Who judges the judges is an old catch cry, but who judges the DPPs? The furore over Victorian DPP Jeremy Rapke’s claim that he’s not afraid to contact judges if he disagrees with something they say in court is a serious one.

Mr. Rapke’s comments have rightly earned the censure of both the Chief Justice of and Chief Judge of Victoria, Marilyn Warren and Michael Rozenes. No lawyer should contact judges about cases other than in the only appropriate forum — the court room. To allow this standard to slip is to open the door to unfairness.

In an interview with The Age last Saturday Mr. Rapke also made comments about politics, which no journalist or commentator has yet seized upon. They should. The Age referred to a 2002 article that Rapke had written for the newspaper (he was not DPP at the time) condemning the world for silence while Jewish people were killed by terrorist acts in Israel. Rapke talked about his admiration for Israel and to the fact that his middle name, Wingate, was the name of a British soldier who taught Jewish settlers to defend themselves against Arab attacks in the 1930s.

Mr. Rapke is entitled to hold these views and to argue for the cause of Israel, but should he be wading into this issue while he is DPP? His role is to stand above politics and particularly sensitive political issues such as that pertaining to the Middle East. With tensions between Islamic Australians and the broader community higher since 9/11, Mr. Rapke would have been wiser to resist the temptation to articulate his views about Israel in an interview that he knew would be widely read.

There are two other aspects of Mr. Rapke’s conduct that are worthy of considered reflection.

Firstly, as this writer said months ago, Mr. Rapke has decided to adopt the media strategy of a US District Attorney. If he wants to play that game he must expect that opponents of his views will fight back and also seek media space.

Hopefully Mr. Rapke’s media advocacy approach to issues will transform media shy groups like the Criminal Bar Association and individual lawyers into becoming much more attuned to using the media to advocate their cause. Lawyers should not be shy of the media anymore.

Finally, there needs to be some form of inquiry into Mr. Rapke’s statement that he sometimes calls judges to complain about comments. It is important this is done, because the public needs to be confident that the DPP is using his power judiciously and appropriately. How many times has Mr. Rapke made such phone calls and in what cases? These are legitimate avenues of inquiry.

DPPs are privileged with enormous power but they must be accountable at all times for the way it is used. Power, as we know, is a dangerous thing when not used wisely.

Peter Fray

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