434. Hon ALISON XAMON to the minister representing the Minister for Police:
I refer to prosecutorial discretion in assaults against public officers occasioning bodily harm.
(1) Would the minister please advise the process undertaken by the police prosecuting division in determining whether to proceed with a charge of assault against a public officer occasioning bodily harm.
(2) Is there a specific policy which provides how these decisions are to be made?
(3) If yes, would the minister please provide a copy?
(4) If no to (2), why not?
(5) Do the factors considered in the decision-making process include whether proceeding with the charge is judged to be in the public interest?
(6) If no to (5), why not?
(7) Please advise the current status of the police prosecutorial guidelines that were used in 2011?
Hon STEPHEN DAWSON replied:
I thank the honourable member for some notice of this question. The following information has been provided to me by the Minister for Police.
Western Australia Police advise the following.
(1) The Western Australia Police force has prosecution discretion to decide if a charge of an assault of a public officer where prescribed circumstances are alleged or should be alleged is to proceed pursuant to section 318(1)(d) and (4)(b) of the Criminal Code Compilation Act 1913. Prescribed circumstances are defined as circumstances that result in a “bodily harm” injury whereby the alleged victim is a public officer referenced in section 318(5) of the code and includes a police officer. These procedures create a regulated structure and process to facilitate and record decisions to approve, or not, an application to allege the victim in the matter suffered bodily harm. The Assault Public Officer (Pre scribed Circumstances) Panel considers whether it is appropriate to allege that the victim in the matter suffered bodily harm of a nature sufficient to substantiate attracting the mandatory penalties prescribed in section 318 of the code. The panel gives consideration to establishing the elements of the offence from the available evidence provided and considers case law regarding “bodily harm” in terms that the injury sustained should be something more than a mere sensation of pain or discomfort at the time of the assault.
In addition to satisfying the elements of the offence, the panel is obliged to consider the circumstances of the case in its entirety, including whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest in accordance with the Office of the Director of Public Prosecutions and WA police force prosecution policy and guidelines. Although a decision on prospects of conviction and public interest is reliant upon the evidence presented, it is expected that sufficient evidence is considered to make an early informed decision.
Once a decision has been reached by the panel, this decision may be subject to reconsideration by the same panel at a later date upon the availability of evidence or information not previously presented. The panel should be consulted and approval obtained to amend a prosecution for this type of offence at all times and at any stage of the prosecutorial process. It remains open for the victim to provide an oral victim impact statement for consideration at the time of sentencing. It should be highlighted that the fact that prescribed circumstances has been removed from a charge does not hinder sentencing options for the court, which retains the legislative and judicial authority t o impose a custodial sentence should it be considered appropriate.
(4) The policy is contained within the WA police force manual “Commissioner’s Orders and Procedures”. The policy is listed as confidential, is considered operationally sensitive and is not made publicly available. These parts of the manual concern matters of police methodology that, if released, may serve to compromise aspects of police operational effectiveness.
(6) Not applicable.
(7) The WA Police “Statement of Prosecuting Policy and Principles” is based on, and developed from, existing procedures and instructions contained in the “Commissioner’s Orders and Procedures”. The statement was established in 2006. It has been continuously reviewed up to 2013 and is currently subject to a further review. This statement also takes into account, and is to be read in conjunction with, the “Director of Public Prosecutions Act 1991: Statement of Prosecution Policy and Guidelines 2005”. The director’s statement applies in relation to the summary prosecution of indictable offences.