1. The training, expertise and supervision of police officers investigating sexual offences
On average, approximately 6500 sexual offences are reported to the Queensland Police Service (QPS) annually. Most of these offences (about 58 per cent) are committed against children younger than 16 years of age (CJC, 1999). As increased media attention, changing legal responses and shifts in societal attitudes towards sexual abuse appear to have enhanced the numbers of victims reporting to police, there is a need to consider the training programs, investigative expertise and procedural guidelines for supervising and reviewing investigations of sexual offences.
The police provide the front line response to complaints of sexual offences in Queensland, having the primary responsibility for investigating the complaint and gathering evidence for the prosecution. In the case of complaints about child sexual abuse, they also have the authority to take children into protective custody if children are perceived to be at risk (QCC and QPS 2000).
The detection of sex offenders is clearly dependent upon complaints being made to the police. While recent evidence reveals that a significant proportion of the population has experienced sexual abuse1, as few as 28 per cent of victims will report it (ABS 1996, p. 66). A key aspect, among many, in encouraging victims of sexual offences to officially report their victimisation clearly lies in their initial interaction and relationship with the police.
The adequacy of the response by police to child sexual abuse allegations has been examined previously in Queensland and, importantly, a series of significant structural changes have been undertaken to enhance service delivery and improve effectiveness. An earlier review revealed a series of shortcomings in police investigations of child sexual abuse and identified the need to improve the coordinated service delivery model, to provide additional training support and to increase the selection and retention of specialist sexual offence staff. Since that review, protocols for the investigative process
1 A recent study of sexual abuse experiences during childhood within a representative national Australian sample of 908 women and 876 men found that, prior to the age of 16 years, 33.5 per cent of females and 15.9 per cent of males had experienced an unwanted non-penetrative sexual event and 12 per cent of females and 4 per cent of males had experienced an unwanted penetrative sexual event (Dunne, Purdie, Cook, Boyle & Najman, in press).
177
A P P E N D I X 2 : I N Q U I R Y D I S C U S S I O N P A P E R have been developed (QPS, Operational Procedures Manual, accessed September, 2002)2, including the formation of the Sexual Offences Investigation Squad, the Child Exploitation Investigation Squad and the Child Abuse Investigation Unit within the Crime Operations Branch.
A review of the practices and procedures of police responses to sexual offences would allow for an assessment of whether current practices are appropriate, effective and operating as intended. Additionally, such an examination could unco ver any existing barriers (perceived or otherwise) within the QPS for officers considering developing expertise in this area.
In summary, information directly related to the police handling of sexual offences (including c hild sexual offences), in particular, information related to the expertise of investigators, the level of supervision and review of investigations, and the provision of training and assistance for front line officers, is sought. This information will assist in the CMC’s review to ensure both effecti veness and public confidence in the police response to sexual offending in Queensland.
2. The adequacy of existing guidelines and procedures for the initiation and
discontinuance of the prosecution of sexual offences by the police and the Office of the Director of Public Prosecutions (ODPP)
There is a series of unique challenges associated with prosecuting sexual offences (QCC and QPS, 2000). Delays in reporting, for example, make it difficult for investigators to gather corroborating evidence such as medical evidence and witnesses. Delayed disclosures, more frequent amongst child victims (CJC 1999), can also make it extremely difficult for victims to provide sufficient detail about the circumstances of the offence to ensure successful prosecution (QCC & QPS 2000) and, in the case of the accused, some of the usual defences, such as an alibi, are unlikely to be available.
According to the rape and sexual assault protocols for police (QPS, Operational Procedures Manual, accessed September, 2002), officers of the QPS have three main functions in rape and sexual assault cases:
• to protect and support complainants
• to investigate and establish if an offence of rape or sexual assault has been committed • to identify, apprehend and prosecute the offender(s).
In the vast majority of cases charges are brought by the police without prior consultation with the ODPP. In these circumstances the selection of charges is for the in vestigating officer to determine.
In Queensland, the ODPP was established to prosecute offences independent of both the political process and the process of investigation conducted by police (see the Director of Public Prosecutions Act 1984 [Qld]). The ODPP will usually not have any input until a committal hearing date is set and the brief of evidence is forwarded to the ODPP for its consideration. In some regions the committal hearings are conducted by the QPS and consideration by the ODPP does not occur until after the accused has been committed for trial. While the views of the investigating officer and the alleged victim are normally sought and considered, once a prosecution is in the hands of the ODPP, the decision to proceed or not with that prosecution is made by the Director independently of those responsible for the investigation. Once the ODPP assumes control of the matter it is responsible for the selection of the charges, for conducting the court proceedings and it has the authority to discontinue a case if it appears that a prosecution is not justified.
