I. INTRODUCTION

3.1 In this chapter, we describe in broad terms the structure of the criminal courts system in New South Wales. A distinctive feature of this structure is its division into higher courts and lower courts. The higher courts are the Supreme Court (and, within it, the Court of Criminal Appeal), and the District Court. The main lower courts are Courts of Petty Sessions. Other lower courts are Children’s Courts and Coroners’ Courts.

3.2 For the purpose of adding some perspective to our description of the criminal courts system we comment briefly on the workloads of some of the courts. We do this only in terms of the number of cases handled and we acknowledge that this approach does not take into account the length and complexity of much of the work of the higher criminal courts. In early March 1982, for example, six judges of the District Court were engaged in original criminal work in Sydney, five of whom were presiding over lengthy trials. The likely duration of four of the trials ranged from 4 weeks to 10 weeks. ¹

3.3 The workload of Courts of Petty Sessions is heavy. The Court Statistics for 1980 supplied to us by the Office of the Chairman of the Bench of Stipendiary Magistrates speak of “Total cases” of 612,438. The expression “Total cases” is not defined but it is clear that it included the work of Children’s Courts. The figure of 612,438 also included motor traffic cases totalling 383,264. In short, in that year 62.6 per cent of the work of Courts of Petty Sessions and Children’s Courts was concerned with motor traffic offences. The Bureau of Crime Statistics and Research analyses some, but not all of the work of Courts of Petty Sessions and Children’s Courts. Its publication “Court Statistics 1980” refers to 20,468 drink/driving offences, 5,218 drug offences, and 41,690 other major offences (excluding some traffic offences and common law misdemeanours). ² The publication does not define “major offences” and it does not describe the traffic offences which are excluded from its statistics. It seems, however, that in 1980 about 0.5 percent of the criminal work of this State was disposed of in the Supreme Court about 4.5 percent in the District Court and about 95 per cent in Courts of Petty Sessions and Children’s Courts. In that year, according to the Bureau’s statistics, there were 124 contested trials in the Supreme Court and 573 in the District Court. We stress again that we are speaking in this paragraph only in terms of the number of cases handled, not in terms of the length and complexity of cases.

II. THE HIGHER CRIMINAL COURTS

A. The Supreme Court

3.4 The Supreme Court of New South Wales was established in 1823. It is the State’s superior court of record. In criminal matters, the court’s original jurisdiction is exercised by a single judge, and its appellate jurisdiction is exercised by the Court of Criminal Appeal. This last mentioned court was established by the Criminal Appeal Act, 1912, and is constituted by three or more judges of the Supreme Court. An appeal from the Court of Criminal Appeal may be made to the High Court of Australia by special leave of that court.

3.5 The Criminal Division of the Supreme Court was created in 1979. It comprises the Chief Judge of the Division and such other Supreme Court judge or judges as may be nominated by the Chief Justice to act in the Division. At 30 June 1982, 15 judges had been so nominated. At that date, the Supreme Court Bench had 36 members.

3.6 Much of the non-appellate criminal work of the Supreme Court is done in the Central Criminal Court in Sydney. Usually there are up to 3 judges of the Criminal Division sitting in that court. Members of the Criminal Division may also exercise the criminal jurisdiction of the Supreme Court in 16 country towns and cities throughout the State when they travel on circuit.

3.7 Offences which can only be tried in the Supreme Court are the very few remaining capital offences (treason, and piracy accompanied by assault with intent to murder), and offences which were of a capital nature when capital punishment was virtually abolished in 1955 (these include murder and certain acts done with intent to murder). Apart from these offences, the Supreme Court and the District Court have concurrent criminal jurisdictions. Other serious indictable offences committed in the Sydney metropolitan area maybe directed by the Attorney General to be tried at the Central Criminal Court (to date, the only direction relates to the offence of making a threat to destroy in aircraft). Indictable offences which may not be conveniently tried in the District Court or at sittings of the Supreme Court in country areas may also be tried at the Central Criminal Court.

