Prosecutions in the Summary Jurisdictions

Abstract

Police prosecutors play a critical role in the Victorian summary jurisdiction. While scarce, the available literature identifies concerns about the use of police prosecutors, including a lack of independence from investigative police; the opaque police prosecutor decision-making; the potential bias in favour of police informants; the lack of uniformity in training requirements; the high workloads; and the lack of clear, uniform and public guidelines; all which may have real or perceived impacts upon court outcomes for accused and victims alike and upon the public’s confidence in the administration of justice. This is particularly so in the context of increasing volume, complexity and seriousness of summary offences. This chapter supports the need for an evidence-based review of police-led prosecutions which includes the impacts on case outcomes, and whether certain reforms may be necessary.

Appendices

Practitioner Perspective: Police-Led Prosecutions in the Magistrates’ Court

• Sophie Ellis 

1. VIC, Australia

   Sophie Ellis

Police prosecutors wield incredible power in the summary jurisdiction. In busy courtrooms that can see lists of over 50 people a day, such as across the Magistrates’ Court in Victoria, prosecutors make time-critical and often complex decisions, which in turn play out in the lives of both accused and victims. These decisions include:

• determining whether or not there is sufficient evidence for charges to proceed

• making submissions to the court on appropriate penalties

• determining whether to oppose or support diversionary outcomes in both Children’s and Magistrates’ Courts

• determining whether or not to oppose applications for bail, or support an informant’s application to revoke bail and making submissions on what conditions ought to be attached to any undertaking of bail

• making submissions on what conditions are needed with respect to family violence intervention order (FVIO) applications

• making applications for victim restitution

• making applications for forensic procedures on an accused

• determining which evidence should be called and what witnesses should be examined.

Police prosecutors’ actions also influence how quickly matters are resolved; for example, whether charges are thoroughly case conferenced and if and at what stage charges are withdrawn.

Although they operate in what are often seen as ‘less serious’ court matters, decisions by police prosecutors will have repercussions for a person’s entire life. Exercised with due skill and care, the discretion a police prosecutor applies in summary courts can have a positive impact. For example, a police prosecutor well versed in the specific jurisdiction of the Children’s Court will understand the rehabilitative principles of the jurisdiction and assist the court in achieving efficient and rehabilitative dispositions early that limit unnecessary appearances of children in the courtroom and thus their exposure to the criminal justice system.

This is particularly important: acknowledging the impact of court on a child’s daily life, including on schooling; and that many children in the criminal justice system are, themselves, victims of crime and have experienced trauma including removal from their families due to exposure to family violence, abuse and/or neglect.

Conversely, a police prosecutor who is not trained in the jurisdiction of the Children’s Court may adjourn matters unnecessarily even where the appropriate disposition is clear—for example, a withdrawal because the child is under the presumed age of criminal responsibility, or a diversion because the offending is minor and the child has no prior criminal history.

There are four key factors which may compromise a police prosecutors’ ability to carry out their role with due care and skill which diminishes public trust in the criminal justice system.

First, police prosecutors commonly have enormous workloads and often do not see a brief of evidence until the morning of court. If it is adjourned, then the next time the matter comes to court another prosecutor can be on duty, hampering the resolution of matters efficiently and fairly for accused and victims alike. Police prosecutors are also often faced with insufficient information to resolve or progress matters, for example, about the background of a matter.

Second, police prosecutors are frequently required to appear in many ‘hearing/court lists’ within the summary court and are expected to prosecute across multiple jurisdictions, which each require expertise across procedure and law (e.g. the Children’s Court, Family Violence Specialist Courts, general Magistrate Court criminal division lists and bail lists to name just some).

Third, police prosecutors are not always trained to the level of lawyers, with police able to prosecute without law degrees.

Fourth, they are part of the same chain of command as their police informant colleagues. This can be an issue when they are junior to their ‘informant’ colleagues and feel the need to seek feedback from their informant, for example on whether diversion should be granted rather than acting independently and authoritatively on the matter. This slows the resolution of matters down in already overloaded courts and clouds their independence.

Resourcing and standardisation of training can overcome these difficulties.

