Transitional information - reforms to the criminal justice system
The Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 contains the first stage of reforms in 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 including amendments relating to disclosure in criminal cases, committals, the jurisdiction of Magistrates Courts to deal with indictable offences in the Criminal Code and Drugs Misuse Act 1986 and the general criminal jurisdiction of the District Court of Queensland.
Prosecutions started on or after commencement
The key amendments in the Act, including the reforms to the summary disposition of indictable offences, criminal jurisdiction of the District Court, committals and disclosure, only apply to prosecutions started on or after the date the amendments commence. It does, however, not matter when the offence the subject of the prosecution was committed.
Under the amendments a prosecution is taken to have been started when:
- the defendant was arrested
- served with a notice to appear, or
- a complaint under the Justices Act 1886 is made in relation to the offence.
The presentation of an indictment is not an initiating step for a prosecution.
See the fact sheet for further information about commencement.
Examples of how the amendments will affect a case
Example 1: On 2 October 2010 Defendant A is served with a notice to appear in the Brisbane Magistrates Court on 2 November 2010 for an indictable offence under the Criminal Code. The amendments relating to the committals, disclosure and summary disposition commenced on 1 November 2010. The amendments do not have any application to Defendant A’s case.
Example 2: Defendant B is arrested and charged on 1 October 2010 with an indictable offence which the defendant is able to elect to have heard summarily in the Magistrates Court. The defendant’s first appearance before the Brisbane Magistrates Court for the offence is on 14 October 2010, and the next is on 2 November 2010. The summary disposition amendments commenced on 1 November 2010.
At the appearance on 2 November 2010 the charge against the defendant is substituted with an indictable offence which must be dealt with summarily under the amendments. The substitution of the charge would not constitute an originating step in the proceeding as proceedings were already under way at the time of commencement. Therefore the amendments do not apply to Defendant B’s case. This means that the defendant will still have an election to have the substituted charge dealt with summarily.
Example 3: The amendments commenced on 1 November 2010. Defendant C has a number of charges for indictable offences under the Criminal Code before the District Court at the time of commencement.
Defendant C is charged with a new indictable offence on 4 November 2010 which must be dealt with summarily under the amendments. The defendant is served with a notice to appear which requires the defendant to appear for the offence in the Magistrates Court on 19 November 2010. The amendments apply to this new charge. The defendant could, however, apply to have the new charge transmitted to the District Court under section 651 of the Criminal Code (as amended by the Act). Alternatively, the defendant could make an application to a magistrate under section 552D (as amended by the Act) if there are exceptional circumstances why matter should not be heard and determined summarily.
Example 4: The amendments to committals commenced on 1 November 2010. At that time Defendant D has a number of charges for indictable offences before the Brisbane Magistrates Court which have been listed for a committal hearing on 21 November 2010.
Defendant D is arrested and charged with another indictable offence on 13 November 2010. He appears in the Magistrates Court on that charge on 14 November 2010 and the matter is listed for mention with the other charges on 21 November 2010. All offences that Defendant D is charged with must be dealt with on indictment and are not subject to summary disposition.
Defendant D is legally represented by Firm ABC for all offences and wishes to contest all charges. For the offences already listed for committal hearing at the time the amendments commenced on 1 November 2010, the defendant does not need to apply for a direction to cross-examine any witnesses. However, for the new charge the defendant must apply to a magistrate to cross-examine any prosecution witnesses at the committal (if the prosecution does not intend to call the witness to give evidence or does not consent to the cross-examination of the witness).
Example 5: On 20 October 2010 a complaint is made and summons issued to Defendant E which requires the defendant to appear in the Brisbane Magistrates Court on 3 November 2010 for an indictable offence under a Commonwealth law. The offence has a maximum penalty of 16 years imprisonment.
The amendments to the general jurisdiction of the District Court commenced on 1 September 2010 and the amendments relating to criminal jurisdiction and procedure, including committals, commenced on 1 November 2010. On 3 November 2010 Defendant E’s matter is listed for committal hearing on 20 November 2010.
