Monday, 25 May 2009

Summary courts getting busy!

Dr Manhattan's post on wilful and obscene exposure sent me looking at the stats for Victorian summary court charge rates.

It's a while since I looked at them in any great detail.

Intriguingly, the most up-to-date statistics tend to be in those produced by the Productivity Commission in it's annual reports on Report on Government Services!

Based on those, criminal lodgments in Victorian summary courts have increased significantly in the last few years.

Financial year Criminal lodgements
2004 - 05 (Table 6.2) 142 300
2005 - 06 (Table 6.2) 145 700
2006 - 07 (Table 7.2) 157 500
2007 - 08 (Table 7.2) 170 700

What are 'criminal lodgments'? This is what the Productivity Commission says:

Box 7.4 Explanation of lodgment data used in this chapter
Lodgments reflect community demand for court services, such as dispute resolution and criminal justice. The different ways of counting a court’s workload reflect the variety of work undertaken within the court system. The units of measurement of workload (or counting units) used within this chapter are:
• criminal courts — lodgment counts are based on the number of defendants
• civil and family courts — lodgment counts are based on the number of cases (except in children’s courts where, if more than one child can be involved in an application, the counting unit is the number of children involved in the originating application)
• electronic infringement and enforcement systems — lodgment counts are based on the number of unpaid infringement notices
• coroners’ courts — lodgment counts are based on the number of reported deaths (and, if relevant, reported fires)
Unless otherwise noted, the following types of lodgment are excluded from the criminal
and/or civil lodgment data reported in this chapter:
• any lodgment that does not have a defendant element (such as applications for telephone taps etc.)
• extraordinary driver’s licence applications
• bail procedures (including applications and review)
• directions
• warrants
• admissions matters (original applications to practise and mutual recognition matters)
• cross-claims
• secondary processes — for example, interlocutory matters, breaches of penalties (that is, bail, suspended sentences, probation)
• applications for default judgments (because the application is a secondary process).

Based on the Commission's statistics, it seems since 2006 (when courts of summary jurisdiction were conferred jurisdiction to deal with specified common law offences) summary criminal lodgments increased by 25 000, or around 17%

That bare number will be the result of factors like population growth, net widening, and increased use of diversion programs — and greater charge rates caused by increases to jurisdiction (such as the ability to prosecute common law offences in summary courts) and new criminal offences.

No matter the cause, the end result is more work in summary courts. So, if you've thought the summary courts seemed busier, you had good reason.

It will be interesting to see what affect the Criminal Procedure Act 2009 might have on these criminal lodgment rates.

One barrister I spoke with recently was concerned about the potential increase in adjournments and appearances at court from the new Act, because of the need to attend a summary case conference (and perhaps also a contest mention) before the accused could obtain a full brief of evidence. His view was that it could potentially be negligent for a practitioner to advise an accused without knowing the strength or weaknesses in a prosecution case and hence unable to accurately gauge the likelihood of conviction or acquittal. (The potential for negligence actions against lawyers was brought into sharp focus in the High Court's decision in Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9. Ethical obligations about the nature of advice in criminal proceedings are also imposed on legal practitioners by provisions such as Rule 12 of the Professional Conduct and Practice Rules 2005 for solicitors and Part V of the Rules of Conduct 2005 for barristers.)

The dilemma that barrister foresaw is the possibility of additional cost from extra procedural steps and attendances at court before an accused could fully assess the case against them. The result might be some accused simply couldn't afford to wait that long and might plead guilty out of economic necessity rather than a genuine acknowledgment of guilt.

I know a few members of the Bar are preparing material on the new legislation, and I expect some of it will start appearing online as the commencement date draws nearer. It will be interesting to see what their views will be.

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