Nolle Prosequi – “be unwilling to pursue”

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. 

DISMISSAL – the act of ordering or allowing someone to leave

In a legal context, a dismissal arises after a judge or magistrate, upon hearing the evidence and becoming satisfied as to the defendant’s guilt, decides to dismiss some or all charges. This action may be based on the strength or lack thereof of the police case or because the charge or charges are considered to be so minor as to have little if any effect on the ultimate aggregate sentence imposed for other more serious charges. The charge is dismissed by an officer of the court (Magistrate or Judge) pursuant to section 76 of the Sentencing Act 1991 (VIC) and such a charge is found proved and then unconditionally dismissed without penalty.

DISCHARGE – the act of releasing a person unconditionally

Section 73 of the Sentencing Act in Victoria allows for an unconditional discharge, whereby a magistrate can discharge the matter, usually where charges are wrong or deemed minor such as being drunk in a public place and in all the circumstances, a penalty is considered to be completely inappropriate.

WITHDRAWAL – the act of withdrawing a charge

In a criminal matter, charges can be withdrawn by the OPP during pre-trial stages when they determine that there is not enough evidence to successfully prosecute on that charge.­­­

To my brave and incredibly wonderful clients, this book is for you, for what I could seldom give you as your lawyer: justice for you and your children. Thank you for trusting me through the years of toxic legal drama, and the endless frustration and heartache you went through when seeking justice. I know we’ve shared many tears and fewer laughs, but I hope that I have helped you in some way through some of the darkest moments of your life. It’s been an honour to share these traumatic legal events with you, even if only for the smallest of victories. I have the utmost respect for each of you. Always remember that life’s not a race; people resist and strengthen in their own time and know that you did what you could at the time with the resources you had, just to survive. You should never judge yourself against someone else’s story. There’s resilience, beauty and good in the little things too.

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.

The client stories and characters in Part A of Nolle Prosequi are purely fictional. I sincerely apologise if you mistake any of the client stories in this book for your own story because there are far too many similarities when it comes to sexual assault. Please note that I have continued using the pseudonyms that I used in my first book Doli Incapax for continuity. However, this will not cause any difficulties to the readers of this book alone.

Thank you to my husband Jon Irwin for his ‘dark side’ perspective. I have enjoyed our lively discussions and debates but it’s clear that I have been right all these years – your clients create my clients! And when your clients predictably win in the criminal justice system, the net effect is that my client’s also lose in their family law, child protection and intervention order matters that rely on a sexual assault conviction to win in those cases too.

I’d also like to thank my wonderful friend Sharon Ferguson for her poignant painting ‘GUARDIAN ANGEL LAWYER’ which she allowed me to reproduce in this book.

One of my favourite stories read to me as a child was a book called “Annie’s Rainbow.”¹ My parents were friends with the author Ron Brooks, who also created the magical pictures. It was the story of a young girl who desperately wanted to have her own rainbow so in all her childhood naivety, whenever she saw one, she would run after it or invent ways to catch it. But the closer she seemingly got to the rainbow, the further it moved away from her. It was always out of reach. Annie was exhausted and she nearly lost all hope of finding it, until the illusion of it took her into a dark place.

Is chasing justice just like chasing rainbows? I may have the answer as I look through my childhood lens. On a much-needed country drive with the family after the first stage 3 covid lockdown was lifted, we saw the most magnificent, surreal double rainbow in hyper colour. In a setting of ominous dark grey sky and eerily bright light, it appeared before us in the distance, just past a low hill. It was the first time in my 46 years that I had seen the violet band of colour so vivid and so thick. And as we drove closer to it, through the town of Dunkeld, we saw the colour of town shops change, as if the rainbow had melted onto it like a giant dripping gelati. Annie’s Rainbow was real! As I quickly pulled over, and got out my smart phone, the colours were already fading and then gradually disappeared completely. The pastel watercolour wash over the town was gone. Thankfully, my children sent me their “out the window” pics. I’d caught the rainbow! And I had evidence!

