Appendix - COURT PROTOCOL - Version 04

A printed or saved copy of this document is not the official version

QUEENSLAND CORRECTIVE SERVICES APPENDIX – COURT PROTOCOL Availability: Public Implement Date: 19 August 2009

Refer procedures – Contravention – Probation and Parole; Advisory Reports

On occasion, corrective services officers are expected to appear in court. Reasons for appearance include— a) to prosecute the contravention of a court order; b) to submit a verbal pre-sentence report; and c) to give evidence.

Officers should be familiar with court protocol in order to represent the Agency in a competent, professional manner.

1. Court layout

Typical seating arrangements in court are shown below. When prosecuting, a corrective services officer will sit on the prosecution side of the bar table.

Judge/Magistrate

Court Orderly

Bar Table

Defence Prosecution

2. Role of the court orderly

The court orderly is a person appointed to assist in the administration of court proceedings. During the court hearing the court orderly will— a) call persons summonsed to appear; b) accompany witnesses to the witness box; and c) carry exhibits between the defendant, prosecutor or witness and the Judge/Magistrate.

Court Protocol 0f9527617d4558ba370ed155ae3d915a.doc Version 04 Page 1 of 8 A printed or saved copy of this document is not the official version In a Magistrates Court the Magistrate will often request the police prosecutor to perform some or all of these roles.

Court Protocol 0f9527617d4558ba370ed155ae3d915a.doc Version 04 Page 2 of 8 A printed or saved copy of this document is not the official version 3. Forms of address

A Judge or Magistrate is addressed as "Your Honour".

It is advisable to address other persons in the court, such as solicitors or barristers, as "sir" or "ma'am" as a matter of courtesy.

Officers should always stand when addressing a Judge or Magistrate.

If the court is open always bow towards the bench when entering or leaving the court.

4. Dress/equipment

When attending court officers should be neatly dressed. When appearing in Brisbane courts male officers should wear a jacket and tie. Female officers should not wear sleeveless clothing. In the case of uniformed officers, full uniform should be worn. In country areas seek advice on local practice.

At a minimum, officers should have the following reference materials with them— a) diary; b) all documents relating to the court matter; and c) contact phone numbers.

Officers prosecuting contraventions or interviewing offenders for pre-sentence reports should also have— a) a copy of the Penalties and Sentences Act 1992 and the Penalties and Sentences Regulation 2005; b) court report forms, notepad and pen; and c) reporting slips.

Offender files are confidential documents and should be kept in a secure container when not in use.

5. Prosecuting a contravention in court

5.1 Bench charge sheets

The most common method of bringing a contravention matter to court is by way of complaint and summons/warrant. A prosecutor may instead proceed by way of a bench charge sheet.

A bench charge sheet can be an efficient way of dealing quickly with a contravention or may be used to hand up a contravention to a higher court when the new offence has been dealt with in a lower court.

However a bench charge sheet should only be employed if—

a) the Magistrate will accept contravention action by way of a bench charge sheet;

Court Protocol 0f9527617d4558ba370ed155ae3d915a.doc Version 04 Page 3 of 8 A printed or saved copy of this document is not the official version b) the officer prosecuting the contravention is trained, experienced and confident in using the procedure; and c) the officer supervising the offender is certain of the recommendation.

Prior to proceeding the prosecutor should ensure— a) the current offences were committed during the supervision period; and b) a plea is likely on first appearance.

It can be preferred court practice to deal with the fresh charges and the contravention at the same time, and matters have been remanded to allow this to happen. This allows the offender to arrange representation.

If a prosecutor is to proceed by way of a bench charge sheet the following documentation will be required— a) Bench Charge Sheet; b) Order(s); c) QP9(s); d) evidence of response to supervision, for example, community service record, file notes; and e) Court Report. A verbal court report may be used if required.

5.2 Role of complainant

It is recommended that complainants not prosecute their own matters unless staff limitations prevent this occurring. It is the prosecutor's role to fairly present the Department’s case to the court of all matters pertinent to the offence. If the prosecutor is also the complainant his/her ability to perform the task objectively may be questioned.

The complainant should have prepared for the prosecutor a court brief (in triplicate) that includes— a) cover sheet; b) Information for Prosecutor; c) Court Report; d) evidence of the contravention; e) recent criminal history or traffic history as required; f) QP9 facts surrounding the original offences; and g) Judge's sentencing remarks (if District or higher court matter).

Summonses and warrants should not be issued until all documentation including criminal histories, QP9’s and, when necessary, traffic histories have been received and checked. If this material is not available when the matter comes before the court it may have to be adjourned, resulting in the possibility of costs being awarded against the complainant.

5.3 Role of prosecutor

When prosecuting, ensure that private legal representatives are not unduly delayed. If possible these matters should precede any duty solicitor or unrepresented matters.

Court Protocol 0f9527617d4558ba370ed155ae3d915a.doc Version 04 Page 4 of 8 A printed or saved copy of this document is not the official version As the Magistrate enters the courtroom the court orderly will say “Silence. All stand. This Magistrates Court is now open.”

As the Magistrate is seated other persons in the court may resume their seats.

The prosecutor will then address the Magistrate. Unless admitted to the Bar as a lawyer, an officer has no automatic right to commence prosecuting any matters.

Leave of the Magistrate should be sought by way of giving your name and occupational title and seeking leave to appear on behalf of the Department. Use words similar to "Your Honour, my name is ...... I am a probation and parole officer. I seek leave to appear on behalf of Queensland Corrective Services".

If the defendant is present the prosecutor requests that the Magistrate takes the matter of (defendant's name), (contravention of probation etc.). The Magistrate will then address the defendant, read the charge, and decide whether the matter is ready to proceed.

