The Supreme Court has upheld a decision not to charge two policemen over allegations of attempted rape of a fellow officer.

Mark Pettingill, the lawyer for the complainant, argued Larry Mussenden, the then Director of Public Prosecutions made “dangerous assumptions” about jury behaviour in his decision not to bring the case to the courts.

But Chief Justice Narinder Hargun dismissed the case and said the DPP was entitled to consider how juries behaved in practice and the likelihood of success.

Mr Justice Hargun said: “Experience of … jury trials informs us that the jury decisions are not always dictated by the strict requirements of law but by a sense of what the jury considers to be ’just’ or ’fair’ in the circumstances of the case, or indeed by other factors which may have little or no relevance to the merits of the case.

“In considering the likely outcome of a jury trial, the DPP is entitled, and indeed bound, to rely upon his own experience as to how juries actually behave in practice.

“It is unrealistic to require that the DPP should ignore his experience of jury trials in predicting the likely outcome in a particular case.”

The three officers involved in the case cannot be identified for legal reasons.

The complainant, a male police officer, alleged that he was invited to play cards with two other male officers at one of their homes in April 2019.

He claimed the game turned into strip poker and consensual sexual activity.

But he alleged the situation escalated and the two officers “tried to rape him” as he rebuffed their advances.

He remained at the house afterwards as the other two officers engaged in sexual activity before one of them drove him home.

No complaint was made about the incident until November 2019, about seven months after the alleged event, when another officer reported the matter.

The court heard the complainant had been told by a prosecutor that charges of serious sexual assault and perverting the course of justice would go ahead.

But the case was dropped by the DPP before it reached the courts.

The complainant applied for a judicial review of the decision and asked for the court to rule the DPP had made a mistake in law.

Mr Justice Hargun wrote that the court cannot interfere with a DPP’s decision to charge “simply because it disagrees with the decision”, but it can act if the decision is “perverse” in that no reasonable prosecutor would have made the decision.

Mr Pettingill argued the decision not to proceed with charges was “unreasonable and irrational” at a Supreme Court hearing last November.

He said Mr Mussenden did not properly consider all the factors of the case, including that jury biases could be addressed by directions from the trial judge.

Mr Justice Hargun said: “He argues that, despite his indication to have considered that a jury must be ’properly directed’, the DPP clearly fails to take account of specific required directions that would have served to bring a balanced approach to his review.

“He further submitted that the DPP’s review continuously indulges in stereotypes and assumptions about sexual behaviour and reactions to a non-consent allegation that renders the review irrational and wrong in law, both in approach and in content.”

Mr Pettingill argued that the DPP should make decisions on the basis that jurors would act in line with directions from the bench.

Mr Mussenden said in an affidavit that he decided not to proceed with the case because, based on his experience, a jury would more than likely not convict the officers even if they were properly directed.

He accepted that there was a public interest in ensuring that officers are not considered above the law and that the issue of consent is difficult in many sexual assault cases.

But Mr Mussenden added that he had never shied away from prosecuting cases when there was enough evidence to convict.

Mr Justice Hargun said it was the DPP’s duty to determine if it was likely a properly directed jury would believe the complainant’s version of events over that of the other officers.

He said: “The DPP was entitled to rely on his experience and judgment in concluding that it was not more likely that a reasonable jury would so find.

“He was entitled to take that view in the circumstances of this case and his decision cannot be categorised as perverse.”

Mr Justice Hargun dismissed the application, but said the complainant could launch a private prosecution against the officers.

He added: “The state – with all its resources – only prosecutes if the DPP concludes that there are reasonable chances of success of conviction.

“This is, as the cases reviewed show, is a matter entirely for the DPP, as the Constitutional organ for the state, to decide.”

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