Australian Institute of Criminology

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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.

It should be noted that there is not one specific court that prosecutes federal defendants. The Australian Parliament ‘invests’ the Supreme, District (County), Magistrate and Children’s courts with federal jurisdiction, allowing them to pass judgement in these matters. Federal prisoners are held in state prisons.

The ABS publishes statistics on criminal defendants whose cases were initiated or finalised in higher and Magistrates’ courts and, recently, have begun reporting on cases heard 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 has produced statistics on the number of lodgements at each court level.

Both the ABS and the Steering Committee for the Review of Government Service Provision report on criminal court data for financial, rather than calendar, years.

Source: References 23 and 24

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 23 and 24

Lodgements

Most lodgements are processed by the Magistrates’ court in the relevant criminal jurisdiction. In 2009–10, 854,133 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 24

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

Figure 75: Duration of matters finalised in Magistrates’ court, by method of finalisation, 2009–10 (%)

Duration of matters finalised in Magistrates’ court, by method of finalisation, 2009–10 (%)

a: Includes guilty plea and guilty verdict

b: Includes those cases that were finalised by other means (eg transferred to other court levels, withdrawn by prosecution) or the finalisation method was unknown

  • In 2009–10, 73 percent of all defendants were finalised in the Magistrates’ court in less than 13 weeks; guilty verdicts were most common in matters that took less than 13 weeks to finalise.
  • A further 15 percent of matters were finalised in 13 to 26 weeks, with the highest proportion of defendants acquitted (24%).
  • In the 11 percent of matters that took greater than 52 weeks to finalise, eight percent were acquitted, while three percent were found guilty.

Source: Reference 24

Figure 76: Duration of matters finalised in higher courts, by method of finalisation, 2009–10 (%)

Duration of matters finalised in higher courts, by method of finalisation, 2009–10 (%)

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

  • Overall, the greatest proportion (27%) of all defendants’ cases in the higher courts took between 13 and 26 weeks to finalise; 23 percent took longer than 52 weeks.
  • In cases that took less than 13 weeks to finalise, four percent resulted in acquittal, two percent in a guilty verdict, and 22 percent in a guilty plea.
  • Guilty verdicts generally took longer to prove than other types of finalisation. Forty-six percent of cases that resulted in a guilty verdict took longer than 52 weeks, compared with only 38 percent of acquittals and 17 percent for guilty pleas.
  • Acquittals were most common in cases that took longer than 52 weeks to finalise (38%) and least common in cases that took less than 13 weeks to finalise (4%). There was no difference in the proportion of acquittals for cases lasting between 26 to 39 and 39 to 52 weeks (19% respectively).

Source: Reference 24

Figure 77: Duration of matters finalised in the children’s courts, by method of finalisation, 2009–10 (%)

Duration of matters finalised in the children’s courts, by method of finalisation, 2009–10 (%)

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)

  • Of the 41,272 defendants finalised in the children’s courts in 2009–10, 63 percent were finalised in less than 13 weeks.
  • Guilty verdicts were more common in cases that took less time to process. Of defendants who were found guilty, 66 percent were processed in less than 13 weeks, 20 percent between 13 and 26 weeks and only three percent of cases lasted longer than 52 weeks.

Source: Reference 24

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 78: Criminal cases finalised in the Magistrates’ court, by method of finalisationa, 2009–10 (%)

Criminal cases finalised in the Magistrates’ court, by method of finalisation, 2009–10 (%)

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, and other non-adjudicated finalisations

n=603,601

  • The majority of cases finalised in the Magistrates’ courts resulted in a guilty verdict (87%).
  • A combined nine percent of cases did not result in a verdict; two percent of cases were transferred to another court level; seven percent were withdrawn by the prosecution.
  • The number of cases finalised in the Magistrates’ court fell by five percent from 2008–09 to 2009–10. In 2008–09, 635,930 cases were finalised in the Magistrates’ court compared with 603,601 in 2009–10.

Source: Reference 24

Figure 79: Criminal cases finalised in higher courts, by method of finalisation, 2009–10 (%)

Criminal cases finalised in higher courts, by method of finalisation, 2009–10 (%)

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=16,829

  • The largest proportion of matters heard in the higher courts resulted in a guilty verdict. However, 13 percent of cases were withdrawn by the prosecution before a verdict could be reached.
  • There was a marginal decrease (1%) in the number of cases finalised in the higher courts between 2008–09 and 2009–10—from 16,933 cases to 16,829 cases heard in 2009–10.

