Estimular la participación del niño en la casa y la comunidad

Consideration should be given to provide for staged disclosure, the approach endorsed by most of those attending the round table and in submissions. The first stage would require disclosure of:

 The QP9 form prepared by the police summarising the case against the

accused. (The quality of QP9 forms will be decisive if limited disclosure is to be successful) ;

 Any complaint or bench charge sheets;

 The substance of alleged admissions made by the accused or recordings of those admissions;

 A list of witnesses with a copy of any statement by the witness in the possession of the prosecution;

 If there is no statement the name of the witness to be provided and the category of evidence (eye witness etc) should be provided;

 An accurate summary of forensic evidence;

 The accused’s criminal and traffic history; and

 Any other known material the prosecution is required to disclose.

The second stage would require full disclosure if there was no plea of guilty on the material disclosed in the first stage.

Realistic time lines should be set by agreement (protocol) or Magistrates Court Practice Direction. The time lines set by the Brisbane Committals Protocol81 are 21 days from arrest, service of complaint and summons or notice to appear.

5.7 Recommendations

Chapter 5: With regard to disclosure I recommend that:

12. The statutory provisions for disclosure should be redrawn to be simpler, more coherent and consistent. In particular but not exhaustively:

 There must be disclosure of the evidence relied on by the prosecution; and

 There must also be disclosure of all information or material known to, or in the possession of, the prosecution bearing on the case which is capable of

rebutting the prosecution case or advancing the defence case (or similar provision meeting the concerns expressed in the chapter);

13. The following exclusions should remain:

 s 590AO Limit on disclosure of sensitive evidence;

 s 590AN Limit on disclosure of things accused person already has;

 s 590AP Limit on disclosure of witness contact details;

 s 590AQ Limit on disclosure contrary to the public interest; and

 s 590AX Unauthorised copying of sensitive evidence.

(There were no issues raised in the course of the inquiry about provisions to the effect of those identified);

14. The Queensland Police Service should review its training of cadets and serving QPS officers to ensure they understand and comply with disclosure obligations. Failure to comply with disclosure obligations should have a disciplinary

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consequence. Police training should also emphasise the value of comprehensive and accurate QP9’s;

15. Before a ‘brief to prosecute’ (the means of satisfying the statutory disclosure obligations) is transmitted (including electronically) to the Director of Public Prosecutions or filed (including electronically in the Magistrates Court) the arresting officer (as defined in s 590AD of the Criminal Code) must be satisfied there is sufficient evidence to support the charges and the statutory disclosure provisions have been complied with.

The arresting officer must swear a certificate that he or she is satisfied that those two requirements have been complied with and lodge the certificate with the brief of evidence in the Magistrates Court;

16. If a party (the applicant) contends that the other party has not complied with that party’s disclosure obligations that party must communicate (electronically, or by fax or letter) with the other party specifying the following matters:

 what the applicant says the other party should have done but has not;

 the order sought and why it should be made;

 a brief statement of the relevant facts necessary to resolve the issue;

 nominate a reasonable time for a response;

 state whether the party wants an oral hearing or a decision based on the material before the magistrate.

(note that an accused has specific disclosure obligations);

A recipient of such a communication must respond within the specified time stating:

 the communication was a response to the applicant’s communication; and

 what, if anything, the respondent proposed to do in response to the request; These provisions should not prevent the applicant or the respondent from writing

to each other in addition or otherwise communicating on a relevant matter;

If the applicant:

 does not receive a satisfactory reply; or

the applicant may file an application in the Magistrates Court seeking further disclosure (a disclosure application);

The following documents must be filed with the disclosure summons stating the order sought and served (electronically, fax, letter) on the respondent:

 the applicant’s letter;

 the respondent’s reply (if any); and

 any other relevant correspondence exchanged after the applicant received the respondent’s reply or the nominated time for replying had passed relevant to the issue.

No affidavit is necessary and no other material will be before the court on an application without the leave of the court.

The magistrate may then dispose of the matter without oral submissions unless a party has indicated it wishes to make oral submissions and the magistrate

decides that oral submissions are necessary to dispose of the case;

17. If at any time after the filing of the brief of evidence a magistrate is satisfied that timely disclosure was not made in compliance with the prosecutions obligations at the time of certification the magistrate may order the certifying officer file an affidavit explaining and justifying the failure and provide a copy of the defence (justification might be founded on a statutory provision and/or the circumstances);

18. If a magistrate does not consider the affidavit satisfactorily explains and justifies the failure to make proper disclosure in the time provided for or in a reasonable time the magistrate may order or recommend (any or a combination):

 that specified material adverse to the interest of the accused not be tendered in evidence or relied on by the prosecution;

 that the Queensland Police Service pays an amount to the defendant or the defendant’s legal representatives reflecting the costs to the defence

incurred as a consequence of the failure. The magistrate should inform him or herself of the amount and fix it and set a time for it to be paid;

 disciplinary proceedings or proceedings for breach of s 204 of the Criminal Code; and/or

 a stay of the proceedings unless it is demonstrated that there are

compelling reasons that in the interests of justice this should not be done. In making that decision the magistrate will take into account whether conduct of the defence may be adversely affected by the delay and the public interest. The stay may be lifted:

o by consent; and

o on the application of the ODPP that it is in the interests of justice, including the public interest, that the stay be lifted; on such terms and conditions as the magistrate imposes (if any).

(Disciplinary proceedings would be at the discretion of the Commissioner of Police or the delegate of the Commissioner);

19. A case conference (see Chapter 9: Reform of the Committal Proceedings Process) should only be held if there are no outstanding issues about compliant disclosure, unless a magistrate orders it or the parties agree;

20. That there be a co-ordinated and staged move by the major criminal justice agencies, QPS, ODPP, Legal Aid Queensland, Bar Association of Queensland, Queensland Law Society and Queensland Courts to electronic acquisition, transfer, storage and access of disclosable material (an electronic brief);

21. There should be provision for staged certified disclosure by a protocol, practice direction, guideline or legislation providing for disclosure (staged disclosure) of:

 The QP9 form prepared by the police summarising the case against the accused;

 Any complaint or bench charge sheets;

 The substance of alleged admissions made by the accused or recordings of those admissions;

 A list of witnesses with a copy of any statement by the witness in the possession of the prosecution;

 If there is no statement the name of the witness to be provided and the category of evidence (eye witness etc);

 An accurate summary of forensic evidence;

 Any other known material the prosecution is required to disclose; within realistic time lines. Full disclosure must be made if the matter is not resolved within the specified time;

Chapter 6