House of Assembly - Statement by Attorney-General

[This version of the document has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

Resignation of Paul Rofe QC DPP

Monday 3 May 2004

M.J. ATKINSON (Attorney-General)

I seek leave to make a ministerial statement.

Leave granted.

The Hon. M.J. ATKINSON: after the sentencing of Paul Nemer, the then Attorney-General, the Hon. Paul Holloway, asked the Solicitor-General, Mr Kourakis QC, to advise on whether an appeal could be lodged against the sentence. The Solicitor-General was also asked to advise on these topics:

Whether the process by which Nemer's plea to lesser charges was consistent with established practices and whether the charge and factual basis agreed by the prosecution and defence were appropriate, having regard to the materials available to the prosecuting authorities;

Possible improvements to the process of charge negotiations, including determining agreed facts, particularly having regard to the need to ensure the process is accountable and takes into consideration the interests of victims.

The issue of the appeal into Nemer's sentence has been the subject of statements to the house. It is a matter of common knowledge that the then Attorney-General exercised his authority to direct the DPP to institute an appeal, and an appeal was heard and upheld by a majority of the Full Court of the Supreme Court. Nemer was re-sentenced by the majority judges of the court to four years and nine months imprisonment, with a non-parole period of one year and nine months. The sentence was not suspended. An application to the High Court by Nemer for special leave to appeal was refused.

On 7 April 2004, the Solicitor-General provided me with his report into the two remaining issues referred to him: the charge negotiations in the Nemer case; and charge negotiations generally. I released the Solicitor-General's report on 19 April 2004. Before I deal with the Solicitor-General's findings about the Nemer case and plea negotiations generally, it is important to note his findings about the performance of the Office of the Director of Public Prosecutions. The Solicitor-General observes that the work of the prosecutors of the DPP has been of the highest standard, and they enjoy and deserve the respect of the legal profession, the judges and the public. The Solicitor-General found that the public can be confident that the general principles by which the office selects charges and prosecutes guilty pleas properly serves the public interest.

On the Nemer case, the Solicitor-General finds that it was appropriate to agree to accept a plea to a charge of endangering life and to withdraw the charges of attempted murder and wounding with intent. However, it must be acknowledged that the Solicitor-General makes adverse findings about the manner in which the DPP himself, Mr Paul Rofe QC, conducted the Nemer case. The Solicitor-General specifically found:

There was `no clear record of all the terms of the agree­ment on the prosecution file' (paragraph 7);

Errors of the sentencing judge were `contributed to by confused submissions put by the DPP' (paragraph 6);

The DPP failed `to appreciate the real culpability of Nemer's conduct' (paragraph 6);

'It was inappropriate [for the DPP] not to dispute the version of facts put forward by the defence' (paragraph 9);

`The appropriate response of any experienced prosecutor in the position of Mr Rofe would have been to contest the defence version and to insist on Nemer giving evidence' (paragraph 58);

The findings of the Court of Appeal after Nemer had given evidence and challenged prosecution witnesses confirms `the strength of the prosecution evidence that was obvious from the time of committal (paragraph 57);

There was no valid reason consistent with accepted prosecutorial practices for making such a concession: that is, not dispute the defence version of facts (para­graph 9);

Mr Rofe was wrong to agree not to make an issue of the discrepancy over the gun barrel as some explanation was required before the defence case in mitigation could be confidently accepted (paragraph 45);

Mr Rofe's concessions contributed to the manifestly inadequate sentence first imposed on Nemer (paragraph 10);

The manifestly inadequate sentence first imposed on Nemer resulted from a failure to sentence him according to the facts proved on the statements (paragraph 9);

It was misleading for the DPP to tell Mr Williams that he would have to concede that a suspended sentence was within the ambit of the sentencing judge's discretion without telling him that Mr Rofe himself would not make submissions that the most appropriate sentence was one of immediate imprisonment (paragraph 51);

It was inappropriate for Mr Rofe to concede that the suspension of the sentence was within the ambit of the sentencing judge's discretion (paragraph 59); and

Suspension of the sentence of imprisonment should have been opposed in the circumstances of this case (para­graph 59).

Although the Solicitor-General accepts that the DPP, Mr Rofe, at all times acted in good faith, the report's findings lead to the inescapable conclusion that Mr Rofe failed to prosecute the case properly.

