AG at Estimates: Charge Bargaining

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

The Hon. ADAM SEARLE: Minister, in March 2010 you indicated that a review of charge bargaining guidelines should be undertaken. In answer to question 445 in the Legislative Assembly, when you were asked whether you proposed to alter or review the guidelines for the Office of the Director of Public Prosecutions in relation to charge bargaining, you indicated no. Are you able to indicate what changed your mind in such a short time? 

Mr GREG SMITH: If I remember rightly, back in 2010 the proposed amendment to the Crimes (Sentencing Procedure) Act was requiring Crown prosecutors or persons who were representing the Crown on a plea of guilty to file a certificate with the court verifying that there had been consultation with the victims, but also that the agreed facts constituted a fair and accurate account of the objective criminality. The Crown prosecutors were up in arms about that and I was aware of that. It showed a lack of understanding by those proposing that. Often if a victim of crime does not want to give evidence, to get a statement of facts together that the perpetrator is prepared to plead to you often might have to remove the presence of a knife from the statement of facts, or something like that. 

Otherwise there is no plea of guilty, there is no trial—there is a no bill. But you get a result if you can get a plea to a lesser charge with perhaps less serious facts. But they were the provable facts. The original suggestion did not ask for the provable facts, it just asked that it constitute a fair account of the objective criminality. Therefore, the words "or have otherwise been settled in accordance with the applicable prosecution guidelines" were added. Putting the alternative solved the problem because the prosecution guidelines, as I understand them, allow for a summary of facts that represent what can be proved. 

The Hon. ADAM SEARLE: I think your indication in 2010 that the guidelines should be reviewed was in the context of your criticism of what you termed "plea bargaining". You were being critical that the Office of the Director of Public Prosecutions was engaging in plea bargaining in criminal matters. 

Mr GREG SMITH: I am sorry, but I do not understand that I ever criticised plea bargaining—or charge negotiation, as it is fashionably called at the Office of the Director of Public Prosecutions. 

The Hon. ADAM SEARLE: Charge bargaining. 

Mr GREG SMITH: Charge bargaining. I think I was just attacking this proposal to, as it were, remove some of the independence of Crown prosecutors proposed by the Government at that time. I was concerned that there had already been a fair bit of reduction of independence during that last term. 

The Hon. ADAM SEARLE: But do you recall calling for the guidelines to be reviewed in March 2010? 

Mr GREG SMITH: The guidelines are probably 200 or 300 pages long so I do not think I ever called for all of them to be reviewed. I think it was just this particular one about charge negotiation and it was a question of how far they had to go while naturally taking into account the views of the victim whose sensitivities must be always respected. But who is the victim sometimes and who represents the victim sometimes were issues that I do not think were being addressed properly. I heard that all they were going to do was make the Crown sign an undertaking that the facts were an objective summary of the evidence in the case, and that is what I wanted to change. I am happy with the compromise that was ultimately agreed to.

Cops' cock-up puts end to gay-sex trial

Sarah Crawford | The NT News | June 8, 2011

A MURDER trial involving gay sex for cash was abandoned yesterday after an extraordinary police cock-up.

Lost evidence showing that another man's shorts were stained with the victim's blood was suddenly found.

Defence lawyer Jon Tippett told the Supreme Court in Darwin: "It does not get much worse than this."

Police and the Director of Public Prosecutions immediately launched an investigation into how the critical evidence was lost for seven months and was only rediscovered two weeks into the trial.

Jordan Danny Thompson, 18, was freed after nearly a year in custody. The teenager, from the remote community of Ngukurr, 314km east of Katherine, was surrounded by family and friends as he was driven away without commenting.

Judgment day for the DPP

Geoff Chambers and Lisa Davies | The Daily Telegraph | May 26, 2011 

ATTORNEY-General Greg Smith has moved to change laws so he can nominate a judge to become the state's top prosecutor.

