Committals: Report (html)
3. Committal system and indictable case data
Introduction
3.1 During this reference the Commission requested and received data from the Magistrates’ Court of Victoria, the County Court of Victoria, the Supreme Court of Victoria, Court Services Victoria and the Office of Public Prosecutions. Other stakeholders referenced or provided additional data in their submissions. As well as these sources of data, the Commission’s recommendations are based on publicly available statistical data.
3.2 In this chapter the original sources of data are referenced. On occasion, references are to the issues paper, in which the available data is set out more fully.[236] The year that is referred to may vary depending on the most recent data available or provided to the Commission.
3.3 This chapter provides an overview of what the statistical data reveals about indictable cases, discusses the availability of useful data and its limitations, and makes recommendations about how data can be better captured in indictable criminal cases. While there are shortcomings with the available data that make it difficult to draw accurate comparisons between Victoria and other Australian jurisdictions, the data supports the following general conclusions:
• Delay in indictable matters is no worse in Victoria than in other Australian states and territories, and Victoria compares favourably to most other jurisdictions.
• Late guilty pleas are not more of a problem in Victoria than elsewhere and again, Victoria compares relatively favourably to other jurisdictions.
Statistical data relating to indictable cases
3.4 Each year around 3000 criminal cases commence in the committal stream of the Magistrates’ Court and pass through some or all parts of a committal proceeding.[237]
3.5 Of these cases, roughly:
• 30 per cent are heard and determined summarily[238] in the Magistrates’ Court[239]
• 30 per cent are committed to the County Court for sentence, following a plea of guilty[240]
• 30 per cent are committed to the County Court for trial, following a plea of not guilty[241]
• four per cent are committed to the Supreme Court. Of the cases committed to the Supreme Court, approximately 14 per cent are committed for sentence following a plea of guilty.[242]
Disposition of cases in the Magistrates’ Court
3.6 Of those committal stream matters that were finalised summarily in the Magistrates’ Court in 2017–18, approximately:
• seven per cent resolved at the filing hearing
• 40 per cent resolved at the committal mention hearing
• seven per cent resolved at the committal case conference
• 40 per cent resolved at the committal hearing[243]
Rates of discharge at committal hearing
3.7 Between one and two per cent of all committal stream cases per year have at least one charge discharged by a magistrate. In 2017–18, 57 cases had at least one charge discharged, and ten cases had at least one charge discharged and none committed.[244]
Cross-examination during committal hearing
3.8 The Commission is unable to determine from the available data how frequently witnesses are cross-examined during committal hearings. In 2017–18, leave to cross-examine at least one witness was granted in 46 per cent of all committal stream cases—a total of 1,569 cases.[245]
3.9 The shortcomings of this data are discussed below.
Duration of cases
Magistrates’ Court
3.10 In 2017–18, the average time between first hearing and committal in the Magistrates’ Court was 36 weeks for death-related and general offences, and 29 weeks for sexual offences.[246]
3.11 Data is not available to show the average time between filing hearing and finalisation in the Magistrates’ Court for those committal stream matters that resolve summarily.
3.12 Figures provided by the Australian Bureau of Statistics provide a point of comparison for the time taken to finalise matters in the Magistrates’ Court of Victoria by comparison with Magistrates’ or Local Courts in other Australian states and territories, but these figures capture both summary and indictable cases.
Table 1: Time taken (weeks) for finalisation of criminal cases in the Magistrates’ or Local Courts in Australian jurisdictions, 2017–18
|
Vic[247] |
NSW[248] |
QLD[249] |
SA[250] |
WA[251] |
TAS[252] |
NT[253] |
ACT[254] |
|
|
Mean (weeks) |
19 |
11 |
15 |
34 |
11 |
64 |
21 |
20 |
3.13 Given these figures relate to summary as well as indictable proceedings, it is difficult to rely on them as a performance indicator for courts’ management of indictable stream cases. What is clear, however, is that criminal cases in the Victorian Magistrates’ Court are being finalised in a comparable way to most other jurisdictions, with South Australia and Tasmania taking much longer to finalise matters than other jurisdictions.
