Rather than employ “professional opinion”, prosecution is “simply letting a jury (or a judge sitting alone) decide the merits of the case”.

He said it is made clear such cases are being acted on because of instructions they have from the Director of Public Prosecutions, but without “apparent regard to any views which might be held by the person best placed to assess the strengths and weaknesses”.

To maintain public confidence in the administration of justice, Judge Whitford said this potential “trend” needs to be addressed.

“It seems to be that problems in the administration of criminal justice in the state, where they exist, need to be exposed.

“If judges remain silent in individual cases where a prosecution without reasonable prospects has been brought and maintained, then there is likely no prospect of a remedy for a problem that appears now to be endemic,” Judge Whitford commented.

Judge Whitford made the scathing remarks in reasons published late last week in a decision to grant an applicant a costs certificate.

The applicant, a man known by the pseudonym Simon Smith, was accused of raping a female friend after they had been drinking.

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The woman alleged she had woken up beside him and had no recollections of the night before.

When questioned by police, Smith said she did not appear to be overly intoxicated, and the two had engaged in sexual activity.

Other than a sexual assault testing kit, there was no other evidence to establish the sexual activity was not consensual.

A jury in the February 2024 hearing found Smith not guilty.

Judge Whitford also confirmed he believed “the only rational verdict that a jury could deliver was one of not guilty”.

Judge Whitford said he raised the issue of a lack of merit during the hearing and was told by the solicitor advocate the prosecution’s case was the woman was asleep, unconscious or was too affected by alcohol to consent to any sexual activity with Smith.

“You must have a very different conception of ‘beyond a reasonable doubt’ to that which I hold,” Judge Whitford responded.

Judge Whitford added the prosecution’s acceptance the case was not the strongest was “delightfully understated”.

In his written reasons, Judge Whitford referred to critical comments about the prosecution of rape and sexual assault proceedings made by District Court Judge Robert Newlinds in R v Martinez.

In that judgment, Judge Newlinds accused the prosecution of making lazy decisions or operating according to “some unwritten policy”.

Judge Whitford said there were two major points to consider from Judge Newlinds’ comments, starting with the “burden” prosecutors shoulder with their instructions and their duty to the court on the one hand and their duty to the administration of justice on the other.

Judge Whitford said it is the responsibility of these prosecutors to consider the merits of the case and to refuse to pursue it through the courts if it lacks merit, regardless of their instructions.

The second issue is ensuring “scarce public resources are not needlessly devoted to futile prosecutions”.

In addition to the stress this caused the accused person, Judge Whitford said it could also paint the justice system in a bad light to the jurors who are tasked with such proceedings.

“There is a real risk that the commencement and maintenance of cases that have no reasonable prospect of succeeding risks drawing the criminal justice system into disrepute,” Judge Whitford said.