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Court listing procedures within Queensland courts affect the preparation and readiness of matters and have direct cost implications throughout the criminal justice system, but more particularly in LAQ and the ODPP. In a consultation meeting with the CJC, the ODPP described a number of situations where District Court listing practices have disrupted the work of the agency. For instance:

• The District Court’s practice of changing lists at the last minute by, for example, bringing in civil judges from the Planning and Environment Court is very disruptive to the functioning of the ODPP. The ODPP has received notice from the court that two or three judges have become available and that matters should be brought on early before them. The ODPP is then left with the task of arranging witnesses and engaging counsel in a short period of time. In most cases, this has resulted in late briefs to private counsel, which at times has meant that only junior counsel are available.

• The consequence of short notice of a judge’s availability can be quite devastating for the outcome of a prosecution. The ODPP informed the CJC of a matter that had been allocated a trial date organised around the availability of a police officer as a witness. The police officer was interstate and was only available to return to Brisbane for two specific days. On a Friday afternoon the ODPP received a phone call from the District Court Listings Clerk advising that a judge had become available and requesting that the matter be brought forward to start on the following Monday. The Monday was not a day on which the police officer was available. The ODPP was unable to have the police officer before the court and asked the judge for an adjournment. The judge refused the adjournment and the case was required to proceed. As the police officer was an essential witness, the matter was ‘nollied’. (‘Nolle prosequi’ refers to an unwillingness to prosecute. At any time before a verdict, a nolle prosequi can be entered by a Crown Law officer or the prosecution. This does not establish the innocence of the accused and another indictment can be presented against him or her in the future.)

In its submission to the CJC, the Bar Association of Queensland has also noted:

There are many difficulties with a running list system. For example, it is difficult to expect any counsel to effectively keep a week free in order to commit to a No. 4 or No. 5 listing which may or may not proceed in a particular week. This inevitably leads to late changes of both Prosecutor and Defence Counsel, as lists and Trial Judges are changed. Whilst it is appreciated that there can never be any certainty about when matters will proceed in a running list, the degree of uncertainty attaching to particular matters is increased when matters are swapped from one list to another. The difficulty which this creates for the involvement of legal practitioners is that it necessitates late changes in counsel. Acute difficulties can be occasioned for the Director of Public Prosecutions, who usually tends to brief a prosecutor for a particular list, although it may be noted that that usually only means delivering briefs in the numbers 1 and 2 and possibly No. 3 matter in the list.

LAQ has informed the CJC that LAQ is mindful of the District Court’s aim to not have idle court time and in response has employed a full-time coordinator to make sure that witnesses and legal representatives are organised and ready for trial.

District Court

The Chief Judge of the District Court has rejected the claim that the court has a practice of changing court lists at the last minute. The court’s calendar is gazetted for the calendar year in the second half of the previous year and is available on the court’s website. Changes to the judges’ calendars are advised by letter to the ODPP and to other relevant

parties and are posted on the court’s website. 51 _{Nevertheless, in Brisbane, Southport and}

some other centres, the court conducts a ‘running list’, which is regarded as the only way the court can deal appropriately and expeditiously with its criminal workload, having regard to the effect on the list of late pleas and nolle prosequis.

Up to five trials are listed in the District Court in Brisbane to commence before each judge who will be presiding over criminal trials in a particular week. There may be between seven and ten judges sitting in crime in Brisbane. Judges are also shown in the calendar as being on ‘standby’ from time to time. Judges use standby time for judgment-writing and research, but they are also on standby for criminal or civil trials when an extra judge is urgently required, or to hear urgent applications when none of the listed judges is available for that trial or application.

In 1999 the Chief Judge of the District Court established the Criminal Listing Taskforce. This is made up of the Chief Judge and four other District Court judges who manage the Brisbane Criminal Court listings and case management. The effectiveness of the taskforce has been described in this way:

Through the hard work of the Taskforce a creditable rate of disposition has been maintained, despite there being less judge time available in Brisbane for the determination of criminal matters in the later part of the year under report. 52

Commenting on the effect of the court’s listing and case management practices, the Chief Judge of the District Court has noted:

I have no doubt that there would be a huge backlog in the criminal lists in Brisbane if the District Court judges, especially the Criminal Listing Taskforce, did not continually monitor the lists and case-management problems in lengthy or complex cases. Indeed, one reason why a Taskforce judge or another judge conducts the daily reviews and mentions is to enable any party experiencing some problem in having a case ready for trial or sentence [to] mention their difficulty before the judge. Accordingly, where possible and appropriate the list might be rearranged to suit the convenience of a party. Convenience of the ODPP is not the only nor the first concern in determining the administration of the running list. One of the primary objects of efficient listing is to ensure, in the best interests of the community, that trials are conducted as soon as is reasonably possible. The rights of an accused person facing serious charges, especially the right to stand trial as soon as is reasonably possible, must also be respected. Accordingly, some judges make themselves available to help with the criminal list whenever they can.

