Australian Institute of Criminology

Skip to content

Chapter 5: 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, Indigenous 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 22 and 23

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 22 and 23

Lodgements

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

In 2008–09, 867,700 cases were lodged in criminal courts in Australia—96 percent were initiated in Magistrates' courts, three percent were initiated in district/county courts and the remaining one percent initiated in the Supreme courts.

Source: Reference 22

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 are 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 conduct of the committal hearing is important for timely adjudication of the charges against the defendant.

Figure 71: Duration of matters finalised in Magistrates' court by method of finalisation, 2008–09 (%)

F&F10_figure71_01.eps

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, 73 percent of matters heard in the Magistrates' court were finalised within 13 weeks of the initial hearing of the matter. A further 15 percent were finalised in the subsequent three months; only four percent lasted longer than a year.
  • Acquittals were more common in cases where resolution took longer than 13 weeks.

Source: Reference 23

Figure 72: Duration of matters finalised in higher courts by method of finalisation, 2008–09 (%)

Duration of matters finalised in higher courts by method of finalisation, 2008–09

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 2008–09, 23 percent of matters finalised in higher courts lasted more than 52 weeks; although 19 percent took less than 13 weeks to finalise.
  • Cases where the defendant pleaded guilty generally took the least time to finalise—23 percent of cases with a guilty plea were resolved in less than 13 weeks compared with four percent of cases ending in acquittal and two percent 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—52 percent of cases resulting in a finding of guilt took 52 weeks or more to finalise, compared with 36 percent of acquittals and 18 percent of cases where the defendant pleaded guilty.

Source: Reference 23

Figure 73: Duration of matters finalised in the children's courts by method of finalisation, 2008–09 (%)

 Duration of matters finalised in the children's courts by method of finalisation, 2008–09

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 2008–09, 63 percent of matters in children's courts were finalised within 13 weeks from the initial hearing.
  • Sixty-five percent of matters resulting in the defendant being proven guilty were finalised in fewer than 13 weeks. By comparison, 62 percent of cases ending in an acquittal took 13 weeks or longer to finalise.

Source: Reference 23

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 74: Criminal cases finalised in Magistrates' court by method of finalisation, 2008–09 (%)a

Criminal cases finalised in Magistrates' court by method of finalisation, 2008–09

a: NSW data refers to finalised appearances rather than defendants, resulting in possible over counting. NSW data 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=635,930

  • The number of cases finalised in the Magistrates' court increased by three percent in 2008–09. In 2007–08, 619,542 cases were finalised in the Magistrates' court compared with 635,930 in 2008–09.
  • In 2008–09, four percent of cases finalised in the Magistrates' courts resulted in acquittal of the defendant.
  • Overall, 87 percent of defendants were found guilty in cases brought before the Magistrates' court; seven percent were non-adjudicated, while two percent were transferred to other court levels.

Source: Reference 23

Figure 75: Criminal cases finalised in higher courts by method of finalisation, 2008–09 (%)

Criminal cases finalised in higher courts by method of finalisation, 2008–09

a: Includes guilty plea and guilty verdict

n=16,933

  • Of the cases finalised in the higher courts, 78 percent resulted in the defendant being found guilty, while in seven percent the defendant was acquitted.
  • The number of cases finalised by higher courts increased marginally by one percent in 2008–09. In 2007–08, 16,815 cases were finalised in the higher courts compared with 16,933 in 2008–09.

Source: Reference 23

Figure 76: Criminal cases, finalised in children's courts by method of finalisation, 2008–09 (%)

Criminal cases, finalised in children's courts by method of finalisation, 2008–09

a: Includes guilty plea and guilty verdict

b: Includes defendants unfit to plead, defendants deceased, and other non-adjudicated finalisations

n=42,193

  • The most common method of finalisation in the children's court involved a guilty verdict (77%). By comparison, four percent of defendants were acquitted, while three percent of cases were transferred to other court levels.
  • The number of cases finalised by the children's courts increased by seven percent in 2008–09. In 2007–08, 39,412 cases were finalised in the children's courts compared with 42,193 in 2008–09.

Source: Reference 23

Figure 77: Adjudicated defendants in Magistrates' court by age and gender, 2008–09 (n per 100,00 population)

Adjudicated defendants in Magistrates' court by age and gender, 2008–09

  • In 2008–09, females accounted for 21 percent of all defendants in Magistrates' courts.
  • Compared with defendants in the other age groups, adult males and females aged 20 to 24 years were more likely to appear as defendants before the Magistrates' court. Males aged 20 to 24 years accounted for 23 percent of all defendants in the Magistrates' court—a rate of 12,674 per 100,000 population aged 20–24 years.
  • Individuals aged over 45 years appeared before the Magistrates' court at a rate of 1,505 per 100,000 population aged 45 years and older.