3.8 By virtue of the Supreme Court (Summary Jurisdiction) Act, 1967, some offences are punishable summarily by the Supreme Court. These offences include offences under Acts for which the pecuniary penalties are heavy and in respect of which, in some circumstances, property of great value can be confiscated. The offences also include some conspiracy offences. In practice, the summary jurisdiction of the Supreme Court is seldom invoked, and, when invoked, committal proceedings have no role to play.

B. The District Court

3.9 The District Court Act, 1973, created a District Court of New South Wales and abolished Courts of Quarter Sessions. The latter had been courts of criminal jurisdiction since 1832. In the exercise of what is called the criminal and special jurisdiction of the District Court, a judge of that (court has the same powers, authorities, duties and functions as a Chairman of Quarter Sessions formerly had.

3.10 Trials of indictable offences which are not within the exclusive jurisdiction of the Supreme Court may take place in the District Court. In other words, the District Court may not try capital offences and offences which were of a capital nature when capital punishment was virtually abolished in 1955. ³ As noted in paragraph 3.7, apart from these offences, the Jurisdictions of the Supreme Court and the District Court are concurrent. In practice, serious indictable offences committed in the Sydney metropolitan area which are directed by the Attorney General to be tried in the Supreme Court, and indictable offences which may not be conveniently tried in the District Court, ire not tried in that Court. Much of the criminal work of the District Court is concerned with offences against the person such as maliciously wounding or inflicting grievous bodily harm, robbery, fraud, larceny and the more serious drug and driving offences. The court also hears appeals from Courts of Petty Sessions against a wide variety of convictions and orders. Appeals from the District Court by persons convicted on indictment are heard by the Court of Criminal Appeal.

3.11 At 30 June 1982 there were 36 District Court judges. Of these, usually 9 are fully engaged in criminal work in Sydney, 8 of whom exercise the court’s original criminal jurisdiction and 1 hears appeals from magistrates. Up to 6 judges usually sit in places near Sydney such as Parramatta, Penrith, Liverpool and Campbelltown. In exercising its criminal and special jurisdiction, the District Court sits in some 60 centres throughout the State. Although the Supreme Court has concurrent jurisdiction with the District Court, the majority of indictable offences which go to trial by judge and jury are tried in the District Court. As noted in paragraph 3.3, in 1980 there were 124 contested trials in the Supreme Court and 573 in the District Court.

III. THE LOWER CRIMINAL COURTS

A. Courts of Petty Session

1.12 The criminal jurisdiction of Courts of Petty Sessions arises mainly under the Crimes Act, 1900, the Crimes Act 1914 (Cth), the Offences in Public Places Act, 1979, the Motor Traffic Act, 1909, and the Regulations made under that Act. Stipendiary magistrates preside over these courts in metropolitan and suburban areas and in the more populated country centres. In other places, cases may be heard either by a stipendiary magistrate or by two or more justices of the peace. The latter are used where the charge is of a minor nature, in cases of emergency, or where a magistrate will not be visiting the court for some time. The procedures of the courts are usually those prescribed by the Justices Act 1902.

3.13 The criminal Jurisdiction of Courts of Petty Sessions is confined to offences punishable summarily. These include most offences against good order, breaches of regulations, certain indictable offences which may be determined summarily with the consent of the accused, and some other indictable offences, which are determined summarily without the consent of the accused. As already indicated, in indictable cases not dealt with summarily, committal proceedings usually take place, and the accused may be committed for trial to a higher court.

3.14 At 30 June 1982, there were about 100 stipendiary magistrates in New South Wales. Courts of Petty Sessions sit daily in large centres and regularly in small centres. Sittings are held in about 200 places. In the Sydney metropolitan area alone, there are about 30 places. In some of these, courts are established for specialised purposes, including Children’s Courts dealing with juveniles, Traffic Courts, a Coroners’ Court and a court dealing with matters arising out of Commonwealth legislation.