Certainly, the adoption of specialist civilian prosecutions teams in recent years has the potential to address some of these concerns. This has occurred in Victoria, where unsworn employees of Victoria Police that are legally trained (with a law degree and have been admitted to legal practice) prosecute in one jurisdiction only—for example, the Drug Courts, Koori Courts or Specialist Family Violence Courts. This approach allows for better-trained prosecutors that understand their specific jurisdiction.

Employing external lawyers as police prosecutors also means police prosecutors have uniformity of training and are bound by the same conduct rules as defence lawyers. For example, specialist police prosecutors in the Children’s Court have a deeper understanding of, and experience in, the distinct legal principals pertaining to that jurisdiction (such as the presumption of doli incapax—being that children between 10 and 13 are presumed incapable of forming a criminal mind because they are not sufficiently intellectually and morally developed to appreciate right and wrong (RP v The Queen [2016] HCA 53 [8]) and similarly, prosecutors in the specialist family violence courts are especially trained in family violence and distinct principles applicable to that jurisdiction. It could be argued that the adoption of these specialist prosecutors from outside the force is an acknowledgement that things need to change.

However, the fundamental issue remains that police prosecutors are still an apparatus of the police organisation. They are employed by the same institution that polices, investigates, compiles the evidence and ultimately prosecutes. They are part of the same chain of command. They are also part of the same institution that might over-police Indigenous communities, resulting in significant over-representation of Indigenous men, women and children in police cells and prisons. All of this has ramifications for the justice system.

The fundamental conflict of interest that police prosecutors have is one I have observed play out in the courtroom. For example, when summary case conferencing, I have observed police prosecutors’ apparent reluctance to make decisions and deferral of decision-making, to consult the informant (e.g. on whether or not to revoke a police order or whether to seek diversion). This is not surprising given they are appearing on the informant’s behalf, but it nevertheless remains a conflict that is inimical to justice being served.

Clients are also keenly perceptive to this conflict. For example, I have had clients who have been alleged to have assaulted police, but have denied this and have instead instructed that they were the victim of police misconduct. What confidence does my client have of their allegation being responded to appropriately when I put my instructions to the police prosecutor—a fellow police officer and colleague of the informant—that the prosecutor will be able to bring an impartial mind, knowing they will be returning to the same office at the end of the court day?

Civilian (unsworn) police prosecutors who are legally trained and employed by policing agencies do not resolve this issue. For example, my own direct experience has included a police prosecutor seeking an informant’s input on a proposed resolution where misconduct by police is alleged.

Ultimately, we do not have insight into those internal discussions and what, if any, pressures police prosecutors (be they sworn or unsworn) may be under. What is clear is that from the outside looking in, from a client perspective, claims that they are acting ‘impartially’ are not sufficient to address what is an inherent conflict. Furthermore, because of the lack of independent oversight of police (including prosecutors), there is little way to raise concerns regarding police prosecutor conduct or decision-making, particularly for unrepresented accused person.

Police prosecutors have a very difficult role in an extremely busy and stressful jurisdiction. I have seen many examples of police prosecutors acting with integrity and professionalism. However, the systemic issues outlined above nevertheless influence outcomes in our courts.

Even if resourcing could be addressed, the conflict issue remains unresolved. In one case in which I was involved, a police prosecutor withdrew all charges, promptly, after observing and agreeing that the informant had mis-identified the accused (who was actually the family violence victim) and had not followed police guidelines in responding to the incident. However, this took numerous mentions before the outcome was achieved and the police prosecutor had sufficient time to view the material and respond. There was no transparency about how that decision was made and if there was disagreement about the way forward or concerning the evidence between the police prosecutor and the informant.

Ultimately, the reality of conflict, in and of itself, is enough for the legislature to examine alternative options for police prosecuting in the summary jurisdiction. This is especially so when they wield such great influence and in the context of police discretion being very difficult to challenge (just as operational policing discretion is difficult to challenge).

One approach could be to have an independent process for the laying of charges in the summary jurisdiction as much time is wasted in summary system for briefs that should never have been filed due to want of admissible evidence. This comes at a cost: for individuals; for society (unnecessary criminalisation and stigma being attached to accused persons); for victims; and the financial cost to society and the cost of not prioritising matters that really count. However, independent prosecutors are probably a more holistic approach to ensuring independence and confidence and efficiency in our courts of summary jurisdiction.

Case

RP v The Queen [2016] HCA 53 [8].