CAPÍTULO III. MARCO METODOLÓGICO
3.2 Sujetos
3.3.3 Actividades de investigación de los sujetos de estudio
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However, concerns were raised during the Inquiry about how police use suc h tec hniques, especially when used for child complainants and for their longer- term value in the court process. During consultation with Inquiry staff on 30.10.02, sexual assault counsellors at FPQ Cairns, for example, suggested that the use of this technique for child complainants can be quite traumatising and, as such, this approach can be ‘very disturbing … especially … as young children don’t have the capacity to say no to doing it because of the power differential between the child and the police’.
Members of the Supreme Court and Court of Appeals judiciary who were consulted on 19.12.02 also revealed that if the recordings sound interrogative — which they often do — they have to be excluded from the proceedings. Thus the value of the call can be lost.
In some circumstances, evidence obtained by police through pretext calls may be excluded because of the High Court decision in R v. Sw affield 192 CLR 159. In that case, it was held that courts have a broad discretion to exclude
admissions made in circumstances where an accused’s freedom to choose to speak to the police has been impugned. Barring legislative action to address this issue, police investigators should be made aware of Swaffield and trained to avoid investigative methods that may lead to the exclusion of evidence obtained through pretext calls.
One judge also commented: ‘I don’t like pretext calls — half the time the accused is trying to calm the girl’.
Such calls can also work against the complainant:
We had one case where a victim responded very badly to hearing the accused’s voice on the telephone and she got very upset and swore badly/violently — and it was recorded by the police and went badly against her in court — her behaviour was perceived to be very poor by the court and had an impact on the sentencing, even though they got an admission from the offender.
Consultation with FPQ, Cairns, 30.10.02 It is clear that pretext calls can be a valuable tool for police, but extreme caution must be taken in applying this technique and in choosing complainants and offences. Again, given the need for sensitivity to the complainant and the current legal constraints as determined by the High Court, this appears to be an issue that requires careful training and close, ongoing monitoring and oversight by supervisory police.
Issue 11: Legal expertise
The quality of an y police investigation may be impro ved by early expert legal advice and/or enhanced legal expertise by police themselves. As indicated in Chapter 4 of this report, police determine when to lay charges and which charges to prefer. In some cases, especially with historic offences, there may be some advantages to early legal advice, particularly when police retain
responsibility for prosecution at committal. This section covers three main topics: the timeliness of legal advice to police, the application of the prima facie test by police, and police prosecution at committal.
Timeliness of legal advice
While it is rarely suggested that a prosecutor should be involved in the decision to arrest (see Rozenes 1996, p. 4; QPS, p. 29 and p. 34), consultations for the Inquiry suggested that the ODPP should be involved at an earlier stage of the investigation process. Some suggested pre-arrest and others suggested as early as the interview stage for advice on the sufficiency of evidence to support the appropriate c harges (consultation with Townsville QPS and Townsville ODPP 31.10.02).
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C H A P T E R 7 : T H E F I R S T T E R M O F R E F E R E N C E The QPS (pp. 3–4) submitted that the pr acticality and desirability of police continuing to exercise discretion in initiating proceedings should be recognised and that the existing guidelines for the initiation of the prosecution of sexual offenders by police are adequate.54
Indeed, as suggested in Chapter 4 of this report, it has been established that there are unacceptable risks when
prosecutors become embroiled in investigations and that this was an underlying principle of the establishment of separate prosecutorial units — first within the police, and later through the establishment of the ODPP.
Despite the clear need for police and prosecutors to retain distinct roles, howev er, there may be benefits for investigators having procedures that enable early legal advice from a prosecutor (see Rozenes 1996, p. 4). The Queensland DPP suggested at the hearings, for example, that ‘there has to be a maximised focus for everybody at the beginning of the process to create the best prospects of obtaining an ultimately just result … having the earliest involvement of the ODPP in the matter’ (CMC 2002b, p. 22). The Commonwealth DPP agreed, especially for historic cases: ‘I concur … it would be important to have pre- charging consultation in historic matters’ (CMC 2002b, p. 32).
At the Inquiry’s hearings, the Commonwealth DPP recommended a system that would require consultation with, or the approval of, the ODPP for certain sexual offence charges. In particular, he suggested that it may be appropriate for police to seek the approval of the ODPP before laying charges in ‘historic cases’. This system currently operates in Queensland in a limited way regarding the offence of maintaining a sexual relationship with a child and could be usefully extended to other categories of sexual offences.
Problems with overcharging, or wrongly charging, accused persons in Queensland are compounded by the fact that charges are likely to remain in force until they are thoroughly assessed by the ODPP and a decision is made as to what charges, if any, should be included on the indictment. The result is that, in Queensland, there may be a lengthy period before the accused will know with any certainty what case, if any, they will be required to answer.
There are policies and procedures in other Australian jurisdictions that encourage the ODPP to assess the c harges at a much earlier stage. In Tasmania, for
example, a system has been implemented that requires copies of all relevant material to be provided to the ODPP within 48 hours of the charge being laid (CMC 2002b, p. 33). In several other jurisdictions (DPP SA 1999; DPP NSW 1998) the ODPP is responsible for conducting the prosecution of summary and indictable offences at committal hearing (as well as other major or complex matters in each of these categories) and procedures demand that these matters are referred to the ODPP, either prior to or just after, c harging.
The Queensland DPP ac knowledged that procedures existed in some other States for handing over police briefs to the ODPP at a very early stage, in some
instances almost immediately after charging. Howev er, she suggested that ‘a procedure like that at present in Queensland would be completely futile because we have such a backlog of other cases to handle … there would be no point in producing that material early because it couldn’t be looked at (CMC 2002b, p. 24).
Current practices in Queensland
The Queensland DPP (p. 8) stated that, with regard to current practice,
‘sometimes, particularly in relation to a sensitive or notorious case, police will forward the brief for an opinion as to whether to charge at all, or what to charge’. The submission by the QPS agreed that there are particular cases in which police seek advice from the ODPP prior to laying charges (see CMC 2002, p. 166).
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