Top prosecutor’s office reviews hundreds of NSW sexual assault cases

This was “consistent with the average rate of discontinuance of sexual assault matters” between 2018 and 2023, the report said.

Discretionary grounds included concerns about the complainant’s mental or physical health.

The ODPP said the relatively low rate of discontinuance of cases examined in the review suggested that those matters would have been discontinued under existing procedures for reviewing cases throughout their “lifecycle”, including during trial preparation.

Conviction rates in adult sexual assault cases were relatively steady over the past 20 years.

Given the sensitive and legally privileged information examined, the review was conducted internally by experienced deputy senior Crown prosecutors and Crown prosecutors.

However, it included a layer of external oversight and a process for managing conflicts. Cases in Sydney were examined by prosecutors in the Lismore office.

The ODPP said a draft of the report and a “cross-section” of the hundreds of matters were independently reviewed by the former DPP of England and Wales, Sir Max Hill, KC, and Professor Julia Quilter, a criminal law expert from the University of Wollongong.

Non-compliance with guidelines

The review examined compliance with publicly available prosecution guidelines, the framework within which the ODPP assesses cases and makes decisions to bring prosecutions.

It found 11 cases, or 3 per cent, did not comply with the guidelines, although there were “no findings of misconduct or egregious breaches”.

Five of those 11 matters were discontinued on evidentiary grounds and one was discontinued on discretionary grounds. The remaining five proceeded, or will proceed, to trial.

The report said that “non-compliance with the prosecution guidelines does not necessarily mean that a matter should be discontinued”. Some cases proceeded with different charges.

“The small number of matters where the prosecution guidelines were not appropriately applied involved particularly legally and factually complex issues including intoxication of complainants and complexities in the evidence relevant to issues of consent.”

The guidelines require a consideration of whether there are “no reasonable prospects” of conviction and the public interest in prosecution.

The report identified “opportunities for improvement”, including further training in “complexities of the law of consent and guidance on intoxication and consent”.

New layer of review

The ODPP said it would consider “the utility of a fourth-tier review” before sexual assault charges proceed to trial. The current three-stage process for certifying or confirming charges starts with the DPP solicitor running the case. Their analysis is in turn reviewed by a managing solicitor and then by the Crown prosecutor or solicitor advocate who will appear at the trial.

A deputy senior Crown prosecutor or experienced Crown prosecutor could “confirm charges at the arraignment stage”, when a plea is entered, to provide a fourth set of eyes. But the report said this was subject to the availability of funding.

Protracted feud

Dowling has been at loggerheads with some District Court judges following highly publicised judgments containing strident criticisms of the ODPP’s handling of sexual assault cases.

In an early flashpoint, Dowling lodged a complaint with the Judicial Commission about comments by Judge Robert Newlinds in December 2023. Led by Chief Justice Andrew Bell, a three-person panel – known as a conduct division – upheld Dowling’s complaint.

A separate panel found a second judge, Peter Whitford, made “rash” comments.

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