Examining Police Investigations of Sexual Offences and the Rights of the Accused

Dr Jalesi Nakarawa holds a Doctor of Philosophy in Law from the University of Waikato in New Zealand. He was a law assistant professor at the Fiji National University and previously served as the Assistant Commissioner of Corrections from 1998 to 2001.

This article aims to assess police procedures regarding the investigation of sexual offences. It posits that police investigations are frequently swayed by the belief that corroborative evidence is unnecessary to press charges against a suspect. However, charging an individual based on unreliable evidence can be seen as negligent, especially if the accused is innocent. Despite the no corroboration evidence rule, police are obligated to conduct thorough investigations, and the decision to press charges should be grounded in available evidence.

BACKGROUND

Upon receiving a complaint, it is the duty of the police to conduct a thorough investigation to determine the validity of the complaint and whether charges are warranted. Striking a balance between the rights of the complainant or victim and those of the accused is a delicate endeavour. The consequences of police negligence in such matters are significant, prompting an examination of current practices in sexual offence investigations. It seems that in handling sexual offence complaints, police investigations tend to be subjective, often relying on the non-corroborative evidence rule in sexual offences, to lay charges despite unreliable evidence. This is detrimental to suspects who may be innocent of the allegation.

SEXUAL OFFENCE INVESTIGATION

In a sexual offence investigation, both the rights of the victim and the rights of the offender are essential considerations.

The victim has the right to be treated with dignity, respect, and sensitivity throughout the investigation process. Law enforcement officers must treat victims with empathy, compassion, and understanding. There is also the right to safety and protection from further harm and the right to privacy and confidentiality to be considered during the investigation.

In the realm of sexual offence investigations, as with any criminal accusation, the principle of presumed innocence extends to the accused. Until sufficient evidence is gathered during the investigation to warrant charges, individuals accused of sexual offences maintain their innocence. Moreover, even upon facing charges, they retain their presumption of innocence until proven guilty in a court of law.

The stakes are high in police investigations as they embody the fundamental tenets of justice within the criminal justice system. Central to this concept is the pursuit of fairness, equity, and accountability. Through the adherence to due process in investigations, safeguards are implemented to uphold individuals’ rights. This includes guarding against arbitrary arrests and ensuring that charges are only brought forth when substantiated by evidence.

The protection of victims is always paramount, but an innocent person negligently charged with a sexual offence is liable to be remanded in custody (before being released on bail). At the same time, the case drags on for years. Apart from the physical and mental trauma, there are financial costs and irreparable damage to one’s status and reputation. The importance of police carefully weighing the evidence before charging a person who is later found innocent cannot be overstated.

Police investigations are critical to the criminal justice system. Information gained from investigations provides the evidence needed for arrests, prosecution, and convictions. Police must decide whether or not to charge based on the evidence. Without a properly conducted investigation, guilty criminals may go free to commit more crimes, or an innocent accused person may suffer irreparable damages before being found innocent by the Court.

NO CORROBORATION RULE

In a criminal case, evidence plays a crucial role in determining whether or not a person is found guilty. Evidence is the information, materials, or testimony gathered by police during the investigation to decide whether to lay charges.

It is recognised in common law jurisdictions that it would be perilous to convict a charged person solely on the evidence of one witness unless it is supported by other independent evidence. This supportive evidence is corroboration.

There is generally no strict requirement for compulsory corroboration in sexual offence cases. Instead, the principle often applied is that while corroboration is not mandatory, it may be considered dangerous to charge or be convicted based solely on the uncorroborated testimony of the complainant.

In Fiji, however, section 129 of the Criminal Procedure Act 2009 states that no corroboration of the complainant’s evidence is necessary for an accused person to be convicted. Notably, this no-corroboration rule is directed at the courts to determine guilt.

The “no corroboration rule” typically applies to the trial phase rather than the initial police investigation. During the investigation stage, the police gather evidence, interview witnesses, and collect information to build a case. Police need to recognise the enormity of the decision to charge when there is no evidence of sexual assault. The life of an innocent person may be destroyed by the negligent decision to charge based on the noncorroboration rule in Court.

For example, in a hypothetical case where there is no evidence of sexual assault (apart from the complaint), the charge is reduced from rape to sexual assault. The accused is remanded in custody and later released on bail. Still, the case drags on for five years while the accused keeps reporting to the police station weekly.

It is easy for police to lay charges and advise the accused that the Court shall determine the truth of the matter. However, once the accused person is charged, despite the lack of evidence, he is doomed to a life of suffering, fighting to prove his innocence in a system stacked against him.

THE DECISION TO PROSECUTE

The decision to prosecute begins with laying charges against the accused person. Any decision by police to charge would be discretionary unless they are required to refer the case to the office of the Director of Public Prosecutions (DPP) for a decision.

Any decision by the DPP not to pursue prosecution would arguably be based on discretionary power under s 117(10) of the Constitution. In exercising such powers, the DPP shall not be subject to the direction or control of any other person or authority.