B. Children’s Courts

3.15 Children’s Courts, first established in 1905, exercise jurisdiction under the Child Welfare Act, 1919. In certain proclaimed areas, a special magistrate is appointed to exercise the jurisdiction of such a Court. Elsewhere the jurisdiction of a Children’s Court may be exercised by a magistrate or, occasionally, by two justices of the peace. Children’s Court hearings are usually held in camera.

3.16 A Children’s Court exercises all the powers of a Court of Petty Sessions in respect of children aged 10 to 15 years (the minimum age of criminal responsibility being 10 years) and young persons (16 to 17 years of age), and in respect of offences committed by or against them, to the exclusion of the ordinary courts of law. jurisdiction is also exercised in respect of neglected and uncontrollable children (of any age) and young persons, and of truants (5 to 15 years of age).

3.17 Appeals from decisions of Children’s Courts lie to the District Court, or, by way of stated case, to the Supreme Court.

3.18 It is expected that criminal proceedings involving children will soon be governed by the provisions of the Community Welfare Act 1982. That Act was assented to in May 1982, but most of its provisions have not yet commenced. The Act lists a number of principles relating to the exercise of criminal jurisdiction with respect to children. ⁴ These include statements to the effect that it is desirable, where ever possible, to allow the education or employment of a child to proceed without interruption and to allow a child to reside in his or her own home.

C. Coroners’ Courts

3.19 The office of coroner was established in New South Wales by letters patent dated 1787, and is regulated by the Coroners’ Act 1980.

3.20 Every stipendiary magistrate, by virtue of his office, has the jurisdiction powers, and duties of a coroner in all parts of the State. In country districts, however, the local Clerk of Petty Sessions is normally appointed coroner and, occasionally, a local resident usually a justice of the peace, may be appointed.

3.21 Where a coroner is informed by a member of the police force of a death a suspected death or a fire, he or she has jurisdiction to hold an inquest or inquiry into the cause. Inquests are held in the cases of violent or unnatural deaths, or deaths in gaols, psychiatric hospitals, and Department of Youth and Community Services institutions, and on the death of any person whilst in the lawful custody of the police force; and inquiries are held into the origin of fires causing damage or destruction to property. In certain cases, the facts may be determined by a jury of six persons.

3.22 Under the Coroners’ Act, 1980, a coroner must, where a person has been charged with an indictable offence in connection with a death or fire, adjourn the inquest or inquiry after establishing the identity of the deceased and the place and date of death or where the fire occurred. An inquest or inquiry must also be adjourned if during the course of evidence the coroner decides that a prima facie case has been made out against a known person. ⁵ Inquests or inquiries adjourned for these reasons may be concluded after termination of any criminal proceedings. In a later Issues Paper, we will raise issues concerning the relationship between, on the one hand, coronial inquests and inquiries, and, on the other hand, committal proceedings.

IV. COURTS OF FEDERAL JURISDICTION

3.23 Under the Constitution of the Commonwealth of Australia, Federal judicial power is vested in the High Court of Australia. in other Federal courts created by the Commonwealth Parliament (for example, the Family Court of Australia and the Federal Court of Australia), and in State courts invested by Parliament with Federal jurisdiction. Federal jurisdiction in criminal matters has been conferred on State courts by a number of Commonwealth Acts. These include the Judiciary Act 1903.

3.24 Federal prosecutions, in particular those under section 233B of the Customs Act 1901 (Cth) relating to the importation of drugs, Occupy much of the time of this States criminal courts. It is said by one court official that in the period between 27 July 1981 and 16 April 1982 at least 20 per cent, and perhaps 25 per cent, of the total time available to the District Court in its criminal and special jurisdiction in Sydney was occupied by “Commonwealth trials”. ⁶

3.25 Courts martial are created by the Commonwealth Parliament under its defence power and their jurisdiction extends to offences committed by members of the defence forces. We are not concerned in this Paper with these offences.