Source: Reference 24

Figure 80: Criminal cases, finalised in children’s courts, by method of finalisation, 2009–10 (%)

Criminal cases, finalised in children’s courts, by method of finalisation, 2009–10 (%)

a: Includes guilty plea and guilty verdict

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

n=41,275

  • The most common method of finalisation in the children’s court involved a guilty verdict (77%); a further four percent of defendants were acquitted; another four percent of cases were transferred to other courts.
  • The number of cases finalised by the children’s courts decreased by two percent in 2009–10—from 42,193 cases finalised in the children’s courts in 2008–09 compared with 41,275 finalised cases in 2009–10.

Source: Reference 24

Figure 81: Adjudicated defendants in Magistrates’ court by age and gender, 2009-10 (rate per 100,000 relevant persons)

Adjudicated defendants in Magistrates’ court by age and gender, 2009-10 (rate per 100,000 relevant persons)

  • The age group with the highest rate of adjudication in the Magistrates’ court included individuals aged between 20–24 years. This pattern held regardless of gender, with males appearing before the courts at a rate of 11,204 per 100,000 male population and females appearing before the court at a rate of 2,947 per 100,000 female population.
  • The rate of adjudication in the Magistrates’ court was lowest at each end of the age spectrum. For individuals aged less than 20 years, males appeared at a rate of 1,512 per 100,000 male population, while for females the rate was 382 per 100,000 females.
  • Conversely, for individuals aged 45 years and over, females appeared at a rate of 421 per 100,000 female population and males appeared at a rate of 1,642 per 100,000 male population.
  • Collectively, females were the defendants in 22 percent of all cases heard in the Magistrates’ courts in 2009–10.

Source: References 2 and 24

Figure 82: Adjudicated defendants in higher courts, by age and gender, 2009–10 (rate per 100,000 relevant persons)

Adjudicated defendants in higher courts, by age and gender, 2009–10 (rate per 100,000 relevant persons)

  • Overall, males were the defendants in 87 percent of cases heard in the higher courts in 2009–10.
  • The rate of female defendants was greatest in the 20–24 year age group, where they were adjudicated at a rate of 41 per 100,000.
  • Male defendants in the 20–24 year age group were adjudicated at a rate of 347 per 100,000 male population.

Source: References 2 and 24

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 for all states and territories. The ABS is seeking to establish a more detailed and regular sentencing collection for higher, Magistrates’ courts and children’s courts.

Source: Reference 24

Figure 83: Principal sentence of defendants found guilty in Magistrates’ courts, by age in years, 2009–10 (n)

Principal sentence of defendants found guilty in Magistrates’ courts, by age in years, 2009–10 (n)

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 2009–10, 91 percent (n=467,966) of sentences handed down in the Magistrates’ court were non-custodial.
  • The number of custodial orders was greatest in the 25–34 year age group (n=17,302). Conversely, defendants aged less than 20 years received the least number of custodial sentences of any age group (n=2,305).
  • Of the 105,944 defendants in the Magistrates’ court aged between 35-44 years, 89 percent received a non-custodial order, while 11 percent received a custodial order.

Source: Reference 24

Figure 84: Defendants found guilty in higher courts, by age and principal sentence, 2009–10 (n)

Defendants found guilty in higher courts, by age and principal sentence, 2009–10 (n)

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

  • Of the 13,171 defendants adjudicated in the higher courts in 2009-10, 85 percent (n=11,182) received a custodial order.
  • The number of non-custodial orders was fewer for those aged over 34 years. For instance, the number of non-custodial orders for the 20–24 year age group was 552, compared with 242 for those aged over 45 years.
  • For those aged less than 20 years, 29 percent of defendants received a custodial sentence.

Source: Reference 24

Figure 85: Principal sentence of adult male defendants found guilty in any courta, 2009–10 (%)

Principal sentence of adult male defendants found guilty in any court, 2009–10 (%)

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=415,414 (excludes male defendants whose type of custodial order handed down was unknown)

  • Across all courts, the majority of adult males received some type of non-custodial sentence. Sixty-nine percent received a monetary order, while 14 percent received other non-custodial orders.
  • Only seven percent received a sentence that required serving custody in a correctional facility.

Source: Reference 24

Figure 86: Principal sentence of adult female defendants found guilty in any courta, 2009–10 (%)

Principal sentence of adult female defendants found guilty in any court, 2009–10 (%)

a: Include Magistrates’ and higher courts

b: Includes intensive corrections orders, home detention and other orders by which liberty is restricted though living within the community

n=115,603

  • In 2009–10, 69 percent of adult female defendants found guilty received a monetary order. Comparatively, only three percent received a sentence involving serving custody in a correctional institution.
  • Of the 115,603 adult female defendants in 2009–10, five percent were sentenced to community supervision or work orders.

