Former judge Greg Woods reviews Frank & Fearless a memoir by former NSW DPP Nicholas Cowdery ... Policy intervention on drugs and mandatory sentencing ... Prosecutor in the Joh Bjelke-Petersen and Lionel Murphy cases ... Symmetry with Murphy's progressive views ... Salvos from the mothball fleet ... The Gordon Wood case ... Law reform
It's not easy being green, as Kermit sang, and it's not easy being the Director of Public Prosecutions, state or federal.
Nicholas Cowdery was the DPP for New South Wales from 1994 until 2011 - "chief prosecutor and a gatekeeper for the criminal justice system".
His latest book explains the numerous ways in which his decisions could attract criticism. He says the pressures were such that, "When I walked through the office door each day, I knew that almost every decision I made would make somebody unhappy".
Cowdery and his co-writer Rachael Jane Chin recount the various travails in office, including problems with lobby groups for victims. Over the last several decades these groups (with the assistance of the media) have become powerful advocates, often for heavier charges or sentences. The DPP has had to take these pressures into account without permitting prosecutions to become unfair to the accused.
Cowdery acknowledges the value of some of the changes brought about through pro-victim pressure, in particular the decision by Bob Carr's government to legislate a voice for victims in the sentencing process with victim impact statements.
However, Cowdery was outspoken as DPP against Carr's proposals for mandatory minimum sentencing. Those proposals ultimately were deflected into the non-mandatory "standard minimum sentence", but Cowdery's opposition provoked calls from within the state Labor government that since he was engaging in policy debate he should resign as DPP and run for parliament.
In 2001, when he was still the DPP, Cowdery published a book entitled Getting Justice Wrong, which attacked the policy foundations of the so-called war on drugs. Bluntly he wrote:
"The approaches we have been adopting for decades are based on wishful thinking and wilful blindness."
Predictably, this was not welcomed by some politicians. It was not criticism coming from an impotent retiree – of a kind which then incumbent High Court judge Kenneth Hayne had described as "a salvo from the mothball fleet". It was more like a salvo from an admiral of the fleet on active service.
Over the years Nicholas Cowdery attracted the ire of politicos of all stripes, none more so than those from the National Party when as crown prosecutor he led the case against Sir Joh Bjelke-Petersen.
Frank & Fearless provides a prosecution perspective in relation to several controversial episodes in which he made the decision to prosecute.
The Wood case started on Cowdery's watch but concluded after his retirement as DPP, and his views about it will interest many lawyers.
He agrees that the famous "50 questions" put rhetorically to the jury by Senior Crown Prosecutor Mark Tedeschi ...
"... had encouraged the jury to think that Gordon [Wood] had to explain himself, or as lawyers put it, to reverse the onus of proof by putting the 50 questions, even if that had not been his specific intention ... However I think that the Court of Criminal Appeal's criticisms of Mark Tedeschi were excessively harsh."
In 2017 Wood sued in the NSW Supreme Court for malicious prosecution. Tried before Justice Fullerton his claim failed, although Her Honour did make significant criticisms of the way the crown conducted the case.
An appeal from this decision is pending. Possibly we will have confirmation of the advice given to accused persons who have been found "not guilty" - as with the man who has escaped the lion cage - "don't go back for your hat".
Time is yet to tell whether in the Gordon Wood case the hat will be retrievable.
In the final chapter Cowdery talks about "Life After Being The DPP". He's been busy and several academic appointments have enabled him to make public observations about criminal justice policy.
In chapter 19 he outlines what he regards as some necessary and desirable future reforms:
"Voluntary assisted dying laws still do not exist in New South Wales at the time of writing. Drug law reform is urgently needed ... The over-incarceration of Indigenous Australians is scandalous and governments seem most reluctant to seriously address it ... And the country needs a national Bill of Rights."
All these are progressive proposals, calculated to excite vigorous opposition. Cowdery is entitled to express them as he was when DPP - although at that time it was inevitable that politicians would bite back.
My first sight of Nicholas Cowdery was in 1985, when I was an observer in the gallery of the Old Banco Court in Sydney. Cowdery was appearing as junior counsel for the crown in the prosecution of High Court Justice Lionel Murphy for an alleged attempt to pervert the course of justice.
After an abortive first trial, Murphy was retried before another jury in 1986 and found not guilty.
Ironically, the kinds of progressive views championed by Cowdery in public over recent decades are the very issues championed by Murphy from the 1950s to the 1980s.
Murphy: Old Banco Court appearanceMurphy was a strong supporter of "voluntary assisted dying laws" through membership of the Voluntary Euthanasia Society; he advocated drug law reform much as Nicholas Cowdery does; he was instrumental in drafting the Commonwealth anti-discrimination law which was directed, in particular, against anti-Aboriginal racism; and he spoke up often and eloquently for a "national Bill of Rights".
There is a symmetry here.
Cowdery has been "frank and fearless", even when as DPP he was seen as a trespasser on the wrong side of the separation of powers fence.
Regardless of any such criticisms, to adapt a famous observation made by Justice Murphy in the 1982 High Court decision Neal v The Queen, "Mr [Cowdery] is entitled to be an agitator".
Greg Woods is a legal academic, a former judge and author of A History of the Criminal Law in New South Wales, published by Federation Press, Vols 1 and 2