I believe that rainbows are just like justice - elusive or fleeting at best. Those that get a taste savour it for life. Those that don’t just crave the taste and keep chasing it. But once you become a rainbow expert you don’t chase them anymore. Once you know what’s happening; light refraction, prisms, secondary rainbows, and the necessary ingredients of rain, and sun behind you at the correct angle, then you realise your eyes are playing tricks on you. And the same can be said for lawyers like me working in the justice system. I know how the justice mirage is formed and I can tell you that the price you pay for living like Annie in hope of rainbows, or like me for justice, is just not worth it. ‘Lady Justice’ is dead.

I originally intended Nolle Prosequi to be a book solely about the non-prosecution of sexual assault matters, but the definition of Nolle Prosequi has unexpectedly widened in this book to include the discontinuance of my own newly developed civil matters that are inextricably linked to the failed prosecution of my child sexual assault. And that’s really how the problem starts: when the Criminal Justice System (CJS) doesn't work for victims of crime, it leaves victims in an unenviable position still trying to find another forum for justice. 

And if there are other contemporaneous matters that also rely on a conviction for success, like family law and child protection, then life gets even harder for the victim and their children once the criminal case fails. And the success rate of the OPP securing a conviction for sexual assault is 1% so the situation becomes dire. I tell fictional, manufactured client stories that show just how hard things get from my experience working as a Royal Commission lawyer (family violence and child sexual assault), family violence duty lawyer, child protection lawyer, and as a family lawyer. 

However, life gets easier for the perpetrator, with a lawyer to provide legal representation, advice, adjournments, excuses, defences, alibis, pleas, and endless appeals. And 99% of the time the defendant’s crimes go unpunished. My criminal defence lawyer husband Jon Irwin also tells fictional, manufactured client stories from his experience as a lawyer whose clients accused of sexual assault win 99% of the time, just to complete the criminal injustice picture. 

For those of you who have read the prequel to this book, my memoir Doli Incapax, you will know that my anger and frustration with the legal system had its genesis in my years as a young lawyer in a glossy ‘top five’ law firm. But my anger quickly snowballed as the gloss wore off and I realised that the law and sex assault are completely at odds with each other. Through legal practise in my hometown, Ballarat, I came to learn that it’s still survival of the fittest, or should I say the richest, man when it comes to sexual assault and child sexual assault, as women and children keep being denied, distrusted, and disbelieved! 

And my old friend ‘Lady Justice’ whom I discussed in Doli Incapax; she’s still the only one in the court precinct warning me from the grave, “You’re going in blind lady, enter at your own risk!” for the gender war is still raging as ladies seeking justice are still being bloodied and battered both inside and outside the court building. She stands as a warning to all women pursuing justice, joining me in the chorus saying, “Don’t do it!” And to think that I once considered the courthouse a splendid backdrop for my wedding photos - cringe. Now I see her picture on the court wall as her headstone.

In 2017, at the launch of a new evidence-based resource for police and lawyers developed by Victoria Police to assist in breaking down misconceptions about sexual assault, former Attorney General, Minister and now Director of the Centre for Innovative Justice Rob Hulls stated that there is only a 1% conviction rate in sexual assault matters that are reported to police.² So, that’s only 1/100 victims who get justice for sexual assault when they report, which means that the already woeful statistics in my first book Doli Incapax³ (a 3% conviction rate) understated the dire situation. 

A great deal has happened in the past 2 years, both legally and personally, since I wrote Doli Incapax that I urgently need to update you on, matters of public interest that I consider to be deeply concerning including; The Australian Constitution, Statute Of Limitations, Deeds of Release, Doli Incapax, Suppression Orders, The Redress Scheme, The Apology, Lawyer X, The matters of George Pell, and other ridiculous legal capers. These legal updates all effect sexual abuse survivors in negative ways that appear to undo all the good work of the Royal Commission into Institutional Responses to Child Sexual Abuse. We have seriously gone backwards in our assistance to survivors. The truth is that nothing much is happening to make justice paths for survivors any easier. The legal landmines are still there. I will discuss these current issues and other important legal updates together with my compelling client stories; clients caught in the slipstream of unpunished criminal behaviour. 

