Criminal reform
Reforms to the criminal justice system
The Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (the Act) is the first stage of reforms in the government’s response to the report Review of the civil and criminal justice system by the Honourable Martin Moynihan AO QC.
The Act contains amendments relating to criminal jurisdiction and procedure, particularly in the areas of disclosure in criminal cases, committals, the jurisdiction of Magistrates Courts for indictable offences under the Criminal Code and Drugs Misuse Act 1986 and the general criminal jurisdiction of the District Court.
Frequently asked questions
Do the amendments change current disclosure obligations of the defendant and prosecution?
The disclosure obligations currently prescribed in the Criminal Code are preserved under the Act subject to some minor and/or technical changes. These obligations apply to all committal proceedings, trials on indictment (which includes a proceeding where a person is sentenced) and prescribed summary trials. Amendments are, however, made in the Act to provide that prosecution disclosure obligations apply to summary trials for all indictable offences under the Criminal Code and Drugs Misuse Act 1986 in line with other reforms to expand the summary jurisdiction of the Magistrates Courts as well as summary trials for other prescribed offences.
What other amendments are made regarding disclosure?
The Act inserts new provisions in the Criminal Code and Justices Act 1886 which allow a court to deal with non-compliance with the disclosure obligations. Without limiting the court’s general powers to issue pre‑trial and pre-hearing directions, the amendments give explicit powers for the court to issue directions about compliance with disclosure obligations (called “disclosure obligation directions”). Prior to applying for a disclosure obligation direction, parties will be required to follow a pre-court procedure aimed at attempting to narrow the issues in dispute and resolve the matter without the need for court intervention if possible.
Also, where a direction about disclosure has not been complied with, the court will have power to order that the directed person file an affidavit or give evidence in court explaining and justifying the failure to comply. If the court is not satisfied with this explanation, it may order an adjournment and make an associated cost award in certain circumstances.
What changes are being made to committals?
The Act contains amendments to the Justices Act 1886 and Bail Act 1980 tostreamline the committal process. More information about the changes to the committal processes can be found in Reforms to the criminal justice system – Committals Process.
What changes are being made to the summary disposition of indictable offences?
The Act amends the Criminal Code and the Drugs Misuse Act 1986 to expand the indictable offences that can be heard and decided summarily in the Magistrates Courts.
Specifically, the amendments:
- Introduce a new category of indictable offences (under the new section 552BA) in the Criminal Code which must be dealt with summarily unless, pursuant to section 552D, a magistrate cannot adequately punish the offender if convicted or a magistrate, on application by the defendant, is satisfied that the matter should not be dealt with summarily because of exceptional circumstances.
This new category will cover all indictable offences in the Criminal Code if the maximum penalty is three years imprisonment or less. It will also cover all offences in part 6 (Offences relating to property and contracts) of the Criminal Code which have a maximum penalty above three years unless the offence is excluded by the new section 552BB (Excluded offences) or is an offence in chapter 42A (Secret commissions).
- Allow possession of dangerous drug offences where the maximum penalty exceeds 15 years imprisonment and no commercial purpose is alleged to be dealt with summarily at the election of the prosecution unless a magistrate forms the opinion that the charge ought to be prosecuted on indictment pursuant to section 118 of the Drugs Misuse Act 1982
Further detail about these amendments is provided in the key changes to the summary of indictable offences table.
The Act also amends the Youth Justice Act 1992 to ensure alignment between the expanded summary jurisdiction of Magistrates Courts and the types of offences which can be dealt with by Childrens Court magistrates.
What changes are being made to the criminal jurisdiction of the District Court?
Amendments in the Act increase the general criminal jurisdiction of the District Court to offences with a maximum penalty of 20 years or less. Previously, the limit was 14 years or less subject to a number of exceptions listed in section 61 of the District Court of Queensland Act 1967. The exceptions to the general jurisdictional limit for offences which have a maximum penalty above this new amount will also continue to apply. This amendment will enable the District Court (rather than the Supreme Court) to deal with a number of Commonwealth offences and offences under the Drugs Misuse Act 1986. Offences under some other miscellaneous Queensland legislation will also be caught including for example an offence against section 250 of the Criminal Proceeds Confiscation Act 2002 of money laundering which has a maximum penalty of 20 years imprisonment. These amendments commenced on 1 September 2010.
These amendments will also apply automatically to the Childrens Court of Queensland under the Youth Justice Act 1992.
What other reforms are being made to the criminal justice system?
The Act includes amendments to the Criminal Code to recognise and encourage greater collaboration and coordination between criminal justice agencies through the development of administrative arrangements for compatible business and operating procedures. A practice direction may be made to give effect to an arrangement.
Consistent with the amendments to streamline committals, the Act amends the Justices Act 1886 and Bail Act 1980 to allow cases in the Magistrates Courts proceeding by way of ex-officio indictment (pursuant to section 561 of the Criminal Code) to be referred to the registry for review in certain circumstances.
