Rape or sour grapes?

Andrew L. Urban

 The day before the rape trial began last month, the complainant’s deception came to light: she had rehearsed a script for a phone call to manipulate the accused into making admissions to a rape that didn’t happen. Calls for a special commission to review decisions by prosecutors are growing louder, following several other rape allegations are found to be false. 

The Judicial Commission of NSW (and of other states) hears complaints against judges. There is no similarly independent body to hear complaints about prosecutors. As yet. But following a string of stinging criticisms of rape prosecutions that got to court without a prospect of securing convictions, the pressure is growing.

According to Ellie Dudley’s report in The Australian (9/3/24) the NSW chief prosecutor’s office is “facing a bitter war with sitting judges and its own staff, as it continues to come under pressure for running so-called “meritless” rape cases, and an emergency meeting with dozens of Crown prosecutors is called to discuss the emerging scandal.

“An emergency meeting of up to 120 crown prosecutors was called this week to discuss The Weekend Australian’s reports into this matter and internal grumblings about how rape cases are prosecuted. Invitations to the hour-long meeting were only extended to statutory-appointed crown prosecutors. No solicitors were invited.”

On the same day as Dudley’s article, The Australian’s columnist Janet Albrechtsen remarked:

not guilty verdict after 25 minutes

To understand the depth of judicial concerns about the NSW Office of the Director of Public Prosecutions, it pays to set out in detail what they said.

In September 2022, in R v DS, District Court judge Penelope Wass noted that a not guilty verdict after 25 minutes of jury deliberations was delivered with “befitting alacrity”.

The judge said there was “never any prospect that any jury, acting reasonably and following the legal directions given, could properly accept the complainant beyond reasonable doubt, even without consideration of the (defendant’s) account”.

The judge finished her judgment awarding costs with this: “The bringing and continuation of unmeritorious cases in abrogation of the prosecutor’s responsibilities … imposes a burden not only on the criminal justice system but on all those involved in it, including complainants and, not the least of whom, any person against whom that prosecution either commences or continues.”

In another sexual assault case, in February last year, R v Cowled; R v Wilson, judge Gordon Lerve expressed his concerns that too many sexual assault cases coming to court in recent years “were in fact doomed to failure from the outset”. Later that year, the same judge granted costs to a defendant in a sexual assault case that the judge said was as “doomed to failure”.

In a costs case in March 2023, involving sexual assault allegations against a father – R v SGH – Wass found that another unreasonable prosecution had been launched.

In R v Kane, a complaint of sexual assault made by a woman diagnosed with mental health disorders and a history of documented lies proceeded to court, only to be dropped by the DPP mid-trial – but only after a second “no bill” application by the defendant’s barrister raised concerns about the lack of evidence and the credibility of the complainant.

That case, too, should never have reached a courtroom. Prosecutors confirmed as much when they agreed to pay costs. Had costs been disputed, the ODPP might have received another judicial bollocking.

Like the one given by judge Robert Newlinds in December last year, when he said, at the end of yet another successful costs application, in R v Martinez: “I do wish to record that I am left with a deep level of concern that there is some sort of unwritten policy or expectation in place in the Office of the Director of Public Prosecutions of this state to the effect that if any person alleges that they have been the subject of some sort of sexual assault then that case is prosecuted without a sensible and rational interrogation of that complainant so as to at least be satisfied that they have a reasonable basis for making that allegation, which would include at least being satisfied that the complainant has a correct understanding of the legal definition of sexual assault or sexual intercourse without consent.”

Newlinds said: “The prosecutor failed to perform the important role of filtering hopeless cases out of the system and has thus been the primary cause of this applicant spending eight months in jail for a crime he did not commit.”

corrupted by the zealotry of ‘believe all women’

Albrechtsen noted: “It is troubling that these issues arise in one category of case – sexual assault. The legal response to the #MeToo movement must not be a lower standard for charging to satisfy a drive to bring an unpopular group of defendants into court more easily.”

But the problem of the legal response to the #MeToo movement goes deeper. Our reports on the case of Noel Greenaway demonstrate that the law itself has been corrupted by the thoughtless zealotry of ‘believe all women’. And in my new book, Presumption of Evil, I examine that case in full, one of the most egregious miscarriages of justice. Greenaway was convicted on the say-so of a handful of women.

The book, with a Foreword by Margaret Cunneen SC,  traces the Greenaway family’s nightmare from the phone call that alerted Noel that he would be named – the next day – in the Royal Commission into Institutional Responses to Child Sexual Assault, through the trial and the appeal, to the day I met the ‘evil’ Noel face to face in a supermax prison.

Presumption of Evil reveals in heartbreaking detail how sexual crime is now crimen exceptum – a crime so exceptional that the established rules of justice need not be applied to it.

Are false rape accusations really just sour grapes?

Like in the case of ‘Paul’, wrongfully convicted of historic sexual abuse by his step daughter. His wife knew it was false because the now adult woman tipped her off in a phone call, warning she would destroy their happy life – out of spite, angered that ‘Paul’ refused to make yet another gift of cash.

The NSW ODPP is now re-examining current cases to check for viability, but ‘Paul’ reckons “They’ve also got to go back and look at weak or even impossible cases which succeeded due either to corruption of police and judiciary or simply juries which seemed to believe in “guilty until proven innocent.”