Australian Institute of Criminology

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Criminal courts

  • ISBN 978 1 921185 68 7 ; ISSN 1832-228X
  • Canberra: Australian Institute of Criminology, 2008

There is a hierarchy of criminal courts at the federal and state/territory levels.

The state and territory court systems comprise:

  • Magistrates courts: lower courts that deal with relatively minor or summary criminal offences. Under some circumstances, these courts may also deal with less serious indictable offences. They are also responsible for conducting preliminary (committal) hearings for indictable offences.
  • Intermediate (district/county) courts: courts that deal with more serious crimes. Intermediate courts hear the majority of cases involving indictable crimes.
  • Supreme courts: the highest level of court within a state or territory. Supreme courts deal with the most serious crimes.

Higher courts comprise those at the intermediate and supreme court levels, where defendants charged with serious or indictable offences are dealt with, and where appeals are heard. Magistrates courts are called lower courts.

Minor criminal offences are called summary offences and major offences are called indictable offences. Indictable offences normally require a trial by judge and jury.

Tasmania, the Northern Territory and the Australian Capital Territory do not have intermediate courts; all relevant charges are dealt with by their supreme courts. In states with both supreme and intermediate courts, the majority of charges are decided at the intermediate court level.

All state, territory and federal courts handle a number of matters that appear in the court system for the first time, although almost all criminal charges, including those for federal criminal offences, are lodged initially at the magistrates court level.

The ABS publishes statistics on criminal defendants whose cases were initiated and finalised in higher and magistrates courts. ABS data do not include defendants finalised in children's courts, electronic courts, family violence courts, Koori courts or drug courts.

In addition, in recent years the Steering Committee for the Review of Government Service Provision (SCRGSP) has produced statistics on the number of lodgments at each court level.

Both the ABS and the SCRGSP report on criminal court data for financial rather than calendar years.

Source: References 22 and 23

The criminal court process

Case flows

Cases passing through the courts generally share the following common elements:

  • lodgment - the initiation of the matter with the court
  • pre-trial procedures - committal hearing or discussion and mediation between the parties
  • trial
  • court decision - judgment or verdict followed by sentencing.

Source: References 22 and 23

Lodgments

Most lodgments are processed by the magistrates court in the relevant criminal jurisdiction.

In 2005-06, 800,532 cases were lodged in criminal courts in Australia.

Cases initiated in magistrates courts accounted for 96% of all lodgments in the criminal courts in 2005-06, while 3.3% were initiated in district/county courts and 0.6% in supreme courts.

Source: Reference 22

Timeliness

The duration between the lodgment of a matter with the court and its finalisation is referred to as timeliness. Generally, lower courts complete a greater proportion of their workload more quickly because cases are of a more straightforward nature. The disputes and prosecutions heard are usually less complex than those in higher courts.

Committal is the first stage of hearing an indictable offence in the criminal justice system. A magistrate assesses the sufficiency of evidence presented against the defendant and decides whether to commit the matter for trial in a superior court. Defendants are held in custody pending a committal hearing or trial, or released on bail. The conduct of the committal hearing is important for timely adjudication of the charges against the defendant.

Figure 73 : Duration of matters finalised in magistrates courts, by method of finalisation, 2005-06 (percent)

  • On average, 77% of committal hearings in magistrates courts in 2005-06 were finalised within thirteen weeks from the initial hearing of charges by the court. A further 13% were finalised in the subsequent three months.
  • Defendants were more likely to be acquitted in cases that took longer than 13 weeks to finalise.
  • 3% of hearings took 52 or more weeks to finalise.
  • When defendants were acquitted, the case generally took longer than those which delivered a guilty verdict.

Source: Reference 23

Figure 74 : Duration of matters finalised in higher courts, by method of finalisation, 2005-06 (percent)

  • In 2005-06, 20% of matters finalised in higher courts lasted more than 52 weeks and 32% took less than 13 weeks to finalise.
  • Cases involving a guilty plea generally took the least time to finalise. Cases resulting in a guilty verdict tended to take the longest time - 56% of cases that took 52 weeks or more to finalise ended in a proven guilty verdict.

Source: Reference 23

Court decision

Cases are finalised at the courts in the following ways:

  • adjudicated - determined whether guilty of the charges by court judgement, or plea of guilty
  • non-adjudicated - case not resolved for a variety of reasons, including withdrawn by prosecution, unfit to plead, accused dies, diplomatic immunity, statute of limitations.

Figure 75 : Criminal cases finalised in magistrates courts, by method of finalisation, 2005-06(a)

a: NSW refers to finalised appearances rather than defendants, resulting in possible overcounting. NSW excludes defendants finalised by committal to a higher court

b: Includes guilty plea and guilty verdict

  • In 2005-06, 96% (n=569,883) of defendants were finalised in the magistrates courts. Only 4% (n=21,687) of magistrate court defendants were acquitted.
  • In 86% of cases, defendants were proven guilty in the magistrates courts and only 2% were transferred to other court levels.

Source: Reference 23

Figure 76 : Criminal cases finalised in higher courts, by method of finalisation, 2005-06

a: Includes guilty plea and guilty verdict

  • In 2005-06 there were 16,319 defendants finalised in the higher courts, down slightly from 16,523 in 2004-05.
  • The majority of defendants whose cases were heard in higher courts were proven guilty (79%).
  • In 8% of cases the defendant was acquitted.

