Australian Institute of Criminology

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Criminal courts

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 crimes of greater seriousness. 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 intermediate and Supreme Courts, where defendants charged with serious or indictable offences are dealt with and where appeals are heard. Magistrates' courts are called lower courts.

Each state and territory also has a children's court, which sits within the Magistrates' court system. Children's courts deal solely with defendants who committed an offence when aged under 18 years (or in Queensland, under 17 years).

Minor criminal offences, called summary offences, are dealt with in the lower courts where penalties are less severe; major offences, dealt with by the higher courts, are called indictable offences. If a defendant pleads not guilty, indictable offences normally require a trial by judge and jury.

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 with a Magistrates' court.

In states with both Supreme and intermediate courts, the majority of charges are decided in intermediate courts. Tasmania, the Northern Territory and the Australian Capital Territory do not have intermediate courts; all relevant charges are dealt with by Supreme Courts.

The ABS publishes statistics on criminal defendants whose cases were initiated or finalised in higher and Magistrates' courts and, recently, in children's courts. ABS data do not include defendants finalised in 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 lodgements at each court level.

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

Source: References 21 and 22

The criminal court process

Case flows

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

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

Source: References 21 and 22

Lodgements

Most lodgements are processed by the Magistrates' court in the relevant criminal jurisdiction.

In 2007–08, 869,700 cases were lodged in criminal courts in Australia: 96.3 percent were initiated in Magistrates' courts, three percent were initiated in district/county courts and the remainder initiated in the Supreme courts.

Source: Reference 21

Timeliness

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

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 higher court. Defendants are held in custody pending a committal hearing or trial, or released on bail. The committal hearing is important for timely adjudication of the charges against the defendant.

Figure 69: Duration of matters finalised in Magistrates' courts, 2007–08, by method of finalisation (%)

Figure 69 Duration of matters finalised in Magistrates' courts, 2007–08, by method of finalisation

a: Includes guilty plea and guilty verdict
b: Includes those whose cases were finalised by other means (eg transferred to other court levels, withdrawn by prosecution) or whose finalisation method was unknown

  • On average, 71 percent of matters finalised in the Magistrates' court were finalised within 13 weeks of the initial hearing of the matter by the court. A further 16 percent were finalised in the subsequent three months.
  • Four percent of hearings took 52 or more weeks to finalise.
  • Generally, cases resulting in acquittal of the defendant took longer to resolve than cases where the defendant was found to be guilty of the offence.

Source: Reference 22

Figure 70: Duration of matters finalised in higher courts, 2007–08, by method of finalisation (%)

Figure 70 Duration of matters finalised in higher courts, 2007–08, by method of finalisation

a: Includes defendants who were found guilty but whose method of finalisation was unknown (ie guilty verdict or guilty plea), cases that were transferred to other court levels or whose finalisation was achieved by some other method

  • In 2007–08, 26 percent of matters finalised in higher courts lasted more than 52 weeks. Seventeen percent took less than 13 weeks to finalise.
  • Cases where the defendant pleaded guilty generally took the least time to finalise: 20.4 percent of cases where the defendant pleaded guilty to the offence were resolved in less than 13 weeks, compared with four percent of cases ending in an acquittal and two percent of cases where the defendant was found guilty.
  • Cases where the defendant was found guilty by the court generally took longer to finalise than cases involving either an acquittal or a guilty plea: 59 percent of cases resulting in a finding of guilt took 52 weeks or more to finalise, compared with 41 percent of acquittals and 20 percent of cases where the defendant pleaded guilty.

Source: Reference 22

Figure 71 Duration of matters finalised in children's courts, 2007–08, by method of finalisation (%)

Figure 71 Duration of matters finalised in children's courts, 2007–08, by method of finalisation

a: Includes guilty plea and guilty verdict
b: Includes defendants whose cases were finalised by other means (eg transferred to other court levels, withdrawn by prosecution)

  • In 2007–08, 66 percent of matters in children's courts were finalised within 13 weeks from the initial hearing of charges.
  • Sixty-eight percent of matters resulting in the defendant being proven guilty were finalised in fewer than 13 weeks. Sixty-three percent of cases ending in an acquittal took 13 weeks or longer to finalise.

