Paradigmas y modelos de formación docente

Issue 1: The disclosure of sexual abuse

How disclosure about sexual abuse occurs was of direct relevance to the Inquiry because of (a) the number of concerns that were raised about how the police and the ODPP record, interpret and respond to disclosures of sexual abuse (including false allegations and those brought about by recovered memories) and (b) the numerous decisions on whether to prosecute an offence or not, which are based on how and when a complainant discloses information about abuse. Many submissions to the Inquiry suggested that the legal process was not aligned to the realities of the disclosure process.

All people involved need to be trained and to have an understanding about sexual offences/trauma … they don’t understand the impact of the trauma … how victims are not able to be specific about the assault … if a woman wants to amend her statement it is assumed that she is lying and the information is [then] misused in court by defence barristers.

Consultation with Family Planning Queensland (FPQ) Sexual Assault Service, Cairns 29.10.02

The supervising sergeant in one matter commented:

How many people tell the full details to the first person who assesses them? ... a lot of people that I deal with seek psychiatric treatment — that’s how it often comes to light.

Interview with CMC 10.10.02

And a complainant noted:

Looking back on it I didn’t actually realise the whole implication of the statement and how, really in detail, it should’ve been … I also found too that it’s very hard to … actually say all the intimate details and to be able to put that into words … it’s quite embarrassing.

Interview with CMC 3.10.02

The research about disclosure of abuse described in Chapter 2, and the

comments highlighted above, indicate a need for widespread education about how the disclosure of sexual abuse occurs for people who work in the criminal justice system. The next two chapters discuss issues arising out of the first and second terms of reference that are relevant to this topic, especially the training, supervision and expertise of police officers and the response to victims of abuse by staff of the ODPP. Several recommendations are made in those chapters for enhanced training for both police and ODPP staff, including training in the nature and extent of sexual abuse, and the features of disclosure.

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Issue 2: The prosecution of historic offences

Consider able debate about all three of the Inquiry’s terms of reference centred on the prosecution of sexual offences that were alleged to have taken place a considerable number of years before being reported to the police.

A number of submissions (including those from LAQ) supported the notion of a statute of limitations for historic cases due to the difficulties of prosecution. For example, the Bar Association of Queensland (pp. 4, 6) submitted:

The ‘cultural’ approach of investigators is to automatically bring charges against an alleged perpetrator upon a complaint being made, no matter how old that complaint might be. Thus, we routinely see complaints up to 40 years old being litigated in the criminal courts. In many such cases, the accused person has a significantly reduced capacity to defend against such old allegations … If the ODPP does not discontinue some of these old prosecutions of its own motion, then applications … are taken for a stay of proceedings on the basis that the accused is prejudiced or embarrassed in his defence. Anecdotally, a number of such applications have been successful in the District Court, and those decisions upheld in the Court of Appeal … There should be consideration given to not proceeding with complaints made 5 or 10 years after the complainant reaches his/her majority, where there is no corroboration of that complaint. Perhaps the seriousness or otherwise of this ‘old’ allegation (for example, whether or not the alleged offence involved penetration of the person of the victim) should also be part of the guideline … Perhaps ‘old’ cases should be not only the subject of guidelines, but also subject to obtaining the certificate of the Attorney-General, or some other similar safeguard … In comparison to cases of relatively minor sexual touching, one would not expect a complaint of common assault, made, say 20 years after the event, to proceed to a prosecution.

The Queensland Law Society (p. 6) stated that, in relation to the prosecution of historic sexual offences:

Our members also endorse the submission of the Public Defender in that, it is rare that submissions to the police or the ODPP are successful. Often the prosecutor will concede that the pressure by the complainant or, more significantly, the complainant’s family is the ultimate determinative factor in deciding whether or not to proceed.

The data presented in Chapter 5 of this report, and the QPS presentation at the public hearings, suggest that the QPS now receives many more ‘historical complaints than in the past, and that they are investigating matters 30 to 40 years old in some cases’ (CMC 2002b, p. 8). These figures reflect the greater social awareness about sexual offending that has occurred during the past few decades and the public pressure now brought to bear on police to detain sexual offenders and prevent further abuse. In the light of these recent developments, significant resistance to the concept of a statute of limitations, and indeed widespread support for there being no statute of limitations, was expressed by man y submissions to the Inquiry, particularly those from people who w ork closely with victims of abuse (this is discussed in Chapter 2). For example, Hetty Johnson, the Director of Bravehearts, said in consultation on 28 November 2002:

When I heard ... talk about the 12 year limit I could have cried — this is the kind of attitude that is steeped in ignorance — it’s a personal attitude and it’s scary … There is no statute of limitations on an offender.

