by Mary W Maxwell, LLB
Here at GumshoeNews there has been much coverage of the Royal Commission into Institutional Responses to Child Sexual Abuse. And lately there has been coverage of Fiona Barnett’s and Rachel Vaughan’s testimony to the ITNJ – the International Tribunal for Natural Justice — an ad hoc group “of people who couldn’t stand it anymore.”
Both women told of their direct experience of extreme abuse as children and their witnessing of murders. Both told of their shocking inability to get help from “the authorities.” I have been developing the theme that such behaviour by persons in government office is plainly criminal.
I have also proposed, mainly with regard to the Martin Bryant case (he is in his 23rd year of imprisonment and is not allowed to speak) that a trial can be handled outrageously by a DPP – a Director of Public Prosecutions. In Bryant’s case the DPP of Tasmania was Damien Bugg who was subsequently advanced to the role of Commonwealth DPP.
I claim that the very existence of an unaccountable person making decisions to prosecute someone, or to refrain from prosecuting that person, is a sick joke.
It is now becoming known that there is an elite group of pedophiles in society. They operate with an expectation of impunity. Most likely the introduction of a DPP system in Australia in the 1980s was a strategy to protect them, or at least it has had that effect. Those pedophiles “are simply not going to face justice.”
Whilst I have been proclaiming all that I’ve wondered when I will be whacked for so doing. Today it came as a wonderful surprise to me to find that a NSW judge – the very judge whom I admire for his work on the RC – has explicitly criticized the DPP’s secrecy.
Gumshoe reader Deb Hendry called my attention to this in respect to the current imprisonment of journalist Shane Dowling, web host of kangaroocourtof Australia.com. I now reprint here, unabridged, that part of Justice McClellan’s speech “Seeking justice for victims” that has to do with the ODPP. He delivered it on April 13, 2017. I added some bolding.
Here it be:
Prosecution Responses and Oversight
The establishment of independent prosecuting offices has been described as ‘one of the more significant improvements to the criminal justice system in this country in the 20thcentury.’[20]
In Price v Ferris, then President Kirby described the object of having a Director of Public Prosecutions as ‘to ensure a high degree of independence in the vital task of making prosecution decisions in exercising prosecution discretions.’[21]
The position of Director of Public Prosecutions was first established in Australia, in Victoria in 1982.
The move in Victoria followed the establishment of a Crown Advocate under the Tasmanian Crown Advocate Act 1973, in Tasmania. The Tasmanian Act, however, did not provide guidance on the relationship between the Crown Advocate, the Attorney-General and the Solicitor-General.[22] This was seen as a significant flaw.
The Victorian Director of Public Prosecutions Act 1982 transferred most of the Attorney’s functions in matters of criminal prosecution to the Director’s office.[23] The second reading speech to the relevant Victorian bill stated:[24]
A major aim of the Bill is to remove any suggestion that prosecutions in this State or, indeed the failure to launch prosecutions can be the subject of political pressure.
Shortly before the creation of independent ODPPs the Australian Law Reform Commission described the process of prosecution in Australia at both state and federal level as ‘probably the most secretive, least understood and poorly documented aspect of the administration of criminal justice.’[25]
It is fair to say that through the establishment, and subsequent activities, of ODPPs the degree of transparency, and the capacity for scrutiny, of the prosecution process has increased. [??] These activities have included the promulgation and publication of Director’s Guidelines.
Director’s guidelines are, probably, the primary mechanism in this country for the control of prosecutorial discretion. However, they are only part of the picture.
A report by the Australian Institute of Criminology almost a quarter of a century after the creation of independent prosecuting agencies, stated the following:
The exercise of prosecutorial discretion is one of the most important but least understood aspects in the administration of criminal justice. The considerable discretionary powers vested in prosecutors employed by the state and territory Offices of the Director of Public Prosecutions are exercised in accordance with prosecution policies and guidelines, but the decision making process is rarely subject to external scrutiny.[26]
This lack of external scrutiny or oversight has emerged as an issue for the Royal Commission.