Source: Reference 22

Court decisions

Cases are finalised in the courts in the following ways:

  • adjudicated—determined whether guilty of the charges, by court judgement or plea of guilty; and
  • non-adjudicated—unresolved for a variety of reasons, including withdrawal by prosecution, unfitness to plead, death of the accused, diplomatic immunity and statute of limitations.

Figure 72: Method of finalisation of criminal cases finalised in Magistrates' courts, 2007–08a (%)

Figure 72 Method of finalisation of criminal cases finalised in Magistrates' courts, 2007–08

a: New South Wales refers to finalised appearances rather than defendants, resulting in possible over counting. New South Wales excludes defendants finalised by committal to a higher court
b: Includes guilty plea and guilty verdict
c: Includes defendants unfit to plead, defendants deceased, other non-adjudicated finalisations and cases finalised by unknown method
n=619,542

  • In 2007–08, four percent of the 619,542 cases finalised in the Magistrates' courts resulted in acquittal of the defendant.
  • Eighty-seven percent of defendants in cases brought before the Magistrates' court were found guilty, while proceedings in two percent of cases were transferred to other courts.

Source: Reference 22

Figure 73: Method of finalisation of criminal cases finalised in higher courts, 2007–08 (%)

Figure 73 Method of finalisation of criminal cases finalised in higher courts, 2007–08

a: Includes guilty plea and guilty verdict
b: Includes defendants unfit to plead, defendants deceased, transfers to other court levels and other non-adjudicated finalisations
n=16,815

  • In 2007–08, higher courts finalised 16,815 cases.
  • In 78 percent of those cases, the defendant was found to be guilty, while seven percent of cases resulted in the defendant's acquittal.

Source: Reference 22

Figure 74: Method of finalisation of criminal cases finalised in children's courts, 2007–08 (%)

Figure 74 Method of finalisation of criminal cases finalised in children's courts, 2007–08

a: Includes guilty plea and guilty verdict
b: Includes defendants unfit to plead, defendants deceased and other non-adjudicated finalisations
n = 39,412

  • In 2007–08, children's courts finalised 39,412 cases.
  • The defendant was proven guilty in 78 percent of cases and acquitted in three percent.

Source: Reference 22

Figure 75: Adjudicated defendants in Magistrates' courts, 2007–08, by age in years and sex (per 100,000 of that age group and sex)

Figure 75 Adjudicated defendants in Magistrates' courts, 2007–08, by age in years and sex

  • In 2007–08, 22 percent of defendants in Magistrates' courts were adult females.
  • Adult males were more likely than adult females to appear as defendants in court, regardless of age.
  • Adult males and females 20 to 24 years of age are more likely to appear as defendants before the Magistrates' court than males and females of other age groups.

Source: References 2 and 22

Figure 76: Adjudicated defendants in higher courts, 2007–08, by age in years and sex (per 100,000 persons of that age group and sex)

Figure 76 Adjudicated defendants in higher courts, 2007–08, by age in years and sex

  • Males and females aged 20 to 24 years were most likely to appear as defendants before higher courts, followed by males and females aged 25 to 34 years: 352 per 100,000 males and 45 per 100,000 females; 254 per 100,000 males and 40 per 100,000 females respectively.
  • Adult females were the defendants in 12 percent of cases heard before higher courts in 2007–08.

Source: References 2 and 22

Sentencing

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

  • fine;
  • good behaviour bond;
  • probation order;
  • suspended sentence;
  • community service order;
  • community custody (including home detention and periodic detention); and
  • imprisonment.

A custodial order restricts an offender's liberty and may be served in a correctional facility or under supervision in the community. Suspended sentences are also classified as a form of custodial order.

Non-custodial orders are sentences that do not involve being held in custody. They may include supervision by a probation officer, community service orders or monetary penalties.

Sentencing data for adult offenders have been available since 2002–03 from all states and territories. The ABS is continuing to work towards a more detailed and regular sentencing collection for higher courts, Magistrates' courts and children's courts.