The amendments do not apply to Defendant E’s committal and it will be conducted in accordance with the law applying prior to commencement. However the amendments to the jurisdiction of the District Court do apply which means at the conclusion of the commital the defendant would be committed to the District Court rather than the Supreme Court, (although the Commonwealth Director of Public Prosecutions still has discretion to present an indictment in another court).
If Defendant E had been arrested and charged for the same offence on 3 November 2010, the committal amendments would apply and Defendant E would have needed to apply to a magistrate for a direction if he wished to cross-examine any prosecution witnesses not called by the prosecution to give evidence unless the prosecution had consented to the witness being made available for cross-examination. At the conclusion of the committal the defendant would have also been committed to the District Court rather than the Supreme Court, although the Commonwealth Director of Public Prosecutions still has discretion to present an indictment in another court.
Key changes to the committals process
This table summarises key changes made to the committal proceeding provisions in the Justices Act 1886 and Bail Act 1980 by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.
| Issue | Old section | New section | Summary of change |
|---|---|---|---|
|
Registry Committals |
No existing provision |
New section 114 – 117 Justices Act 1886 New section 130 of the Justices Act 1886 New section 34BA of the Bail Act 1980 |
Certain conditions must be met for a registry committal to occur, including that:
In these committals the clerk of the court commits a matter on the “papers” in the absence of the parties. |
|
Limitations on the cross-examination of prosecution witnesses |
No existing provision |
Amended sections 104 and 110A of the Justices Act 1886 |
Section 110A continues to allow the tendering of written statements in lieu of oral testimony for the defence. If a written statement is tendered by the prosecution it must be admitted as evidence without the witness appearing unless:
If the prosecution does not wish to tender a written statement for a witness that witness will be called to give oral evidence in court at a committal hearing. The limitations on the calling and cross-examination of affected child witnesses under the Evidence Act 1977 are not altered by the amendments. |
|
Direction for attendance of prosecution witnesses |
No existing provision |
Amended section110A of the Justices Act 1886 New section 110B of the Justices Act 1886 New section 110C of the Justices Act 1886 New section 83A(5AA) of the Justices Act 1886 |
Where the prosecution does not:
the defendant will need to apply under section 83A(5AA) to have a witness attend and be subject to cross-examination. A magistrate cannot give a direction under section 83A requiring the prosecution to call the maker of a written statement unless satisfied there are substantial reasons why, in the interests of justice, the maker should attend (section 110B). If a witness is directed to attend at the committal under section 83A, the witness cannot be cross-examined on any issues other than those relevant to the reasons for which the direction was issued unless the magistrate hearing the committal is satisfied that there are substantial reasons why in the interests of justice this is necessary. An application for a direction under section 83A in relation to a witness can only be made on one occasion unless a magistrate gives leave for a further application to be made because special reasons exist. |
|
Steps taken prior to application for a direction for attendance of prosecution witnesses at committal |
No existing provision |
New section 110B of the Justices Act 1886 Note also existing section 83Afor requirements in relation to form and service for direction hearings generally. |
An application for a direction to have a witness attend and be cross-examined can only be made if the parties have communicated in accordance with section 110B to see if agreement can be reached. |
|
Paper committal for defendant not legally represented |
No existing provision Section 110A of the Justices Act 1886 allows the tendering of written statements of witnesses by the defence or prosecution in lieu of oral testimony however subsection (4) provides that written statements shall not be admitted where the defendant is not represented by a lawyer. |
Amended section 110A of the Justices Act 1886 |
A magistrate may conduct a full paper committal for a defendant who is not legally represented if satisfied that the defendant:
A magistrate must however still consider the sufficiency of the evidence before committing the defendant. |
|
Defence witnesses |
Section 110A of the Justices Act 1886 allows the tendering of written statements of witnesses by the defence or prosecution in lieu of oral testimony but only with the consent of prosecution and defence and subject to certain other conditions being met. No limitations are placed on cross-examination of witnesses whose evidence is tendered. |
No change |
N/A |
|
Referral of ex officio matters to the registry |
No existing provision |
New section 23EB of the Justices Act 1886 New section 34BB of the Bail Act 1980 |
A court may refer review of a charge for an indictable offence to the registry where the parties agree that the matter is or will proceed by ex officio indictment. However, a referral may only be made under this section if the defendant is legally represented and is not in custody or in breach of any condition in relation to bail. Bail is “rolled over” subject any requirement to appear in relation to the charge on indictment and referral of the matter back to the Magistrates Court. Once the matter has been finally disposed of on indictment no further appearance is required in the Magistrates Court. There is also provision for the registry to refer the charge back to the court to ensure that it is not unnecessarily delayed or if requested by one of the parties. |
Key changes to the summary of indictable offences
This table summarises key changes made to the summary disposition of indictable offences in the Criminal Code and Drugs Misuse Act 1986 by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.