V. THE CLERK OF THE PEACE AND THE SOLICITOR FOR PUBLIC PROSECUTIONS

3.26 The person who holds the office of Clerk of the Peace and Solicitor for Public Prosecutions plays an important role in the administration of the higher criminal courts. For this reason we comment briefly on the functions of this office. The person holding the office administers a sub-department of the Department of the Attorney General and of justice for which he or she is responsible, through the Under Secretary of Justice, to the Attorney General. The office holder has two distinct functions, ⁷ though the duties of some officers within the sub-department extend to both functions.

3.27 The first function is that of Registrar of the District Court in relation to the criminal and special jurisdiction of that court. For reasons of convenience, the Clerk of the Peace also performs some of the duties which strictly speaking, are the responsibility of officers of the Supreme Court in criminal matters.

3.28 The Clerk of the Peace, acting as Registrar

• receives depositions of witnesses, and the exhibits, in proceedings before stipendiary magistrates which have resulted in committals for trial or sentence, records them, and has custody of them until produced in court for the hearing;
• arranges for the listing of cases, issues subpoenas to witnesses, secures the attendance of accused persons, and causes jurors to be summoned;
• maintains the records of the court, and his final custody of them, issues certificates of conviction and acquittal collects compensation payments ordered by the court, and takes action in cases of breaches of good behaviour bonds;
• furnishes reports on applications for legal aid, changes of venue, and on miscellaneous applications by accused persons and others;
• pays the expenses of Crown and defence witnesses in legal aid cases; and
• initiates enforcement action in respect of recognizances forfeited in, and fines imposed by the District Court.

3.29 The second function of the Clerk of the Peace is to act as Solicitor for the (town in indictable proceedings in the District Court and in the Supreme Court, except in the following cases:

• offences against Commonwealth Acts or involving Commonwealth property prosecuted by counsel instructed by the Crown Solicitor for the Commonwealth;
• offences by officers of companies prosecuted by counsel instructed by the Solicitor for the Corporate Affairs Commission; and
• certain prosecutions instituted by the State Crown Solicitor in which that officer elects to instruct Counsel at the trial.

3.30 In prosecutions in which the Clerk of the Peace acts as Solicitor, Crown Prosecutors act ,is counsel. These prosecutors are not public servants in the technical sense of that expression but officers appointed by the (Governor, frequently from the private Bar, and invested with powers to prefer charges and prosecute offences. They usually, act as full-time prosecutors. On occasions, however, members of the private Bar act as Crown Prosecutors. This will usually happen when a full-time Crown Prosecutor is not available to conduct a particular trial.

3.31 The duties and responsibilities of the Clerk of the Peace, as Solicitor for Public Prosecutions, lie mainly in instructing Crown Prosecutors, implementing directions given by Crown Prosecutors, overseeing the staging of trials, instructing (town Prosecutors at trial, recording the results of proceedings, and taking any subsequent action required by reason of that result.

3.32 We say in chapter 6 that it may be thought difficult to reconcile the dual functions of the person holding the office of Clerk of the Peace and Solicitor for Public Prosectitions with the principle that the court stands impartially between prosecution and defence.

1. Regina v. Ghazi Zaineddine and Hannan Chamas, 6 May 1982, District Court, Martin DCJ.

2. Department of Attorney General and of Justice, NSW Bureau of Crime Statistics and Research, Court Statistics 1980 (Statistical Report 12, Series 2, NSW Govt Printer, 1980).

3. See District Court Act, 1973 (NSW) s.166.

4. Section 123.

5. Coroners’ Act, 1980, (NSW) s.28.

6. Information supplied by the Public Prosecutions Office to the Under Secretary of Justice in the course of a special administrative inquiry.

7. Paras. 3.27-3.29 are based on a Departmental statements of the duties and responsibilities of legal officers employed in the Office of the Clerk of the Peace and Solicitor for Public Prosecutions.