Banco Mundial

As illustrated by Figure 1 (next page), the ‘decision to prosecute’ is not a single decision but a series of decisions made by complainants, police, the ODPP and the magistrate at different stages in the criminal justice process. The distinctions between the tests applied at different stages by the police and the ODPP are important. Tension can result when these differences are either misunderstood or the tests are inappropriately applied.

In Queensland there are, in effect, four tests that a matter must satisfy before it can proceed to trial:

1 Laying charges. A charge is laid when there is sufficient credible evidence identifying a person as ha ving committed an offence. The decision to c harge is usually made b y police alone. In some cases, due to complexity,

sensitivity or some other reason, the police may seek the opinion of the ODPP as to whether a charge should be laid. Chapter 2 of the OPM (the ‘Prosecution Process’) deals with the process involved in instituting a

prosecution against a person for any offence. The OPM states (2002, at 3.4.2) that:

The decision to either institute proceedings or desist from doing so initially rests with the arresting officer who, having investigated an offence, must consider instituting proceedings against a person for that offence. Generally, an officer may institute proceedings without seeking further advice, subject to any statutory requirements to obtain approval to prosecute and subject to that officer holding a reasonable belief that the suspect committed the offence. Prior to commencing a prosecution, the arresting officer should be satisfied on

52 C H A P T E R 5 : P R O G R E S S I O N O F S E X U A L O F F E N C E M AT T E R S T H R O U G H T H E Q U E E N S L A N D C R I M I N A L J U S T I C E S Y S T E M reasonable grounds that:

i. an offence has been committed;

ii. the person against whom the prosecution is proposed has committed that offence;

iii. a statutory authority to prosecute for that offence exists … ; iv. any statutory limitation on proceedings has not expired; and v. the elements of the intended charge can be proved.

In instances where officers investigating an offence are of the opinion that although an offence is provable, but in the public interest, or for some other reason the matter should not be prosecuted, they should seek advice from their officer in charge.

Generally, the officer who investigates an offence may lay charges without seeking further approval … Where the circumstances of a particular case indicate that two or more alternate charges are supportable, the offence carrying the greater penalty is generally preferred, subject to the guidelines of the DPP (State). Charges should not be laid with the intention of providing scope for subsequent bargaining.

2 The prima facie test. This test is applied by police and magistrates (and sometimes by the ODPP) to determine whether there is evidence available that is capable of establishing eac h element of the offence (Qld DPP, p. 2), i.e. ‘on the available material is there evidence on which a trier of fact could conclude beyond a reasonable doubt that all the elements of the offence have been established?’.

3 The reasonable prospects test. This test is applied before a matter can be heard and determined at trial. The test asks ‘can it be said that there is a reasonable prospect of conviction by a reasonable jury (or magistrate) properly instructed?’. Or, ‘on the available material, is there evidence on which a trier of fact would conclude beyond a reasonable doubt that all the

Figure 1. The progression of sexual offence matters through the criminal justice system

The shaded boxes denote the passage of offences through the system (e.g. only about a quarter of actual offences are reported to police and only a small proportion of these result in a guilty verdict).

OFFENCE OCCURS

Case discontinued (no true bill) Charges dismissed Case discontinued

Not guilty verdict

Case dismissed Guilty verdict

VICTIM REPORTS TO POLICE

Victim does not report to police

GUILTY VERDICT (offender sentenced) HIGHER COURT TRIAL

(offence to be proven beyond a reasonable doubt) COMMITTED FOR TRIAL OR SENTENCE COMMITTAL

ODPP REVIEWS CASE (reasonable prospects/public interest tests) QPS PROGRESSES CASE (prima facie test & charges laid)

INDICTMENT ISSUED

Case discontinued (nolle prosequi)

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elements of the offence have been established?’ This test is usually applied by the ODPP in Queensland, but it is also applied by police prosecutors when they prosecute less serious matters summarily.