Source: Reference 24

Figure 87: Principle sentence of defendants found guilty in a children’s court, 2009–10 (%)

Principle sentence of defendants found guilty in a children’s court, 2009–10 (%)

n=31,986

  • The two most common sentences handed down in the children’s courts in 2009–10 were other non-custodial orders (45%) and community supervision or work orders (27%). The least common was custody in the community, with only two percent of defendants receiving this sentence.
  • Eighteen percent of defendants in the children’s courts received monetary orders; five percent received a custodial sentence.

Source: Reference 24

Figure 88: Principle sentence of adult defendants found guilty in Magistrates’ courts, by most serious offence, 2009–10 (%)

Principle sentence of adult defendants found guilty in Magistrates’ courts, by most serious offence, 2009–10 (%)

AICI: Acts intended to cause injury

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

DNA: Dangerous or negligent acts endangering persons

  • Similar proportions of people charged with traffic-related offences and people charged with dangerous or negligent acts endangering persons received monetary orders. Specifically, 84 percent of people charged with traffic offences and 77 percent of people charged with dangerous or negligent acts endangering persons received monetary orders.
  • Custodial orders were most common for defendants charged with UEWI and sexual assault (47% and 45%, respectively).
  • For defendants charged with deception offences in 2009–10, 23 percent received a custodial sentence, 40 percent received a monetary order, while the remaining 37 percent received another form of non-custodial sentence.

Source: Reference 24

Figure 89: Principle sentence of defendants found guilty in higher courts, by most serious offence, 2009–10 (%)

Principle sentence of defendants found guilty in higher courts, by most serious offence, 2009–10 (%)

AICI: Acts intended to cause injury

  • In 2009–10, of the 367 defendants charged with homicide, 98 percent received a custodial sentence. Similarly, high proportions of defendants received custodial sentences for robbery (92%) and sexual assault (90%)
  • Persons convicted of theft offences were more likely to receive a non-custodial monetary order than persons convicted of any other offence in the higher courts.

Source: Reference 24

Figure 90: Principle sentence of defendants found guilty in a children’s court, by most serious offence, 2009–10 (%)

Principle sentence of defendants found guilty in a children’s court, by most serious offence, 2009–10 (%)

AICI: Acts intended to cause injury

  • Custodial sentences were most common for defendants charged with robbery (34%), sexual assault (22%), acts intended to cause injury (18%) and UEWI (17%).
  • Other non-custodial sentences were most common for defendants found guilty of property damage/environmental pollution (81%), theft (79%), public order offences (79%) and UEWI (78%).

Source: Reference 24

Federal courts

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

The ABS provides a snapshot of crimes committed in Australia that were tried under federal law in their publications Federal Defendants; Selected States and Territories.

In 2009–10, a total of 14,007 federal cases were lodged in Australian courts—93 percent were initiated in the Magistrates’ court, five percent in the higher courts and two percent in the children’s courts.

Source: Reference 25

Figure 91: Federal criminal cases finalised in higher courts by method of finalisation, 2009–10 (%)

Federal criminal cases finalised in higher courts by method of finalisation, 2009–10 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

n=762

  • The majority of federal criminal cases heard in the higher courts in 2009–10 resulted in a guilty verdict (89%); three percent resulted in acquittal.
  • Forty-nine federal criminal cases (6%) heard in the higher courts were withdrawn by the prosecution before a verdict could be reached.

Source: Reference 25

Figure 92: Federal criminal cases finalised in the Magistrates’ and children’s courts by method of finalisation, 2009–10 (%)

Federal criminal cases finalised in the Magistrates’ and children’s courts by method of finalisation, 2009–10 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

n=13,244

  • Although the majority of federal defendants finalised in the Magistrates’ or children’s courts in 2009–10 were proven guilty (75%), 17 percent of cases were withdrawn by the prosecution before a verdict could be reached.

Source: Reference 25

Figure 93: Federal defendants in higher courts by age and gender, 2009–10 (n)

Federal defendants in higher courts by age and gender, 2009–10 (n)

  • There were no female federal defendants aged less than 20 years heard in the higher courts in 2009–10.
  • The number of federal defendants was highest for both males and females in the 45 years and over age group. Specifically, there were 221 male and 54 female federal defendants aged 45 years and over in the higher courts in 2009–10.
  • Overall, males accounted for 81 percent of all federal defendants in the higher courts. Of that 81 percent, 36 percent were aged over 45 years, 27 percent were aged between 25–34 years and 25 percent were aged between 35–44 years.