The Solicitor-General also examined the circumstances of the plea arrangements associated with the death of Stacey Lee Brown, who was shot in the eye at very close range while alone with Darren Schmidt. Schmidt was sentenced following the acceptance of a guilty plea to manslaughter, and the DPP agreed not to proceed with the charge of murder. Schmidt was sentenced to three years and nine months imprisonment with a non-parole period of 15 months. The sentence was not suspended. The Solicitor-General found that:

Schmidt was sentenced on a particularly favourable version appearing in the agreed facts (paragraph 78);

In the view of the Solicitor-General the agreed facts were inconsistent with the evidence of Dr James, the forensic pathologist (paragraph 78);

If Schmidt were required to give evidence and his version not accepted, a much more serious sentence is likely to have been imposed (paragraph 78);

There was no record on the file of the reasons for deciding that the public interest was better served by accepting a plea to manslaughter than by proceeding to trial on murder (paragraph 72); and

The decision to accept the plea warranted much more careful consideration and consultation than the file notes record (paragraph 77).

The Solicitor-General concludes that this may well be a case where, after proper assessment and consideration, the same decision might have been made (paragraph 80).

The Solicitor-General also considered the cases of Chawulak and Easton. The section of the Solicitor-General's report dealing with this case has not been released publicly on the advice of the Solicitor-General owing to the extensive court suppression orders that still apply.

I have already publicly acknowledged that the criticisms made of Mr Rofe in his handling of the Nemer case are serious. On Thursday 29 April 2004 I met Mr Rofe and I discussed the report with him. Mr Rofe accepted many of the findings of the Solicitor-General about the Nemer case but strenuously made the point that Nemer's is but one case. Mr Rofe also pointed to the very favourable findings of the Solicitor-General about the work of the Office of the Director of Public Prosecutions. I agree with Mr Rofe that those matters must not be overlooked when considering the Solicitor-General's findings. Mr Rofe's reputation as a fearless and fair prosecutor is well known here and in jurisdictions around Australia. He has given distinguished service to the state and the criminal justice system over three decades. It is no secret that he has laboured under health problems since suffering a stroke in 1999.

The responsibilities and the burden of office that come with being DPP are difficult when one is in the best of health. Just before the release of the report, Mr Rofe commenced an indefinite period of sick leave. Medical documentation confirms that Mr Rofe is suffering from an illness not related to his stroke. He has previously been forced to take prolonged sick leave on more than one occasion. In January 2003, and again in August and September 2003, Mr Rofe was absent owing to ill health. It would not be right for me to say anything that might be seen to pass judgment on such an eminent career based on a short episode in his professional life, particularly as he is ill.

At our meeting on 29 April 2004, I made my concerns known to Mr Rofe about his handling of the Nemer case. I made it clear that there is no proper basis for me as Attorney-General to take any further action under the Director of Public Prosecutions Act arising from the findings of the Solicitor-General. I told Mr Rofe that his future was a matter for him to consider, and that the decision whether or not to remain as Director for the balance of his term of appointment was a decision for him alone. Mr Rofe indicated that he would consider his future, having regard to his health, medical advice that he reduce pressure on himself and in the interests of the stability of the Office of the Director of Public Prosecutions.

As a result, the Commissioner for Public Employment commenced discussions with Mr Rofe through his representative. After those discussions, Mr Rofe advised the govern­ment that he intended to resign. He has tendered his resignation by letter to Her Excellency the Governor effective from today. Mr Rofe's resignation means that all entitlements owing to him under the terms of his appointment, including superannuation, accrued long service leave and accrued annual leave in the amount of $344 874 will be paid to him. This represents Mr Rofe's lawful entitlements on resignation.

Under the terms of Mr Rofe's appointment, he had the right to remain in office until July 2006 — about 26 months. The salary payable to him for this period would have been in excess of half a million dollars based on his current salary. The government will not pay Mr Rofe for the balance of his appointment, as this would be unreasonable. In addition to the superannuation and accrued leave entitlements, Mr Rofe will be paid $188 068 on account of his extensive period of service to the state and the uncertainty of his health which has led to his resignation in the interests of the Office of the Director of Public Prosecutions. This is equivalent to nine months' salary; that is to say, 64 per cent of the payment to Mr Rofe is entitlements that are already vested to him.

I am advised that this figure equates to an amount that would have been payable to an equivalent executive employee whose appointment is cut short before completing a contract of employment under the terms of the Public Sector Management Act. Although arrangements do not strictly apply to Mr Rofe, because of his unique position under the Director of Public Prosecutions Act, the government considered the making of such a payment fair and reasonable in the circumstances. Mr Rofe's resignation ends the speculation and uncertainty about the future of the Office of the DPP caused by his longstanding health problems, compounded by recent controversy. Ms Abraham QC, as Acting Director, and her highly dedicated and hardworking staff can concentrate fully on delivering a professional and efficient prosecution service to this state.