Many factors may affect the assessment of whether there is a reasonable prospect of securing a conviction. The Prosecution Policy of the State of Queensland (DPP Queensland 1995, p. 3) states that:

In deciding whether or not the evidence is sufficient to justify a prosecution, the existence of a bare prima facie case is not enough. A prima facie case is necessary; however, a prosecution should not proceed if there is no reasonable prospect of securing a conviction before a hypothetical reasonable jury in jury trials, or a Magistrate in the case of summary proceedings.

The decision to prosecute or not requires a careful and detailed

consideration of the strength of the case as it is likely to be when presented in court. This in volves weighing up all of the available evidence by a person experienced in weighing available evidence (DPP Queensland 1995, pp. 3– 4). The availability, competence and compellability of witnesses and their likely impression on the judge or jury must be considered. Lines of defence are also considered. The policy provides a long list for the consider ation of the decision-maker including the following:

• Does it appear the witness is exaggerating, or has a faulty memory … or may be unreliable in any other way?

• Does a witness have a motive for telling less than the whole truth? • Are there substantial matters that the defence may properly use to attack

the credibility of the witness?

• What sort of impression is the witness likely to make? How is the witness likely to stand up to cross-examination?

• Could the credibility of the witness be affected by any physical or mental disability?

• If there is conflict between eye witnesses, does it go beyond what one would expect and hence materially weaken the case?

The test cannot be o verly prescriptive and must rely on the considered exercise of the prosecution’s discretion to weigh all the relevant factors on a case-by-case basis.

The reasonable prospects test itself is not contro versial. Several submissions made during the public hearings pointed out that difficulties arise not in relation to the test itself, but in relation to how this test is applied (see, for example, the Public Defender’s comments: CMC 2002b, p. 46).

4. The public interest test. This test is applied after the reasonable prospects test but before a matter can be heard and determined at trial. It involves ensuring that there is not some discretionary factor — private or objective — that requires the matter not to proceed. Public interest is not synonymous with public curiosity or public expression (Cowdery 2001, p. 2).

The Queensland Prosecution Policy (DPP Qld 1995, p. 5) states that the factors to take into account when deciding whether or not the public interest requires a prosecution will vary from case to case. There are public interest factors that will operate both in favour of and against a prosecution

proceeding: a generally applicable principle is that the more serious the offence, the more likely it will be that the public interest requires a prosecution to be pursued.

Prosecution policies across all Australian jurisdictions also contain a uniform list of factors that may not be taken into account in deciding whether or not to prosecute. These are:

a) the race, religion, sex, national origin or political associations, activities or beliefs of the alleged offender or any other person involved;

b) personal feelings of the prosecutor concerning the offender or the victim; c) possible political advantage or disadvantage to the government or any

54 C H A P T E R 5 : P R O G R E S S I O N O F S E X U A L O F F E N C E M AT T E R S T H R O U G H T H E Q U E E N S L A N D C R I M I N A L J U S T I C E S Y S T E M d) the possible effect of the decision on the personal or professional

circumstances of those responsible for the prosecution.

The Queensland Prosecution Policy provides a comprehensive, but not exhaustive, list of factors for the prosecution to consider when determining whether the public interest requires a prosecution, including:

• the staleness of the alleged offence

• the prevalence of the alleged offence and the need for deterrence, either personal or general

• the attitude of the victim of the alleged offence to a prosecution • the likely length and expense of a trial

• the likely outcome in the event of a conviction considering the sentencing options available to the court

• the effect on public order and morale.

ODPP policies in other States of Australia include additional factors that are not in the Queensland policy such as:

• special circumstances that would prevent a fair trial from being conducted (DPP NSW 1998)

• whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory (DPP NSW 1998)

• whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive (DPP NSW 1998; DPP Victoria 2001).

Queensland’s policy alone makes a specific provision in relation to the public interest criteria for sexual offences. The Queensland Prosecution Policy (DPP Queensland 1995, p. 10) states that:

Sexual offences such as rape or attempted rape are a gross personal violation and are serious offences. Sexual offences committed upon children should always be regarded seriously. Where there is sufficient evidence to warrant prosecution, there will seldom be any doubt that the prosecution is in the public interest.

PROPORTION OF CASES THAT PROGRESS THROUGH THE