Mr Smith is expected to snub Sydney's leading barristers and install a senior judicial identity as the Director of Public Prosecutions.

The No.1 candidate on Mr Smith's wish list is believed to be District Court Judge Martin Blackmore, a former Crown prosecutor and deputy DPP.

Sources said Mr Blackmore, who declined to comment on the speculation, had intended to apply but was concerned about not taking his pension with him.

Mr Smith tagged an amendment to the Director of Public Prosecutions Act as part of the Courts and Other Legislation Amendment Bill 2011.

"The Bill amends the Act to make it clear that if a judge or former judge is appointed as DPP, then his or her prior judicial service counts towards any judicial pension to which the DPP would be entitled," Mr Smith said.

"The amendment makes it certain that prior service as a judge counts toward service as DPP for the purposes of determining eligibility for the DPP's judicial pension."

Veteran solicitors and barristers said Mr Blackmore would be a "sound and welcome" appointment.

But there was speculation last night that other Crown prosecutors turned judges - including Judges David Frearson and Richard Cogswell - were also in the mix.

Judge Paul Conlon did not apply for the job.

The remuneration package for a District Court judge is $331,690, compared with the DPP salary of $368,550.

Leading barristers Chris Maxwell QC, Margaret Cunneen SC and Lloyd Babb SC are understood to have applied for the DPP job.

Nick Cowdery, who retired as DPP in March after a 16-year tenure, said the legislative change would clear the path for a judge to replace him.

The legislation would also allow Mr Cowdery to be offered a spot on the bench without any impact on his retirement benefits.

Mr Cowdery, who said he was enjoying his retirement working with universities and international agencies, has not been offered a judicial job by Mr Smith. But he did not rule out stepping up if his former DPP deputy offered him a job.

"It is a practical move and there are obvious implications if you don't do it," Mr Cowdery said. "No judge would nominate because they would lose their judicial entitlements. There may be a number of judges who wish to put their hand up for DPP. That has definitely happened in other jurisdictions."

Mr Smith's spokesman would not comment on his choice for DPP.

An unusual meeting of minds

Kate McClymont | SMH | May 7, 2011

What brings a senior lawyer and a disqualified punter together? Kate McClymont reports.

WITH only 200 metres to go, Bold Glance looked a dead certainty to win the Eagle Farm handicap. But racegoers watched with a mix of astonishment and horror as the gelding was easily run down. ''I've seen more vigour on a merry-go-round horse,'' fumed one punter.

The fallout from that race in February has rocked the racing world and sent shivers down the spines of those concerned about the suspicion of widespread fixing in Australian sport.

Last week one of the nation's biggest sports punters, Steve Fletcher, who bets $700,000 a week, was disqualified from betting for a year by Racing Queensland after an investigation found he had prior knowledge that Bold Glance's jockey, Bobby El-Issa, would not ride to win. Mr Fletcher had backed the winner and bet that Bold Glance would not win. The inquiry found he was a close associate of the jockey, who has been disqualified for two years.

But if his friendships with jockeys and footballers have raised eyebrows (the troubled AFL player Brendan Fevola owes him $20,000), so has his long-term friendship with the senior Crown prosecutor Margaret Cunneen, SC, whose name is being mentioned as a possible candidate as the NSW Director of Public Prosecutions.

Ms Cunneen became a cause celebre when she was continually overlooked in her quest to be made a silk. When she finally succeeded in 2007, Mr Fletcher was on hand to celebrate.

Yesterday Ms Cunneen was keen to play down the friendship, saying: ''I have met him a few times. Quite frankly I don't want to have any public connection with him. That wouldn't assist me at the present time at all.''

Ms Cunneen said her son Steve had worked for Mr Fletcher but no longer did so because of Mr Fletcher's disqualification. But Mr Fletcher happily confirmed he and Ms Cunneen were good friends and he had seen her as recently as Thursday, when she dropped her son off for work.

