Police discretion in the diversion process

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Police Officers in Front of the Magistrates' CourtWritten by Bill Doogue. Partner, Doogue + George Defence Lawyers.

Kyle McDonald recently posted a blog covering diversion and police discretion to prosecute. It is, as ever with Kyle, a well-researched and interesting analysis of the issues involved. This is a hot issue with many involved in the criminal justice system. There is considerable discontent about the diversion process and the Police not allowing diversion to appropriately deserving people.

The diversion process is where there is no formal finding against an accused, but it is completely reliant on the Informant and their boss agreeing to the process. Kyle’s blog concludes with;

in short, the prosecution can decide what charges it wants to bring before a court, and if it wants a decision or not. The court can only decide what is before it, and must do that, unless the prosecution consents to something else.

A proportion of the Magistracy are particularly annoyed by what they view as the Police preventing them from granting diversion in appropriate circumstances. This is no secret; you will often hear Magistrates railing against this procedure in open Court.

I do agree with what Kyle says about the law, but there is a very different approach that needs to be taken with this situation.

What underpins Magistrates’ frustration with Police denying diversions is that the Police have undermined section 8 of the Sentencing Act with their disclosure policy.

We know that, Magistrates know that, and most certainly the Police know that.

Parliament passed legislation to cover the issue of conviction and non-conviction, as per below:

Conviction or non-conviction
8. Conviction or non-conviction
(1) In exercising its discretion whether or not to record a conviction,
a court must have regard to all the circumstances of the case including-
(a)  the nature of the offence; and
(b)  the character and past history of the offender (don’t underestimate a character reference for court); and
(c)  the impact of the recording of a conviction on the offender’s economic
or social well-being or on his or her employment prospects.
(2) Except as otherwise provided by this or any other Act, a finding of guilt without the recording
of a conviction must not be taken to be a conviction for any purpose.
However as we mentioned in our recent article on Police Record checks the process of non-conviction is completely undermined by the Police releasing this information.

If you go through the process of getting a non-conviction from a Magistrate you would have the completely reasonable expectation that the Police would not disclose information about the hearing. What is the point of the non-conviction otherwise? What is the point of the legislation?

So, the logical process for a Magistrate, if they do not wish to create a blight on someone’s life with a Police record is to propose a diversion hearing.

But surely that is the dog wagging the tail? The Police should be made to respect the intent of the legislation that allows the Magistrate considering section 8 of the Sentencing Act to decide not to impose a conviction.

In my humble opinion the real contention is that in Victoria, the Police control their own guidelines on this issue.
The disclosure of non-convictions only hurts people who have been in no other trouble. Essentially, they are people that a Court has considered shouldn’t be punished in this way. Generally, they are categorised as good, working people who have committed minor offences. We are continually approached about this issue and I can only advise that there is nothing they can do. I agree with them regarding the absurdity of the situation and tell them one day the Attorney-General will get off his hands on this issue.

And that, there, is the simple truth. The Attorney-General should deal with this issue. And, it would be extremely simple for him to implement.

Then we would not have this issue of whether the law can be implemented at the discretion of a Magistrate, over an Informant’s objection.

And, we would live in a happier version of the world where the Police cannot thwart the intent of the Court.

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3 Responses

  1. Jerome Gelb says:

    Dear Mr Doogue,
    It seems to me that the time for humility in the face of VICPOL undermining the very basis for the distinction between conviction and non-conviction, is well and truly over. If recent Attorneys General have sat on their hands, perhaps the State’s lawyers need to stand up and pull him off those hands! This is exactly the sort of abuse of process that undermines public confidence in Police and feeds the widespread mistrust of Police Command. Few employers will give a job to someone with a criminal record and the public clearly lack a clear understanding of why a conviction is or isn’t recorded for similar crimes.
    Consider the above with another discretionary sleight of hand practiced by VICPOL, about which I wrote to the Opposition Leader and Shadow Police Minister just prior to the defeat of the Brumby Government. Police Stations do not have signs warning the public that a Counter Report of a crime will not trigger a Police investigation and that only a formal Statement may do so. Several Police have confirmed this as fact. Counter reports are filed but not acted upon. There are too few resources, say Police. A friend’s son was the victim of an armed robbery by a masked man at a train station. He had a bike, iPod and cash stolen. As the culprit ran from the scene, his ski-mask fell off and he was recognised. My friend took his shaken son to a local Police Station and a Counter report was made. The Constable wrote the details down and said the report would be investigated. The next evening, at my urging, my friend rang the Constable to enquire re progress. He was met with the aggressive comment that no investigation would be mounted because, “you didn’t want to make a Statement”, which my friend strongly denied. He demanded that his son make a formal Statement that night and on its completion, the Constable noted, “this sounds like an armed robbery” and promised to hand the case to Detectives in the morning. By the end of the next day, a raid and arrest had been effected and stolen property located. The culprit was charged and duly convicted. None of this would have happened had I not known about the unwritten rule, “No Statement, No Investigation” and no chance of the crime adding to crime statistics.
    Even when a Statement is made, there is no guarantee that a crime will be pursued. Another friend was rung by his son, who informed him that he and his sister had seen a man scratch and vandalise the family car, legally parked outside their home. They had shouted at the man, who nonchalantly strolled off, leaving thousands of dollars damage. They followed him from a safe distance and guided their father to the man’s location by phone. My friend confronted the man and receiving total denials, rang the Police. The man was arrested and my friend’s late-teen kids made Statements that they had witnessed the attack on the family car. The Police stated that the man would be charged after the complaint was investigated. Neither promised outcome occurred. The Police claimed that two eyewitness accounts and the fact that the man was known to Police, was insufficient evidence to warrant charging him. My incredulous friend is now contemplating a formal complaint.
    It seems as if “discretion” has been far too broadly implemented in practice and citizens’ concerns are being ignored. The number one reason callers ring John Feyne to speak to Commissioner Ken Lay every third week on ABC 774, is to complain that their reported matters have been ignored, sometimes for years. The Commissioner says to the callers to ring him if the Station Snr Sgt. won’t help but Ken Lay wouldn’t have enough hours in the day to take the calls, let alone action them!
    Lawyers, you maybe able to call more volubly for a fix for this fiasco. Please do!!

  2. Cleo says:

    I loved your post.Really looking forward to read more. Much obliged.