Source: Reference 23

Figure 77 : Adjudicated defendants in magistrates courts by age and gender, 2005-06 (rate per 100,000 persons)

  • In 2005-06, 21% of defendants in magistrates courts were female.
  • In all age groups males were more likely than females to appear as defendants in court.
  • As in previous years, males and females aged 20-24 were more likely than other age groups to appear in magistrates courts.

Source: References 2 and 23

Figure 78 : Adjudicated defendants in higher courts by age and gender, 2005-06 (rate per 100,000 persons)

Females are less likely to appear before higher courts than magistrates courts. Women made up 12% of defendants in higher courts and 21% in magistrates courts. The highest rate of defendants in higher courts occurred in the 20-24 age group for both males and females.

Source: References 2 and 23

Sentencing

Sentencing options available at each court level include but are not limited to:

  • fine
  • good behaviour bond
  • probation order
  • suspended sentence
  • community supervision
  • community custody
  • home detention
  • periodic detention
  • imprisonment.

Sentence types can be broadly divided into custodial and non-custodial sentences, or orders. A custodial order requires a person's liberty to be restricted for a specified period of time either through detention in a correctional facility or home, or being subject to regular supervision while in the community. Custodial orders include custody in a correctional institution, custody in the community, and suspended sentences.

Non-custodial orders are sentences that do not involve being held in custody. They include community supervision or work orders and monetary orders.

Sentencing data for adult offenders have been available since 2002-03 for all states and territories. The ABS is continuing to work towards a more detailed and regular sentencing collection for higher courts and magistrates courts.

Figure 79 : Defendants found guilty in magistrates courts, by age and principal sentence, 2005-06 (number)

a: Includes custody in a correctional institution, custody in the community, and suspended sentence

b: Includes community supervision or work orders, monetary orders, and other non-custodial orders

  • In 2005-06, most defendants found guilty in magistrates courts were given non-custodial sentences (91%).
  • Defendants aged 25-34 were more likely to receive a custodial sentence than were defendants in other age groups.
  • In 2005-06, 10% of guilty defendants aged 25-34 received custodial sentences, compared with only 4% of defendants aged less than 20, 7% of those aged 45 and older and 8% of defendants aged 20-24.

Source: Reference 23

Figure 80 : Defendants found guilty in higher courts, by age and principal sentence, 2005-06 (number)

a: Includes custody in a correctional institution, custody in the community, and suspended sentence

b: Includes community supervision or work orders, monetary orders, and other non-custodial orders

  • Compared with magistrates courts, a much higher proportion of defendants found guilty in higher courts received custodial sentences (82%). Non-custodial sentences were given to 18% of defendants found guilty in higher courts.
  • Defendants aged 24 or less found guilty were slightly less likely to receive custodial sentences than were older defendants.
  • 64% of those aged less than twenty, and 80% of those aged 20-24 received custodial sentences, compared with 83-86% for all other age groups.

Source: Reference 23

Figure 81 : Male defendants found guilty in all courts, by principal sentence type, 2005-06

a: Custody in the community includes intensive corrections orders, home detention, and other orders where liberty is restricted while living within the community

  • In the majority of cases, the principal sentence handed down for male offenders was a monetary order, such as a fine (68%).
  • Custody in a correctional institution accounted for only 7% of the total number of sentences in all courts in 2005-06.
  • 5% of male defendants found guilty received fully suspended sentences.
  • Custody in the community occurred in only 1% of cases, while community supervision or work orders were issued in 5% of cases.

Source: Reference 23

Figure 82 : Female defendants found guilty in all courts, by principal sentence type, 2005-06

a: Custody in the community includes intensive corrections orders, home detention, and other orders where liberty is restricted while living within the community

  • Custody in a correctional institution accounted for only 3% of principal sentences for female offenders in 2005-06.
  • Monetary orders were the most common sentence type (70%).
  • Defendants were issued with community supervision or work orders in 5% of cases, while fully suspended sentences were handed down in 3% of cases. The issuing of other non-custodial orders rose slightly from 17% in 2004-05 to 19% in 2005-06.

Source: Reference 23

Figure 83 : Defendants found guilty in magistrates courts, by principal sentence type and most serious offence, 2005-06 (percent)

AICI: Acts intended to cause injury

GSJ: Offences against justice procedures, government security and government operations

DNA: Dangerous or negligent acts endangering persons

  • Overall, monetary orders were the most common sentence in magistrates courts.
  • The offences of UEWI (53%) and sexual assault (39%) had the highest percentage of defendants who received a custodial order.
  • The highest percentage of monetary orders imposed on defendants were for the offences of dangerous or negligent acts endangering persons (85%) and traffic related offences (84%).

Source: Reference 23

Figure 84 : Defendants found guilty in higher courts, by principal sentence type and most serious offence, 2005-06 (percent)

AICI: Acts intended to cause injury

  • A custodial sentence was the most common sentence in higher courts for all offences.
  • Defendants found guilty of homicide, robbery or sexual assault in higher courts were overwhelmingly likely to receive a custodial sentence (90%, 80% and 74%, respectively).
  • Least likely to receive custodial sentences in higher courts were defendants found guilty of acts intended to cause injury (58%), deception (57%) and theft (46%).

Source: Reference 23