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Phase 1: a crime is committed, investigated and charges laid

Attached as Appendix 4, is an outline of the criminal justice system prepared by Legal Aid Queensland. It shows the primary decision-making points and charts the sequence of events that the typical criminal justice case will move through.

A criminal ‘case’ begins with the commission of an offence. A person does or fails to do something that contravenes ‘the law’ – that is, a particular statutory provision. Not all crime is reported and police will usually only know about an alleged offence if a victim or member of the public brings it to their attention. Some offences do not have

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an identifiable ‘victim’ but are considered offences against society generally, for example certain drug trafficking and some fraud offences. In such cases police usually have to go looking for evidence rather than acting on a specific complaint, though frequently will act on a ‘tip off’ from a member of the public.

Once a complaint is made or an offence has been discovered, police determine whether the behaviour constitutes an offence, whether the person thought to be responsible can be identified, whether there is sufficient evidence to arrest the suspect and what offence/s to charge them with. There are often multiple charges and multiple offenders arising out of a single criminal incident and a number of single incidents may be included on an indictment if there is a sufficient nexus.

Arrest and investigation

The arrest and detention of a citizen is a serious exercise of a power of the State. Accordingly, alternatives to arrest and charge have evolved. In less serious matters, the police may determine to issue a notice to appear under the Police Powers and Responsibilities Act 2000 requiring a person to appear at a specific court session, or a complaint and summons under the Justices Act 1886. In other specified offences, the police may issue an infringement notice, in which case the person pay a specified fine without appearing in court.64

The police investigation may be initiated before or after arrest or charge depending on the nature of the offence. Police are often required to respond to an immediate report of an offence before any investigation takes place, for example, where an assault is reported the police will respond first, investigate later.

In other cases, for example, a suspected fraud, the investigation takes place first and the suspected offender is arrested and charged only once sufficient evidence has been gathered.

As part of the investigation process, and usually before charges are laid, the suspect may agree to an interview with police. The suspect is entitled by law to have a legal representative present although many suspects forego this right. Legislation requires the initial interview to be audio/video recorded where practicable.

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The Summary Offences and other Acts Amendments Bill 2008 was introduced on 11 November 2008 and extends the range of offences for which infringement notices may be issued.

How the police discharge their obligations forthe investigation, collection and storage of information and evidence is vital to the functioning of the entire justice system – the quality of investigation, police understanding of rules of evidence (relevance, hearsay etc), proper storage and record keeping are all essential to a fair and just system.

The importance of this obligation is recognised in the statutory disclosure obligations under the Criminal Code Act 1899. It is of such significance to the issues at the heart of this Review that it is the subject of a separate chapter (see Chapter 5: Disclosure).

It is my view that the use of technology at the outset in police investigations and collection of evidence should have benefits for police and for the criminal justice system as a whole. For example, eyewitness statements could be videotaped in the early course of the investigation.

It is well recognised that human memories change over time, particularly the more often the story is told. Early recording of witness statements has a number of benefits. It will:

 aid the preservation of evidence;

 reduce the number of times a witness has to tell their story;

 reduce the need for examination and cross-examination of witnesses at a committal hearing; and

 assist police in building the brief of evidence concurrent with an investigation.

Bail and remand

Once a person has been arrested and taken into custody, the next decision-making point is whether or not to grant bail.

Police have power to grant ‘watchhouse bail’ in which case the person will be

released from custody with notice to appear at a particular Magistrates Court session and time. In other cases, for example, in some more serious offences or where an accused has a history of breaching bail conditions, the police will bring the accused before a magistrate in order for the court to determine the question of bail. Bail for some serious offences (for example, murder) must be determined by the Supreme Court.

Initial bail can be ‘enlarged’ (extended) by a magistrate under s 17 of the Bail Act. However, the magistrate has no power to extend bail after the accused has been committed for trial or sentence. A question that has arisen for this Review is whether initial bail – whether it is ‘watchhouse’ or court bail – should endure for the life of the matter until it is finally resolved. The IJIS program has identified a similar issue and proposed a project entitled Bail Act Changes the object of which is to amend legislation so that custody status (in custody/on-bail/at large) remains in force until charges are finalised or bail is granted, amended or revoked. No funding has yet been received to progress this project. (This issue is considered further in Chapter 9:

Reform of the Committal Proceedings Process).65

Where an arrested person is not granted bail, their first court appearance will generally be at the ‘arrest court’ (Magistrates Court) the following morning.

Historically, it was uncommon for a person remanded in custody to get bail. However in recent decades there has been a consistent trend towards granting bail in all except the most serious of offences or when there are public safety concerns that the accused will flee in which case the person will be held on remand until trial. Although most people charged with a criminal offence will receive bail, the number on remand continues to rise steadily as the numbers of people charged with criminal offences increases. This is of particular concern given the length of time between arrest and final resolution in most cases.

