Do Prosecutors Deserve Second Chances Too?

We all make mistakes, but does occupying the role of a police prosecutor in court mean that slip-ups are unforgivable?

Apparently so in the case of one respected and highly-capable prosecutor Matt Baker, who was sacked for using a small amount of drugs. Baker was subjected to a random drug test at the Downing Centre Local Court in December 2013. But even before taking the test, he was honest enough to admit that he had taken cocaine.

The whole thing started when Baker was on a night out with some friends. He had left his packet of cigarettes on the table while he went to the bathroom. When he returned, there was a small amount of cannabis and one gram of cocaine inside his cigarette packet.

Baker later said that one of his friends must have put it there, but didn’t know which of the seven people present at the table had done it. He said that he didn’t make inquiries to find out who it was.

Instead, Baker discarded the cannabis but kept the cocaine for about two weeks in a drawer in his home. At the time, his father had tragically passed away, and Baker was supporting his mother through the devastating impact of that loss.

It was on 9 November that he took some cocaine, after feeling depressed and hopeless.

He used small amounts over the next month.

Unfortunately for Baker, his use of the drug was confirmed through the random drug test, and NSW Police Commissioner Andrew Scipione sacked him as a result.

Baker appealed the decision to the Industrial Relations Commission, but Justice Peter White dismissed his case and confirmed that the termination was valid.

Justice White said that the punishment was not “harsh”, “unreasonable” or “unjust.” To the contrary, His Honour found the penalty was just – especially given that Baker took the drug on several occasions and did not say who supplied it to him.

Was the dismissal harsh and unfair?

It certainly makes sense that those who swear to uphold the law should not be committing crimes – as allowing this to happen could undermine the integrity of the criminal justice system as a whole.

But we all know that there are different levels of offending – and small drug possession is considered to be on the lower end of the scale.

Indeed, drug possession is one of the most common offences heard in NSW local courts, and many people achieve ‘non conviction order’ for the offence – which means getting way with no criminal record at all.

In fact, the most common penalties for those who are guilty of drug possession are section 10 dismissals and conditional release orders’ – with 60% of defendants avoiding a criminal record, while 35% receive a fine.

So if most defendants get off without a conviction, and considering that Baker was never even taken to court, is it fair to ruin his career?

Distinction between police officers on the street and police prosecutors

The job of a police prosecutor is very different to that of a general duties police officer.

General officers are directly involved in arresting and charging people with criminal offences. By contrast, police prosecutors present cases in court – they have nothing to do with catching alleged offenders, confiscating drugs or pressing charges.

And significantly, prosecutors are not directly responsible for deciding whether cases go-ahead or are withdrawn. To get a charge dropped, prosecutors must obtain the consent of the police officer-in-charge of the case, who will then have to run it by the Crime Manager or Local Area Commander of Police.

This significantly reduces any opportunities for corruption, which could have otherwise been a reason for dealing harshly with prosecutors who are caught possessing drugs.

Yet despite it being arguably more serious for general police officers to commit offences, it was revealed last year that one in every 40 officer serving in NSW has a criminal conviction of some sort.

In fact, an incredible 437 serving officers have 591 convictions between them for various offences including fraud, false pretences, dishonestly obtaining financial advantage, dangerous driving causing death, domestic violence and drug offences. Yet these officers are still allowed to keep their jobs.

Baker, on the other hand, was fired for something that is far less serious than many of those offences, even though he was never found guilty in a court of law.

Baker is now unemployed and has been forced to sell his home. There is certainly an argument that his punishment is disproportionately harsh given his role as a prosecutor, his prior good character, his exemplary service to the community, the circumstances leading up to his offending and the relatively trivial nature of the offence – and that it is inconsistent with the treatment of hundreds of general duties police officers who are still on the force despite being convicted of criminal offences.