After an indictment is presented a judge allocates a date for the trial of the matter. Regard is had to the number of judges available to preside over criminal trials from time to time, counsels’ and witnesses’ availability and the type of matter involved. When the trial date is given, the parties are also advised of the trial review date. The trial review date occurs about 10 days before the start of the week in which the trial is listed to start. The court is then advised of the name of the prosecutor and the defence is expected to advise that defence counsel has conferred with the accused. Both parties are then to advise a judge that the trial is ready to proceed in all respects. If there is a problem the matter will be reviewed continuously to the morning of the trial unless it is appropriate that the trial dates are vacated.

Many of the cases are reviewed or managed by the judges before the review date, to ensure that the DPP has provided the defence with all witnesses’ statements and particulars and that the defence has considered whether a s. 592A hearing is required. Before the trial review date the parties in all cases are expected to raise any foreseeable problems as they arise. 53

The Chief Judge has also noted that, because of the nature of the offences frequently dealt with in the District Court, certain cases have to be given priority — for example, cases involving child witnesses where, observes the Chief Judge:

It cannot be stated too often that young children’s evidence may be easily corrupted by the passage of time.

The Chief Judge believes that the District Court’s management of criminal matters can benefit from the greater use of a proceeding established by s. 592A of the Criminal Code. Section 592A allows for either party to bring an application before the court for a direction or ruling on any of the following:

(a) the quashing or staying of the indictment; or (b) the joinder of accused or joinder of charges; or

(c) the provision of a statement, report, proof of evidence or other information; or (d) noting of admissions and issues the parties agree are relevant to the trial or

sentence; or

(e) deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not to be admitted; or

(f) ascertaining whether a defence of insanity or diminished responsibility or any other question of a psychiatric nature is to be raised; or

(g) the psychiatric or other medical examination of the accused; or (h) the exchange of medical, psychiatric and other expert reports; or (i) the reference of the accused to the Mental Health Tribunal; or

(j) the date of trial and directing that a date for trial is not to be fixed until it is known whether the accused proposes to rely on a defence of insanity or diminished responsibility or any other question of a psychiatric nature; or (k) the return of subpoenas and notices to Crown witnesses; or

(l) the Evidence Act 1977, part 2, division 6; or

(m) encouraging the parties to narrow the issues and any other administrative arrangement to assist the speedy disposition of the trial.

Section 592A hearings are held weekly and are intended to prevent problems arising during the trial that result in a voir dire (when the jury is asked to leave the courtroom for the purpose of allowing the legal representatives of the Crown and the defence to discuss the admissibility of certain evidence into the trial). The Crown Prosecutors’ Association is of the view that s. 592A applications are not routinely initiated, primarily because of the change of counsel throughout the case. The difficulty arising from such matters is that it would provide justification for delays in the proceedings.

Supreme Court

Cases in the criminal jurisdiction of the Supreme Court are managed by the judge in charge of the criminal list. Practice Directions 12 of 1999, 2 of 2000 and 1 of 2001 and s. 529A of the Criminal Code assist in the management of criminal cases in the Supreme Court. During consultation with the CJC, the Senior Judge Administrator and the Chief Justice of Queensland noted an increase in the use of s. 592A Criminal Code proceedings. They are of the view that there is little point in the court requiring legal representatives of parties to attend court simply in order to collect information from them:

It is better to collect information before they attend so that appearances have positive outcomes in advancing cases. 54

Magistrates Court

A number of legal practitioners consulted by the CJC were of the opinion that magistrates are inconsistent in their sentencing and do not give enough consideration to criminal matters because of time constraints — and that this results in poor judgments. The Chief Magistrate has suggested to the CJC that such criticisms may have been valid several years ago, but are no longer. The Chief Magistrate has taken a number of initiatives designed to streamline court processes and encourage more consistent sentencing by magistrates: 55

Use of sentencing guidelines

The Chief Magistrate encourages magistrates to use documented sentencing guidelines as a quick reference to the sentencing range for specific offences. The guidelines are not intended to stifle judicial discretion but to provide a ready reference point if a magistrate is seeking guidance on sentencing ranges.

Identification of lengthy pleas

later that day or transferred to another available magistrate. This alleviates the pressure magistrates may feel when presented with a burdensome callover list. It also allows magistrates to give the necessary consideration to lengthy matters without being concerned with progressing the general callover list. The Chief Magistrate informed the CJC that the procedure is currently operating only in the Brisbane Magistrates Court but is encouraged throughout the State.

Stakeholder meetings

The Chief Magistrate meets regularly with LAQ, the ODPP and private criminal lawyers to discuss any problems with court processes and develop new procedures where necessary. The meetings provide a forum for the continuous flow of information to the magistracy from key stakeholders.

K

:

• Since the 1995 report, the courts have explored a number of ways of making procedures more efficient and consistent.

• Court listing practices are creating problems for the legal profession where judges unexpectedly become available and little notification is given to both the prosecution and the defence to have matters ready for trial. Such practices not only disrupt the preparation of matters and reduce their readiness, but have also at times led to matters being ‘nollied’.