A review of matters listed for trial in the District Court in April, May and June 2008 revealed that of seven matters in which the accused was held in remand, two individuals were discharged after a nolle prosequi was entered on the morning (18 and 24 months after their respective arrests).

In another case, the accused was acquitted at trial after being held in remand for two months, 17 months after arrest.

65 This IJIS project has not been referenced in this chapter because funding has not yet been released to initiate the project.

Phase 2: the Magistrates Court processes (court events, adjudication,

and committal)

Police initiate the court process by lodging charges in court via a bench charge sheet. This is now done electronically where possible. Proceeding may also be commenced by complaint and summons. Once the court process begins the case will follow a sequence of steps until resolution by either: a plea of guilty, the

prosecution discontinued or a trial.

The accused may have the benefit of advice and representation at this early stage from the duty solicitor (a lawyer funded by Legal Aid Queensland to give initial advice and representation). In many circumstances, this will lead to an early plea of guilty.

As has been said a number of times in this Report, most criminal cases ultimately result in a plea of guilty or are otherwise resolved without trial, but a number of critical decision-making points and external factors along the continuum influence when this is most likely to occur. Some of these factors are:

 whether and when the accused gets legal representation;

 when full disclosure is made;

 the availability of legal aid;

 any benefits, perceived or real, of entering an early plea; and

 perception about likely outcome in different courts or before different judicial officers.

Where the likely penalty is a term of imprisonment, the accused will generally obtain an adjournment for further legal advice and representation at the first court

appearance. The Review has sought data in relation to number of pleas entered on the first appearance, but the information is apparently not available. Where the accused has not indicated a plea, or the prosecution/defence need time to prepare their case, they will seek an adjournment.

If the person pleads not guilty to a summary offence (or to an indictable offence that the accused elects to have dealt with summarily) there will be a trial by a magistrate. If the offence is an ‘indictable offence’ a committal hearing will be held to determine if the matter should be committed to the Supreme or District Court for trial or sentence.

The result of the committal will be either that there is no case to answer and charges are dismissed by the magistrate, or the matter is committed to the Supreme or District Court for trial or sentence. The total number of individuals committed from the Magistrates to the Supreme or District Courts in Queensland in the year 2007/2008 is 6583.

The Magistrates Court resolves more than 90% of all criminal matters initiated, primarily through pleas of guilty but also through summary trials. In 2007/2008, 187,445 individuals had their matters finalised before the Magistrates Court. The bulk of matters initiated are either minor (for example, shoplifting) or common and

uncomplicated (for example, drink-driving) and therefore dealt with relatively quickly. Most of these matters will be finalised within the first or second court appearance.

A person convicted of a criminal offence in the Magistrates Court may lodge an appeal within 28 days of conviction to the District Court (s 222 Justices Act).

Most prosecutions in the Magistrates Court are conducted by police prosecutors. Under a protocol between QPS, LAQ, the Magistrates Court and the ODPP

committals in Brisbane, Ipswich and some in Southport are prosecuted by the ODPP (Appendix 5). The ODPP may also be asked to take over a case if there are

particular legal or factual complexities.

Indictable matters usually involve a number of court appearances (commonly called mentions) prior to the committal or the summary trial of an indictable offence. These court events may be before a different magistrate each time. Either the prosecution or the defence may request an adjournment because, for example, the brief of evidence has not been received, disclosure is not complete, or they are waiting for scientific results. Although precise data is not kept, court staff estimate that for indictable offences there is an average of four to six court events before the committal hearing.

A survey of ODPP concluded files for matters committed for trial (68 matters) found an average of 5.6 mentions in those matters before committal. In a small random sample of Magistrates Court cases surveyed by Future Courts, the number of mentions varied from four to nineteen mentions prior to the committal.

This usually means that many months will elapse before a committal hearing is held. There was an average of 7.4 months between arrest and committal in the 68 matters referred to above.

In a small percentage of matters the police offer no evidence (NETO) on some or all of the charges. It may have become clear that they have arrested the wrong person or charged the right person with the wrong offence or that they have insufficient evidence to support the charge. Some offenders may be recharged at a later stage if further evidence is gathered and the process will begin again. Accurate records are not kept as to the number of charges ‘NETO’d’. In small samples of Magistrates Court files conducted by Future Courts, 11.8% of charges were ‘NETO’d’.

