stack the deck.

The unchanged conviction rate actually shows just how pathetic many of the cases really are because, despite the feminists’ best efforts, many are still failing in court.

And even though the proportion of accused men being convicted remains much the same, increasing numbers of sexual assault cases are being decided in our courts which means far more men being sent to prison. Sexual assault offences reported to police increased 30% in the last five years. See this graph of reported sexual assault offences since 2019 - note the Brittany Higgins Wannabees spike in early 2021!

Moreover, it appears that most of these allegations end up going to trial. The Australian quoted an anonymous staff member of the ODPP saying “at a guess, at least 80 per cent of cases proceed even if there are issues with the complainant’s credibility.”

The bottom line is if the rules are changed to make it easier to get a conviction but the conviction rate does not increase, the percentage of meritless cases going to trial must have increased. Compounding this is a significant increase in the overall number of sexual assault cases going to trial.

Last month I wrote about the stoush late last year between the DPP, Sally Dowling, and District Court Judge Robert Newlinds. He too claimed her office was taking a “lazy and perhaps politically expedient” approach to rape cases by putting hopeless cases before the court – and Dowling responded by making a complaint about his comments to the Judicial Commission. 

The facts of the Martinez case that prompted Newlinds’ dummy spit are just astonishing. This complainant has nine times got totally pissed and had sex with separate men, only to turn around and report them for sexual assault, claiming she’d been too drunk to give consent. All these cases ended up with the men facing a sexual assault charge, although three took a plea bargain and pleaded guilty to lesser offences.

Six of these men are mentioned in the Newlinds’ decision to award costs to Martinez. Three additional men this woman had similarly accused avoided facing a rape trial by pleading guilty to lesser offenses, according to a fascinating podcast called The Wigs, made by a group of NSW barristers. Do listen to it if you enjoy a deep dive into these legal complexities. The latest episode discusses many aspects of the controversy over this case, including the fact that the Crown misinterpreted the law by claiming the woman’s intoxication meant she wasn’t capable of consent. Serious intoxication is simply one factor the jury can take into account – it doesn’t negate consent. (Pity that the consent courses in our schools are giving the opposite impression.)  

It is utterly appalling that this serial complainant is still out there, having experienced no consequences whatsoever for her abhorrent behaviour, free to make further complaints to destroy the lives of other men. Her repeated allegations prove she was not deterred from further indulging in this evil misuse of our justice system, made worse by the fact that the criminal court system is clogged with a backlog of genuine cases. Martinez is one of many who has spent months in prison on remand, awaiting a trial which, as it has turned out, was based on a mistaken interpretation of the law.

Newlinds rightly goes to town on the utter madness of the jury being denied knowledge of this complainant’s history. The judge tried to get the prosecutor to pull the plug on what he described as a “hopeless” case early in the trial, but the prosecutor made it clear that only the DPP had the power to discontinue.

It’s alarming listening to The Wigs’ discussion of the way the system is operating, with prosecutors being required to run even the most feeble of cases, ignoring even strong exculpatory evidence. During the Sofronoff inquiry, we saw how in the ACT the decision to charge a man with sexual assault no longer requires “a reasonable prospect of conviction,” a test applied throughout the common law world. Instead, the complainant’s statement alone is sufficient evidence, according to Crown Prosecutor Sky Jerome, who is a major player in the feminist committees pushing through these changes in the decision to charge.    

Last year I wrote about a Chinese PhD student – I’ll call him “Andrew” – who wrote to me in despair when he discovered he’d been charged with sexual assault. This was a classic unmeritorious case involving a Chinese student who openly threatened to cry rape if Andrew refused to resume their relationship – she’d broken up with him seeking a higher status partner and then wished to return.

The jury was shown the extraordinary phone chat messages where she made these threats:

 ‘I have just called the police because you keep ignoring me.’

‘I just think you treated me very badly, that’s why I’m causing big troubles.’

Even after she has him charged, for the next 18 months she kept pleading for sex: 

‘Wanna hook up?’

‘Let’s hook up please I’m begging you’

She even sent him what she described as a ‘sexy photograph’ of her naked body and asked whether he had ‘jerked off’ over it. And so it went on…

In between the barrage of sexy messages, she repeatedly called police and suspended the investigation, only to reinitiate it when Andrew consistently failed to respond to her enticements. 

The phone evidence and her bizarre court appearances were so unconvincing that the prosecutor openly confessed to defence lawyers that “we all know she is lying”, but made it clear it wasn’t possible for him to convince his bosses that the case should be dropped.

Everyone expected Andrew would be acquitted but last December the jury ended up convicting him on one of two virtually identical charges - even after the judge had advised them this was not appropriate.

The judge made it very clear he was unhappy with the way the case panned out by imposing a relatively low 3-year sentence and by allowing an appeal bail application (rare in these circumstances) which he insisted on handling himself.

How ironic that this impressive young Chinese scholar experienced this farcical miscarriage of justice in what is supposed to be an exemplary Western democracy.

After three months living through a nightmare at Sydney’s tough Parklea prison, Andrew is now out on bail, awaiting his appeal. In the meantime, he has to travel three hours a day to university, before returning to report for daily parole. 

I recently spent a day with this impressive young man, listening to him describe his shocking ordeal. The terror of being locked up, and immediately warned by older prisoners of the risks of other prisoners learning he was a sex offender. They coached him in how to pretend he was a drug mule or money launderer in order to protect himself. He did eventually manage to connect with some of his fellow prisoners and learn their stories.

Plenty of unmeritorious cases there, from what Andrew discovered. Like the 19-year-old falsely accused of rape by his stepmother so she could take over his deceased father’s estate. Or the 70-year-old factory worker who was accused by his stepson of raping his granddaughter. The evidence was so unconvincing in that case that the judge told the court she could not see how the guilty verdict was reasonable.

Then there was the doctor accused of fingering a patient with dementia. Despite expert evidence that such accusations aren’t unusual in such patients, the doctor first had a hung jury and then was convicted during retrial.

A landscaper in his late twenties was accused of 8 counts of historic sexual abuse involving his cousin, dating back 16 years to when they were both children. A long-term family feud played out in court, with the judge warning the jury about the numerous inconsistencies in the evidence. He was convicted on all 8 counts – but interestingly, the judge then sentenced him to only a year’s imprisonment; a sentence which clearly indicated what the judge thought of the verdict.

For all the judges’ talk about unmeritorious cases unlikely to convince a jury, the fact is that many of our juries are sending innocent men to prison - even when the evidence doesn’t stack up. Understandably, jury members might believe that the mere fact that somebody is presented for trial for a sexual offence means that they are most likely guilty, a belief informed by their confidence that all the evidence has been thoroughly scrutinized and that the prosecuting authority is convinced of the guilt of the accused.

No wonder there’s a growing feeling of disquiet in sections of our judiciary about working in a system where the presumption of innocence is under siege.

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