In Queensland, the ODPP has policies and guidelines that assist it to carry out its prosecutorial functions (Director of Public Prosecutions 1995). The criteria that are applied when deciding whether to prosecute a case fall into two categories: the
sufficiency of the evidence and whether it is in the public interest to prosecute. In the first category the prosecutor must be satisfied that there is a reasonable prospect of securing a 2 These include: gender appropriateness, caring for the complainant, physical safety, accuracy of records, the
medical examination, evidence and exhibits, legal representation, taking statements, false complaints, withdrawal of complaints, follow-up procedures, arrest, summons, charge and bail and the role of police prosecutors.
178 A P P E N D I X 2 : I N Q U I R Y D I S C U S S I O N P A P E R
conviction. When deciding whether there is enough evidence, the prosecutor must consider a number of things, including whether the evidence is admissible and whether it is reliable. A prosecution should not proceed to consider the second category if not satisfied as to the first.
The second criterion relating to public interest identifies that the factors affecting the decision to prosecute include the seriousness of the offence, the need for deterrence and the circumstances of the alleged offender. With regards to sexual offences, the Director of Public Prosecutions Prosecution Policy of the State of Queensland specifically 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. (Director of Public Prosecutions 1995)
The prosecution will start or continue only when a case satisfies both the sufficienc y and public interest criteria.
Not all cases reported to the police proceed through the criminal justice system. Between 700 and 900 persons accused of sexual offences come before the Magistrates Court annually. The majority are committed for trial or sentenced in a higher court, although about half plead guilty (CJC 1999).
Recent research reveals that between 20 and 40 per cent of sexual offence cases are discontinued after charges have been laid (CJC 1999; QCC & QPS 2000), and that there are a number of reasons why this occurs. In previous reports, the CJC (1999) and the QCC and QPS (2000) have suggested that further research appears to be warranted into why sexual offence cases are withdrawn and discontinued at a higher rate than other offence types. A 1997 report suggested that deficiencies in investigations, such as interviewing techniques and inadequate police briefs, may be associated with the high rates of withdrawal (reported by QCC & QPS 2000). Since the release of that report, the QPS has appointed Brief Managers throughout the state to monitor briefs and has formed Failed Prosecution Committees to review failed prosecutions within the Magistrates court. A review of the current level of functioning of those processes may allow an assessment of the success of those innovations.
Systematically documenting the reasons and the range of characteristics associated with why sexual offences are continued or discontinued is of central interest to this Inquiry. An additional important consideration is the provision of existing guidelines for case
management and the extent to which current practices operate within such guidelines. Another issue that requires deliberation is the extent to which consultation occurs when consideration is being given to withdrawing charges. The complainant, the investigating police officer and the accused all have a different perspective and, regularly, these views do not coincide. The nature and extent of any consultation between these parties requires consideration.
In summary, the Inquiry will consider whether the applicable guidelines no w in existence adequately address the concerns that are raised in submissions made by the
representatives of relevant government agencies, concerned interest groups and the wider community.
3. The appropriateness of, and the circumstances in which, the publication of identifying information about a person charged with a sexual offence should be suppressed
It is a fundamental principle of our judicial system that the courts are open and accessible to the public, that justice is administered in public and that court proceedings can be freely reported. Nevertheless, the law also recognises that the proper administration of justice may require modification to this general principle in circumstances where publicity could be contrary to the interests of justice. The courts have discretion to place limits on the open and public nature of proceedings. This requires a judicial balancing exercise, heavily weighted in favour of openness and publicity, but also involving considerations of fairness. Important factors to consider include the need to protect the innocent, the need to ensure that the accused will be able to have a fair trial and the need to protect the identity and privacy of parties, witnesses and victims.
179
A P P E N D I X 2 : I N Q U I R Y D I S C U S S I O N P A P E R There are specific statutory exceptions to the general rule of openness and publicity regarding court proceedings. In Queensland, the Criminal Law (Sexual Offences) Act 1978 (Qld) sets out, for sexual offence cases, the exceptions to the general rule of openness and publicity. This legislation, in certain circumstances, prohibits the publication of names, addresses and other identifying details of the complainant and defendant in relation to nominated sexual offences, but not all sexual offences. It is not clear why some sexual offences are included and others are not. Consideration will be given to the nature and extent of the protection afforded by the Act.
