A Queensland supreme court judge says serious criminal cases are taking “excruciatingly longer” to finalise due to “glacial” delays in the state’s magistrates court, where some matters are spending several years in procedural limbo.
Justice Jim Henry, who is based at the supreme court in Cairns, published data from his own court revealing that of 31 recent criminal cases he finalised between November and February, on average each case took more than a year (370 days) in the lower courts before a committal.
One case – a man jailed for sharing child abuse material and other related offence – took more than three years between the offender being charged and the magistrates court committing the matter to trial. Another, a drug trafficking case, took two years and 10 months.
In comments to lawyers at a function last month and now published as a paper in the supreme court library, Henry said that after 40 years working in the criminal justice system, “nowadays [it] takes excruciatingly longer than it once did to finalise charges of serious alleged crimes”
“We seem to have become desensitised to how problematic the day to day reality of delay is.
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“From the perspective of those outside the system, the pace in progressing committals through the magistrates court is glacial.”
In the Queensland court system – like many others in Australia – serious criminal charges are first heard in the magistrates court. After a committal in the lower court, the matter will then be passed to the superior court for trial or sentence.
Henry said that committal proceedings historically served two purposes: to ensure the evidence is sufficient for the defendant to stand trial and to allow the defendant to discover the nature of the prosecution case.
In 2010 Queensland passed reforms that were designed to help streamline the criminal process. Those reforms meant that defendants required leave of the court to cross examine witnesses at committal. Last year, of more than 6,223 committals in Queensland, only 117 of those (1.9%) included a grant of the right to cross-examine.
Henry said the changes have slowed – rather than streamlined – the justice process because police were no longer under pressure to finalise a brief of evidence for a listed committal hearing.
“[This] predictably led to police giving less priority to finalising the police brief of evidence soon after arrest,” Henry said.
“Some defence practitioners exacerbated the impact of this trend by requesting full briefs of evidence when their cases were obviously destined to resolve as sentences.
“Much time is seemingly wasted in the committal phase with repeated adjournments waiting for the police to provide the sometimes unnecessary full briefs of evidence sought by the defence.”
One problem, Henry says, is that committals are adjourned to wait for “inconsequential” evidence, when a case can otherwise proceed.
Another is circumstances in which police “have charged a defendant yet cannot produce evidence of a prima facie case”.
“Why are the courts giving the police many months to assemble evidence, most of which they should have had before charging, while in the meantime the charged citizen’s liberty is infringed by bail conditions or incarceration on remand?” Henry said.
“The police choice of charging a citizen comes with the responsibility of being able to substantiate the charge. It is an abuse of the court’s processes for the prosecution – part of the executive branch of government – to expect the court – the judicial branch of government – to be its agent in continually delaying the disposition of the case in the hope the police will produce the evidence they need.”