Whether it is the DPP or the police, the decision to prosecute is a duty to act in the broader public interest whether to prosecute or not. This is a quasi-judicial gatekeeping task, and discretion should be exercised independently of improper external influence. Hong Kong’s former DPP, Ian Grenville Cross, commented that:

“The decision whether or not to prosecute is the most important step in the prosecution process. In every case, care must be taken in the interests of the victim, the suspected offender and the community to ensure the right decision is made. A wrong decision to prosecute, conversely a wrong decision not to prosecute both tend to undermine the community’s confidence in the criminal justice system.”

THE TEST FOR PROSECUTION

In most common law jurisdictions, the test to prosecute is two-limbed – the evidential and public interest tests. It is articulated (though very brief) in the DPP’s Prosecution Code 2003. Arguably, the test for prosecution is met if:

(i) The evidence which can be adduced in court is sufficient to support a reasonable prospect of conviction – the evidence test, and;

(ii) Prosecution is required in the public interest – the public interest test.

One could argue the evidential criteria should encompass factors such as the credibility of evidence before pressing charges. Evidence that the prosection can present that could reasonably meet the standard of proof beyond reasonable doubt, and the occurrence of a criminal offence.

There is no justification in police taking shortcuts by charging accused persons for sexual offences based on insufficient evidence. In essence, they are deferring responsibility to the Court to adjudicate on weak evidence, to the detriment of the accused , who may be innocent.

In a time-honoured statement in 1951, the UK Attorney-General, Sir Hartely Shawcross QC stated to Parliament: “It has never been the rule . . . that suspected criminal offences must automatically be the subject of prosecution.”

ELEMENTS OF A CRIMINAL OFFENCE

The Crimes Act 2009 states that an offence involves physical and fault elements. However, there are cases where there is no fault element for the physical elements. The physical elements of an offence may be conduct, a result of conduct, or a circumstance in which conduct or result of conduct occurs.

A fault element for a particular physical element may be intention, knowledge, recklessness, or negligence. A person has intention concerning conduct if one means to engage in that conduct.

ELEMENTS OF SEXUAL OFFENCES of rape

The physical elements would consist of:

(a) having carnal knowledge with another person without consent;

(b) penetration of the vulva, vagina or anus with a thing or any part of the body apart from the penis without consent; or

(c) penetration of the mouth with the penis without consent.

The above physical elements need to have occurred for rape to have taken place. The fault element, as discussed above, is that a person has intention concerning rape if one engages in any of the physical aspects.

SEXUAL ASSAULT

Like rape, sexual assault consists of indecent assault of another person or making another person commit an act of gross indecency or witness an act of gross indecency by the person or any other person without consent.

The physical elements are:

(a) Assault by penetrating the vagina, vulva, or anus with a thing or part of the body that is not the penis; or

(b) The person who the offender procures penetrates the vagina, vulva or anus of the person or another person by a thing or another part of the body that is not the penis.

The fault element remains: intention is established by any physical assault actions as outlined.

POLICE INVESTIGATION

Police, upon receipt of a sexual offence complaint, will investigate the physical elements of the offence to ascertain what offence has been committed. In the process, the evidence of the act or the physical elements will assist in the decision to lay charges or otherwise.

In our hypothetical case, the complainant is the grandmother, who stated that her four-year-old granddaughter told her what happened. Police sent the child for medical examination and recorded other statements from family members.

Despite the medical report indicating no signs of sexual assault and no supporting statements for the complaint, the police proceeded with charging the accused. The accused’s police statement mentioned an ongoing family dispute that could have prompted the unfounded or malicious complaint. The police officer’s response was that the truth of the matter would be determined by the court.

Given our hypothetical person’s status as a retired civil servant, a prominent community member whom family and friends respect, the police’s decision to charge based on unreliable evidence, as discussed above, would be disastrous. He is in for the long haul that would break him physically, mentally, and financially. Regardless of the court’s finding, the accused person’s reputation would be tarnished beyond reprove.

Should the case extend over a period of five to six years, it would be hell for our hypothetical individual. This is despite the constitutional assurance that “every person charged with an offence has the right to have the trial begin and conclude without unreasonable delay.”

It is imperative for the police to reassess their protocols for investigating sexual offences. The principle of no corroboration evidence in sexual offences typically pertains to the trial phase rather than the initial police investigation.

CAN THE POLICE BE NEGLIGENT?

Based on the evidence outlined earlier, the investigation officers believed they had sufficient grounds to make an arrest. This is despite the lack of evidence to prove the physical elements of sexual assault. The standard of care applicable in the tort of negligent investigations is that of a “reasonable police officer facing similar circumstances.” And in the hypothetical scenario described the inquiry centers in whether the police officers were negligent in laying charges given the lack of evidence.

The standard of care is informed by whether the officer has reasonable and probable grounds to believe that the suspect has committed an offence. It is a challenging task that needs to be taken with care, particularly where there is no evidence of the physical elements of the offence.

CONCLUSION

It is imperative for the police to reassess their protocols for investigating sexual offences. The principle of no corroboration evidence in sexual offences typically pertains to the trial phase rather than the initial police investigation.

Police have a duty to conduct exhaustive inquiries and should only proceed with charges when substantial evidence verifies the physical elements of the offence.

The well-being of the accused hangs in the balance, emphasising the need for cautious decision making in charging. Shifting the responsibility to the court could irreparably harm the life of an individual who might ultimately be innocent.