Australian Institute of Criminology

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Chapter 4: 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 under 17 years in Queensland).

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. In 2013, the ABS combined most of its statistics on criminal courts into ‘all courts’, rather than reporting data as categories of higher courts, Magistrates’ courts and children’s courts. Caution should be exercised when comparing with data prior to 2012–13.

Further, Western Australia provided the ABS with all information regarding community-based orders and their associated components (community work, curfew, probation, intensive supervision orders or a program condition) so that the ABS could derive a principle sentence. This reporting change may have resulted in an increase in defendants with a principle sentence of community service order and a decrease in those with probation orders. Caution should also be used when comparing 2012–13 principle sentence data with previous years.

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 10 and 13

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 10 and 13

Lodgements

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

In 2012–13, 780,260 cases were lodged in criminal courts in Australia; 96 percent (n=750,514) were initiated in magistrates’ courts, three percent (n=25,249) were initiated in district/county courts and the remaining one percent (n=4,497) were initiated in supreme courts.

Source: Reference 10

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 47 Timeliness of matters finalised in all courts by method of finalisation, 2012–13 (%)

Figure 047

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 2012–13, 70 percent of all matters were finalised in all courts in less than 13 weeks; guilty verdicts were the most common method of finalisation in matters that took less than 13 weeks to finalise (75%).
  • A further 17 percent took 13–26 weeks to finalise, with the highest proportion of defendants acquitted (29%).
  • In 2012–13, only four percent of matters took greater than 52 weeks to finalise. The majority of these were for matters that ended in an acquittal.

Source: Reference 13

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 or statute of limitations.

Figure 48 Criminal cases finalised in all courts by method of finalisation, 2012–13 (%)

Figure 048

a: Includes guilty plea and guilty verdict

  • In 2012–13, the majority of cases in all courts resulted in a guilty verdict (87%).
  • A combined 13 percent of cases did not result in a verdict; three percent were acquitted, two percent were transferred to other court levels and eight percent were withdrawn by the prosecution.

Source: Reference 13

Figure 49 Adjudicated defendants in all courts by age and sex, 2012–13 (rate per 100,000 relevant persons)

Figure 049

  • Individuals aged 20–24 years were the most commonly adjudicated group in all courts in 2012–13. This pattern held regardless of gender, with an adjudication rate of 9,938 per 100,000 for males aged 20–24 years and 2,599 per 100,000 population for females in this age group.
  • The rate of adjudication in all courts was lowest at each end of the age spectrum. For individuals aged under 20 years, males appeared at a rate of 1,950 per 100,000 male population, while for females the rate was 515 per 100,000 female population.
  • For individuals aged 45 years and over, females appeared at a rate of 426 per 100,000 female population and males appeared at a rate of 1,700 per 100,000 male population.

Source: References 2 and 13

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.

Source: Reference 13

Figure 50 Principal sentence of defendants found guilty in all courts by age in years, 2012–13 (n)

Figure 050

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 2012–13, 88 percent (n=417,480) of sentences handed down in all courts were non-custodial.
  • The number of custodial orders was greatest for the 25–34 years age group (n=19,059). Defendants aged less than 20 years received the least number of custodial sentences of any age group (n=5,259).

Source: Reference 13

Figure 51 Principal sentence of adult male and female defendants found guilty in all courts, 2012–13 (%)

Figure 051

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

  • Of the 106,404 adult female and 375,878 male defendants in 2012–13, 66 percent of adult female and 64 percent of adult male defendants who were found guilty received a monetary order.
  • Only three percent of females and eight percent of males received a sentence involving serving custody in a correctional institution. Six percent of both males and females were sentenced to community supervision or work orders.

Source: Reference 13

Federal courts

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

There is not one specific court that prosecutes federal defendants. The Commonwealth Government through the Crimes Act 1914 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 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 federal law. In 2013, the ABS combined most of its statistics on federal defendants and offences into all courts, rather than reporting data as had been done previously in categories of higher courts, magistrates’ courts and children’s courts. In 2012–13, a total of 10,454 federal cases were lodged in Australian courts; 90 percent (n=9,428) were initiated in the magistrates’ court, eight percent (n=813) in the higher courts and two percent (n=213) in the children’s courts.

Source: Reference 14

Figure 52 Federal criminal cases finalised in all courts by method of finalisation, 2012–13 (%)

Figure 052

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

  • The majority of federal criminal cases heard in 2012–13 resulted in a guilty verdict (69%); three percent resulted in an acquittal.
  • Twenty-two percent (n=2,307) of federal criminal cases heard in all courts were withdrawn by the prosecution before a verdict could be reached.

Source: Reference 14

Figure 53 Federal defendants in all courts by age and sex, 2012–13 (n)

Figure 053

  • The number of federal defendants was highest for males 45 years of age and older. Specifically, there were 2,142 males aged 45 years and over in all courts in 2012–13. For females, the number of federal defendants was highest for those aged 35–44 years and 45 years of age and older. In 2012–13, there were 617 females aged between 35–44 years of age and 612 females aged 45 years of age and older in all courts.
  • Overall, males accounted for 78 percent of all federal defendants in all courts.

Source: Reference 14

Figure 54 Selected federal offences in all courts by method of finalisation, 2012–13 (%)

Figure 054

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

  • In 2012–13, the most common method of finalisation for communications offences (63%), financial offences (66%), fraud offences (70%) and people smuggling offences (45%) in all courts was a guilty verdict. Forty-five percent of child sexual exploitation offences (CSEO) and 35 percent of drug offences were finalised through other means.
  • The proportion of federal cases that were acquitted in all courts was generally low. The greatest proportion was for people smuggling (9%). By comparison, no federal defendants charged with CSEO were acquitted.
  • The proportion of federal cases that were withdrawn by the prosecution varied across offence types, from 15 percent for fraud offences to 29 percent for communication and drug offences.

Source: Reference 14

Figure 55 Selected federal offences proven guilty in all courts by sentence type, 2012–13 (%)

Figure 055

a: Includes community supervision/work orders and other non-custodial orders

  • Of federal defendants found guilty of drug offences, 60 percent received a sentence that involved serving custody in a correctional institution, while 11 percent received a monetary order.
  • The proportion of federal defendants who received a monetary order ranged from one percent for defendants guilty of CSEO to 58 percent of those guilty of a federal financial offence.
  • Sixty-nine percent of federal defendants found guilty of people smuggling received a sentence that involved serving custody in a correctional institution, while 31 percent received an ‘other’ non-custodial sentence.

Source: Reference 14