And this is what Nolle Prosequi is all about; the survivors and clients left in the wake of the Apology, the Family Law and Child Protection Systems, Intervention Orders, DHHS Applications, SOCIT reports and the courts after they disclose sexual abuse to the police. They are the clients that occupy the grey area that the law pretends it has no answer for - the 99% who come forward and disclose sexual assault all for nothing in real terms. People just like me that the legal system labels and processes as follows: ‘police complainant’ or ‘witness’ in a police matter; ‘affected family member’ in an intervention order matter; ‘plaintiff’ in a civil matter; ‘victim of crime’ in a VOCAT matter; ‘applicant’ in a family law matter, and ‘witness’ in a Royal Commission. People wronged seeking redress, justice or safety for their children and themselves. Truth tellers! Well, these truth tellers are all kept out of the court room as much as possible, but it’s not to save us from the trauma – I say it’s to keep the legal games playing without criticism. Victims of crime are also denied the right to a lawyer or to have any legal standing in a criminal matter. This is both shameful and legally untenable in 2020.

When the criminal act of sexual assault isn’t processed criminally through to a conviction, the victim is left with the following options: doing nothing further, seeing a psychologist or counsellor, applying for an intervention order, suing the perpetrator for physical and/or psychological injury in the County Court, making a VOCAT application, making an application under the Redress Scheme or other church scheme (if applicable), making a statement to a Royal Commission, trying 'restorative justice,’ and if all else fails, going to the media about it, or even writing a book like I have. The point is that the victim's energy and expectation after disclosure must flow somewhere when police drop it or it resolves in an unsatisfactory way as determined by police or the courts, with the victim having no legal say. The fact that a tribunal such as VOCAT even exists is telling about how the criminal and civil justice systems don’t work, as it acts as a giant safety net, as is the new Restorative Justice program; justice for sexual assault victims needs a separate program apparently, for its admitted by those at the top in our criminal justice system that victims hardly get anything like justice in our mainstream justice systems, as Doli Incapax so painfully detailed. 

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.

How do we know if the correct guidelines have been followed at the OPP? Has nepotism or politics crept into DPP decision making? Remember, complainants currently have absolutely no legal standing in any criminal case, a case that’s ironically all about what happened to them, yet they have no right to a lawyer. They are not even a party to the proceeding, yet I believe that they have the highest interest in the case above all the other legally recognised parties and, at the very least, should be able to self-represent.

In these circumstances, how can we possibly have faith in the OPP to be a fair gatekeeper in determining which victims of crime have a chance at getting justice? The current 'Lawyer X' scandal illustrates just how corrupt and corruptible the police and members of the legal profession are – no one could fairly accuse them of being paragons of virtue. And these people largely determine the outcome of your justice path, less a defence lawyer, judge or jury. It’s the internal politics and decision making at the local police station and the OPP that knocks out most sexual assault cases and that goes on unchecked by anyone.

Moreover, why do most reports to police of sexual assault not even reach the OPP office and those that do often return with an advice from the OPP not to prosecute? What is going on in the OPP office and at our local SOCIT Units, I wonder? Why aren’t they passionately determined to prosecute sex offenders through to a conviction? Why is the OPP spending money commissioning self-serving studies like that from the Centre of Innovative Justice to find new ways to give themselves a pat on the back even when there’s no conviction, relying on the idea that for some victims, justice isn’t about a conviction. Oh please! Come on!

I am here to say that no victim I know would be upset about their perpetrator being convicted because once you report, your expectation is for a conviction, of course it is. If the result is something other than a conviction, and a victim needs to find a way to be partially satisfied with less due to the process or outcome, that is different. The OPP is there to prosecute crime, not to find new innovative ways to justify their 1% conviction rate in sexual assault matters by commissioning reports and providing small, select victim samples to skew the results to show a desired conclusion. In a study done by the CIJ, commissioned by the OPP, positive conclusions about the OPP were based on what just 18 victims felt about their experience with the OPP, a sample size overwhelmingly invalid statistically speaking. Victims deserve to know the truth and deserve the right to legal representation. It’s Law 101. If you have a separate legal interest in a case, you need a separate lawyer. Currently the law says the State’s interest and the victim’s interest in a sexual assault case is the same thing. 

