CAPÍTULO IV. ANÁLISIS Y RESULTADOS
4.1 Datos de identificación
Discussions about the role of police prosecutors raised a number of salient issues regarding their training, expertise and career structures. Consultation with the QPS in Cairns (28.10.02) and Townsville (31.10.02), for example, suggested that ‘as with police investigators in this area the opportunities for police prosecutor training appear to be inadequate … there are many inexperienced police prosecutors … turnover is high as there is not a good career structure for [them]’. These same consultations suggested that the QPS has a need for specialist sexual offence police prosecutors (consultation with the Townsville QPS 31.10.02) and that the ODPP could provide training to specialist police prosecutions units as well as being involved at an earlier stage in sexual offence cases (consultation with the ODPP Townsville 31.10.02).
The QPS submission indicated that comprehensive training is provided to police prosecutors and that many officers also independently obtain some form of tertiary qualification. The submission indicates that in late 2001, the Service suspended its Brief Managers’ Course to focus on the training of a large number of police prosecutors. It goes on to state that currently the training provided to police prosecutors is being redesigned, so that there might be an accredited Police Prosecutors’ Course (QPS, p. 31).
In response to further queries raised by the Inquiry about police prosecutors, the QPS reported that there are currently 170 police prosecutor positions throughout the state, 47 of those positions allocated to the Legal Services Branch in Brisbane, the others being located at Dalby, the Gold Coast, Ipswich, Kingaroy, the Sunshine Coast, Townsville and Warwick.56
The QPS reported that police prosecutors undergo an intensive 20-week training course, including training in relation to special witnesses as provided by the
Evidence Act 1977 (Qld) and sexual offences more generally, such as relevant
legislation, policies, procedures and the trauma to victims of such offences. As indicated earlier in this report, however, few prosecutors undergo specialist
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The submission b y the QPUE (p. 11) stated:
The officers involved in this area consider that there is merit in appointing specialised prosecutors to prosecute offences of a sexual nature … whilst there are three legal officers attached to the Crime Operations Branch who are available and assist the members of the Sexual Crimes Investigation Unit as required, they are not lawyers who prosecute sexual matters and for that reason their input could never be as valuable as that of a specialist sexual offence prosecutor. In the past the SCIU in Brisbane had a dedicated police prosecutor attached to the unit, and the accessibility and expertise of this person was considered an extremely valuable resource by those officers working in this area. It is thought that the DPP should consider such a proposal.
It should be noted that possession of legal qualifications is not a formal
requirement for the exercise of the prosecutorial role by police. Although many hold formal legal qualifications, many obtain the necessary skills on the job (Career Planning & Management, QPS website, accessed 12.02.03; QPS, p. 34). The submission by the Queensland DPP (p. 9) stated that ODPP involvement in sexual offences at the committal stage is invaluable, but that the ODPP cannot extend itself further into committal work unless it is properly funded to do so. The DPP stated (pp. 9–10):
While recognising that some police prosecutors are very good at this work, in general there is a substantial difference in the quality of evidence from committal hearings conducted by police and those prosecuted by ODPP lawyers.
Prosecutors are more familiar with rules of evidence and are generally more capable of ensuring that the complainant is treated fairly. Police prosecutors are reportedly less likely to hold a conference with witnesses prior to the hearing. This can reflect the listings processes of the Magistrates Court, especially in regional centres where summary and committal hearings can be joined on the one day. Substantial unfairness to the witness can result, particularly where he or she is a child alleging multiple offences. If such a child is left for cross- examination, without any opportunity to focus or contextualise, either in conference or through giving evidence in chief, almost inevitably there is confusion and inconsistencies. While the inconsistencies may derive through misunderstanding or unfairness to the witness rather than unreliability, they can affect the credibility of the complainant.
Another benefit from early ODPP involvement is the earlier response to requisitions for further evidence and the faster resolution of matters. Police are more likely to respond promptly to requisitions made prior to the committal hearing. After the matter is committed for trial, they are distracted by other cases.
Early consideration of the whole of the available evidence is more likely to result in an early disposition of the case. Both pleas of guilty and cases too weak to proceed are identified sooner. This is identified from statistics relating to prosecution files received for Brisbane matters between May 1998 and February 2001. The data compares outcomes between Workgroup 1 (which prepares all matters from Police Prosecutions) and the Committals Workgroup (which prepares and prosecutes its own committal hearings).