Significant problems in the decision-making process of ODPPs have emerged as a systemic issue in our case study work. Whilst this issue was not anticipated the Commission has been required to examine the issue of DPP complaints and oversight mechanisms.
For those of you who may not be aware in Case Study 15 the Commissioners found inadequacies in the processes of the ODPP of New South Wales. The Commissioners further found that the Queensland DPP failed to comply with its own guidelines, including in relation to consulting with complainants.
Concerns in relation to DPP processes emerged again in Case Study 17 in relation to the Northern Territory ODDP. The Commissioners again found noncompliance with the Northern Territory DPP guidelines in relation to a decision to discontinue a prosecution.
These case studies confirm that the mere existence of the Director’s guidelines is not sufficient to ensure the level of accountability and transparency the community might reasonably expect. This is not surprising.
The Commissioners are conscious that there is a tension between ensuring DPP accountability and maintaining DPP independence. Given that independence was essentially the raison d’etre of ODPPs, concern in relation to how greater accountability might be achieved is understandable. However as former Victorian DPP, and later Justice, John Coldrey observed:
Whilst it is argued that prosecutorial independence is an essential element in the proper administration of criminal justice it must be equally recognised that inherent in an independence without accountability is the potential for making arbitrary, capricious and unjust decisions.[27] [Hooray for Justice Coldrey!]
Currently there is no formal mechanism through which a complainant can challenge, or seek review of, the exercise of prosecutorial discretion including in circumstances where the decision making process has not been in accordance with the relevant Director’s guidelines.
Further, the general community has no body or mechanism it can rely on to be satisfied that the DPPs and their staff are adhering to their guidelines. [Would it matter? Would they be saints where all others are sinners?]
In the Report of Case Study 15 the Commissioners stated:
Any body that is given statutory independence and that cannot be subject to any external reviews is at risk of failure in its decision-making processes. When the decisions being made are critical to the lives of the individuals involved, be they the complainant or accused, and are being made on behalf of the entire community it is relevant to ask whether the current structure, where there is absolute immunity from review of any decision is appropriate. Experience suggests that an absence of review increases the risk of administrative failure.[28]
[Go McClellan!]
Requirements in the guidelines to consult before decisions are made to discontinue recognise the importance of these decisions to complainants. Insufficient consultation before deciding to discontinue a prosecution or accept a negotiated plea is likely to cause victims to experience distress and dissatisfaction. [like a sunshiny day is likely to cause happiness]
The ACT Victims of Crime Commissioner told the Commission that ‘it is the procedural justice issue for many victims of crime that stays with them as much as the crime itself.
‘The opportunity to be acknowledged and to have their questions answered and to have things explained in a way that they can understand is critical for their level of satisfaction.’[29]
The point at which the prosecutorial discretion to commence or continue a prosecution is exercised is one of the key points of attrition in the criminal justice system.[30] As the ALRC has stated ‘prosecutors play a key role as gatekeepers determining which victims of crime have access to justice’.[31]
With respect to DPP oversight mechanisms the situation in the United Kingdom is very different to that in Australia.
In 2013 the Victims Right of Review Scheme commenced in England and Wales. That scheme gives victims the right to request a review of certain decisions of the Crown Prosecution Service (CPS).
Decisions to which a right of review applies are decisions by the CPS to not bring proceedings; to discontinue proceedings or withdraw all charges involving the victim; to offer no evidence in all proceedings relating to the victim; or, to leave all charges in the proceeding to ‘lie on the file’ such that they cannot be proceeded with without leave of the court or the Court of Appeal.
Decisions to accept pleas to lesser charges or decisions to only prosecute some counts are not reviewable. In our consultations with the CPS they informed the Commission that review is afforded where otherwise a victim would have no remedy at all.
The creation of the VRR scheme followed the decision of the Court of Appeal of England and Wales in R v Christopher Killick.[32] In Killick the Court considered that rather than victims having to resort to the courts for judicial review, which unlike Australia is available for prosecutorial decisions in England and Wales, the right to review a CPS decision should be made the subject of a clearer procedure.
