Competencias requeridas

A judge of the District Court recently commented on what he regards as a significant problem relating to the defendant’s right of election on a charge of assault occasioning bodily harm:

… prior to a 1997 amendment to the Criminal Code, most cases of assault [occasioning] bodily harm were dealt with summarily by Magistrates. There was a very good reason for that happening, namely that most of these cases are trivial assault cases that can easily be dealt with in a Magistrates Court.

In 1997, an amendment to the Criminal Code created for the first time a right to trial by jury in these matters at the election of the accused. Immediately after this amendment it was noticed all over Queensland that a significant number of assault [occasioning] bodily harm cases were coming into the District Court that had previously been dealt with by Magistrates …

The District Court Judges have endeavoured, in vain, for three years to have this problem rectified … The statistics show that since 1997 there has been an increase of 137 per cent … in the number of assault [occasioning] bodily harm cases coming before the District Court.

When mention is made of the right to trial by jury, it needs to be remembered that prior to 1997 no right to trial by jury existed in these cases. The right to elect trial by jury came about only because of incompetent drafting of the 1997 amendment. The result of that 1997 amendment has been to inflict very great damage on the criminal lists of the District Court throughout Queensland. A curious result of the 1997 amendment has been to transfer to the District Court a significant part of the jurisdiction of the Magistrates Court and that was the jurisdiction to deal with minor assault cases. Many of these cases are extremely trivial and bodily harm will often consist of no more than a bruise or a scratch. It is thought that jurors are extremely angry to find that they are regularly brought to Court to deal with trivial cases of this nature.

… [these cases] … often require two days to deal with and it is not uncommon for them to go on to a third day. In most of these cases no Judge would consider imposing a custodial sentence because of the trivial nature of the offence, yet a great deal of Court time has been wasted.

So far as the Court is concerned, a far better solution would be to return to the situation which existed prior to the 1997 amendments where, in general terms, the ultimate discretion as to whether a charge of assault occasioning bodily harm was a fit matter for prosecution on indictment lay with the Magistrate.

It is curious to note that under the Criminal Code there are other more serious assault charges that must be dealt with summarily at the election of the prosecution, subject always to the discretion of a Magistrate to commit to the District Court if the nature or seriousness of the offence is such that it may not be adequately punished on summary conviction.29

The judge made a similar observation in relation to the 1997 amendment that gave defendants a right to elect to have other charges, such as dangerous driving, tried in the District Court:

In most cases of dangerous driving simpliciter there are ample powers in the Magistrates Court to deal with this type of offence.

The judge also commented on the offence of ‘wilful damage’. Although that matter was not the subject of the 1997 amendments to the Criminal Code, he observed:

Throughout the lists of the District Court throughout Queensland there are a significant number of cases of wilful damage. Many of these are of a very trivial nature. Now, under the 1995 Criminal Code Act … cases of wilful damage up to $5,000 were to be dealt with summarily by Magistrates [that Act was never proclaimed and was subsequently repealed by a new Government] … The Litigation Reform Commission reported to the Attorney-General at that time … that a significant number of very trivial cases of wilful damage had to be dealt with by trial by jury in the District Court. One of the cases that actually went to trial in the District Court was the wilful damage of a plastic cup valued at a few cents. There was another trial in the District Court of wilful damage to a flower pot valued at a few dollars.

The judge recommended that wilful damage cases up to $5000 be dealt with summarily by a magistrate, and summarised the problem in this way:

It needs to be understood that the District Court has to deal with very serious criminal matters, such as armed robbery, rape, extortion, professional car thieves, and persons who carry on the trade or profession of housebreaking. These cases are in the list to be dealt with, and they should be dealt with as quickly as possible. There is much delay in dealing with serious criminal cases because the lists of the District Court are constantly cluttered up with trivial cases that ought to be dealt with summarily in the

Magistrates Court. A great deal of public money is being wasted by having a jury trial of trivial cases that should be dealt with summarily in the Magistrates Court.

During the CJC’s consultations, other District Court judges agreed that bodily harm matters have increased in number before the District Court and that most of these could be handled in the Magistrates Court. The District Court judges were also of the view that the monetary limit expressed in s. 552B(1)(a) and (c) of the Criminal Code (currently $5000) could be increased, provided that the prosecution was always able to elect that the matter be tried in the District Court where the circumstances might make that appropriate. The Chief Magistrate was amenable to an increase in the jurisdiction of the Magistrates Court and also suggested that, if the jurisdiction of the District Court were to be increased to enable that court to deal with more serious drugs matters, less serious drugs matters could be handled by the magistrates.