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Decision to drop sex assault charges against two police officers challenged

The decision not to charge two police officers with a serious sex assault on a male colleague came under the spotlight at a Supreme Court judicial review yesterday.

The court heard that Larry Mussenden, the Director of Public Prosecutions, decided not to go ahead with charges because he thought it was unlikely that a properly instructed jury would deliver a guilty verdict.

But Mark Pettingill, who appeared for the alleged victim, told Chief Justice Narinder Hargun the decision was “irrational” and based on “dangerous assumptions”.

Mr Pettingill said: “It’s not balanced, it’s far too full of the problems as opposed to, on the balance, addressing the problems.

“It cannot be ’it’s too difficult, so we shouldn’t do it’.”

Mr Pettingill said that the three police officers – who cannot be identified for legal reasons – had played strip poker at one of their homes and engaged in consensual sexual activity on the day of the incident.

But he added his client alleged that the two other officers did not stop when he said several times he did not want to go further.

Mr Pettingill said the Deputy Director of Public Prosecutions approved serious sexual assault charges against the alleged attackers and the complainant was told that the case would go to court.

But the alleged victim was later told by police officers involved in the investigation that Mr Mussenden had withdrawn the charges.

Mr Pettingill said there was no dispute that there had been sexual contact involving the three officers, which meant there was enough evidence for a case to be put forward.

He said: “It’s not an identification case. It’s about consent.

“You have sexual activity. You have all the parties in the same place. Then you have the clear, repeated allegations of non-consent.”

Mr Pettingill argued that Mr Mussenden had failed to consider that a jury would be properly directed by a judge to consider the issue of consent and that – although some jurors could ignore directions – many similar cases had led to convictions.

He added that most experienced counsel were aware of the challenges of consent cases and tackled that as part of their approach to the case.

Mr Pettingill said that the complainant did not make an immediate complaint about the incident, but that the delay could be addressed in the judge’s directions and in arguments from the prosecution.

Mr Justice Hargun questioned Mr Pettingill about the threshold that the Director of Public Prosecutions had to cross when he made a decision to press charges.

Mr Justice Hargun said that the DPP was required to consider if a prosecution would result in a conviction by a properly directed jury and, if that was achievable, if a prosecution would be in the public interest.

Mr Justice Hargun said: “The role simply requires that he has considered all the evidence had has given his honest opinion about the outcome.

“He has done that and has given his reasons.”

Mr Justice Hargun compared the role of the prosecutor to a defence lawyer who gave his client his opinions on the potential outcome of a case.

He said: “At the end of the day, the advice you give your client is a value judgment.

“You can try to rationalise it, but ultimately, it’s just a value judgment.”

Mr Pettingill agreed that it was rare for a court to go against a decision by a Director of Public Prosecutions because of the constitutional independence of the role.

But he insisted there was a clear public interest to go ahead with the case.

The hearing continues.