Under the VRR scheme the CPS first conducts what it terms ‘local resolution.’ This is a review of the original decision conducted by a different prosecutor but one from the same CPS area as the original decision-maker. The decision is checked and the reviewer ensures that the victim has been given a clear and detailed explanation of the decision.
In the event that local resolution does not resolve the issue to the satisfaction of the victim the matter proceeds to an independent review. Other than in relation to a review of a decision to offer no evidence, independent review is conducted by the CPS Appeals and Review Unit.
The case is approached afresh by the reviewer. They may ask police to obtain further evidence. [biggie, biggie] If the original decision was to discontinue proceedings it may be possible reinstitute proceedings if the reviewer found the original decision to be incorrect.
The victim is then notified of the outcome and provided with a full explanation of the decision, initially in writing. There is some capacity for victims of serious offences or their family members to be given an explanation in person.
In theory judicial review remains available if the victim remains dissatisfied. However, leave of the court is required to obtain judicial review. Since the introduction of the VRR scheme it has not been granted.
A further accountability mechanism operating in the United Kingdom is Her Majesty’s Crown Prosecution Service Inspectorate [Can you imagine]. The Inspectorate was established in 2000. The Chief Inspector reports to the Attorney-General. Reports are tabled in parliament.
In our consultations with the current Chief Inspector he told the Commission that the Inspectorate grew out of an internal CPS audit process. Subsequently, it became clear that it would be better if that process was external from, and independent of, the CPS.
The Inspectorate carries out a range of inspections including area or unit based inspections, thematic inspections and an annual case work examination program. The inspection program is developed in consultation with the Attorney General and other stakeholders.
Those stakeholders include the DPP, other criminal justice inspectorates, the Victims Commissioner [??] and Judges. The Inspectorate also responds to requests from the Attorney General and the DPP to review specific matters. Inspectorate staff include both business and legal inspectors. They have access to the CPS computer system. [fabulous!]
As part of its criminal justice work the Commission is considering whether oversight or review mechanisms for ODDPs are necessary in the Australian context and, if so, what they might look like.
The Commissioners consider that all Australian DPPs should be able to implement a number of minimum requirements. Those requirements are:
-
The adoption of comprehensive written policies for decision-making and consultation with victims and police.
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Ensuring that all policies are publically available and published online.
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Provision of a right for complainants to seek written reasons for key decisions. [Rachel Vaughan will be pleased to fond out why the murderers she reported did not get prosecuted.]
In relation to a complaints mechanism the Commissioners recognise that the CPS is significantly larger than individual Australian DPP offices. Indeed the CPS is significantly larger than the offices of all Australian DPPs combined.
We also recognise that, as conveyed to the Commission, decision-making in Australian ODPPs already occurs at a more senior level than in the CPS. Accordingly there is a capacity for some degree of informal review before a decision is made.
Notwithstanding these matters, and although a concluded view has not been determined, it appears to the Commissioners that there is merit in the provision of a formal internal complaints mechanism which would allow victims to seek merits review of key decisions, in particular decisions that result in a prosecution not being brought or being discontinued.
There is a further option – an audit of compliance with DPPs guidelines and policies. If the results of any audit were published this would advance the transparency and accountability of DPPs and their offices, and might negate the need for an external audit process. This too is an option the Commissioners are closely considering.
**** End of 2017 by Justice Peter McClellan, AM.
Gumshoe does not use footnotes but you can find above-numbered references in the original.
— Mary W Maxwell, LLB is author of Deliverance!: A Royal Commission and Pizzagate Reveal Society’s Hidden Rulers (2018)
The woman shown in the above photo is Helen Milroy, one of the 6 commissioners of the RC I have been told that she is the real deal.
