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4.2. Duty of Crown Prosecutor




Duty of the Director of Public Prosecutions.

The Director of Public Prosecutions represents the people of Australia in bringing guilty parties to justice. Those people that perpetrate breaches of the Law that affect Australians both in the past and now should be brought to account to ensure that it sends a warning to others who may offend. Indeed the Commonwealth Department of Health's denial of any responsibility to inform any Australian of any known risk is present day negligence by the very people employed by the Public to look after their health. Do they ever learn that they are not empowered to avoid responsibility to the taxpayer - there duty is to the taxpayer!

Introduction

Directors of Public Prosecutions : independent and accountable

by John McKechnie QC
Director of Public Prosecutions for Western Australia

The potential for ultimate dismemberment of the office by a government is so obvious it barely needs stating. If a government or a parliament really wishes to destroy a prosecution service, each is capable of doing so. Parliament can abolish courts. Governments can withhold funding. Ministers can decline to reappoint troublesome directors who are therefore not immune from destruction.

I will develop a theme that independence of the office is intertwined with accountability. Better systems of accountability will be rewarded with greater independence of decision.

The Western Australian experience, along with all others, indicates why an independent prosecution service should now be regarded as part of the constitutional balance in 20th century democratic Australia.

"What is the object of having a Director of Public Prosecutions? Obviously, it is to ensure a high degree of independence in the vital task of making prosecution decisions and exercising prosecution directions. Its purpose is illustrated in the present case. The court was informed that, in the prosecution of a police officer, it is now normal practice in this State for the prosecution to be `taken over' from a private prosecutor or informant and conducted by the DPP . The purpose of so acting is to ensure that there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and to answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour. Analyses by law reform and other bodies have demonstrated conclusively how vital are the decisions made by prosecutors: (ALRC 15) (1980) Canberra, AGPS at 61f. Decisions to commence, not to commence or to terminate a prosecution are made independently of the courts. Yet they can have the greatest consequences for the application of the criminal law. It was to ensure that in certain cases manifest integrity and neutrality were brought to bear upon the prosecutorial decisions that the Act was passed by Parliament affording large and important powers to the DPP who, by the act, was given a very high measure of independence: cf discussion X Connor, `Victorian Director of Public Prosecutions' (1994) 68 ALJR 488."


I give an instance.

There is a world of difference between a police minister standing apart and separate from decisions to charge suspected drug offenders, and the same minister requiring of a commissioner proper standards of conduct, supervision, financial accountability, and risk management procedures within a drug squad. The former is appropriate; the latter is abrogation.
A decision to prosecute or not to prosecute is at least as important to an accused person as any subsequent decision in judicial proceedings.
[Yet in murder by medically acquired diseases where is the Crown Prosecutor to be found? If there is no watch dog because these matters happened all too long ago, then you can not complain if things do not go quite to plan in the future. The future of your health is in your hands alone.- CJDHOME]

A working relationship between the media and a prosecution service is vital for the interests of justice and to maintain the independence of the prosecution service.

The public must generally be informed about the work of any government agency, including a prosecution service.

It is especially important for a prosecution service to have its work publicised.

If sentences are to have any effect of general deterrence then, self-evidently, a sentence will not generally deter unless it is well known.

Prosecutions perform other useful functions besides deterrence.

A prosecution can be the means of restoring peace within the community.

Allegations of serious misconduct will not be left to fester in secret but will be broadcast.

The result - conviction or acquittal - is generally marked by the community as a close of the event, and respected as such.

For this reason, courts insist on open justice, and prosecution services must be responsive to the needs of the media when it seeks to report matters or to explain decisions.

Trust is necessary before the community is prepared to allow a statutory officeholder a measure of independent judgment. The community cannot trust an officeholder if they do not know anything of the process, reasoning or factors which may influence the officeholder's decisions.

In contrast with the openness of the judiciary, the public is suspicious and disinclined to trust those processes of government which are confidential.

Alleged victims of crime have, in the past, been neglected in the criminal justice system. Their needs and rights are very important and all prosecution services have procedures to ensure that victims are kept informed, and in some cases consulted, as to progress of an action. There are specific statutes in several jurisdictions which protect the rights of victims eg: Victims of Crimes Act 1994 (WA); Victims of Crimes Act 1994 (ACT); Crimes (Victims Assistance) Act 1992 (NT); Victims of Offences Act 1987 (NZ); Criminal Code (Victims of Crime) Act 1988 (Can).

A victim, or in some cases victims group, is, however, generally entitled to have the decision explained.

While from my experience it is fair to say that few victims accept the reasons for discontinuing a prosecution when I explain them, almost all recognise that the Director is the person entrusted by the community with the power to act.

At the core of that independence, I believe that there must be accountability and the two factors, far from being inconsistent, are in fact complementary to the extent that independence without accountability is an illusion. Independent power is entrusted only to those who give an account of its exercise.

John McKechnie QC

10 October 1996

Res Ipsa Loquitor.
(The facts speak for themselves)