Director Of Public Prosecutions Research Articles

Reflections of a (re)tired DPP

The position of Director of Public Prosecutions is a pivotal one in criminal justice in NSW, as it is in other Australian jurisdictions. The daily prosecutorial work must be supervised and carried out across the State to the highest standards attainable. Opportunities for improvement in the criminal justice system must constantly be scouted out and promoted. And any DPP will have his or her own hobby horses to ride using criminal justice as a means of social improvement. A DPP can go to work each day, roll the arm over and go home to the family at night without more (and quite properly). He or she can add the other activities quietly, behind the scenes, or in the glare of the public spotlight. From a DPP not unaccustomed to that glare, here is an account of important changes to criminal justice in NSW over the last two decades and of things yet to be done. They may be relevant elsewhere.

Parliamentary Report

On 27 March the House of Commons debated the policy guidelines of the Director of Public Prosecutions on prosecutions for encouraging or assisting suicide. The debate, introduced by Richard Ottaway (Conservative) and David Winnick (Labour), was broadly supportive of the guidelines. The motion was amended and the House resolved to welcome the policy guidelines and to encourage ‘further development of specialist palliative care and hospice provision’.

Regulating Assisted Dying

A decade ago, a British woman suffering from a progressive and terminal illness sought an undertaking from the Director of Public Prosecutions (DPP) that if her husband assisted her in ending her own life because, due to her physical disabilities, she was unable to do so unaided, he would not be criminally prosecuted under section 2(1) of the Suicide Act 1981. The DPP refused, a decision which the House of Lords refused to disturb. One of its reasons for doing do so was expressed by Lord Bingham.

Prospective Legal Immunity: A Disability Rights Perspective on Assisted Dying

Disabled people have been among the most vociferous opponents of attempts to legalise assisted dying in the UK and North America. When Lord Joffe introduced reforming legislation in the House of Lords on successive occasions between 2002 and 2008 it attracted opposition, including in 2006 from the Disability Rights Commission (DRC ) and three major national disability charities. When in 2009 the Director of Public Prosecutions (DPP) put forward a draft policy on future prosecution, a disability advocacy group, Not Dead Yet UK (NDYUK), affiliated to the US group, Not Dead Yet, challenged the draft policy. They did so on the grounds that it discriminated against disabled people by introducing a criterion for non-prosecution based on the assisted person's condition or experience of suffering. As a result, the final policy omitted any such criterion and the DPP's Equality Impact Assessment conceded that the policy as originally drafted could have had a particularly adverse impact on disabled people.

"Aus Anlass eines Sensationsprozesses": The Oscar Wilde Scandal in the German Press

In the spring of 1895, Anglo-Irish author Oscar Wilde initiated a libel suit against John Sholto Douglas, the ninth Marquess of Queensberry, who had left a note at Wilde’s club accusing the playwright of “posing as a somdomite [sic].”1 Wilde lost his case when Queensberry provided ample evidence of Wilde’s traffic with male prostitutes – evidence that forced the Director of Public Prosecutions to bring criminal charges against Wilde for “gross indecency.” Wilde was tried twice on these charges: the first trial ended in a hung jury; in the second he was found guilty and received the maximum sentence of two years’ hard labour (see esp. Foldy; Holland; also Ellmann; Hyde; Taylor and Gee). Wilde’s fame as an author and wit, the stature of the marquess, and the salacious nature of the testimony led to a frenzy of public interest in the case: countless newspaper articles, cartoons, broadsheets, extra editions, and even poems were published to keep up with the British public’s appetite for information about the trials (Cohen 126– 209). Once Wilde was convicted, the coverage all but dried up, and his name disappeared from the headlines almost as quickly as it had been erased from the marquees of London’s West End, where his celebrated society plays suddenly proved unmarketable. Alan Sinfield and Ed Cohen have both argued that newspaper coverage of the Wilde scandal was responsible for a watershed moment in the history of homosexuality. For Sinfield, “our stereotypical notion of male homosexuality derives from Wilde, and our ideas about him” (vii) – ideas that we can trace back to 1895, when “the queer image may be observed at its point of emergence in press reports of the trials” (123; emphasis added). In this, Sinfield is echoing Cohen, who argues that what was on trial was the very personality of Wilde: in the libel suit, the jury was not asked to consider whether or not Wilde had committed sodomitical acts, but rather whether he was the type of person who might be inclined to commit or seen as likely to commit such acts. In other words, Cohen argues, we can see the trial as evidence of Michel Foucault’s famous

UK High Court case to reignite debate over assisted death

UK High Court case to reignite debate over assisted death

Hong Kong – the China point

The authors describes how extradition orders in the UK and the USA have been contested on the basis that it may no longer be possible to receive a fair trial in Hong Kong following its return as a Special Administrative Region to the People’s Republic of China. He argues that the House of Lords and the Supreme Court were right to resist this assertion. Article by John Wood (Solicitor with Morgan, Lewis & Bockius, London; former Director of the Serious Fraud Office and Director of Public Prosecutions, Hong Kong) published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Media – the Video Appeals Committee