The Solicitor-General in his report makes recommendations to improve guidelines and practices in the office, although, as I indicated earlier, the Solicitor-General found no systemic deficiency in the guidelines or practices of the Office of the Director of Public Prosecutions in prosecuting guilty pleas. These recommendations are:

More prescriptive requirements as to consultation with victims and police, and recording and reporting of negotiations should be adopted;

Unless there is good reason not to do so, a statement of fact should be provided to the sentencing judge setting out any facts agreed or not disputed and identifying material facts that remain in dispute;

Prosecutors should be directed to clearly inform sentencing courts whether they oppose, support or have no submissions to make on whether an unusually merciful sentence should be imposed;

The DPP should be directed to inform the Attorney-General where in serious cases the police or victim strongly object to the plea arrangements or whether there is a real doubt about whether the charge or factual basis provides an adequate basis for an appropriate sentence; and

A position of Crown Counsel appointed by the Governor should be created. The Crown Counsel would prosecute complicated trials and appeals on behalf of the DPP and provide independent advice to the Attorney-General if required.

I refer the house to paragraphs 201; 204 and paragraph 212 of the Solicitor-General's report. In the opinion of the Solicitor-General, it is both unnecessary and unworkable to have an independent third party or victim's advocate approve charge selection decisions. The Solicitor-General also considered it inappropriate to allow separate representation of victims in criminal proceedings. The recommendations appear, on the face of things, to be reasonable and sound. I have already started consulting with the acting Director of Public Prosecution and others about the recommendations. I now table the report of the Solicitor-General.

PAPERS TABLED

Ms CHAPMAN (Bragg)

My question is to the Attorney-General. Will the government undertake to have a comprehensive Australia-wide search for a new Director of Public Prosecutions? Premier Rann has complained that the South Australian profession is a club and, to ensure that the best possible candidate is secured for this position, I seek the government's undertaking.

The Hon. M.J. ATKINSON (Attorney-General)

Yes.

Mr SNELLING (Playford)

Under what circumstances would the Premier support the Attorney-General giving a direction to the Director of Public Prosecutions under the Director of Public Prosecutions Act? There has been recent comment by the Premier, by the former DPP (Mr Paul Rofe, QC) and by the President of the Law Society (Mr David Howard) on the question of the Attorney-General's power to give directions to the DPP and whether this amounts to political interference.

The Premier - The Hon. M.D. RANN

My position on this matter is clear and a matter of record, so we are dealing with historical facts as well as anything prospective. In November last year, I stated in this house that `the power to direct is one that should only be used in extraordinary and exceptional circumstances and in the public interest, which includes in my view the interests of justice.' I have the strong opinion that this should be done only after proper consultation and that it should be guided by high level legal advice, as was sought in the Nemer matter from Solicitor-General Chris Kourakis.

The question whether to give a direction to the DPP is, in any case, a matter for the Attorney-General. So, I was dumbfounded to read a pompous piece published in the weekend press in which Law Society President, David Howard, suggested that my stance is `that the government will give directions to the DPP whenever it thinks it desirable'. In a further dig, he also complained that perhaps even I had `developed a glimmer of understanding of the potential consequences of my so-called politicisation of the prosecutorial process'. This misrepresentation is either politically motivated, hopelessly inaccurate or, at worst (and I hope it is not the case), deliberately dishonest. It can only serve to raise concerns in the community that decisions like that in the Nemer case are made on a political whim, which is a long way from the truth. I am sure that even the opposition leader would agree with me, given that he suggested last August that he would have gone straight to Paul Rofe and directed him to appeal.

Members would also be aware of the statements made by the Hon. Robert Lawson QC. Apparently, rather than rushing to judgement, I was wasting time. So, for those on the Criminal Law Committee of the Law Society, who simply do not get it, the Nemer direction, and any future direction of the DPP should circumstances ever require it, will only be done in extraordinary and exceptional circumstances in the public interest, following thorough consultation and extensive consideration of legal advice. Even then, the required safeguards of consultation with the DPP, publication of a direction in the Gazette and having it laid before both houses of parliament within six sitting days are also in place.

So I trust that my position on directing the DPP should no longer be in dispute. My suspicion is that some members of the legal fraternity—maybe even Mr Howard, the President of the Law Society are still reeling over the High Court's decision to throw out Paul Nemer's appeal, making it clear that the Attorney-General does have the authority to direct the DPP in particular cases. The intervention in the Nemer case was right, it was in the public interest, it was in the interest of justice and the Attorney-General's actions have been totally vindicated. It is quite apparent that it has offended the sensitivities of those in the Law Society who misread or misunderstand the law of this state.

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