The Act amends section 52 (Limitation of proceedings) of the Justices Act 1986 to clarify that the one year limitation period in that section for making a complaint for an offence does not apply to indictable offences dealt with summarily where another provision specifically provides that no time limit applies. An amendment is also made to extend the time limit for making a complaint for a simple or regulatory offence to two years where the proceeding originally started as an indictable offence but it has been or will be discontinued. This new subsection would apply, for example, in a case where the original charge against a defendant was prosecuted under section 75 of the Criminal Code (Threatening violence) however following referral to the Office of the Director of Public Prosecutions it is recommended that a charge under section 6 (Public Nuisance) of the Summary Offences Act 2005 is more appropriate.
Some other amendments to criminal processes and procedures, which are not based on specific recommendations in Mr Moynihan’s report, are included. These amendments are designed to improve the efficiency and operation of Queensland Courts and include, for example, amendments to:
- allow the Magistrates Courts and Childrens Court to issue verdict and judgment records (consistent with the District Court and Supreme Court)
- the Police Service Administration Act 1990 to facilitate voluntary case conferencing, and
- allow bail applications to be made to magistrates outside a relevant district or division by telephone or another remote communication device in certain circumstances.
When did the reforms commence?
The date set for commencement of most amendments in the Act (except those noted above to the District Court criminal jurisdiction) is 1 November 2010. See the fact sheet for further information about commencement.
Committal process
The Act contains various amendments to the provisions in the Justices Act 1886 to streamline committals. See also the key changes to the committals process table
What is the new committal process?
A committal is the primary mechanism for transmitting a case involving a defendant who is charged with an indictable offence from a Magistrates Court to the Supreme Court or District Court.
Under the Act magistrates will be explicitly given overall responsibility for supervising committal proceedings and, in addition to other powers, will have power to set timetables for proceedings.
The amendments also introduce registry committals and impose restrictions on the calling and cross-examination of prosecution witnesses by defendants.
Registry committals
Registry committals are available for defendants in cases where various conditions are met, including:
- the defendant is legally represented
- the defendant is not in custody (or in breach of bail)
- the prosecution intends to give all of its evidence by written statements, the statements have been filed and copies provided to the defence, and
- the defendant’s lawyer has given written notice to the clerk of the court and prosecution stating that the defendant does not intend to give evidence or call any witnesses, acknowledging that the functions of the clerk of the court do not include considering the committals test and stating whether the defendant wishes to be committed for sentence or trial.
A registry committal is performed by the clerk of the court in the absence of the parties on the papers.
The clerk commits the case for trial or sentence depending on the advice provided by the defendant’s legal representative about whether the defendant pleads guilty or not.
The clerk of the court will not consider the evidence and have no bail powers. Amendments to the Bail Act 1980 provide for the defendant’s bail to be automatically continued subject to the requirement that the defendant appear, as required, before the court to which they have been committed.
A number of forms have been developed by Queensland Courts for use in registry committals which will be available on the Queensland Courts website.
Committals by a magistrate
Prosecution witnesses will be required to attend a committal hearing to give evidence in the following circumstances:
- A magistrate directs that a witness or witnesses must attend court to give evidence or be made available for cross-examination on their written statement if the magistrate is satisfied there are substantial reasons why in the interests of justice this is necessary. A direction may be given following an application by the defendant or on the magistrate’s own initiative.
- The prosecution agrees to make a witness or witnesses available for cross-examination by the defence. In this case the witness or witnesses attend, their statement tendered by the prosecution constitutes their evidence-in-chief and the witness is cross-examined by defence.
- The prosecution does not rely on written statements for all of its witnesses. In this case the witness or witnesses attend to give oral evidence by way of examination-in-chief and will be subject to cross-examination without a direction being required.
The amendments do not alter the operation of affected child witness provisions under Part 2, Division 4A, subdivision 2 of the Evidence Act 1977.
Where a legally represented defendant is not successful in their application for a direction or cannot proceed by way of an administrative committal, the magistrate may proceed with a full paper committal (currently known as hand-up committals). No witnesses attend or are subject to cross-examination and the magistrate may commit the matter without consideration of the contents of the statements with the consent of the defendant’s lawyer.
A defendant who does not have legal representation may also proceed by way of a full paper committal provided the magistrate is satisfied of certain things. In these cases the magistrate must consider whether the evidence meets the necessary threshold.
What steps does a defendant need to take to be able to cross-examine a prosecution witness at a committal hearing?
Prior to making an application to the court, for a direction the defendant must advise the prosecutor in writing of:
- the name of the witness who the defendant wishes to attend
- the issues relevant to the making of the application for a direction
- the reasons to be relied on to justify why the direction should be issued, and
- the time within which the prosecution is to respond to the notice (this time must be either the time set by the court or by practice direction or a time that is reasonable but is not less than seven days).
If the prosecutor does not reply or does not give his/her consent for the witness to attend, the defendant may then apply to the court for a direction for the witness to attend court. The application must be filed and served before a date either set by the court, set out in a practice direction or no later than the date set by the court (if any) for the committal.
Such an application will only be successful if the magistrate hearing the application for the direction is satisfied that there are substantial reasons why, in the interests of justice, the witness who made the statement should attend court to give oral evidence or be made available for cross-examination.
If a court directs that a witness attend court, cross-examination is to be limited to the reasons outlined by the magistrate for giving the direction unless the magistrate hearing the committal is satisfied there are substantial reasons why, in the interests of justice, further cross-examination should be allowed.