We need anyone we can get to help us now. You could try to contact her at the University of Western Australia. Here is her official bio, as found on the Royal Commission website:
Biography
Commissioner Milroy is a Consultant Child and Adolescent Psychiatrist and Winthrop Professor at the University of Western Australia. Commissioner Milroy has been on state and national mental health advisory committees and boards with a particular focus on the wellbeing of children.
Background
Commissioner Milroy is a descendant of the Palyku people of the Pilbara region of Western Australia and was born and educated in Perth. She studied medicine at the University of Western Australia, worked as a General Practitioner and Consultant in Childhood Sexual Abuse at the Princess Margaret Hospital for Children for several years before completing specialist training in Child and Adolescent psychiatry.
Commissioner Milroy’s work and research interests include holistic medicine, child mental health, recovery from trauma and grief, application of Indigenous knowledge, cultural models of care, Aboriginal health and mental health, and developing and supporting the Aboriginal medical workforce.
[ I gave Professor Milroy a copy of Wendy Hoffman’s “Enslaved Queen,” so she must be aware of the Luciferian basis of all this crap. — MM]
Thank you Mary
Thanks, Diane. The most surprising thing Prof Milroy said — in that conference — was that a person might be in therapy for 20 years for, say, depression, without ever mentioning his/her abuse in childhood “as it didn’t seem relevant.” Jeepers.
She also said — and word of this should be passed around bigtime — that she reckons substance abuse beginning at age 10-12 (drugs, beer, petrol sniffing) may be a way for that kid to cope with the sadness of abuse.
How did she figure that out? Talk about common sense! She says “because ordinarily a child of 10-12 has no need for such a thing.”
At the end, a man in the audience got up and said “There aren’t enough places a male can go to tell his abuse story.”
That is surely true. Remember the guy at the RC hearings who had to have his brother read out his speech as he could not say the words? He was 65.
Here in SA the DPP and SAPOL (SA Police) are well aware of the organised child trafficking rings via the Family Court & Foster Care system. They are enablers!! Why is it that the RC is well aware of children currently being sexually abused yet do nothing to address the current problem? Why were they not included in the Terms of Reference? When many of us protective parents spoke with the Commissioners and left them with a lump in their throats only to be told to go back to our local authorities (after just telling them they are refusing to investigate, report or take evidence) it’s a real kick in the teeth! We want answers! We want to keep our children safe! Surely there must be some good people that would band together to fight this miscarriage of justice?
I have a dream…
.
A principally sound criminal justice system would, of course, rule out any need for the lolly scramble called “victim support” in the same way as a sound economy would eliminate any need for Centrelink. As Walter Williams says, “ charity is not a legitimate function of government”
Does the DPP have the authority to lift the 80yr suppression order held over the Mullighan enquiry I wonder?
In a show of good faith they could have that overturned!
They want the stories of inhouse corruption to go away; that would be a good start
Apology after Apology and now a form shoved in front of my Family trying to force me ‘Nanna’ then my Daughter to sign for a foster family to become ‘Other Person Guardians’ it is the new wording for ‘FORCED ADOPTION’ because we both said NO as we are fighting to get my STOLEN Grandie’s HOME the worker told us the judge will agree to it without our consent anyway, it gives ‘FULL AUTONOMY’ of the children to the foster family FSA walk away and no one checks their safety anymore, they can change their names and run away to England with them without consequence, ‘IT SHOULD HAVE STOPPED WITH ME’! WHY DID I SURVIVE THE ORPHANAGES CHILD RAPES -TORTURE- CHILD SLAVERY -BASHING’S AND ALL ABUSES EVEN TO GET APOLOGY LETTERS STATING THIS AS FACT AND AGAIN APOLOGIZING AS IT SHOULD NOT HAVE HAPPENED TO ANY CHILD, I WAS GOING TO FRAME THESE 3 APOLOGY LETTERS,BUT THEY MEAN NOTHING, I SHOULD HAVE DIED IN THE ORPHANAGE SO I WOULD NEVER HAVE HAD BABIES SO THIS WOULD NOT BE HAPPENING TO MY BABY GIRL AND MY GRANDIE’S!!!!