Are our legal and political leaders, mainly fathers and grandfathers, in Australia doing anything about the poor trajectory of their female kin when it comes to sexual assault, particularly if the girls and women they love wish to seek justice? The answer is a resounding ‘No.’ Increasing funding for the victim’s survival path, such as increasing the number of women’s refuges, crisis lines and support agencies is commendable but where is the legislative commitment to the right to justice for sexual assault at the police station, at the OPP and in the courts? Arguably, sexual assault is the worst crime to a surviving victim as with murder the victim is dead. And once again it’s our fathers and grandfathers sitting in powerful positions in the law and politics who create this legal havoc for women and children.

Women keep dying in Australia from family violence.⁴ In 2019 four women had been murdered by men in inner Melbourne alone in under 12 months; Eurydice Dixon, Aiia Maasarwe, Natalina Angok and Courtney Herron. These murders are so very personal to me. I don’t live very far from Melbourne, and my son attends university there. In my university days, I used to run around Princess Park where Eurydice was murdered. The “Cardigan Street rapist” made my pub crawls starting at the Clyde Hotel frightening. I drive to the zoo with my children on the road near where Courtney was murdered. My stepdaughter went to university in Bundoora where Aiia was murdered. I eat out in Chinatown where Natalina was murdered. Everyday women doing everyday things get murdered by men; young men, old men, psychiatrically unwell men, and by perfectly sane men. Men have made a habit of murdering women and children and that has become something we bemoan but nothing happens legally to deter these rapists and murderers. Moreover, we seem to be getting further with justice for sexual harassment than for sexual assault. 

I have always cared about the welfare of others from when I was a young girl. Growing up, I was acutely aware that I was a white, educated, privileged girl of educated parents, with a labor party heart, whose pale skin and freckles tended to excuse my wog surname. I remember knocks on the door of my childhood home from school students of my teacher parents, handing in high school essays and work as late as 9.30 pm at night on the due date. My teachers at Ballarat Grammar would never have allowed anything like it. I remember my dad making numerous phone calls to parents about the welfare of the student, less about the student’s work. At the schools where my parents taught, their job was a social worker as much as, if not more than, a teacher. Their students were self-harming, smoking, experimenting with drugs and the new ‘goth’ culture - I recall kids coming to our door wearing skinny black jeans, black Dr Martens boots, plenty of black hair dye and heavy black eye make-up, further dramatizing their pale, white faces. Although radical to young conservative me, the appearance of one particular goth girl didn't worry my father, but her accompanying drug abuse, cutting and hair pulling certainly did. She was on the brink of being taken in by a dangerous cult and dad supported her parents to help her. My wonderful dad was a lifeline to many. Similarly, mum would decry that the parents who did turn up to parent teacher interviews were the ones who least needed to. 

Well, the apple doesn’t fall far from the tree. I accept calls from my clients at all hours too including on weekends. I go through safety planning with them, call agencies to assist them with other pressing matters, such as Centrelink about their payments and Anglicare about food vouchers, and I refer them to agencies for an urgent change of house locks. I write to DHHS about their housing needs. Sometimes I meet clients in cafes according to their wishes, where they are often more comfortable to talk, and I obtain my instructions in this more relaxed and informal setting. How can a client possibly listen to legal advice when they are worrying about when they will eat next, where their child currently is, consumed with fear wondering if their ex is following them? If you don’t advise holistically with a victim-sensitive approach and are there in your shiny office and fancy suits with your proforma-style legal advice, then family law is probably not for you.

It is well accepted that a child is unable to learn in the classroom if they are stressed about their home environment, haven’t eaten and are in trouble at school for behaviour like smoking or vandalising the wall with graffiti; at least, those were the ‘naughty things’ back in my school days in the 1980’s. My parents provided their students with specialised books and other resource materials that their own parents either couldn’t or wouldn’t. Some schools now provide breakfast programs for this very reason – sadly, many home environments are counter-productive to children learning and thriving. 

About 5 years ago, a friend of mine got a job as an in-house lawyer at a public school in Melbourne’s west; an Australian first. He loves his job because he understands, from his own experience, that family violence creates school-aged victims and child clients. Lawyers who truly ‘get it’ have usually experienced family violence themselves. I think you can almost always tell. And so, he went on Australian Story to tell his own childhood story to help others and his lawyer girlfriend is just as inspiring and was a true asset to our law firm. These are the special people with integrity who you meet on your life journey that you never forget but I have found lawyer colleagues holding these qualities to be exceptionally rare to the point of near extinct.