Construcción del instrumento

perfect would that be and it mirrors the American system … if you

could liaise directly from the day you get a complaint to the day

you prosecute obviously it’s going to be a lot better … you’d have

to have a formalised process [rather than ad hoc], absolutely.

(Sergeant, QPS. Interview with CMC 10.10.02)

Application of the prima facie test

Section 3.4.3 of the OPM (QPS 2002) states, under the heading ‘The discretion to prosecute’, that ‘Police Service policy on w hen to institute proceedings against offenders is drawn from guidelines by the Director of Public Prosecutions regarding the discretion to prosecute offenders’. The section then outlines the ODPP policy, setting out those matters that prosecutors may not take into account when making a decision to prosecute, the sufficiency of evidence test, and the public interest test.

The OPM does not clearly distinguish between the different roles of police in the prosecution process and appears to direct that the appropriate test to be applied by police, whether prosecuting a matter summarily or a committal, is the same test as that applied by the ODPP — the reasonable prospects test.

However, the submissions by the QPS at the hearings clearly indicate that, in practice, the police apply the prima facie case test when making decisions about the prosecution of a matter at a committal hearing, not the reasonable prospects test as stated in the OPM. Similarly, the QPS stated that it was the role

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The Commission is of the view that the prima facie test is the appropriate test for the police to use to decide whether to proceed to committal, as this is the test applied b y the magistrate. However, police investigating and prosecuting these matters must be cognisant of the reasonable prospects test that will be applied by the ODPP at a later stage as such knowledge is likely to be crucial to the satisfactory preparation of the case.

Police prosecuting matters summarily, howev er, must apply the stricter reasonable prospects test. Although it is not spelt out in the OPM, police discretion to withdraw charges exists only for matters that can be heard summarily and for indictable offences until they are committed for trial. In relation to the prosecution of sexual offences, the OPM specifies that only a commissioned officer exercising supervision over the prosecution corps responsible for the prosecution of a particular charge has authority to approve the withdrawal or offering of no evidence in relation to that charge.

The OPM (at 3.4.4), under the heading ‘Withdrawal of charges’ provides: When an officer becomes aware of a change in circumstances which may indicate that, in terms of the Service policy, w hether due to the sufficiency of evidence test or the public interest test, the continuance of a prosecution may no longer be warranted, that officer is to immediately advise the officer in charge of the prosecution corps responsible … This advice is to be b y report which is to contain all relevant information and reasons why the withdrawal is required. The report is to be submitted through the arresting officer’s officer in charge. Prior to withdrawing or offering no evidence in relation to a charge, the police prosecutor responsible for the prosecution of the charge is to ensure that consultation takes place with the arresting officer where possible and, where appropriate, with the victim of the crime.

A prosecutor is required to obtain such authorisation prior to offering no

evidence or withdrawing a charge and is to record the particulars of such action on the relevant court brief. Particulars are to include the:

• reasons for withdrawing or offering no evidence in relation to a charge; • name(s) of the officer providing the authority;

• names of the person(s) with whom consultation took place concerning the proposed intention not to proceed with the charge; and

• signature, rank and registered number of the prosecutor who dealt with the matter.

The prosecutor w ho has withdrawn or offered no evidence in respect of a charge based on the sufficiency of evidence test is to forward a copy of the relevant court brief on which the particulars of the action taken have been recorded to the appropriate Prosecution Review Committee.

In some Australian jurisdictions the exercise of the discretionary power of police to decide whether or not to proceed with a prosecution has been formally restricted in a way that it is not in Queensland. In New South Wales, for example, not long after the ODPP was established it took over the decision- making process where applications were made to police to terminate the prosecution of indictable offences before a committal order had been obtained (Rozenes 1996). This was later followed by the New South Wales ODPP taking over the conduct of all committal proceedings.

In Queensland, the information available to the Inquiry indicated that police may apply discretion in about one-quarter of reported sexual offences (see Chapter 5), although some submissions to the Inquiry suggested that, in practice, police rarely decide to discontinue the prosecution of a sexual offence case because police tend to: avoid the difficult decision to prosecute or not;

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acknowledge the complainant’s desire to have their ‘da y in court’; or recognise the deterrent effect on the accused, even if a conviction is unlikely. The outcome is that, while police retain important decision-making powers in the prosecution of cases, they are rarely, if ev er, willing to exer cise them.

We’re not judge and jury — we are the gatherers of evidence …