Dr Christine Eastw ood from Queensland University of Technology reported during her consultation for the Inquiry on 4 December 2002 that:

We cannot lose the gains that have been made during the last decade … comments from a number of people to the Inquiry seem to ignore the significant body of knowledge about the nature, scope and context of child sexual abuse … where typical features [include] delayed complaints, lack of corroboration and gross under-reporting.

Dr Eastwood also pointed out that a statute of limitations on historic cases would be in direct conflict with the current directions in criminal la w, such as the

Queensland Evidence (Protection of Children) Amendment Bill 2003, which was

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released by the NSW Standing Committee on Law and Justice (2002) and the United Kingdom Justice System White Paper (2002), which refers to ‘rebalancing in favour of the victim’.

As an alternative, t he Queensland DPP suggested:

given the prospects for conviction [of historic cases] … there may be some real benefit in treating them as a special area of advice … what I’m inclined toward … is looking at some procedures for referral of those matters or consultation in relation to those briefs prior to charging.

CMC 2002b, p. 28

While recognising the difficulties associated with the prosecution of historic sexual offences, the Inquiry does not favour a statute of limitations for these matters. Rather, implementation by the QPS and the ODPP of the

recommendations for reform made in the following two chapters should enhance the prosecution of historic cases and make it easier to decide whether to pursue or discontinue prosecutions.

Issue 3: The committal hearing

As discussed in Chapter 4, the committal hearing has been the subject of considerable debate. The issue is of direct relevance to this Inquiry because (a) both the QPS and the ODPP can be involved in a committal and (b) the results of that process can have a significant impact on subsequent decisions made by the ODPP to either proceed with, or discontinue, a prosecution. The committal hearing is also directly relevant to the third term of reference because, if a defendant is committed for trial or sentence at the end of a committal hearing, they can then be named in the media.

An observation that was made to the Inquiry was that:

Many complainants do not understand committals — [or] why they have to go through it all twice.

Consultation with magistrates 25.10.02

Chapters 7 and 8 delve further into the committals process regarding the roles played by the QPS and the ODPP. Chapter 9 discusses the relevance of the legislation and the publication of the names of the accused before, during and after committal.

The prima facie test

Proposals were put forward to the Inquiry that the prima facie test, currently used in Queensland for committals, should be stricter. However, some of the

follo wing comments indicate the controversial, and at times contr adictory, nature of the views expressed about this issue. Some comments implied that the prima facie test is inadequate (consultation with magistrates 25.10.02 and Townsville ODPP and QPS 31.10.02) while others felt that most matters are committed for trial (consultation with Townsville ODPP 31.10.02) and that the committal hearing is too often a ‘rubber stamp’ (consultation with members of the Supreme Court and the Court of Appeal 19.10.02). The data presented in Chapter 5 of this report, however, indicate that it is not necessarily the case as, on average, about one-third of cases are dismissed at committal.

Suggestions were made that the current prima facie test applied by magistrates should be replaced by the higher ‘reasonable prospects test’, which is currently applied b y the ODPP and the higher courts. The submission by the Queensland Council for Civil Liberties, for example, described the level of evidence required to commit a person to trial in Queensland as ‘flimsy’ (p. 6), while the views of some complainants, as reported by Hetty Johnson, Director of

Bravehearts (consultation 28.11.02), were that:

Maybe the test at committal should be higher — it would be better than going over the first bar and then being trashed.

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The Queensland DPP (interview with CMC 17.10.02) also supported this view, ‘I think we should review the prima facie test of the magistrate … I think it’s no longer entirely relevant’, as did LAQ, with the suggestion that the introduction of ‘a reasonable prospects of success test would motivate proper investigation of matters, and proper consideration of the selection of charges by police. This would lead to greater certainty for an accused about the case they face and its strengths and weaknesses, and would, in turn, provide for early resolution of matters’ (CMC 2002b, p. 8). The submission by the Queensland La w Society (p. 6) also ‘endorse[d] the views of the Director of Public Prosecutions and the Public Defender in their call for reconsideration of the tests applied by committing Magistrates’, as did the submission by the Queensland Aboriginal and Torres Strait Islanders Legal Services Secretariat (QAILS) (p. 6).

The Commonwealth DPP, Mr Damian Bugg, wrote in his submission to the Inquiry (p. 4), ‘it may be time to consider the adoption of the reasonable prospects test for committing magistrates’, although he did comment at the public hearings that the reasonable prospects test that is applied by New South

Wales magistrates during committal (see s. 41[6] of the Justices Act 1902) can

create tension if the prosecution, applying the same test, later decides to discontinue a matter. However, the ODPP could apply the same test as that applied at committal and decide to withdr aw the matter later, without the two decisions being in conflict. There may be a number of possible reasons for discontinuation, apart from the test. For example, the full evidence may not have been presented at committal; there may have been another ODPP policy consideration that justified withdrawal of charges, apart from the reasonable prospects consideration; new evidence may have emerged with the passing of time; or a witness may have altered their evidence.