Figure 77: Principal sentence of defendants found guilty in magistrates' courts, 2007–08, by age in years (n)

Figure 77 Principal sentence of defendants found guilty in magistrates' courts 2007–08, by age in years

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 2007–08, only 8.4 percent of defendants found guilty in Magistrates' courts were given a custodial sentence.
  • Defendants aged 25 to 34 years and 35 to 44 years were more likely to receive a custodial sentence than were defendants in other age groups (10.9% and 10.5% respectively).

Source: Reference 22

Figure 78: Principal sentence of defendants found guilty in higher courts, 2007–08, by age in years (n)

Figure 78 Principal sentence of defendants found guilty in higher courts, 2007–08, by age in years

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

  • A much higher proportion (85%) of defendants found guilty in higher courts than of those found guilty in Magistrates' courts received custodial sentences.
  • Of defendants found guilty in higher courts, over 80 percent of defendants over 20 years of age received custodial sentences. Seventy percent of defendants under 20 years of age received custodial sentences.

Source: Reference 22

Figure 79: Principal sentence of adult male defendants found guilty in any courta, 2007–08 (%)

Figure 79 Principal sentence of adult male defendants found guilty in any court, 2007–08

a: Includes Magistrates' and higher courts
b: Includes intensive corrections orders, home detention and other orders restricting liberty though allowing living within the community
n=427,642 (excludes male defendants whose type of custodial order handed down was unknown)

  • In 71 percent of cases, the principal sentence handed down was a monetary order.
  • Custody in a correctional institution accounted for 6 percent of the total number of sentences in all courts in 2007–08.
  • Four percent of defendants found guilty received fully-suspended sentences.

Source: Reference 22

Figure 80: Principal sentence of adult female defendants found guilty in any courta, 2007–08 (%)

Figure 80 Principal sentence of adult female defendants found guilty in any courta, 2007–08

a: Include Magistrates' and higher courts
b: Includes intensive corrections orders, home detention and other orders restricting liberty though allowing living within the community
n=119,418

  • Seventy-two percent of defendants found guilty received monetary orders.
  • Three percent of defendants received custodial sentences in a correctional facility as the principal sentence in 2007–08.

Source: Reference 22

Figure 81 Principal sentence of defendants found guilty in a children's court, 2007–08 (%)

Figure 81 Principal sentence of defendants found guilty in a children's court, 2007–08

n=28,075

  • Community supervision or work orders were handed down to 24 percent of defendants found guilty in children's courts, while a further 29 percent received a monetary order as their principal sentence type.
  • Custodial sentences accounted for nine percent of sentences handed down in children's courts in 2007–08.

Source: Reference 22

Figure 82: Principal sentence of adult defendants found guilty in magistrates' courts, 2007–08, by most serious offence (%)

Figure 82 Principal sentence of adult defendants found guilty in magistrates' courts, 2007–08, by most serious offence

AICI: Acts intended to cause injury
GSJ: Offences against justice procedures, government security, or government operations
DNA: Dangerous or negligent acts endangering persons

  • In 2007–08, UEWI (51%), sexual assault (42%) and AICI (27%) were the proven offences most commonly incurring custodial orders.
  • DNA (85%) and traffic-related offences (85%) were the proven offences most commonly incurring monetary orders in 2007–08.

Source: Reference 22

Figure 83: Principal sentence of defendants found guilty in higher courts, 2007–08, by most serious offence (%)

Figure 83 Principal sentence of defendants found guilty in higher courts, 2007–08, by most serious offence

  • Homicide (90%), robbery (79%) and sexual assault (73.5%) were the proven offences most likely to receive a custodial sentence in higher courts.
  • Theft (30%), AICI (18%) and UEWI (18%) were the proven offences most likely to receive a non-custodial sentence in higher courts.

Source: Reference 22

Figure 84: Principal sentence of defendants found guilty in a children's court, 2007–08, by most serious offence (%)

Figure 84 Principal sentence of defendants found guilty in a children's court, 2007–08, by most serious offence

AICI: Acts intended to cause injury

  • Robbery (33.5%), sexual assault (29%), UEWI (18%) and AICI (17%) were the proven offences most likely to result in custodial sentences in children's courts.
  • Community supervision orders were the most likely sentencing outcomes for defendants found guilty of sexual assault (49%), robbery (48%) and UEWI (48%).

Source: Reference 22