La formación del perfil profesional basado en competencias

In the Magistrates Court, defendants charged with certain indictable offences may be able to elect to have their case heard in a higher court, where it can be decided by a jury. Defendants who do so may be influenced by a number of factors, including:

• advice from the defendant’s legal representative that the defendant will get a ‘better deal’ from a District Court judge and jury

• the unpredictability of sentencing in the Magistrates Courts. It has been suggested that some legal practitioners advise their clients to ‘plead up’ to the District Court because sentencing in the Magistrates Court is unpredictable.20 _{The CJC heard}

conflicting accounts of the consistency of magistrates’ decisions. For example, QPS prosecutors were of the view that magistrates are generally consistent in their sentencing. Defence lawyers were of the view that magistrates are less consistent in their sentencing than District Court judges and that District Court judges are

more lenient in their sentencing than magistrates. This was linked to the view that what is regarded as a serious matter in the Magistrates Court, deserving of the harshest penalty available to the magistrate, is regarded as relatively minor in the District Court and deserving of a lesser penalty. The Chief Magistrate has foreshadowed discussions with her colleagues on this and other practical issues facing the Magistrates Courts.

As mentioned to the CJC during its consultations, removing the current right of election in relation to certain indictable matters and giving magistrates exclusive first-instance jurisdiction over them would entail:

• the adequate resourcing of magistrates, including out-of-court time to research and prepare

• training of magistrates

• access to comparable sentencing information from the Magistrates Courts and from higher courts. Arrangements were recently made for magistrates to have access to the comparative sentencing data kept by LAQ and the ODPP. Although an increasing number of appeals from magistrates’ decisions are being heard by the District Court, the Chief Justice of Queensland has suggested that more appeals might lead to some useful guidance to magistrates.21 _{The Chief Justice suggested}

that the establishment of a ‘fund’ to fund s. 222 of the Justices Act 1886 (appeal to a single judge of the District Court) would help comparability of sentencing. LAQ does provide some funding for s. 222 appeals.

• the denial to an accused person of the ‘right’ to a trial by jury, and whether this is a secondary consideration to the savings made in the criminal justice system by having the matter dealt with in the Magistrates Court. Also relevant here would be the number of matters that result in a plea of guilty despite being the subject of election to the higher court.

Range of matters subject to election

Section 20 of the Criminal Procedure Act 1986 (NSW) (referring to Table 2 to Schedule 1 of that Act) is similar to s. 552A of the Criminal Code (Qld) but refers to a greater number of indictable offences that must be dealt with summarily by the equivalent to Queensland’s Magistrates Courts (Local Courts), unless the prosecuting authority elects to have the matter dealt with in a higher court.

The Chief Judge of the District Court of Queensland has suggested that consideration be given to expanding the types of matters covered by s. 552A of the Criminal Code in line with the New South Wales provisions.22

Time limit for making election

Section 23 of the Criminal Procedure Act 1986 (NSW) provides:

Time for making election

(1) An election to have an offence dealt with on indictment must be made within the time fixed by the Local Court.

(2) An election may, with the leave of the Local Court, be made after the time so fixed if the Court is satisfied that special circumstances exist.

(3) However, an election may not be made after the following events:

(a) in the case of a plea of not guilty — the commencement of the taking of evidence for the prosecution in the summary trial

(b) in the case of a plea of guilty — the presentation of the facts relied on by the prosecution to prove the offence.

There is no such time limit in Queensland. The Chief Judge of the District Court of Queensland has suggested giving consideration to the introduction into the Queensland Criminal Code of a provision similar to s. 23 of the New South Wales legislation. A time limit would reduce the chance of an election being made, without removing the right to elect. The Chief Judge suggested that consideration could be given to different time limits depending on the sitting times of the Magistrates Courts.

The Public Defender does not, however, agree that adopting a procedure similar to that followed in New South Wales is likely to be of benefit. LAQ has informed the CJC:

The Public Defender does not consider s. 23 of the Criminal Procedure Act 1986 (NSW) is suitable for adoption in Queensland, where the starting point for such matters is different from that which operates in NSW. Usually, in Queensland, an offence is indictable unless it is elected that a matter be dealt with summarily.23