Оглавление
Ingrid Irwin. Nolle Prosequi
Definitions. Nolle Prosequi – “be unwilling to pursue”
DISMISSAL – the act of ordering or allowing someone to leave
DISCHARGE – the act of releasing a person unconditionally
WITHDRAWAL – the act of withdrawing a charge
Acknowledgements
PROLOGUE
INTRODUCTION
PART 1. CLIENT TALES OF INJUSTICE AFTER REPORTING SEXUAL ASSAULT
PART 2. LEGAL CALAMITIES FOR SEXUAL ASSAULT 2018-2020
FEDERAL CALAMITIES
STATE CALAMITIES
OPEN COURTS ACT 2013 - SECT 15
PART 3. THE HIGH PRICE OF PURSUING JUSTICE FOR SEXUAL ASSAULT
EPILOGUE
REFERENCES
NOTES
Отрывок из книги
Nolle Prosequi essentially means “do not prosecute!” This old legal phrase means your case has been dropped. It is used by the Director of Public Prosecutions (DPP) when they use their prosecutorial discretion to drop all of the charges against a defendant and discontinue the case. This can happen in the early stages of a criminal case, during discussions with defence counsel, or at any time up to and including at trial before a verdict is given. It is also used in a civil context by plaintiffs who wish to not pursue their case any longer. This prosecutorial discretion of the DPP is absolute and completely unquestionable which means that if the police decide not to pursue the case anymore, whatever the reason, there is nothing that you as the complainant can do about it and the Notice of Discontinuance (called a Notice of Nolle Prosequi in the County and Supreme Courts) will be filed. Magistrates, Judges, the Attorney-General, the Ombudsman, IBAC, the Victims of Crime Commissioner, the Premier and state and federal politicians can’t do anything to assist you to get the police to keep the case running. The DPP simply has absolute power and authority in these matters. The DPP’s omnipotence has caused much injustice. For example, pursuing the charges of some complainants against a defendant whilst dropping other complainants who have made allegations against the same defendant in the same trial. The DPP decides who gets a chance at justice and who doesn’t. Technically speaking though, when a case ends in Nolle Prosequi (a discontinuance) this also means that the case can be brought back again whereby the same charges can be laid again against the same defendant in the future but it is highly unusual. This can happen when police think more witnesses (including victims) may come forward against the same defendant in time, and so prosecuting will be easier with anticipated corroborating evidence.
I can only hope that this book helps to validate your experience and your truth as the amazing people and devoted parents that you are. No one should have to endure the tiring cycle of family violence or legal re-traumatisation and for the latter I apologise for my role as a member of the legal profession. But I know what it’s like to go through it myself and in my memoir Doli Incapax I took my victim-lawyer whistle and blew upon it a high shrill note! Until victims in the criminal justice system have the right to a lawyer it will remain a toxic mess. Being brave and telling the truth is not enough to get justice.
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The burning question is, why don’t we fix the CJS instead by giving a victim legal standing and a lawyer rather than encouraging victims to by-pass it? After all, the CJS is and should be the proper forum for seeking justice for sexual assault because it’s a crime so why doesn't it work? My first book Doli Incapax has explored many answers to that question but the rising statistics of male violence towards women resulting in abuse, assault and death seem to conveniently miss the political agenda of the major parties, even though men’s violence against women is a pandemic.
In my view, politics remains a sexist and racist cesspool. Images on the television of male political leaders flanked by their pretty little daughters and wives grate on my nerves, for the statistics warn that those very girls also have a high chance of being in the same position as me after reporting sexual assault: livid with a result of nolle prosequi. A case ending in Nolle Prosequi contrasts with a case being dismissed, discharged, or withdrawn as they are completely different outcomes and have different legal consequences for both victims and defendants. Regardless, the biggest problem with all of these formal criminal outcomes is that they are entirely within the discretion of the OPP, and there is no way for a police complainant (victim of crime) to have a legal say in this decision making. The OPP solicitor asking you about your views is not the same as you giving instructions to a solicitor of your own who is obligated to act on them. A victim/witness/complainant has no legal say.
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