County and Supreme Courts
3.14 In the higher courts in 2018–19:
• 71 per cent of cases in the County Court and 61 per cent of cases in the Supreme Court were finalised within 12 months
• 96 per cent of cases in the County Court and 97 per cent of cases in the Supreme Court were finalised within 24 months.[255]
3.15 These figures capture pleas and sentencing matters as well as trials.[256]
3.16 Table 2 outlines the time taken to finalise criminal cases in the higher courts across Australia. The figures capture average disposition times across both higher courts (County/District and Supreme) in the states. The Australian Capital Territory and the Northern Territory only have one higher court.
Table 2: Time taken (weeks) for finalisation of criminal cases in higher courts in Australian jurisdictions, 2017–18
|
Vic[257] |
NSW[258] |
QLD[259] |
SA[260] |
WA[261] |
TAS[262] |
NT[263] |
ACT[264] |
|
|
Mean (weeks) |
38 |
52 |
50 |
51 |
37 |
58 |
25 |
42 |
3.17 This data indicates that the higher courts in Victoria are finalising criminal cases more quickly than most other Australian jurisdictions.
Guilty pleas and other outcomes of cases in the higher courts
3.18 In 2017–18, roughly 2100 cases were committed to the County Court.[265] Of these, just over half were committed following a plea of guilty, and in another approximately 25 per cent a plea was entered prior to trial.[266] Of the remaining 25 per cent of cases where a plea of guilty was not entered, roughly 16 per cent proceeded to trial with the remaining cases either discontinued or transferred to another court.[267]
3.19 Of the cases that proceeded to trial, the accused was found or pleaded guilty in roughly 63 per cent of cases, was found not guilty in 33 per cent of cases and was found not guilty by reason of mental impairment in four per cent of cases.[268]
3.20 In 2017–18, 115 cases were committed to the Supreme Court. Only 14 per cent of cases were committed following a guilty plea.[269] In another 31 per cent of cases, a plea of guilty was entered between committal and trial, including during trial.[270] Roughly 30 per cent of cases proceeded to trial, with the remaining 25 per cent either being not yet finalised, discontinued or transferred to the County Court.[271]
3.21 Of the cases that proceeded to trial in the Supreme Court, the accused was either found or pleaded guilty in approximately 80 per cent of cases and was found not guilty (or unfit to stand trial) in 20 per cent of cases.[272]
Limitations of the available data
3.22 The available data relating to pre-trial indictable procedure in Victoria and other Australian jurisdictions is limited in several respects. This makes it difficult to:
• identify at which points in the criminal justice system delay is occurring and why
• know the profile of witnesses who are cross-examined prior to trial, and how common it is for witnesses to be cross-examined both before trial and at trial
• draw comparisons between the pre-trial criminal justice systems in Victoria and other Australian states and territories, and internationally.
3.23 These issues are discussed further below.
Identifying delay
3.24 It is difficult to pinpoint causes of delay in indictable criminal matters. The lower and higher courts use different case management systems and do not share information. As a result, it is difficult to obtain system-wide, representative data that captures the full lifecycle of all indictable matters.[273]
3.25 According to the Director of Public Prosecutions’ Annual Report 2017–18, the average time to complete an indictable prosecution that year was 15.5 months, down from a five-year average of 19.9 months.[274]
Analysing rates of pre-trial cross-examination
3.26 The availability of cross-examination at a committal hearing is frequently criticised, in part because it means some witnesses may be cross-examined multiple times—not only in the lower courts but also prior to trial in the higher courts and subsequently at a trial.
3.27 The Commission cannot satisfactorily measure how often this happens due to the way the Magistrates’ Court captures data relating to cross-examination. In particular, the Magistrates’ Court does not record:
• the number of witnesses per case for whom leave to cross-examine was granted
• how many witnesses per case were cross-examined at a committal hearing
• the class of witness for whom leave to cross-examine was granted, such as informants or other professional witnesses, and civilian witnesses.[275]
3.28 The higher courts do not uniformly capture this information either. Since August 2019, however, the County Court has been manually capturing data relating to pre-trial cross-examination pursuant to section 198A of the CPA.
3.29 The Magistrates’ Court has provided data about the number of cases in which leave to cross-examine at least one witness was granted.[276] The Commission is cautious about relying on this data as indicative of overall cross-examination rates at committal hearings because:
• Leave may have been granted in cases that resolve or in which a witness is ultimately not required.
• Leave may have been granted in cases involving co-accused, which will result in leave being recorded in three separate cases, even though a witness is cross-examined only once.
• Classes of witness are not identified, so it is impossible to know if potentially vulnerable witnesses were cross-examined.
Drawing comparisons between Victoria and other jurisdictions
3.30 It is difficult to draw meaningful comparisons between Victoria and other jurisdictions because of differences such as population size and criminal case load, and variations in indictable criminal procedure. The Australian Bureau of Statistics cautions that direct comparisons may be misleading because:
• data systems used by the courts are designed for the administration of court business, not to provide data for the purposes of nation-wide statistical analysis
• variability in data systems and the methodologies used to extract/compile data
• refinements over time to data quality procedures
• legislative or operational differences across states and territories (e.g. differences in the types of sentencing options available to the courts).[277]
Improving data collection
3.31 The Magistrates’ and Children’s Courts are currently developing a new case management system. It is expected that this system will be operational by 2022.[278]
3.32 It is important that the Courts’ new case management system captures information to address the deficiencies discussed above, including detailed information about how many and what classes of witnesses are cross-examined in the lower courts.
3.33 The new system should also directly link with case management systems used in the higher courts, so that indictable stream cases commenced in the Magistrates’ Court can be tracked in the higher courts, and the higher courts can easily gain an understanding of how the case was managed in the lower courts and any issues that arose there. This will allow for collection of reliable data about the time frame for finalising indictable matters and the specific points during proceedings at which undue delay occurs.
3.34 Ideally, a single electronic case file should be created in respect of an indictable case to ensure that information is not either lost or duplicated between the lower courts and the higher courts.
3.35 If the Commission’s recommendation for case management in the Supreme Court from the commencement of proceedings is adopted, this linkage between electronic case management systems in the Magistrates’ Court and the Supreme Court will be unnecessary. It will remain necessary in respect of the Children’s Court, however, which should continue to case manage indictable stream cases where the accused is a child.
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Recommendations 1 The Magistrates’ and Children’s Courts should collect detailed data about pre-trial cross-examination. 2 The case management systems used by the Magistrates’ and Children’s Courts should be linked with the higher courts’ case management systems to enable the creation of a single electronic case file for indictable cases. |
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Victorian Law Reform Commission, Committals (Issues Paper, June 2019).
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In the five years from 2013–14 to 2017–18, an average of 3,091 cases per year commenced in the committal stream of the Magistrates’ Court: see Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 15 [3.24].
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A case can only be determined summarily if all indictable charges are withdrawn or discharged, and a magistrate grants an application for summary jurisdiction, which, if granted, means the case will be determined according to the procedure outlined in Criminal Procedure Act 2009 (Vic) s 30.
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Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 15 [3.24].
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In 2017–18, 1069 cases were committed to the County Court following a guilty plea at committal. In 2018–19 this number was 1017: County Court of Victoria, Case Data Requested by VLRC (October 2019).
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In 2017–18, 1019 cases were committed to the County Court for trial following a plea of not guilty. In 2018–19, this number was 1175: County Court of Victoria, Case Data Requested by VLRC (October 2019).
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In 2016–17, 106 cases were committed to the Supreme Court. In 2017–18, this number was 115: Supreme Court of Victoria, Case Data Requested by VLRC (September 2019). The data provided by the Supreme Court covers cases initiated in financial years 2016–17, 2017–18 and 2018–19. Of the case data provided for 2018–19, roughly 60 per cent of cases were not yet finalised. Accordingly, the Commission has not relied on the 2018–19 data in this report.
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Magistrates’ Court of Victoria, Committal Data Requested by VLRC (24 April 2019). See also Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 18 [3.47] for figures spanning 2013–14 to 2017–18.
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Magistrates’ Court of Victoria, Committal Data Requested by VLRC (24 April 2019). See also Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 19 [3.55] for figures spanning 2013–14 to 2017–18.
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Magistrates’ Court of Victoria, Committal Data Requested by VLRC (24 April 2019). See also Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 17 [3.44]. Note that data obtained by the Commission in 2016 shows that in 2015, one or more witness was cross-examined in 46 per cent of matters that proceeded through a committal hearing: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016), 210 [8.86].
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Court Services Victoria, Committal Data requested by VLRC (2019), figure 15.
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Australian Bureau of Statistics, Criminal Courts, Australia (Catalogue No 4513.0, 27 February 2019) table 20.
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Ibid table 16.
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Ibid table 24.
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Ibid table 28.
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Ibid table 32.
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Ibid table 36.
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Ibid 40.
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Ibid table 44.
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Productivity Commission, Australian Government, Report on Government Services 2020 (Report, 2020), Table 7A.22 <https://www.pc.gov.au/research/ongoing/report-on-government-services/2020/justice/courts>. These figures relate to non-appeal criminal cases in each court.
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Ibid.
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Australian Bureau of Statistics, Criminal Courts, Australia (Catalogue No 4513.0, 27 February 2019) table 20.
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Ibid table 16.
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Ibid table 24.
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Ibid table 28.
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Ibid table 32.
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Ibid table 36.
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Ibid table 40.
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Ibid table 20.
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County Court of Victoria, Case Data Requested by VLRC (October 2019).
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In 2017–18, the County Court finalised 2088 cases, 1069 of which were committed following a plea of guilty. In another 509 cases, a plea was entered following committal but prior to trial. In 32 cases a plea was entered during trial: County Court of Victoria, Case Data Requested by VLRC (October 2019).
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In 2017–18, 337 cases proceeded to trial, 98 cases were discontinued, four were stayed and 57 were transferred to the Magistrates’ Court: County Court of Victoria, Case Data Requested by VLRC (October 2019).
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Ibid.
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In 2017–18, 16 cases were committed to the Supreme Court following a plea of guilty at committal: Supreme Court of Victoria, Case Data Requested by VLRC (September 2019).
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In 2017–18, a plea of guilty was entered between committal and trial in 28 cases and a plea of guilty was entered during trial in 8 cases: Supreme Court of Victoria, Case Data Requested by VLRC (September 2019).
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In 2017–18, 34 cases proceeded to trial, seven were discontinued, seven were transferred to the County Court and 23 were not yet finalised: Supreme Court of Victoria, Case Data Requested by VLRC (September 2019).
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In 2017–18, the accused was convicted of at least one offence in 19 cases, pleaded guilty in eight cases, was acquitted of all offences in two cases, was found not guilty by reason of mental impairment in four cases and was found to be unfit in one case: Supreme Court of Victoria, Case Data Requested by VLRC (September 2019). Unlike the defence of mental impairment, which concerns the accused person’s mental condition at the time of the offence, unfitness to stand trial relates to the accused person’s mental condition at the time they are involved in court proceedings: see Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Consultation Paper, May 2013) 52 [4.1].
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In order to track the lifecycle of indictable matters between jurisdictions, it is necessary to manually scrutinise and cross-reference disparate records.
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Victorian Office of Public Prosecutions, Annual Report 2017–18 (Report, 2018) 1.
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See the discussion under the heading, ‘Does Victoria have a culture of pre-trial cross-examination?’ in Chapter 11.
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See Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 17 [3.44].
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Australian Bureau of Statistics, Crime and Justice Statistics, ‘Criminal Courts – Explanatory Notes’, (Catalogue 4513.0, February 2019) [65].
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Court Services Victoria, ‘Case Management System Project’, Projects (Web Page, 23 July 2019) <https://www.courts.vic.gov.au/projects/case-management-system-project>.
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