Source: References 2 and 23

Figure 78: Adjudicated defendants in higher courts by age group and gender, 2008–09 (n per 100,00 population)

Adjudicated defendants in higher courts by age group and gender, 2008–09

  • Defendants appearing in the higher courts were most commonly aged between 20 and 24 years, followed by persons aged 25 to 34 years. The rate of appearance for these two age groups were 400 per 100,000 males aged 20–24 years and 50 per 100,000 females and 292 per 100,000 for males aged 25–34 years and 47 per 100,000 for females.
  • Females were the defendants in 12 percent of cases heard before higher courts in 2008–09.

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 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 continues to work towards a more detailed and regular sentencing collection for higher courts, Magistrates' courts and children's courts.

Figure 79: Principal sentence of defendants found guilty in Magistrates' courts by age group, 2008–09 (n)

Principal sentence of defendants found guilty in Magistrates' courts by age group, 2008–09

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

  • By far the most common sentences handed down in 2008–09 in the Magistrates' court were non-custodial orders (91%).
  • In 2008–09, 2,294 custodial orders were given to persons under the age of 20 years, the least of any age group.
  • Defendants aged 25–34 and 35–44 years were more likely to receive a custodial sentence than were defendants in any other age groups (both at 11%).

Source: Reference 23

Figure 80: Defendants found guilty in higher courts by age group and principal sentence, 2008–09 (n)

Defendants found guilty in higher courts by age group and principal sentence, 2008–09

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 2008–09, a total of 11,436 custodial orders and 2,087 non-custodial orders were handed down to defendants found guilty in the higher courts. Of all sentences handed down in the higher courts, 85 percent were custodial.
  • Defendants under the age of 24 years received a higher proportion of non-custodial sentences compared with defendants in the older age groups. Of defendants receiving a custodial order, 72 percent were over 25 years of age.

Source: Reference 23

Figure 81: Principal sentence of adult male defendants found guilty in any court, 2008–09 (%)a

Principal sentence of adult male defendants found guilty in any court, 2008–09

a: Includes Magistrates' and higher courts

b: Includes intensive corrections orders, home detention and other orders restricting liberty although allowing living within the community

n=437,906 (excludes male defendants whose type of custodial order handed down was unknown)

  • Monetary orders accounted for 69 percent of sentences handed down to adult male defendants.
  • The rates of custody in a correctional institution did not vary dramatically between 2007–08 and 2008–09, increasing by seven percent in 2008–09.
  • Five percent of defendants found guilty received fully suspended sentences.

Source: Reference 23

Figure 82: Principal sentence of adult female defendants found guilty in any court, 2008–09 (%)a

Principal sentence of adult female defendants found guilty in any court, 2008–09

a: Include Magistrates' and higher courts

n=119,377

  • In line with previous years, monetary orders remained the most common sentence handed down to adult female defendants (70%).
  • Custody in a correctional institution accounted for only three percent of all adult female sentences.

Source: Reference 23

Figure 83: Principal sentence of defendants found guilty in a children's court, 2008–09 (%)

Principal sentence of defendants found guilty in a children's court, 2008–09

n=32,384

  • There was a 15 percent increase in the number of sentences handed down in the children's court from 2007–08 to 2008–09.
  • Community supervision or work orders were handed down to 26 percent of defendants found guilty in children's courts, while a further 23 percent received a monetary order as their principal sentence.
  • Custodial sentences accounted for six percent of sentences handed down in children's courts in 2008–09.

Source: Reference 23

Figure 84: Principal sentence of adult defendants found guilty in Magistrates' courts by most serious offence, 2008–09 (%)

Principal sentence of adult defendants found guilty in Magistrates' courts by most serious offence, 2008–09

AICI: Acts intended to cause injury

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

DNA: Dangerous or negligent acts endangering persons

  • In 2008–09, the three offences most commonly incurring custodial orders were UEWI (48%), sexual assault (43%) and acts intended to cause injury (AICI; 28%).
  • By contrast, dangerous or negligent acts endangering persons (78%) and traffic-related offences (84%) most commonly incurred monetary orders.

Source: Reference 23

Figure 85: Principal sentence of defendants found guilty in higher courts by most serious offence, 2008–09 (%)

Principal sentence of defendants found guilty in higher courts by most serious offence, 2008–09

  • The offences most likely to receive a custodial sentence in higher courts were homicide (88%), robbery (80%) and sexual assault (69%). The proportion of both homicide and sexual assault declined in 2008–09 compared with the previous year by two percent and five percent respectively.
  • Theft (31%), UEWI (19%) and AICI (14%) were the proven offences most likely to receive a non-custodial sentence in higher courts.

Source: Reference 23

Figure 86: Principal sentence of defendants found guilty in a children's court by most serious offence, 2008–09 (%)

Principal sentence of defendants found guilty in a children's court by most serious offence, 2008–09

  • Robbery (32%), sexual assault (25%), AICI (19%) and UEWI (19%) were the proven offences most likely to result in custodial sentences in children's courts.
  • A community supervision order was the most likely sentencing outcome for defendants found guilty of robbery (51%), sexual assault (50%) and UEWI (47%).

Source: Reference 23

Federal courts

In Australia, most crimes are committed against state and territory laws. Commonwealth law deals with crimes that have a national or international focus, for example, tax crimes, transnational and cybercrime, terrorism or child sex offences committed overseas.

