Author: Nicholas Cowdery Publisher: LexisNexis Reviewer: Carmen De Marco 

In Discretion in Criminal Justice, Nicholas Cowdery sets out the procedure by which criminal matters are processed from the point of initial complaint through to appeal. In Discretion in Criminal Justice, Cowdery specifically focuses on the law applied in New South Wales. Nonetheless, his book has application to all jurisdictions in Australia and to the wider Commonwealth jurisdictions.  

Cowdery is well-positioned to discuss the discretionary considerations arising at each stage of the criminal justice process given his considerable experience in this field. Mr Cowdery was the Director of Public Prosecutions in New South Wales for sixteen years as well as working as a public defender, barrister, and professor of law.  

Cowdery defines discretion in criminal law as: “[T]he making of a choice between permissible alternatives … [requiring] the application of a standard, the balancing of different considerations (some of which may be incommensurable), even an element of personal judgment”. 

The text is divided into each chronological step in the life of a criminal matter, which makes this an ideal resource for those unfamiliar with criminal practice or those wanting to consolidate their understanding. Each stage discussed includes references to practical scenarios, precedent cases, relevant legislative regimes and comparable international law.  

The text further examines the exercise of direction from the perspective of the various decision-makers involved at each stage of a criminal matter. This includes the discretion employed by police investigators before charges are first laid as well as police prosecutors who have wide discretion in respect of the majority of summary matters before the courts.  

The book explains the competing considerations of prosecutors in exercising their ongoing discretion at each stage of a prosecution, including bail, laying an indictment, trial, sentencing and appeal. That is, a continual examination of the evidence to determine whether there is a prima facie case, whether there are reasonable prospects of securing a conviction and whether the prosecution is in the public interest.  

Cowdery also describes the discretion exercised by judges throughout the pre-trial phase, in the trial, in sentencing and in appeals. There is also discussion of the discretion afforded magistrates at the committal phase of proceedings and in sentencing offenders in the summary jurisdiction. 

In Discretion in the Criminal Justice, Cowdery comments on the increasing limits to discretion in criminal practice, principally, the imposition of mandatory minimums in sentencing. At this point in reading the text, if I didn’t already feel a kinship with Cowdery, having myself been a prosecutor prior to coming to the bar, then I certainly do now.  

Importantly, in my opinion, Cowdery takes time to explain why such incursions on discretion are so corrosive of the rule of law and the proper administration of justice. I agree, wholeheartedly, with Cowdery’s concern that mandatory sentencing regimes create unjust outcomes and that there is a need to protect, fiercely, discretionary autonomy.  

Cowdery is correct that the criminal justice system is one run by humans who must be trusted to both employ their own discretion, and to reflect, continually, and to make improvements, to ensure that justice is done.  

Author: David O’BrienPublisher: The Federation PressReviewer: Carmen De Marco

Special Leave To Appeal is an invaluable resource concerning the historical development of this discretionary power of the High Court to grant special leave, the criteria for granting leave, distinguishing features of civil and criminal procedure and the art of making persuasive written and oral submissions to the Court.

The book provides a practical guide for practitioners in respect of the specific procedural rules which must be adhered to when making an application for special leave in respect of both civil and criminal matters. These include the rules concerning initiating documents, the lodgement and filing of documents, responding to material, interlocutory directions, stays, cross-appeals, bail and costs. The book also helpfully sets out the differences and overlaps between civil and criminal procedure governing these applications.

David O’Brien (who is Chairman of Partners at MinterEllison) examines the essential differences between the civil and criminal tests for granting leave and the unique criteria the Court employs when exercising their wide discretion. In doing so, he discusses the various decisions and legislative amendments which have impacted upon the criteria for the grant of special leave.

Significantly, this third edition includes reference to the 2016 amendments to Part 41 of the High Court Rules 2004 (Cth). These amendments streamlined the procedure for making applications and reduced the number of oral hearings by introducing the current practice whereby the majority of applications are now determined on the papers.

Of particular practical use for practitioners is the final chapter of Special Leave To Appeal which provides guidance on making persuasive written and oral submissions to the Court. This includes the advice of Kenneth Hayne AC QC, Dyson Heydon AC (but for how long) QC and David Jackson AM QC. This chapter usefully steps through each required part of the written submissions for both the respondent and applicant and provides guidance as to how practitioners should best address these parts of their submissions. This is valuable given the shift in focus to the written argument which may, in many cases, be an applicant’s only chance to persuade the Court.

The book also provides assistance to practitioners in respect of preparing oral submissions and addressing the bench when oral argument is permitted. This includes a helpful list of questions which the bench routinely asks practitioners during the course of oral argument.

With this book, O’Brien, who has over 30 years experience as a commercial litigation practitioner, has provided a definitive manual regarding the making of applications for special leave. Bringing an application for special leave to appeal to the High Court is a responsibility of which every advocate dreams. When the opportunity finally arrives, for the first time, it brings with it a weight of responsibility and stress that did not necessarily get expressed in those dreams.

Special Leave To Appeal will, definitely, assist the advocate making her first application for special leave but its usefulness is much more than that. Experienced advocates, who have made many such applications, including successfully so, will also find guidance and assistance from continuing to consult its pages.

I recommend Special Leave To Appeal due to its comprehensive, practical, and straightforward approach to the methodology of seeking intervention before what Justice CW Pincus has described as the “last nail in the coffin”.

Carmen De MarcoHiggins Chambers22 March 2022