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The Office of the Director of Public Prosecutions has responded after a Judge criticised the manner in which they handle sexual assault prosecutions, stating that they intend to make a complaint to the Judicial Commission.

The statement was in response to Judge Robert Newlinds SC’s judgement in R v Martinez [2023] NSWDC 552.

It concerned a costs application made by the accused in a failed sexual assault prosecution where after approximately one hour’s deliberation, the jury delivered verdicts of not guilty on all four counts of sexual intercourse without consent.

Judge Newlinds SC granted costs on the basis that ‘having regard to all the facts that are now known, no reasonable prosecutor would have instituted the proceedings’.

The accused, Daniel Alejandro Rodriquez Martinez, is non-binary and uses they/them pronouns. Judge Newlinds SC begun his judgement by stating: “in my judgement they did not commit any crime and should never have been prosecuted. This prosecution is a miscarriage of justice.

“That has occurred largely as a consequence of the prosecutor – relevantly the Office of the Director of Public Prosecutions either not properly considering its power to prosecute, or if it did, by wholly misapplying the law.”

Martinez was arrested on 3 June 2021, ultimately spending 8 months in custody on remand before being granted bail on 17 February 2022 by the Supreme Court. The trial itself commenced on 23 November 2023, and concluded 4 December 2023.

The Crown alleged that Martinez attended the complainant’s home after they exchanged text messages, with the pair subsequently engaging in sexual intercourse four times in circumstances where Martinez knew she did not consent.

In describing the facts, His Honour ultimately noted that: “that sexual intercourse was, for all intents and purposes, looking at it objectively by reference to what the participants did and said, entirely consensual.  Indeed, it was instigated by the Complainant, and she enthusiastically participated.”

A concerning aspect of the prosecution outlined in the judgment was that the complainant had made sexual assault allegations against five other men who were all unconnected to the other, in similar circumstances to each other.

His Honour stated that: “if no one in the DPP has “joined the dots”, someone should do that now. This must stop. Justice has not been served and will not be served by repeated cases being prosecuted based on the obviously flawed evidence of the Complainant.”

In his most scathing remark, His Honour pondered that he was: “left with a deep level of concern that there is some sort of unwritten policy or expectation in place in the ODPP 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.”

In response, the spokesperson from the ODPP stated that: “the Director intends to make a complaint to the Judicial Commission concerning the judgment delivered by Judge Newlinds in this matter.”

“The ODPP unequivocally rejects any suggestion that it makes prosecution decisions lazily or on the basis of political expedience, or that it operates according to “some sort of unwritten policy”, as the judge has speculated.”

It stated that the ODPP makes decisions regarding matters in accordance with the Prosecution Guidelines, in which the public interest is the paramount consideration.

“Each matter is assessed on the strength of the available evidence – including the reliability and credibility of witnesses – with the paramount consideration being whether the prosecution is in the public interest. The viability of a prosecution is constantly under review.” it noted.

With specific reference to the case, it explained that three separate accused have pleaded guilty to sexual offences in relation to the complainant.

A main issue at trial was the complainant’s level of intoxication and whether this meant she could not consent, and that the accused should have thus had knowledge of lack of consent.

In the evidence of Dr Van Nieuwenhuysen, the toxicology expert, she noted that people in alcoholic blackout do not necessarily present as substantially intoxicated, and that based on her observations of the complainant, the ‘highest’ she would put it was that the Complainant appeared intoxicated.

Furthermore, on the accused’s account they had directly asked her if she was consenting and she had positively responded, and on the evening, they were satisfied of the fact that she had consented, notwithstanding that they knew she was drunk.

However, the ODPP contended that: “it is well known that prosecuting matters involving highly intoxicated complainants involves complex issues of fact and law. In circumstances where the accused, in their police interview, acknowledged the complainant’s level of intoxication and the impact this had on her capacity to consent, there was a factual issue in this matter to be put before a jury.”

The ODPP in New South Wales have specified guidelines that are meant to be followed by the DPP prosecution authority at various stages from the decision to prosecute through to the role of the prosecutor, disclosure obligations of the prosecution, negotiating and deciding to appeal.

You can find a thorough outline of The DPP prosecution guidelines here.

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin