Committals: Report (html)

5. Should the lower courts conduct indictable case management?

Introduction

5.1 This chapter considers the most appropriate venue for pre-trial indictable procedure by surveying some of the advantages and disadvantages of the present committal system.

5.2 Management of committal proceedings is undertaken by the lower courts in cases ultimately heard by the higher courts. On its face, this is at odds with modern case management principles. It is widely accepted that cases are best and most efficiently managed by the judge who is to hear the trial. That judge has ownership of determining the case and will likely have a keener interest in progressing it than judges who will not hear the trial.

5.3 Although presenting a challenge to modern case management principles, the committal system has a considerable history and has been reformed over the years. The question is whether dismantling this system in obedience to modern case principles is justified. The answer lies in an assessment of how the committal system operates.

5.4 The following discussion identifies benefits of the committal system, including early resolution, regional coverage, affordability, and efficiency. The role of committal proceedings in advancing early disclosure is touched on here but dealt with in more detail in Chapters 9 and 11.

5.5 After outlining positive features of case management in the Magistrates’ Court, the discussion traverses negative features of the committal system, including the potential for duplication and delay, and some isolated instances of inadequate case management. Next, indictable case management in other jurisdictions and the model that has been adopted in Western Australia for dealing with Supreme Court cases are discussed. The following section canvasses stakeholders’ views of lower court indictable case management.

5.6 The Commission concludes that the present system of case management is operating satisfactorily, although the Commission makes recommendations for reform in later chapters. Except for matters within the Supreme Court’s exclusive jurisdiction, the lower courts should retain a case management function in indictable criminal cases.

5.7 Charges for offences within the Supreme Court’s exclusive jurisdiction should be filed in the Supreme Court, allowing the application there of modern case management principles. This recommendation is made subject to the provision of adequate funding.

5.8 The recommendation is also made with the qualification that all Children’s Court indictable stream matters should continue to be initiated and managed in the Children’s Court, even those within the exclusive jurisdiction of the Supreme Court (see Chapter 12). Throughout this chapter, the focus is on case management in the Magistrates’ Court. Much of this discussion is relied on to support the recommendations in Chapter 12 concerning the Children’s Court.

Case management in the Magistrates’ Court: positive features

Magistrates’ case management expertise

5.9 The Magistrates’ Court is experienced in managing committal proceedings to achieve disclosure, early resolution where possible, and appropriate preparation for trial.

5.10 The Court has engaged in considerable reform over many years to case manage committal proceedings more efficiently, and to strengthen oversight of cross-examination.^[346]

5.11 The Magistrates’ Court told the Commission that:

Over a number of years, the Court, with a proactive bench, has developed a rigorous culture in the committal stream. Foreseeable delay is addressed at [the] filing hearing, where the parties are urged to engage in resolution discussions prior to committal mention and defence must properly justify any cross-examination of a witness.^[347]

5.12 The Court also told the Commission that magistrates use the filing hearing to give directions to the prosecution about obtaining relevant forensic reports and progressing other matters that might otherwise contribute to delay.^[348]

5.13 The expertise and engagement of committal magistrates at the Melbourne Magistrates’ Court and in some regional centres is demonstrated by the outcomes in committal stream cases: around a third are resolved within the jurisdiction of the lower courts and of those cases committed to the higher courts, almost half are committed for sentencing following a guilty plea in the lower courts.^[349] Moreover, rates of summary resolution have increased steadily, from 20 per cent in 2008-09.^[350]

5.14 There appears, however, to be some variability in case management in regional areas, which is discussed further below.^[351]

Services available in the Magistrates’ Court

5.15 The Magistrates’ Court is well equipped to deal with preliminary aspects of indictable procedure that are outside the scope of the higher courts’ current work and that the higher courts are not presently equipped to manage. Bail applications, in particular, occupy considerable court time. In most cases, bail applications must be determined by the Magistrates’ Court.^[352]

5.16 The Court Integrated Services Program (CISP^[353]), located within Magistrates’ Courts, and the Court Remand Outreach Pilot (CROP^[354]) provide intensive support to many people seeking bail—this includes case management, referral to support services, and progress reporting to the judicial officer who granted bail. Housing services and other support agencies are often co-located with Magistrates’ Courts and also provide support and advice to accused people seeking bail and to judicial officers determining bail applications.

5.17 Significant resources would be required to make these services available on a comparable scale in the higher courts.

Regional Magistrates’ courts

5.18 The Magistrates’ Court has good coverage in regional areas, and it sits throughout the year in major regional centres.^[355] By comparison, the County and Supreme Courts send judges from Melbourne to sit in regional areas for limited periods each year.^[356]

5.19 In 2018–19, nearly 28 per cent of criminal cases heard by the County Court were heard in regional courts.^[357]

5.20 The complexities associated with transferring regional pre-trial case management to the higher courts were raised by numerous stakeholders. Victoria Legal Aid points out that any such transfer ‘would create particular challenges in regional areas’ given the ‘limited presence of higher courts’.^[358]

5.21 A regional practitioner suggested that if pre-trial case management is transferred to the higher courts, it will be ‘difficult to maintain consistency’ in relation to particular cases, given judges only sit in regional areas for four weeks at a time, ‘especially if you’re asking [the circuit] judge to keep on top of disclosure. The temptation will be to transfer the matter back to Melbourne with that judge’.^[359]

5.22 From the perspective of this practitioner, transferring regional matters to Melbourne ‘goes against the concept of open justice, transparency, proper venue and proper forum’.^[360]

5.23 People living in regional areas can face greater barriers accessing the courts and justice system than those living in metropolitan Melbourne. According to the Law Council’s Access to Justice Report, ‘As well as cost, distance and lack of public transport, poor technological access and/or capability are also common access to justice barriers’ in the regions.^[361] The Law Council observes that:

a decline in local court circuit services in [regional] communities … significantly exacerbates distance, transport and cost barriers for residents. In some cases, this means they give up on attending court despite the personal costs. In certain contexts, the delay in having their matter heard effectively means that their case is already lost.^[362]

5.24 During consultation, some County Court judges said that moving pre-trial case management away from the Magistrates’ Court would be a real problem in regional areas and would require ‘significant resourcing’.^[363] Other members of the Court pointed to its increased use of video link facilities as a way of reaching those in regional areas, but acknowledged this is not a solution in all cases and for all types of hearing. As well as the need for more judges to attend regional areas on circuit, access to physical courtrooms can be a barrier to providing more regular court services to regional areas.^[364]

Affordability of the Magistrates’ Court

5.25 The Magistrates’ Court estimates that each day across Victoria six magistrates and around 20 other Magistrates’ Court staff deal with committal proceedings, at a cost of approximately $6 million per annum: $3 million for the magistrates and $3 million for the other staff.^[365]

5.26 According to Victoria Legal Aid’s submission, moving pre-trial proceedings from the Magistrates’ to the higher courts ‘would be tremendously expensive’.^[366] It highlighted the risk that:

without adequate investment, the early resolution rate will reduce and there will be greater delays in the finalisation of indictable matters and an increase in the number of trials in which victims are required to give evidence.^[367]

5.27 The Law Institute of Victoria emphasised the financial benefits associated with finalising indictable stream cases within the jurisdiction of the Magistrates’ Court. According to its submission:

As of 2017–18, the average cost of a criminal trial finalising in the County Court exceeds $16,000 per trial, for the Supreme Court it is $50,000. Whereas, a matter finalising in the Magistrates’ or Children’s Court is less than $800. This is a considerable saving.^[368]

5.28 The County and Supreme Courts suggested that the costs associated with managing pre-trial matters in their jurisdictions could be minimised by employing non-judicial staff, such as judicial registrars, to assist in case management.^[369]

5.29 Victoria Legal Aid, however, suggested that rather than investing additional resources in the higher courts, funding should instead be ‘invested in … improving current systems’, which ‘would have a much greater positive impact on efficiency, speed of finalisation, and the experience of victims in the pre-trial process’.^[370]

Efficiency of the Magistrates’ Court

5.30 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.^[371] 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.

5.31 Also in 2017–18, it took on average 38 weeks to finalise matters in the higher courts.^[372] The average time frame for finalisation in the higher courts includes pleas and sentencing as well as trials.

5.32 It is not possible to draw any strong conclusions from these statistics regarding the comparative efficiency of the courts, given the mix of sentencing and trial matters in the higher courts.

5.33 The Law Institute of Victoria stated:

The periods of time that matters take in the Magistrates’ Court can be compared to the overall time that indictable matters take from initiation in the Magistrates’ Court until finalisation in the higher courts. This was, according to the OPP, 19.9 months averaged over [a] five-year period [to 2017–18]. On this basis, it would appear that the bulk of the time spent from initiation to finalisation, occurs in the higher courts, at 12.9 or 16.6 months, depending on the stage at which the matter was committed to the higher courts.^[373]

5.34 Victoria’s higher courts finalise criminal cases more quickly than most other Australian jurisdictions.^[374] Even so, both the Supreme Court and County Court are experiencing issues with delay. These are most serious in the County Court, where the current indicative waiting time from initial directions hearing to trial is between 12 and 13 months depending on the circumstances of the case.^[375] The waiting time for a plea hearing is five months.^[376]

5.35 The County Court is working to address delay through case management innovations such as the Long Trial List and Active Case Management System, which appear to be achieving positive outcomes. Even so, increasing the County Court’s case management workload by requiring it to supervise cases from an earlier stage will likely make the current problems worse.

5.36 Like the County Court, the Supreme Court currently has a backlog of trial cases.^[377] It has, however, significantly improved its clearance rate,^[378] from approximately 70 per cent in 2017–18 to 120 per cent in 2018–19.^[379]

5.37 While the Supreme Court argued that it can efficiently manage a selection of cases from the point of filing, it did not seek carriage of all cases within its exclusive jurisdiction from this point.^[380] It also emphasised that managing more cases from an earlier point will not improve efficiency unless funding is provided to support this shift and to address its existing case backlog. If not, the Court told the Commission:

new matters [that will be] ready for trial sooner will bottleneck behind a backlog of cases awaiting trial.^[381]

Case management in the Magistrates’ Court: negative features

Duplication and delay

5.38 Some stakeholders claimed that committal proceedings contribute to unnecessary duplication of pre-trial procedures and delay in indictable prosecutions. This was mentioned in the preceding chapter in relation to the test for committal, but the claim was also made in respect of other elements of committal proceedings.

5.39 The Director of Public Prosecutions (DPP) pointed out that:

Counsel appearing at [committal] hearings are often different to those who will appear at trial, so [holding a committal hearing] does not mean that preparation of trial is commencing any earlier than it otherwise would; in fact, it can mean trial preparation is actually delayed…^[382]

5.40 Those County Court judges who favour moving the bulk of pre-trial procedures into the jurisdiction of the trial court claimed a benefit of this would be that:

The parties need not duplicate efforts to prepare for committal and trial, and argument in relation to the strength of the prosecution case need not be made in two separate jurisdictions.^[383]

5.41 According to this view:

Double queuing results from matters awaiting both a committal date, and then subsequently a trial date. This can also cause delays to existing trials. For example, if a matter is awaiting trial in the trial court and new related matters arise and are filed in the lower court, the new matters must first go through the committal process to join up with the matters at trial.^[384]

5.42 In the experience of these County Court judges:

despite the existence of committal procedures, when cases arrive at the trial court, significant disclosure issues persist and must be litigated. This is despite the process also occurring in the Magistrates’ Court. As such, there is a duplication of efforts. This is further exacerbated by the fact that each court must familiarise itself with the case …^[385]

5.43 The Supreme Court told the Commission that committal proceedings unnecessarily duplicated aspects of pre-trial procedure that would be better managed within its jurisdiction, including the cross-examination of witnesses. It argued, ‘Management from an early stage would allow these processes to be managed as one’.^[386] The Court pointed out that in some cases:

there are critical issues, especially evidentiary issues, which will determine the direction or even the outcome of a case, but which can only be determined in the trial court. By allowing the matter to be brought through to the trial court at an early stage there is the opportunity to address those critical issues in a way that may avoid the need for processes which would otherwise be undertaken in the committal process.^[387]

Inconsistent case management practices

5.44 While many committal magistrates are proactive and skilful case managers who actively engage with the parties to ensure full disclosure, encourage early resolution, and narrow the issues in contention, the Commission heard that some magistrates are inadequate case managers who do not exert their authority effectively. This appears to be a particular problem in some—although by no means all—regional areas.

5.45 The Commission was told that some courts treat the case direction notice as an administrative step rather than an important case management tool, and that some magistrates fail to ensure cross-examination at committal hearings is kept within the limits of the issues for which leave to cross-examine was originally granted.

5.46 While not commenting on its experience with particular magistrates, the Victorian Aboriginal Legal Service recommended committal proceedings ‘be treated as a specialist stream within the Magistrates’ Court and be run by magistrates with specific expertise in committal proceedings.’ It suggested this would help ensure committal proceedings achieve their purposes of filtering weak cases and achieving early disclosure, which supports the right to a fair trial.^[388]

Approach to case management in other jurisdictions

5.47 Other jurisdictions that have abolished aspects of committal proceedings, including the test for committal and the opportunity to cross-examine witnesses, have retained the practice of filing charges in a lower court. As a result, there remains a requirement that the accused be ‘committed’ to the jurisdiction of a higher court, although without prior determination by the lower court that the evidence in the case is sufficient.

5.48 Whether committal occurs by order of a judicial officer or registrar varies among jurisdictions. In all cases, the committal order is dependent on completion by the parties of certain procedural steps, usually including disclosure by the prosecution of relevant materials.

5.49 In Western Australia, a special Magistrates’ Court has been established in the same building as the Supreme Court. All Perth-based proceedings for Supreme Court indictable offences commence there, at the Magistrates’ Court Stirling Gardens. Registrars of the Supreme Court are appointed as magistrates to preside in the Magistrates’ Court Stirling Gardens. They provide ‘individual case management of each matter from start to finish’ and ‘expedite … the committal and management of criminal cases.’^[389]`

Case management in the lower courts: stakeholder views

5.50 The Commission heard a wide variety of views about where pre-trial case management of indictable cases should occur.

5.51 The strongest opponents of committal proceedings are groups representing victims and witnesses. Their opposition is primarily to the opportunity to cross-examine witnesses at a committal hearing (see Chapter 11), although they are also concerned that committal proceedings contribute to undue delay.

5.52 The County Court is divided in its opinion about the benefits and drawbacks of moving some elements of committal proceedings, such as opportunities for pre-trial cross-examination, into its jurisdiction. The Court is unanimous, however, in recommending that early case management, including filing charges, bail, and standard disclosure, should continue in the Magistrates’ Court:

The Court recognises that a criminal matter proceeding through the Magistrates’ Court at first instance has merit. The filing of charges, the setting of bail, and the disclosure of evidence are all invaluable to good case management. Further, the prosecution and defence must be provided with adequate time to assess the evidence, obtain instructions, and enter negotiations. It is for this reason that the Court is of the view that matters can still properly proceed through the Magistrates’ Court at first instance…^[390]

5.53 Like some judges in the County Court, the DPP argued the test for committal should be abolished and there should be a presumption against cross-examination of witnesses during committal proceedings, but recognised the substantial benefits of many elements of committal proceedings. The DPP supported committal proceedings for the purposes of providing ‘a limited opportunity to test evidence where it is central to resolution discussions or will inform the charges proceeded with.’^[391] The DPP also told the Commission it was ‘appropriate that the availability of summary jurisdiction is determined in the Magistrates’ Court.’^[392] Finally, the DPP noted that:

Any reform should continue to have judicial case management in the Magistrates’ Court so that the costs of early resolutions and of disclosure do not increase.^[393]

5.54 The Magistrates’ Court emphasised that achieving early disclosure is one of the most significant purposes of committal proceedings. Often, this facilitates early resolution:

Committal proceedings play a fundamental role in ensuring proper and timely disclosure. Serious indictable matters should not be proceeding directly from a charge to a lengthy, costly jury trial without concerted attempts having been made to facilitate disclosure and resolution.

…

Committal proceedings have the potential to ensure timely disclosure by making parties accountable for the conduct of their matters in open court.^[394]

5.55 As well as disclosure and early resolution, the Magistrates’ Court stressed the benefits of committal proceedings for narrowing the issues in a case.^[395]

5.56 The Law Institute of Victoria advocated strongly for the retention of committal proceedings in the Magistrates’ Court. It stated that committal proceedings represent a cost effective and efficient means of promoting early resolution or of narrowing the issues in indictable matters:

LIV members report that committals have improved noticeably over the last few decades in terms of judicial oversight … many … aspects of case management occur during committal procedures. These include applications for bail … custody management issues and confiscation orders … The LIV submits that this work is best handled in the Magistrates’ Court as part of the committal process.^[396]

5.57 In addition to highlighting the benefits of early resolution and narrowing of issues, Victoria Legal Aid suggested:

The experience of … committal reform in other jurisdictions tends to suggest that [moving pre-trial procedures to the higher courts] does not result in significant improvements in efficiency or reductions in delay …^[397]

Commission’s conclusions

Retain pre-trial case management in the lower courts for most cases

5.58 Although there is a need for more consistent case management in the Magistrates’ Court, many elements of committal proceedings expedite resolution of criminal cases or help narrow the issues for trial. This reduces costs and overall delay.

5.59 The Commission recommends building on practices in the Magistrates’ Court that are working effectively while addressing existing issues in a targeted way.

5.60 Around one-third of cases that commence in the committal stream of the Magistrates’ Court are determined summarily, and another third are committed to the higher courts following a plea of guilty entered in the Magistrates’ Court. Of the remaining third of cases that are committed to the higher courts for trial following a plea of not guilty, a plea of guilty is entered prior to trial in approximately 60 per cent of cases in the County Court.^[398]

5.61 If more effective case management can be achieved in the Magistrates’ Court, a higher proportion of matters should enter the jurisdiction of the County Court for sentence rather than trial.^[399] This would reduce the County Court’s case management burden.

5.62 It may be useful for the Magistrates’ Court to establish an ‘indictable case management practice group’ of magistrates who have particular expertise managing indictable cases. Magistrates could be provided with specialist training around:

• encouraging the parties to narrow the issues in dispute

• applying the test for leave to cross-examine strictly and consistently

• implementing reformed disclosure requirements^[400]

• making costs orders where appropriate.

5.63 The Magistrates’ Court should give consideration to how this training can be provided to magistrates in regional areas.

5.64 Duplication between the lower and higher courts does sometimes contribute to delay. This delay is offset by the efficiencies achieved through early and summary resolution of cases in the Magistrates’ Court. Delay in the disposition of indictable cases will not be remedied by limiting the case management function of the Magistrates’ Court and moving cases to the County Court sooner. In fact, it is likely that would cause additional delay.

5.65 Many causes of delay will not be remedied simply by a change of court venue. These causes include inadequate preparation by the parties, insufficient disclosure, and the time taken to provide forensic reports. Recommendations to address these issues are made in subsequent chapters.

Recommendation

6 The lower courts should retain a case management function for indictable stream matters that will be heard in the County Court.

Commence Supreme Court cases in the Supreme Court

5.66 The Supreme Court favours moving case management of some matters within its exclusive jurisdiction into its jurisdiction at an early stage.^[401] It submitted that this should occur on application by either party.^[402] The Supreme Court told the Commission that such a change would reflect modern case management principles.

5.67 For several reasons, it is desirable for Supreme Court matters to be managed by that Court. Except in Children’s Court cases, this should apply from the commencement of proceedings, not—as the Supreme Court submitted—from some point after charges have been filed.

5.68 Given the relatively small number of indictable matters within the Supreme Court’s exclusive jurisdiction—just over 100 cases annually^[403]—and given the Supreme Court already manages bail applications in treason and murder cases,^[404] establishing the services necessary to support early case management in the Supreme Court is more achievable in the short term than adopting this change in the County Court, although still resource intensive.

5.69 Moreover, a much lower proportion of Supreme Court matters resolve in the jurisdiction of the Magistrates’ Court, or have guilty pleas entered there, than County Court matters. The role played by the Magistrates’ Court in the early case management of Supreme Court matters is thus less effective than in other cases.

5.70 The difficulties associated with pre-trial management of regional County Court cases also do not apply in Supreme Court matters. Most pre-trial administration and preparation for these matters is currently conducted from the Melbourne Supreme Court, and the proposed change will not affect the conduct of Supreme Court trials by circuit judges.

5.71 The Supreme Court argued that matters within its exclusive jurisdiction:

are readily identifiable when they are commenced in the Magistrates’ Court. They are not in the cohort that may ultimately be resolved summarily as even the lesser alternative charges are purely indictable …

It is also rare for a matter in the category of cases dealt with by the Supreme Court not to be committed for trial …There remain many cases where there is a real contest in respect of the charge or a defence, but the committal determination is not the mechanism by which those issues are resolved.^[405]

5.72 The Supreme Court told the Commission the only exception to the rule that matters within its jurisdiction do not resolve such that they can be heard in a lower court are ‘the very small number of cases involving children … where resolution to a lesser charge can result in the matter being dealt with summarily in [the Children’s] Court.’^[406]

5.73 The Supreme Court acknowledged that cases involving a child accused charged with offences within its exclusive jurisdiction should commence and be managed in the Children’s Court as currently occurs.^[407]

5.74 The Supreme Court’s proposal to allow transfer of matters within its jurisdiction from the Magistrates’ Court on application by one of the parties should not be adopted. The DPP expressed concern that the Supreme Court would thereby be able to ‘cherry pick’ matters.^[408] This would make it difficult to explain to complainants and the accused why some but not all matters are filed in the Supreme Court, with a likely inference being that matters filed in the Supreme Court are considered more important or worthy than others. The DPP told the Commission this would place the prosecution:

in a very difficult position having to explain to victims and/or their families as to why one case has been chosen to be case managed [in the Supreme Court] and not another.^[409]

5.75 The recommendation that Supreme Court cases should be filed in the Supreme Court should not be implemented without provision of appropriate funding to the Court to support earlier case management and to ensure that the Court’s existing backlog of cases is not exacerbated.^[410]

Recommendation

7 The Criminal Procedure Act 2009 (Vic) should be amended to require that matters within the exclusive jurisdiction of the Supreme Court are filed in the Supreme Court, aside from Children’s Court matters.

346. Submissions 11 (Criminal Bar Association (Victoria)), 14 (Magistrates’ Court of Victoria), 24 (Law Institute of Victoria).

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347. Submission 14 (Magistrates’ Court of Victoria).

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348. Ibid.

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349. See paragraph 3.5 of this report.

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350. Court Services Victoria, Committal Data requested by VLRC (2019), figure 15.

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351. See paragraphs 5.44–5.45 of this report.

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352. Only the Supreme Court has the jurisdiction to hear bail applications in treason cases, and in murder cases only the Supreme Court or a magistrate at the time of committal may hear bail applications: Bail Act 1977 (Vic) s 13.

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353. See Magistrates’ Court of Victoria, `Bail Support (CISP)’, Find Support (Web Page, 4 July 2019) <https://www.mcv.vic.gov.au/find-support/bail-support-cisp>.

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354. CROP works alongside CISP, but while CISP workers are based in Magistrates’ Courts, CROP workers are based in remand prisons. CROP workers assess people on remand for their suitability for the CISP program if they are granted bail. If granted bail, a CISP worker will be allocated. In some limited circumstances, CROP workers provide ongoing case management to a person on bail.

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355. In addition to the ten metropolitan Magistrates’ Courts, the Court sits in 41 locations across regional Victoria. Smaller locations are serviced by the Magistrates’ Court on a weekly, fortnightly or monthly basis.

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356. The County Court sits at eleven regional courts (‘circuit locations’) and the Supreme Court at twelve. Each year there are ‘a number of four or five-week sitting periods … at each circuit location’: County Court of Victoria, ‘Circuit Courts’, Court Divisions (Web Page, 27 November 2019) <https://www.countycourt.vic.gov.au/learn-about-court/court-divisions/circuit-courts>.

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357. 1,501 of a total of 5,393 criminal cases (cases committed and appeals) commenced in the County Court’s regional locations in 2018–19. County Court of Victoria, Annual Report 2018–19 (Report, 2019) 7, 48–49.

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358. Submission 13 (Victoria Legal Aid).

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359. Consultation 38 (Victoria Legal Aid regional practitioners).

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360. Ibid.

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361. Law Council of Australia, The Justice Project Final Report (Report, August 2018) 3.

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362. Ibid 4.

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363. Consultation 30 (County Court of Victoria).

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364. Ibid.

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365. Consultation 15 (Magistrates’ Court of Victoria). These figures were provided by Chief Magistrate Lauritsen. His Honour said that while they were an approximation, he felt they captured the reality quite closely and demonstrated the cost effectiveness of pre-trial management in the Magistrates’ Court.

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366. Submission 24 (Law Institute of Victoria).

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367. Submission 13 (Victoria Legal Aid).

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368. Submission 24 (Law Institute of Victoria).

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369. Submissions 20 (County Court of Victoria), 22 (Supreme Court of Victoria).

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370. Submission 13 (Victoria Legal Aid).

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371. Court Services Victoria, Committal Data requested by VLRC (2019), figure 15.

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372. Australian Bureau of Statistics, Criminal Courts, Australia (Catalogue No 4513.0, 27 February 2019) table 20.

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373. Submission 24 (Law Institute of Victoria). The Law Institute notes that the DPP’s data amalgamates all indictable matters regardless of how they were finalised in the higher courts.

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374. See Table 2 in Chapter 3 of this report.

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375. County Court of Victoria, ‘Criminal Division’, Court Divisions (Web Page, 27 November 2019) <https://www.countycourt.vic.gov.au/learn-about-court/court-divisions/criminal-division>.

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376. Ibid.

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377. Submission 22 (Supreme Court of Victoria).

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378. Clearance rate refers to the number of finalisations compared with the number of lodgements: Productivity Commission, Australian Government, Report on Government Services 2020 (Report, 2020), Table 7A.25 <https://www.pc.gov.au/research/ongoing/report-on-government-services/2020/justice/courts>.

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379. Productivity Commission, Australian Government, Report on Government Services 2020 (Report, 2020), Table 7A.25 <https://www.pc.gov.au/research/ongoing/report-on-government-services/2020/justice/courts>. These figures relate to non-appeal criminal cases.

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380. Consultation 31 (Supreme Court of Victoria).

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381. Submission 22 (Supreme Court of Victoria).

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382. Submission 4 (Director of Public Prosecutions (Victoria)).

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383. Submission 20 (County Court of Victoria).

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384. Ibid.

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385. Ibid.

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386. Submission 22 (Supreme Court of Victoria).

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387. Ibid.

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388. Submission 19 (Victorian Aboriginal Legal Service).

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389. ‘Stirling Gardens Magistrates Court’, Supreme Court of Western Australia (Web Page, 1 March 2019) <https://www.supremecourt.wa.gov.au/M/magistrates_court_stirling_gardens.aspx?uid=4946-0149-8167-1518>.

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390. Submission 20 (County Court of Victoria).

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391. Submission 4 (Director of Public Prosecutions (Victoria)).

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392. Ibid.

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393. Ibid.

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394. Ibid.

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395. Ibid.

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396. Submission 24 (Law Institute of Victoria).

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397. Submission 13 (Victoria Legal Aid).

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398. In the County Court in 2017–18, 508 guilty pleas were entered between the first hearing in the County Court and the trial commencing, and 32 guilty pleas were entered during trial. In the Supreme Court in 2017–18, 27 guilty pleas were entered between the first hearing in the Supreme Court and the trial commencing, and 8 guilty pleas were entered during trial: County Court of Victoria, Case Data Requested by VLRC (October 2019), Supreme Court of Victoria, Case Data Requested by VLRC (September 2019).

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399. This is so even accepting that in some instances resolution is impossible in the lower courts because, for example, a ruling from the trial court is sought about the admissibility of evidence.

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400. See Chapter 9.

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401. Submission 22 (Supreme Court of Victoria). The Supreme Court has jurisdiction in all Victorian cases but is not required to exercise its jurisdiction if jurisdiction has also been given to another court Constitution Act 1975 (Vic) ss 85, 87(1). The County Court has jurisdiction over all offences except treason and misprision of treason; murder and child destruction; attempted murder; unlawful combinations or conspiracies to commit any offence that, when committed by an individual acting alone, could only be tried in the Supreme Court (County Court Act (Vic) s 36A. As a consequence, these offences fall within the exclusive jurisdiction of the Supreme Court. Note that the Supreme Court does not explicitly refer only to matters within its exclusive jurisdiction, but this is implied by its description of these matters (homicide and terrorism charges, etc).

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402. Submission 22 (Supreme Court of Victoria).

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403. Supreme Court of Victoria, Case Data Requested by VLRC (September 2019).

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404. See paragraph 2.19 of this report.

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405. Submission 22 (Supreme Court of Victoria).

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406. Ibid.

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407. Ibid. See Chapter 12: The Children’s Court.

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408. Submission 4 (Director of Public Prosecutions (Victoria)).

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409. Ibid.

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410. Submission 22 (Supreme Court of Victoria).

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