Ms Cunneen said in her position she had made it a strict policy over 35 years never to have anything to do with ''shady'' people. When reminded that she had attended the book launch of the twice-jailed former detective Roger Rogerson in 2009, she said: ''But I know Roger independently. I've known him since he was a detective … He was never convicted of anything while he was a police officer.''

Learned friends keep mum about DPP job as critics advocate change

Geesche Jacobsen | SMH | April 29, 2011

THE office of the Director of Public Prosecutions needs a shake-up, some senior Sydney lawyers said, as applications for the office's top job were about to close.

One lawyer described the office as a ''sheltered workshop''; another said ''it would be a challenge to improve the standard of the place''.

Some potential candidates appear to have been put off by the terms and conditions of the $368,550 job, the perceived amount of administration, or the task of reforming the office.

Despite a handful of candidates rumoured to be applying, no firm favourite has emerged and the government has engaged consultants to canvass candidates nationwide.

Applications close today, and the Attorney-General's Department will draw up a shortlist, from which the Attorney-General, Greg Smith, will select a candidate to propose to the cabinet. This can be vetoed by a parliamentary committee.

Two early favourites whose names had been doing the rounds of legal circles for months - the senior crown prosecutor Mark Tedeschi, QC, and the District Court judge Martin Blackmore - are now understood not to be applying.

The successful candidate is likely to be a silk with extensive criminal experience.

The previous DPP, Nicholas Cowdery, resigned in March after nearly 17 years, and Ian Temby, QC, is acting in the position until mid-May.

After changes to the law the next DPP can serve only one 10-year term, which might suit someone near the end of their career.

Senior lawyers say the office needs to be reformed. One said many prosecutors were ''precious'' and refused to work outside of the city.

Another lamented that many of the staff ''haven't had much experience in life'' and were ''zealots''.

One senior barrister suggested more cases should be contracted out to the private bar to allow prosecutors to be assigned to a case and follow it through, preventing changes in the indictments just before a trial.

Staff inside the office are understood to be anxious about the pending appointment, and senior current and former prosecutors were lobbied at the recent prosecutors' conferences to apply for the job.

Among the names circulating as potential candidates are the crown prosecutor Margaret Cunneen, SC, who had not decided yesterday if she would apply, and her colleague Chris Maxwell, QC.

The current Commonwealth DPP, Chris Craigie, SC, and former South Australian deputy DPP, Wendy Abraham, QC, were also named as potential candidates along with crown advocate Lloyd Babb, SC, and Mark Ierace, SC. Mr Babb did not wish to comment and Ms Abraham did not take the Herald's call. Mr Craigie said his current role was ''fulfilling''.

The position is believed to be less attractive for senior private barristers who would take a pay cut to accept it.

Two experienced barristers, John Agius, SC, and Peter Hastings, QC, were rumoured to be interested, but neither would comment on the suggestions yesterday.

Last act for Hatzistergos before axe falls

By Richard Ackland, SMH, March 18, 2011:

Attorney-General John Hatzistergos has performed what we can only hope is his final act of bastardry before he is flung out of office. As long as Hatzistergos had breath in his body he was going to see the end of the Director of Public Prosecutions, Nicholas Cowdery - and his final play in the battle was the appointment of Ian Temby, QC, as acting DPP for two months.

Today is Cowdery's last day in office. He turns 65 tomorrow and to keep the full extent of his pension benefits he has to go right now. There's a certain amount of government deliberation in that situation - more of that in a moment.

The Attorney-General put out a statement on Wednesday lauding Temby's capacities and achievements. Labor governments have been in and out of love with Temby ever since federal attorney-general Gareth Evans plucked him from the Perth bar to be the first Commonwealth DPP.

There was a two-sentence mention of Cowdery at the bottom of the announcement, thanking him for his service and noting the government ''valued the integrity of his prosecutorial decisions''. In any language it was a singularly icy farewell.