Source: Reference 25

Figure 94: Federal defendants in the Magistrates’ court by age and gender, 2009–10 (n)

Federal defendants in the Magistrates’ court by age and gender, 2009–10 (n)

  • In 2009–10, the number of male federal defendants increased with age. Specifically, there were 202 male federal defendants aged less than 20 years in 2009–10, compared with 2,590 aged 45 years and over. The number of female defendants, however, peaked in the 35–44 year age group with 1,220.
  • Twenty-nine percent of federal defendants in the Magistrates’ court were aged between 35–44 years old; 1,220 were female while 2,277 were male.

Source: Reference 25

Figure 95: Federal defendants in the children’s court by age and gender, 2009–10 (n)

Federal defendants in the children’s court by age and gender, 2009–10 (n)

  • Of the 213 federal cases heard in the children’s court in 2009–10, 76 percent involved a male defendant.
  • There were 16 female federal defendants aged 16 years in the children’s courts, the most in any female age group. By contrast, the largest number of male federal defendants were 17 years old (n=40). There were 35 defendants who were aged between 12 and 14 years in 2009–10; 21 male and 14 female.

Source: Reference 25

Figure 96: Selected offences in the higher courts by method of finalisation, 2009–10 (%)

Selected offences in the higher courts by method of finalisation, 2009–10 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

WBP: Withdrawn by prosecution

CPO: Commonwealth property offences

CSO: Commonwealth sexual offences

  • The most common method of finalisation for fraud and Commonwealth sexual offences in the higher courts was a guilty verdict. Ninety-one percent of Commonwealth sexual offences and 89 percent of fraud offences resulted in a guilty verdict in 2009–10.
  • Eleven percent of financial offences resulted in acquittal, 41 percent were proven guilty, while 45 percent were withdrawn by the prosecution.
  • Of the 115 Commonwealth property offences heard in 2009–10, only four percent were acquitted.

Source: Reference 25

Figure 97: Selected offences in the Magistrates’ and children’s courts by method of finalisation, 2009–10 (%)

Selected offences in the Magistrates’ and children’s courts by method of finalisation, 2009–10 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

WBP: Withdrawn by prosecution

CPO: Commonwealth property offences

CSO: Commonwealth sexual offences

  • A guilty finding was most common for federal defendants charged with Commonwealth property offences (46%), communications offences (64%), financial offences (65%) and fraud offences (83%).
  • In 2009–10, 37 percent of Commonwealth sexual offences heard in the Magistrates’ and children’s courts were withdrawn by the prosecution before a verdict could be reached.
  • Only one percent of fraud offences resulted in an acquittal, compared with nine percent of communications offences.

Source: Reference 25

Figure 98: Selected federal offences proven guilty in the higher courts by sentence type, 2009–10 (%)

Selected federal offences proven guilty in the higher courts by sentence type, 2009–10 (%)

CPO: Commonwealth property offences

CSO: Commonwealth sexual offences

  • A federal defendant proven guilty in the higher courts was most likely to receive a custodial order. Ninety-five percent of Commonwealth property offences and 89 percent of drug offences received a custodial order in 2009–10.
  • Although 65 percent of federal defendants proven guilty for a Commonwealth sexual offence received a custodial order, 35 percent received a non-custodial order— the largest proportion of any federal offence proven guilty in the higher courts.

Source: Reference 25

Figure 99: Selected federal offences proven guilty in the Magistrates’ and children’s courts by sentence type, 2009–10 (%)

Selected federal offences proven guilty in the Magistrates’ and children’s courts by sentence type, 2009–10 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

CPO: Commonwealth property offences

CSO: Commonwealth sexual offences

  • Sixty-three percent of federal defendants found guilty of financial offences and 55 percent of defendants found guilty of fraud offences in the Magistrates’ and children’s courts received monetary order sentences in 2009–10.
  • Of the 67 federal defendants charged with a Commonwealth property crime, 33 percent received a custodial order, 33 percent received an other non-custodial order, 18 percent received a monetary order while 16 percent received a community supervision order.
  • In 2009–10, 77 percent of sentences handed down in federal drug matters and 46 percent of sentences handed down in communications offences involved some other type of non-custodial order.

Source: Reference 25