An audit of sexual assault prosecutions in New South Wales in the wake of a judge’s criticisms that “meritless” rape accusations were being prosecuted has found no systemic issues.
The review, which was undertaken by the Office of the Director of Public Prosecutions and ordered by its top prosecutor – Sally Dowling – found 97% of its sexual assault cases heard over an eight-month period last year met the required standards to prosecute.
It comes after a rare spat between senior prosecutors and judges after some district court judges publicly criticised Dowling’s office’s handling of sexual assault cases.
One judge had aired concerns of “opaque, even secret, policies” leading prosecutors to press ahead with unmeritorious rape cases. Meanwhile another had recorded his “deep level of concern” in December that the ODPP had an unwritten policy or expectation that any allegation of sexual assault should be prosecuted “without a sensible and rational interrogation of that complainant”.
But the audit, which was launched to ensure guidelines were being followed, was at odds with the judges’ concerns, finding a “consistently high standard of legal analysis” when prosecutors decided on whether to proceed with sexual offence prosecutions or not.
It found the guidelines were properly applied in 316 out of the 327 matters considered for prosecution. Of the 11 where it was not appropriately applied, five went to trial and six were discontinued on either evidentiary grounds or discretionary grounds – which includes reasons such as a complainant is unable to continue for mental of physical reasons.
“There were no findings of misconduct or egregious breaches,” the report said of those 11 cases, which equate to 3% of those examined.
The report found the 11 cases where the guidelines were not appropriately applied involved legally and factually complex issues, which included issues of consent and the intoxication of complainants.
The audit reported it also did not identify any “systemic deficiencies”, and that the operating procedures of the ODPP when it came to prosecuting sexual assault cases were “robust and effective”.
Seventeen of the 327 cases were discontinued, the report said, with nine of those discontinued on evidentiary grounds and eight discontinued on a combination of discretionary and evidentiary grounds.
“The percentage of matters discontinued in 2024 is consistent with the average rate of discontinuance of sexual assault matters from 2018 to 2023,” the report said.
Despite these findings, the audit identified areas for improvement, including further training and guidance for prosecutors on the law of consent and intoxication and evidentiary issues that can arise from the complexity of those laws.
It also recommended adding an additional review of sexual assault cases before they reach trial, and of the charges at the arraignment stage.
Among the criticisms levelled by district court judges, was one who said “each meritless proceeding” delays the resolution of a “more worthy claim”.
In December, another district court judge weighed in on the matter during a judgment to lift a suppression order in a sexual assault case, but took a different stance. He said criticism had been “unfairly” raised against Dowling, pointing to the accusations from some judges that were reported in The Australian.
Dowling said people should be reassured by the review.
“The Review demonstrates that the ODPP is prosecuting sexual assault matters in line with the NSW Prosecution Guidelines, a set of rules for prosecuting that were created after thorough consultation with stakeholders, including the judiciary and complainants,” she said.