Cowdery had advised the government that he was available to serve as acting DPP from tomorrow so that the functions of the office could continue seamlessly until the incoming government found a replacement. About 11.05am on Wednesday, Hatzistergos phoned Cowdery to say his resignation had been accepted. He added he had taken advice from the Solicitor-General and would not agree to Cowdery's suggestion that he continue in an acting capacity.

Further, he would not even appoint the current deputy DPP, Lou Lamprati, SC, as acting director. Temby would take the job for two months - full stop. However, if the incoming government had not filled the position within Temby's tenure, Lamprati might be able to be acting director. How's that for tortured jockeying?

The reality is that Cowdery was perfectly entitled and eligible to be appointed for a term as acting director. It would have been the most efficient and cost-effective thing to do but under this regime memories are long and unforgiving.

Take No Prisoners

Australian Story, ABC1, 7 March 2011:

On the eve of his retirement from public office, the nation's longest serving Director of Public Prosecutions, Nicholas Cowdery, reflects exclusively on his sixteen years in the top job.

Cowdery's reign encompasses some of the nation's most notorious criminal prosecutions including the cases of Ivan Milat, Gordon Wood, Keli Lane, and the moral outcry over Bill Henson's photographs of children.

Loved by many in the legal profession, but loathed by some in the political arena, Nicholas Cowdery is acknowledged as a fierce defender of the DPP's independence. His decision from the outset not to 'curry favour' with his political masters led to a 'take no prisoners' leadership style that's divided friends and foes alike.

In a rare insight, Nicholas Cowdery reveals the stories behind some of his most difficult decisions - and finally explains what the gift of two olives in a jar from one of his biggest opponents really stood for.

Watch the Australian Story episode here

Hatzistergos v Cowdery - final round

By Theodora, Justinian, March 17, 2011:

The appointment of Ian Temby as acting NSW DPP was unnecessary, expensive and an act of vindictiveness, according to Theodora 

Attorney General John Hatzistergos phoned outgoing DPP Nicholas Cowdery on Wednesday (March 16) and told him Temby would be taking over for two months as acting DPP, until the incoming government found a replacement.

He rejected Cowdery's offer to stay on as acting director. Cowdery ends his 17-year stint as NSW DPP today (Friday, March 18), one day before his 65th birthday on Saturday.

Hatzistergos' explanation for the rejection of Cowdery's offer was that the legislation doesn't allow him to extend his appointment, even in an acting capacity.

Curiously, he told the DPP this was the advice he had from the Solicitor General, but according to Cowdery's version of the conversation with the AG, the SG said the situation "might be open to other interpretations".

Indeed it might, because the saving and transitional provisions of the DPP Act say that the amendments of 2007, which removed Cowdery's life tenure (till age 72) and made him ineligible for reappointment ("including reappointment after the end of the director's term"), do not apply to any senior officer of the DPP who held office immediately before the commencement of the amendments. See s.36(4) DPP Act. 

It was sheer bloody mindedness on the part of Hatzistergos that prevented Cowdery being extended for a few more months.

All the more so because having Cowdery as acting DPP would have saved the state money. Temby is to be paid at least the DPP's salary - at the rate of $354,030 p.a. plus $22,000 by way of a "conveyance allowance".

Had Cowdery been permitted to stay on, his pay would be the difference between his pension and his salary - a saving to the state of 40 percent of the usual DPP's purse.

Hatzistergos would not even appoint the deputy DPP, Lou Lamprati SC, as acting director. Temby is it.

Hatzistergos effectively forced Cowdery out of the job before the expiry of his tenure by refusing to amend an anomaly in the provisions which require the DPP to take his pension at 65, even though he could serve as director to the age of 72.

Small mindedness is never attractive, but at least Hatzistergos is not among those ALP characters who would have kept Ian Temby on a black list for what he did to Labor icon Lionel Keith Murphy.