Phase 3: Indictment, Supreme and District Court events

Indictment

Once a matter is committed to the Supreme Court or District Court it is referred to the ODPP to prosecute. The ODPP has 6 months from the committal date to present the indictment in the appropriate court. During this period, the ODPP considers the evidence, requests any additional evidence or material from the police, determines the appropriateness of the charges and considers whether there is a “reasonable prospect of conviction”.

In Brisbane matters the ODPP has carriage from the beginning. For matters

committed to trial in the District Court and concluded in April, May and June 2008 the average length of time between committal and presentation of indictment was 4.3 months. The average length of time between presentation of indictment and conclusion was 11.6 months.

Prior to presenting an indictment, the ODPP may decide to discontinue the prosecution by handing up a no true bill to the court.

After the indictment is presented, the ODPP may discontinue some or all of the counts on the indictment either by handing up a ‘nolle prosequi’ or endorsing the face of an indictment that the prosecution does not intend to pursue the matter to the court.

These situations arise, for example, where there is insufficient evidence to sustain the charge or where a critical witness dies or cannot be located. In some cases, it may be a result of charge negotiation; in that case a fresh indictment is presented for the accused to plead guilty.

Approximately 10–17% of cases are finalised by being discontinued by the ODPP. In 2007/2008 there were 1741 no true bills and nolle prosequi entered by the ODPP. In many cases a fresh indictment will be presented. The ODPP currently presents approximately 400 indictments per month; this is considerably higher, in absolute terms, than any other State.

It is often only after committal and once the indictment is presented that the negotiation between defence and the prosecution begins in earnest. Police

prosecutors and junior ODPP prosecutors do not have authority to negotiate charges etc. I am advised however that the ODPP prosecutors are usually able to get

authority from a senior officer fairly quickly by phone if the defence makes a submission in relation to a plea etc. The QPS prosecutors on the other hand are subject to considerable constraints in negotiating charges and it can be a lengthy process to get approval. Defence lawyers will generally wait until the matter is transferred to the ODPP to make a submission.

Often it is only once defence counsel has been engaged, usually after committal, and a more senior prosecutor is appointed, that there is any genuine discussion about the appropriateness of charges, the strength of evidence and exploration of pleas of guilty.

Anecdotally, the Review is told that ‘in-house’ Legal Aid Queensland lawyers are often more willing to engage in discussion of these issues prior to committal than private solicitors engaged by LAQ; however the outcome of such discussions still depends on having an ODPP prosecutor with sufficient authority to negotiate on the other side.

It is well known that there is nothing like the spectre of a looming trial to focus the minds of all the parties on the issues. For this reason significant negotiations take place in the week before trial and even on the morning of trial. The ODPP records for Brisbane matters show that there were pleas of guilty on the morning of the trial in 16 of 68 matters listed for trial and finalised in April, May and June 2008. These

issues and relevant recommendations are made in Chapter 9: Reform of the Committal Proceedings Process.

Court events – ‘mentions’

There is justified concern that court ‘mentions’ too often are used as ‘bring ups’ or simply to clarify points for courts legal representatives/police/prosecution. In effect nothing is done to progress the file and the court event is simply a reminder for legal representation, police and prosecutors to look at the file on the morning of the court event. The term ‘mention’, in my view, tends to confirm the expectation that very little will happen at the court event – the case will literally be ‘mentioned’. Legal firms send junior staff with no knowledge of the file, and no authority to make decisions on the case to court to attend the mention.

Court events should be based on information already acquired (electronically) not used just to acquire information. Moreover the outcome of a court event should progress the case to resolution; to adjourn the matter to another ‘mention’ date should not be an acceptable outcome. Court events should have an outcome advancing a case to resolution rather than another date.

In a survey conducted by this Review of all concluded ODPP files of matters

scheduled for trial for the months of April, May and June 2008 the number of District Court mentions varied from 3 to 46; the average number of mentions was 14.6.

Legal Aid Queensland reports that the cost of mentions is approximately 30% of overall preparation.66

Court events are extremely resource intensive, there is a direct cost in judges and lawyers time and court resources and cost to an accused and witnesses. There is also an indirect costs of having lawyers waiting around who could otherwise be negotiating an outcome or preparing for a trial. The judge could be dealing with disposing of a case or advancing it to resolution rather than simply adjourning it to another date.

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For these reasons a project ‘Death of the Mention’ has been put in place in the criminal jurisdiction in England. It uses electronic communications and dispenses with appearances.67

Trial

Although criminal justice processes lead criminal cases inexorably towards trial, the figures show, the resolution of a case by a jury verdict is exceptional. The criminal justice processes should reflect this, rather than the matter will be tried to verdict.

It is inefficient and raises unrealistic expectations for the system to be geared towards the exceptional trial rather than the more typical plea of guilty.

It is too often the trial date that focuses the minds of defence and prosecution on the