The figures to which the Queensland DPP referred indicated that the matters that were reviewed by the committal workgroup resulted in a high rate of guilty pleas (84 per cent or 468 matters) either at committal or prior to the presentation of an indictment. Fewer of the matters reviewed by the committal work group resulted in guilty pleas (33 per cent or 290 matters). Conversely, very few cases reviewed by the committal work group were discontinued (approximately 16 per cent or 90 matters) compared to those that were not reviewed by the committal work group (67 per cent or 578 matters).
The Queensland DPP said that these statistics clearly demonstr ated the positive influence of the ODPP in committals. She states ‘… in our view, there is no doubt that if a committals program of some kind were extended statewide, there
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would be an improvement in the quality of these cases and the ultimate result’ (CMC 2002b, p. 24).
In contrast, the submission by the QPUE (p. 11) stated that their members had raised concerns that there was ‘little or no benefit arising from the Committals Project because of an absence of continuity in prosecuting personnel between committal and trial’. Indeed, the QPS commentary about the Committals Project provided to the Inquiry in response to a follow-up request was quite critical of the process, claiming that operational police were frequently not advised of the reasons for dropping a charge and that communication regarding the current status of a matter was not forthcoming. The QPS ad vised that there had been no formal evaluation of the Project and that information provided was anecdotal at best. The QPS recognises the value of feedback and the need for reasons for the discontinuation of cases for training and development purposes. They claimed that ‘if ad vice and guidance are not provided by the prosecutor, the investigator cannot learn and improve’. Further, the QPS claimed that ‘police often provide information to complainants about the status of their cases and that an open line of communication between police and prosecutors will assist complainants understand why decision are made’.
The recommendations made earlier in this report for compulsory training for police and police prosecutors working in the sexual offences area will enhance the committals process and its outcomes, generally, by providing police with advanced and more relevant expertise. Police prosecutors may also benefit, however, from advanced legal training regarding sexual offences as well as ongoing consultation with prosecutors from the ODPP about sexual offence matters, particularly historic cases.
The next chapter of this report, which discusses the second term of reference (the decision-making process), recommends improved communication between the ODPP and the QPS and more formal feedback mechanisms. Again, the implementation of these recommendations will go a long way towards improving the concerns raised about police prosecution.
Issue 12: The arrest process
Concerns about the arrest process were twofold. First, some submissions
suggested that the use of Notices to Appear (NTA) may be more appropriate than an arrest, especially for historic offences. Secondly, there were concerns about the attitudes of some arresting officers. The QPS argued for the maintenance of the arrest process for the majority of sexual offences. For example:
Arrest is usual practice in Argos — what was unusual was that he got bail … we had to fight to get him bail — they were going to keep him in over night — that is usual practice … all sex offenders are charged because an accused person can take action against a complainant … the PPR Act says give NTAs but they don’t with sex offenders … unless there are extenuating circumstances … the policy is if they’re breathing and they walk they go to the watch-house. [It’s] not written policy … [it’s] an understanding from the nature of the work and an interpretation of the act … if it’s a physical offence against someone else they go to the watch-house and get bail restrictions that he can’t have contact with that person.
Sergeant, QPS. Interview with CMC 10.10.02 Similarly:
I have never served a notice to appear in relation to sexual matters — I’ve always arrested and charged them and taken them through to the watch-house … this practice is just in relation to sexual matters because of the severity of the offences … the fact that he was arrested was not unusual practice … and I wanted to impose bail conditions to protect the complainants, the witnesses and their families.
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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 This issue was also important in the Volkers case (see Appendix 1). The CMC suggested in the Volkers investigation report (CMC 2003) that the QPS should ensure that all officers were fully aware that they must adopt a case-by-case consideration of the decision to arrest alleged offenders, as required by section 198 of the Police Powers and Responsibilities Act 2001 (Qld). The CMC has written to the QPS about this issue.
Many submissions were concerned about the attitude of the arresting officers, especially a general failure to treat accused persons as ‘innocent until proven guilty’. Several formal complaints about police handling of sexual offences were made to the CMC during the period of the Inquiry and reviewed by research staff. One in particular referred to the inappropriateness of the arrest process. That case in volved an alleged rape that was ultimately discontinued by the ODPP because of strong forensic evidence in support of the accused and the significant ingestion of alcohol and drugs by the complainant at the time of her allegation. In a letter to the CMC, the father of the accused argued that:
they [the police] did not give my son the opportunity to go with them, he was just arrested ... the ideology of being innocent until proven guilty is a farce ... from ... the first encounter with the police in regards this matter [it] was very much the feeling of guilty and try and prove your innocence.
It is the view of the Commission that the recommendations for training should result in officers handling arrests in a more considered manner.
Issue 13: Human resourcing issues
Recruitment