Review of the work of the Video Appeals Committee which hears appeals from makers of videos from decisions of the British Board of Film Classification, to refuse certificates or to grant certificates in respect of videos works, with which they disagree. Article by John Wood (Solicitor with Morgan, Lewis & Bockius, London; former Director of the Serious Fraud Office and Director of Public Prosecutions, Hong Kong) published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Attributes and Attribution of State Courts — Federalism and the Kable Principle

‘State courts’ can be understood in at least two ways. Their ‘attributes’ are the characteristics that define them as ‘courts’. Their ‘attribution’ is the extent to which they are regarded as emanations of a ‘state’ in its constitutional conception as a constituent unit of the federation. The principle first articulated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ensures the institutional integrity of state courts by protecting from legislative impairment their defining characteristics as ‘courts’. It therefore understands state courts almost exclusively by their ‘attributes’. This article examines the significance to the Kable principle of also understanding state courts by their ‘attribution‘. There are different conceptions of the proper attribution of state courts, coincident with different visions of how to accommodate simultaneous constitutional commitments to autonomous states and integrated courts. Those conceptions influence the content and application of the Kable principle in ways that are insufficiently appreciated. This insight permits a new perspective on the Kable principle as a doctrine of federalism, and its recent applications in International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1; and Wainohu v New South Wales (2011) 243 CLR 181. It also prompts an analysis of a contemporaneous evolution in the constitutional policy of the Commonwealth, whose Attorney-General typically intervened in Kable cases in support of the states, until recently seeking to extend to them certain Chapter III limitations.

Attributes and Attribution of State Courts — Federalism and the Kable Principle

'State courts' can be understood in at least two ways. Their 'attributes' are the characteristics that define them as 'courts'. Their 'attribution' is the extent to which they are regarded as emanations of a 'state' in its constitutional conception as a constituent unit of the federation. The principle first articulated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ensures the institutional integrity of state courts by protecting from legislative impairment their defining characteristics as 'courts'. It therefore understands state courts almost exclusively by their 'attributes'. This article examines the significance to the Kable principle of also understanding state courts by their 'attribution'. There are different conceptions of the proper attribution of state courts, coincident with different visions of how to accommodate simultaneous constitutional commitments to autonomous states and integrated courts. Those conceptions influence the content and application of the Kable principle in ways that are insufficiently appreciated. This insight permits a new perspective on the Kable principle as a doctrine of federalism, and its recent applications in International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1; and Wainohu v New South Wales (2011) 243 CLR 181. It also prompts an analysis of a contemporaneous evolution in the constitutional policy of the Commonwealth, whose Attorney-General typically intervened in Kable cases in support of the states, until recently seeking to extend to them certain Chapter III limitations.

Compromising on assisted suicide: is ‘turning a blind eye’ ethical?

Following the decision of the House of Lords in Purdy, the Director of Public Prosecutions was required to promulgate guidance as to how prosecutorial discretion is exercised over the decision of whether to prosecute or not under the Suicide Act 1961. The resulting policy essentially confirms that if a lay person, who is motivated wholly by compassion, provides minor and reluctant assistance to a mentally competent adult, he or she is extremely unlikely to be prosecuted. Consequently, prosecutorial policy over cases of complicity in suicide might be viewed as presenting a procedural compromise between explicitly allowing and robustly prohibiting assisted suicide. This paper explores the legal and ethical implications of compromising over complicity in suicide.

Reforming the law concerning assisted dying

The question of whether English law should be reformed to legalize assisted dying has been the cause of heated debate over many years. The courts have consistently rejected challenges to change the law in the area. However in 2009 Debbie Purdy achieved success in requiring the Director of Public Prosecutions to produce prosecution guidelines on assisted suicide. This paper explores the current law in the area and examines the proposals for reform of the Falconer Commission which were published in January 2012.

Director of Public Prosecutions v DJC

Director of Public Prosecutions v DJC

Director of Public Prosecutions v Leys (S APCR 2012 0054)

Director of Public Prosecutions v Leys (S APCR 2012 0054)

Director of Public Prosecutions (Cth) v JM

Director of Public Prosecutions (Cth) v JM

Director of Public Prosecutions v Moran

Director of Public Prosecutions v Moran

Director of Public Prosecutions v Leach and Another

Director of Public Prosecutions v Leach and Another

Director of Public Prosecutions v Singh

Director of Public Prosecutions v Singh

Director of Public Prosecutions v Werry

Director of Public Prosecutions v Werry

Director of Public Prosecutions v Coates Hire Operations Pty Ltd

Director of Public Prosecutions v Coates Hire Operations Pty Ltd