There is not one specific court that prosecutes federal defendants. The Federal Parliament 'invests' the Supreme, district (county), Magistrates' and children's courts with federal jurisdiction, allowing them to pass judgement in these matters. Federal prisoners are held in state/territory prisons.

In 2009, the ABS released the first edition of Federal Defendants: Selected States and Territories, which provides a snapshot of crimes committed in Australia that were tried under Commonwealth law.

A total of 14,002 federal cases were lodged in Australian courts in 2009—94 percent were initiated in the Magistrates' Court, five percent in the higher courts and one percent in the children's courts.

Source: Reference 24

Figure 87: Criminal cases finalised in higher courts by method of finalisation, 2008–09 (%)

Criminal cases finalised in higher courts by method of finalisation, 2008–09

n=628

WBP: Withdrawn by prosecution

  • Of the 628 federal cases finalised in the higher courts, the majority of defendants were proven guilty (87%). By contrast, Four percent were acquitted and two percent were withdrawn by the prosecution (WBP).

Source: Reference 24

Figure 88: Criminal cases finalised in the Magistrates' and children's courts by method of finalisation, 2008–09 (%)

Criminal cases finalised in the Magistrates' and children's courts by method of finalisation, 2008–09

n=13,371

  • In 2008–09, 76.8 percent of federal cases heard in the Magistrates' and children's courts were proven guilty, while 2.1 percent were acquitted.
  • Seventeen percent of cases lodged in the Magistrates' and children's courts were withdrawn by the prosecution before they could be finalised.

Source: Reference 24

Figure 89: Federal defendants in higher courts by age group and gender, 2008–09 (n)

Federal defendants in higher courts by age group and gender, 2008–09

  • In 2008–09, the majority of federal defendants in the higher courts were males aged 45 years and over.
  • There were only nine offenders who were under 20 years of age.
  • The 115 female defendants comprised 19 percent of the total number of defendants adjudicated in the higher courts in 2008–09.

Source: Reference 24

Figure 90: Federal defendants in the Magistrates' court by age group and gender, 2008–09 (n)

Figure 90: Federal defendants in the Magistrates' court by age group and gender, 2008–09

  • Thirty percent of federal cases adjudicated in the Magistrates' court involved female defendants.
  • More females aged between 35 and 44 years appeared as federal defendants (n=1,195) than females of any other age group. By comparison, more males aged over 45 years appeared as federal defendants (n=2,551) than males of any other age group.

Source: Reference 24

Figure 91: Federal defendants in the children's court by age and gender, 2008–09 (n)

Federal defendants in the children's court by age and gender, 2008–09

  • Of the 170 federal cases heard in the children's courts, 72 percent involved a male defendant.
  • In 2008–09, 22 federal defendants were aged between 12 and 14 years. Of these, 15 were male and seven were female.
  • The majority of male federal defendants (31%) were aged 17 years old, while for females the majority (26%) were 16 years of age.

Source: Reference 24

Figure 92: Selected offences in the higher courts by method of finalisation, 2008–09 (%)

Selected offences in the higher courts by method of finalisation, 2008–09

CPO: Commonwealth property offences

CSO: Commonwealth sex offences

WBP: Withdrawn by prosecution

  • The most common method of finalisation across all crimes involved the defendant being found guilty.
  • Of the 492 cases of financial crime, 39 percent were withdrawn by the prosecution before they were finalised.
  • Eleven percent of Commonwealth property defendants were acquitted compared with four percent of Commonwealth sex offence cases, nine percent of communication crimes, six percent of drugs cases and four percent of defendants arrested for fraud.

Source: Reference 24

Figure 93: Selected offences in the Magistrates' and children's courts by method of finalisation, 2008–09 (%)

Selected offences in the Magistrates' and children's courts by method of finalisation, 2008–09

CPO: Commonwealth property offences

CSO: Commonwealth sex offences

WBP: Withdrawn by prosecution

  • Sixteen percent of Commonwealth sex offence charges were proven guilty in the Magistrates' and children's courts. A similar finding was also recorded for federal drug offences, where 12 percent of cases ended with a guilty verdict.
  • In 2008–09, one percent of defendants prosecuted for a federal financial crime were acquitted—65 percent were proven guilty, 28 percent were withdrawn by the prosecution, while six percent were finalised by other methods.
  • Only three percent of Commonwealth property crime charges compared with eight percent of communication-based offences resulted in the defendant being acquitted.

Source: Reference 24

Figure 94: Selected federal offences proven guilty in the higher courts by sentence type 2008–09 (%)

Selected federal offences proven guilty in the higher courts by sentence type 2008–09

CPO: Commonwealth property offences

CSO: Commonwealth sex offences

CO: Crimes against Commonwealth officials

  • A defendant was more likely to receive a custodial sentence if they were convicted for a Commonwealth property crime, a Commonwealth sex offence and communications offences.
  • In 2008–09, 81 percent of sentences handed down for communications-based offences and 84 percent of crimes against Commonwealth officials were non-custodial.

Source: Reference 24