The Council for Ci vil Liberties suggested that it would be beneficial for all jurisdictions across Australia to use the same test at committal. The Council pointed out that the same historic child sex accusation may be dismissed at committal in New South Wales, with costs, for failing to satisfy the reasonable prospects test, and in Queensland, where a lower test applies, be committed for trial. The submission states (p. 5):

It really is an absurdity in Queensland where a person is committed for trial on the very low Doney test when in many of the other Australian States and Territories, the reasonable prospects test is applied by Magistrates at committal. The Committals Project

An alternative suggestion made by many submissions was that more committals should be prosecuted b y the ODPP, rather than the police, as per the Committals Project currently under way in the Ipswich, Brisbane and Southport Magistrates

Courts. The CJC reviewed the Committals Project in its 2001 Funding Justice

report. Although reporting that the Project was generally thought to have made a worthwhile contribution to the efficiency of the criminal justice process — and was strongly supported by the ODPP, LAQ, the courts and the legal profession — the CJC concluded that it was difficult to determine its true impact for a range of reasons, including the lac k of adequate pre-pilot data. However, the CJC stated that the available information did not show any significant change in the outcomes of criminal matters (CJC 2001, p. 82).

Preliminary analysis of the data provided to the CMC for the Inquiry offers a mixed story in this regard (see Chapter 5 for a full explanation of the data source). During the years 1994–2001, just under half (43.5 per cent) of all sexual offence matters in Queensland processed by the lower courts were handled by Committals Project courts (12 375 appearances): all other sexual offence appearances (16 063) were handled by non-Committals Project courts around the State. The data suggest that sexual offence matters dealt with b y Committals Project courts (Brisbane, Ipswich and Southport) are more likely either to result in a penalty at committal (although this is most likely to occur in the Brisbane and Southport Courts) or to be dismissed or discharged (predominantly by the

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Brisbane Court) than those processed by the non-Committals Project courts. This means that, overall, more sexual offence matters dealt with by the non-

Committals Project courts are committed to the higher courts for trial than those dealt with by the Committals Project courts (although, paradoxically, the data for Ipswich Court indicate that it has the highest proportion of sexual offence matters being committed to the higher courts).

Figures 4 to 6 indicate the preliminary results of the data analysed for the Inquiry. Further analysis, taking into consideration a full range of factors (such as funding, training and time requirements for the administration of the Project) is required, however, to place this information within the full context of the criminal justice system and to assess the true strengths and weaknesses of the Project.

With regard to the committals process, some criticisms were levelled at police prosecutors during the Inquiry, with claims that some officers ‘may not be aware of the rules of evidence, or may not be experienced or confident enough to ensure that defence counsel do not harass the witness’ (consultation with the ODPP Townsville 31.10.02). It was also suggested that there were times when ‘police prosecutors [are] overcome’ by the defence (consultation with members of the Supreme Court and the Court of Appeal 19.12.02).

The written submission by the Queensland DPP (pp. 9–10) suggested that:

ODPP involvement in sexual offences at the committal stage is invaluable ... in general there is a substantial difference in the quality of evidence from

committal hearings conducted by police and those prosecuted by ODPP lawyers … they are more familiar with the rules of evidence and are generally more capable of ensuring that the complainant is treated fairly … 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.

Police prosecution at committal is discussed in more detail in the following chapter.

Conduct of the defence

Serious concerns were raised by some submissions about the conduct of some defence lawyers at committals, which ‘remain[s] problematic’ because ‘defence lawyers are still destroying complainants’ (consultation with the ODPP

31.10.02). Some also criticised magistrates for failing in their duty to intervene to protect witnesses, particularly complainants (consultation with magistrates 25.10.02).

Support for committals

The Inquiry received submissions and other comments that supported the retention of the current committal process, especially b y the defence. For example: ‘the committal hearing is very important for the defence … [it] play[s] a vital role in ensuring the process is fair for the accused’ (consultation with magistrates, 25.10.02). Members of the ODPP also recognised its importance, for example:

With sex offences you test out one person’s word against another — I think the committal is not a bad place to see how that happens … a good case lawyer should be sitting there like a hawk watching how cross-examination goes and if the defence raise issues that are likely to come up at trial and the witness doesn’t cope with them very well or you can see some obvious holes that’s where you