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Definitions
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.
Acknowledgements
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.
PROLOGUE
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,