If the defendant is not present, the prosecutor will say, "call (name of defendant)". The court orderly will go to the door of the court and call the defendant's name. If the defendant does not appear after three calls the court orderly will say "No appearance, Your Honour". This procedure becomes the basis for the issue of a Mesne Warrant by the court.

5.4 Matter not ready to proceed

If the matter is not ready to proceed, an adjournment will be requested. The matter will then be remanded to a later date. The prosecutor should in this case ensure that the date is convenient and note the new date on the cover sheet.

5.5 Bail submission

Whenever a criminal matter is adjourned the question of bail for the defendant will arise. Consult the defendant's criminal history for recent contraventions of the Bail Act 1980 and for any convictions for offences committed whilst on bail.

If you believe that the defendant would fail to appear or re-offend whilst on bail you should oppose bail. You should also be familiar with section 16 of the Bail Act 1980 before undertaking any prosecution duties in order to make appropriate submissions on bail matters.

5.6 Matter ready to proceed

The defendant will be asked to plead "guilty" or "not guilty".

5.7 Defendant pleads "guilty"

This is known as an uncontested hearing. The prosecutor presents the facts of the case and hands up exhibits.

Court Protocol 0f9527617d4558ba370ed155ae3d915a.doc Version 04 Page 5 of 8 A printed or saved copy of this document is not the official version The defence then has an opportunity to present their case. The Magistrate will continue to ask each side in turn for further submissions until satisfied that all the issues have been covered. The Magistrate will also peruse any documentation submitted.

If you are not sure of any matter, or need to confer with other staff, you may ask for the matter to be stood down or adjourned. Do not attempt to guess answers. It is always better to ask for an adjournment than to give an incorrect account.

Once the Magistrate is satisfied all the issues have been covered, he/she will ask the defendant to rise and, having ascertained that the defendant has nothing further to say, will announce the decision.

5.8 Defendant pleads "not guilty"

If a defendant enters a plea of not guilty to any complaint of a contravention of a community based or fine option order, the following procedure should be followed— a) ask the Magistrate for the matter to be stood down to allow the availability of witnesses to be ascertained; b) determine the witnesses that will be required to give evidence; c) seek possible hearing dates some four to six weeks ahead from the police prosecutor; d) check with the witnesses that they will all be available for one of the possible dates; e) bring the matter back on and suggest the chosen date as a suitable hearing date to the Magistrate; and f) arrange for the prosecution of the trial through Court Advisory Service or local solicitor.

5.9 Prosecutor's appearance completed

If the prosecutor has completed all matters, and the court remains in session, request the Magistrate for permission to leave the court.

Once the contravention has been dealt with, the prosecutor is responsible for completing the court result slip. A copy should be forwarded to the complainant and to the Police Information Centre.

5.10 Presenting a verbal pre-sentence report

Probation and parole officers may be requested to interview offenders for the purpose of a verbal pre-sentence report. Such a request must come from the Judge or Magistrate and should not be made until the offender has been found guilty of the charge/s.

The officer should be furnished with the QP9's and criminal history prior to interviewing the offender.

The interview should take place in an interviewing room outside the courtroom and should cover the specific issues requested by the Judge or Magistrate. Notes should be taken for reference during delivery of the report.

Refer administrative form – Verbal pre-sentence report

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Once the interview is complete, the officer and offender should return to the court, waiting to be called by the court orderly. (In some courts it is normal practice to let the prosecutor know when you are ready to proceed.)

The report should be concise, factual and should contain recommendation/s relating to the issues requested. Refer appendix – Legal Acceptability of Information

The officer may request that the matter be adjourned for a more detailed written report if necessary.

5.11 Giving evidence

Your conduct as a witness will either enhance or detract from the credibility and weight that will be given to your evidence.

Ensure that you have any documentation required. This will normally include the offender file. Make sure the file is in good order and the relevant matters are easily accessible.

Although witnesses may discuss the case with each other prior to a court appearance for the purpose of refreshing their memory, they must not discuss the case with the prosecutor in the presence of other witnesses. Once in court, do not discuss the case with anyone except the prosecutor.

When the court orderly or prosecutor calls your name, enter the courtroom, face the bench and bow slightly as a mark of respect for the court.

The court orderly will escort you to the witness box. When asked to do so, place your hand on the Bible and read the oath (or affirmation if you prefer).

The prosecutor will lead you in formal matters such as your name, occupation etc. After that you are required to give your account of events without any leading from the prosecutor.

Speak distinctly and loudly enough that everyone in the courtroom can easily hear what is being said. Remember that everyone in court may be hearing your evidence for the first time and will need time to absorb what you are saying.

Speak to the Bench unless there is a jury, in which case you address the jury.

When asked a question by the Bench, prosecutor or defence counsel, face your questioner, but always address the answer to the Bench or jury.

During the giving of your evidence do not hesitate to ask permission of the court to refer to written material (notes, offender file etc.). The formal application is made in words similar to these—

"Your Honour I have some independent recollection of events and conversation but in order to refresh my memory and for the purposes of accuracy, I ask the court's permission to make reference to my notes which I made at the time."

Court Protocol 0f9527617d4558ba370ed155ae3d915a.doc Version 04 Page 7 of 8 A printed or saved copy of this document is not the official version Never try to guess the answer to a question. Simply answer, "I don't know".

When answering questions by the defence, keep your replies to simple "yes" or "no" wherever possible. NEVER offer unsolicited statements about anything.

Refer appendices – Legal Acceptability of Information; Evidentiary Requirements

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