There are opposing views about the publication of information identifying the accused. One viewpoint is that sexual offences should be treated differently to other offences. It is argued that the privacy of the defendant should be maintained, especially given the social, personal, and financial consequences associated with sexual offence allegations. There may be a lengthy period of time between the committal and the trial, in w hich the accused’s identity might be publicised, and the presumption of innocence does little to protect an accused when the circumstances involve sexual offence allegations. A high level of media and public interest in these types of cases exists, and openness and publicity should be limited so as not to inflame pre-trial prejudice to the accused. The alternative view holds that because of the highly personal nature of sexual abuse, victims rarely disclose their experiences and offenders often remain undetected for a long time, if not forev er. Victims might be more likely to come forward to report their
experiences if they become aware that the same or similar offence that was perpetrated against them might have been perpetrated b y the same offender against others. There have been a number of trials in recent years that have exposed offenders who have perpetrated sexual abuse upon multiple victims many years after the abuse occurred.
Public safety and harm minimisation issues have also been raised as critical points in support of disclosing information about the accused. This argument holds that persons close to the accused, such as neighbours, children, students or work colleagues, might be better able to take appropriate steps to minimise the risks of the offence occurring again during the lengthy time that it takes for cases to go to trial, if they are aware of who has been alleged to be a sexual offender.
There are strong arguments in support of each of the opposing views. This Inquiry will consider all arguments both for and against the public disclosure of identifying information of persons charged with sexual offences.
REFERENCES
Austr alian Bureau of Statistics 1996, Women’s Safet y Australia. AGPS Canberra. CJC 1999, ReportedSexual Offences in Queensland, Criminal Justice Commission.
Director of Public Prosecutions Queensland 1985. Guidelines to the Crown Prosecutors, the Solicitor for Prosecutions and Legal Staff Concerned with the Prosecution of Offences (issued pursuant to s. 11(1)(a) of the Director of Public Prosecutions Act 1984), in Carter et al., Carter’s Criminal Law of Queensland, Butterworths, 1988, pp. 150 117–153 061 [Service 43].
Director of Public Prosecutions Queensland 1995. Prosecution Policy of the State of Queensland, in Carter et al., Carter’s Criminal Law of Queensland, Butterworths, 1988, pp. 150 001 150 066.
Dunne, M.P., Purdie, D.M., Cook, M.D., Boyle, F.M. & Najman, J.M. in press,Is child sexual abuse declining? Evidence from a population-based survey of men and women in Australia,
Child Abuse and Neglect.
QCC & QPS 2000, Child sexual abuse in Queensland: Responses to the problem. Project Axis: Volume 2, Queensland Crime Commission & Queensland Police Service.
QPS 2002, Operational Procedures Manual: Rape and sexual assault protocols for police.
180 A P P E N D I X 3 : S U B M I S S I O N S T O T H E I N Q U I R Y
APPENDIX 3: SUBMISSIONS
TO
THE INQUIRY
Invitations to provide written or oral submissions to the Inquiry, and requests to appear at the public hearings of the Inquiry, were sent to a number of key government departments and agencies. Many chose to respond (see next page). Many also chose not to respond, due to time restrictions and workloads and, in some cases, the perception that the terms of reference for the Inquiry were not relevant to their organisation.
The table on the next page documents the organisations that either provided a written submission or agreed to be consulted or interviewed for the Inquiry. Many of these groups and individuals were also represented at the hearings (see Appendix 4 for the hearing schedule).
Overall, written submissions were received for the Inquiry from 8 government
departments and agencies, 10 legal organisations, 10 community organisations, 2 media groups, 3 academic affiliations and 39 individuals. All of the transcripts of the interviews conducted by the CMC for the Volkers in vestigation were also reviewed for the Inquiry by the project manager and incorporated throughout this report where appropriate. In addition, the CMC conducted 20 consultations with a range of academic, legal,
community and government agencies and individuals, and spoke to 75 callers who made oral submissions to the Inquiry by telephone.
For a variety of reasons, including the following, the names of individuals who made submissions to the Inquiry have not been identified in this report:
• a number of submissions were provided by victims of sexual offences, and the accused, whose cases were still before the courts
• some submissions provided the names of, and other identifying information about, individuals who had not given their independent approval for the release of those details in a public forum
• some submissions were unsuitable for public release.
Some of the written submissions and the full transcripts of the public hearing are available on the CMC’s website at <www.cmc.qld.gov.au> for a limited period.