| Criminal Code | Old section |
New section/s |
Summary of change |
|---|---|---|---|
|
Mandatory summary disposition |
No existing provision |
New section 552BA New section 552BB |
New section 552BA contains indictable offences that must be determined summarily by a Magistrates Court subject to section 552D (as amended by the Act – see further below). This new category will cover charges for all offences in the Criminal Code under which the offender is liable to three years imprisonment or less. It will also cover charges for all offences in part 6 (Offences relating to property and contracts) of the Criminal Code which have a maximum penalty above three years imprisonment unless excluded by new section 552BB or is an offence in chapter 42A (Secret commissions). Examples of some offences caught by this new section are:
Section 552BB excludes various serious offences in Part 6 from the operation of the new section 552BA. These exclusions essentially fall into the following two categories:
|
|
Summary disposition unless defendant elects trial by jury |
section 552B |
New section 552B |
This section is amended so that it applies subject to the introduction of the new section 552BA [i.e. all offences which have a maximum penalty of three years or less and offences in part 6 are removed] |
|
Summary disposition at the election of the prosecution |
section 552A |
New section 552A |
This section is amended so that it applies subject to the introduction of the new section 552BA [i.e. all offences which have a maximum penalty of three years or less and offences in part 6 are removed] |
|
When magistrates must abstain from summary jurisdiction |
section 552D |
Amended section 552D |
A new subsection is inserted to provide that a Magistrates Court must abstain from dealing with a charge summarily under the new section 552BA, on application by the defendant, if satisfied that there are exceptional circumstances for doing so. Exceptional circumstances may exist for example where there is an important issue of law involved that means that committal to the District Court or Supreme Court is justified. Existing subsection 552D(1) requires a Magistrates Court to abstain from dealing with a matter summarily if satisfied, at any stage, and after hearing any submissions by the prosecution and defence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction. This subsection is retained for sections 552A and 552B (as amended by the Bill) and is extended to apply to the new section 552BA. If the court abstains from dealing with a matter summarily the proceeding for the charge must be conducted as a committal proceeding. |
| Drugs Misuse Act | Old section | New section | Summary of change |
|---|---|---|---|
|
Summary disposition of certain offences with a maximum penalty of 15 years or less |
section 13 |
No change |
This section provides that various indictable offences may be dealt with summarily where the defendant is liable upon conviction to not more than 15 years imprisonment. No amendments are made to this section. |
|
Summary disposition of certain offences with a maximum penalty of more than 15 years |
No existing provision |
New section 14 |
This new section allows summary disposition of offences against section 9 (Possession of a dangerous drug) and attempts to commit these offences where the offender is liable upon conviction to more than 15 years imprisonment provided the prosecution does not allege a commercial purpose. |
|
Proceedings for offences |
section 118(2) |
No change |
This subsection provides that where an offence may be prosecuted on indictment or summarily the proceedings before a magistrate shall be proceedings with a view to the committal of the defendant for trial or sentence unless the prosecution elects that they shall be proceedings with a view to summary conviction. No amendments are made to this subsection. |
|
When magistrate must abstain from summary jurisdiction |
section 118(4) |
No change |
This subsection requires a magistrate to abstain from determining a charge summarily where the magistrate forms the opinion that the charge ought to be prosecuted on indictment. No amendments are made to this subsection. |