Criminal trial delays in Australia : trial listing outcomes
This research examines the reasons for which criminal trials in Australia fail to proceed on the day of listing. The rationale of such an inquiry is that matters that fail to proceed as scheduled contribute to backlog and delay, both of which consume significant criminal justice resources. Moreover, delay in the criminal trial system may result in adverse effects, not the least of which is the anguish endured by the victims of crime and their families, and the community demanding protection from criminal offenders. This research used quantitative data from courts across a number of Australian states and territories to demonstrate that more than half of all listed criminal trials fail to commence on the listed day. After an analysis of data about trials and extensive interviews with court administrators, it is found that those trials that do not proceed can be placed into two categories: those trials that are finalised on or near the trial date either by way of late guilty plea or late withdrawal by the prosecution, and those trials that are adjourned and re-listed. While some delays will be inevitable, the report builds on recommendations made by a working group of the Standing Committee of Attorneys-General to suggest ways of reducing the backlog of criminal trials across Australia.
Prosecutorial decisions in adult sexual assault cases
Prosecution agencies are often criticised for their performance in prosecuting sexual assault. A lack of external transparency means there is little knowledge about the specific criteria used in decisions to proceed with or discontinue prosecutions. Understanding the factors that impact on the exercise of prosecutorial discretion therefore constitutes an important step towards improving criminal justice outcomes in sexual assault prosecutions. This paper analyses prosecutorial decisions to proceed with or discontinue prosecution in a sample of adult sexual assault cases. The results indicate that case decisions are primarily based on evidentiary considerations related to the ability to secure a conviction, but they also raise questions about the handling of cases involving prior relationships. Toni Makkai Director Prosecutors employed by the state and territory offices of the Director of Public Prosecutions (DPP) are vested with a range of discretionary powers in relation to prosecuting indictable offences. Some of the most important decisions include whether to proceed with a prosecution and whether to discontinue prosecution by either deciding not to find a bill of indictment (no bill), or declining to present an indictment to the court (nolle prosequi). Each DPP has developed a prosecution policy to guide prosecutors in making decisions about the conduct and disposition of cases. While there are differences in the various guidelines, they all identify two essential elements to be considered in determining whether to prosecute (Refshauge 2002). First, there must be sufficient evidence to justify prosecution and provide reasonable prospects of conviction. This assessment takes into account factors such as the competence, credibility and availability of witnesses, the admissibility of evidence, and any other factors that could affect the likelihood of a conviction. Once it is established that there is sufficient evidence, the second and overriding concern is whether it is in the public Interest for the matter to proceed. The public interest is not a question of political or popular pressure; relevant factors Include the seriousness and prevalence of the offence, factors related to the victim and the defendant,1 and the need to maintain public confidence in institutions such as the courts. Few Australian studies have examined factors that predict prosecutorial decisions in adult sexual assault cases. A Queensland study (Briody 2002) and United States research show that case decisions are shaped by a complex Interplay of structural and attitudinal factors (Kerstetter 1990; Kingsnorth, Macintosh & Wentworth 1999; Spohn, Beichner & Davis-Frenzel 2002). Decisions are largely driven by legal considerations relating to the prospects of conviction, such as the seventy of the crime, the type and strength of the evidence, and the defendant's culpability. The data also show that prosecutorial decisions are open to influence by variables that are extraneous to the legal elements of the case, including sociodemographic characteristics of victims and defendants and the victim-defendant relationship. These decisions often involve legal issues that are matters of professional judgment and require a degree of subjectivity, so prosecutors can have different views on a matter and some decisions may reflect personal biases. An influential perspective on legal decision-making, derived from a study by Albonetti (1987), suggests that the relative weight given to legal and extralegal factors will vary, as prosecution decision-making is principally oriented towards eliminating uncertainty in pursuing cases that are likely to lead to a conviction. Prosecutors know that they cannot predict or control the behaviour of the defendant, defence counsel and jury, so the probability of proceeding increases in the presence of legal and extralegal factors that boost the likelihood of success and decrease uncertainty over potential outcomes (Al bon etti 1987). …
Child Witnesses in Scottish Criminal Trials* †
This paper presents the results of the first British study to record systematically observations of children giving evidence in criminal trials. Psychologists watched a total of 89 children aged between 5–15 years being examined as prosecution witnesses in a wide range of riminal cases being heard in the District, Sheriff and High Courts of Glasgow, Scotland. Ratings were made of the child's demeanour and of the lawyers' questioning techniques. Most children were able to give their evidence reasonably well; nevertheless a third of them did appear tense and unhappy while in the witness box. The results are discussed in the context of recent attempts to reform the procedures for hearing and testing children's evidence in British criminal courts.