Channel 7 Today Tonight (Adelaide)
AFL Rape Allegations - 19 March 2004

This version of the transcript has been edited by Dr Robert N Moles

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Article on Australian miscarriage of justice cases
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In order of appearance

Leigh McCluskey: Presenter
Kevin Borick QC.

Program

Leigh McCluskey:

[Continuing from the previous story about drink spiking]

Well drink spiking may also have been involved in the alleged rape that hit the headlines today, implicating three AFL players. A young Adelaide woman says she was paid $200,000 to effectively keep quiet after two players were charged with rape, and then the charges were dropped five weeks later by the Director of Public Prosecutions, Paul Rofe. Now, according to criminal barrister Kevin Borick, the timing of Mr Rofe's intervention in dropping those charges was highly unusual.
Kevin, welcome to the program. Now you have publicly been very critical of the performance of Paul Rofe in your position acting for Henry Keogh, are your criticisms of his performance in this scenario, are they tainted by that?

Kevin Borick:

Obviously, I've been critical of decisions made by the Director of Public Prosecutions, in South Australia, in relation to the Henry Keogh matter. I have a particular interest to know, to find out, the way in which his decisions can be reviewed.

Leigh McCluskey:

So, let's talk about this case - and it's the series of rape allegations against the three AFL footballers. Mr Rofe reportedly became involved at a very early stage, deciding to drop the charges five weeks after the alleged attack, is that unusual?

Kevin Borick:

I regard it as unusual for two reasons. One is the speed in which it happened, which in my view is unusual; and the second is that the Director himself becoming involved in the investigative process - that is speaking to the alleged victim himself - at such an early stage.

Leigh McCluskey:

Well, lets take it back a step; what would the normal process be when there was an allegation of a sexual assault?

Kevin Borick:

Well, when this case the people are charged with rape, they are then brought immediately before the court, and there is a bail application. The persons are either remanded on bail or that person is remanded in custody. Then comes the very set system of events where the prosecution have to file statements of witnesses and the defence get a chance to answer. Now, none of that happened here.

Leigh McCluskey:

So, we know none of that happened?

Kevin Borick:

Yes. Well, it couldn't have, not in that space of time.

Leigh McCluskey:

So, you're suggesting that perhaps that the DPP acted with undue haste?

Kevin Borick:

No. I am not suggesting anything about that. I'd just say that it was unusual in the way it happened. Whether high profile people are treated differently in the system, to other people, is a matter which is of concern to me. I don't think that should happen.

Leigh McCluskey:

I suppose people might say, look, you know, rape is such a serious charge, surely the DPP should be getting involved in those sort of high profile cases?

Kevin Borick:

There are very many charges of serious sexual conduct involved before the courts, rape, indecent assault, sex abuse against children, it is impossible for the Director of Public Prosecutions to become involved at such an early stage in every case. So, why was this one selected for his involvement at that stage?

Leigh McCluskey:

So, why was it so early?

Kevin Borick:

Yes.

Leigh McCluskey:

Do you see it perhaps as the DPP perhaps mixing up the role of prosecutor with that of investigator, and surely that would be more of a police role?

Kevin Borick:

The law has always been clear that the - I won't go into all the law on this - but it's clear that there should be a clear distinction between the investigative role, that's the role conducted by the police, and the role of the prosecutor, because the prosecutor in the court room has to be independent.

Leigh McCluskey:

Does the DPP though, not have a duty to assess the witness, to have a look at the evidence, if he's going to proceed on the charges, if they have been laid?

Kevin Borick:

Of course that happens, but it's unusual to happen at such an early stage. Before there's been the normal committal proceedings, that's the pre-trial proceedings, and the magistrates have had a chance to have a look and see whether there's a case to answer. It is unusual.

Leigh McCluskey:

So, what sort of time-frame would we be talking. I mean this case, I gather the young men involved were charged eight days later. Five weeks later, the DPP made the decision to drop those charges.

Kevin Borick:

Normally, there'd be literally months involved in this State - in other states much longer - between the stage of getting to the magistrate's court and going through all the ordinary pre-trial process.

Leigh McCluskey:

So, is that what raised your interest that instead of this whole procedure taking months, all of a sudden the DPP has assessed it and decided that there is no possibility of a conviction, and its dropped just in five weeks?

Kevin Borick:

It is a matter of interest to me, but I have a far wider interest, and that is in the manner and way in which the decisions made by the Director of Public Prosecutions are reviewed. We've seen an example of it in this state in the case of Nemer.

Leigh McCluskey:

Indeed.

Kevin Borick:

Where his decision was reviewed, and so if his decision in this case is to be reviewed, who should do that, and what are the criteria, 'cause I want his decisions reviewed in other cases, you see?

Leigh McCluskey:

It raises another question too, I suppose. Is the fact that Paul Rofe is heavily involved in AFL football, through his position with the Crows, does that potentially present him with a conflict of interest, in a case like this for example?

Kevin Borick:

Well, he has to make his own mind whether there's a conflict of interest, but I can see that people could say there is a conflict of interest, because of his involvement in AFL football.

Leigh McCluskey:

Would you have thought it prudent, perhaps, for him to step aside from this particular case, given the links which may or may not be drawn?

Kevin Borick:

He's got to make that decision. I can't make it for him.

Leigh McCluskey:

But in essence, you believe the way the DPP has handled this case is unusual?

Kevin Borick:

Yes, that's my view.

Leigh McCluskey:

Alright, then, we appreciate your time Kevin, thank you for coming in.

Kevin Borick:

Thankyou.

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