The whole community benefits if we have an effective and efficient criminal justice system that contributes to a reduction in crime.
In 2014 an initiative to reform the criminal justice system started a conversation about its operation and asked the community and the legal profession to consider what improvements and efficiencies could be made to ensure better outcomes for the people of South Australia.
What is the criminal justice system?
The criminal justice system is made up of a number of entities. Each plays a different role in a system designed to address the community’s expectation that people who break the law are punished and face appropriate consequences and that victims of crime are treated with respect and sensitivity.
In August 1998 National Legal Aid and the Conference of Australian Directors of Prosecutions developed the Best Practice Model for the Determination of Indictable Charges and described the context of criminal proceedings as follows:
“Criminal procedure is, and should remain, fundamentally accusatorial, that is the State accuses the citizen of a criminal offence and must prove guilt without enforced assistance of the accused. While there is a public interest in improving the efficiency of criminal proceedings by reducing delay and costs, this must proceed in the context of the accusatorial framework.”
When a crime is committed and the alleged offender apprehended, the criminal justice system commences operation. It is a continuum along which the alleged offender will travel, with the point of departure and destination dependent upon their innocence or guilt and the nature of their crime. Along this continuum there are numerous different agencies that play important and varying roles.
The first interaction that an alleged offender has with the criminal justice system is with South Australia Police (SAPOL). SAPOL officers are tasked with investigating alleged crimes. They gather evidence to identify the alleged offender or offenders. In some cases SAPOL may utilise alternative options such as cautioning a person. Other offences may be expiable. Once there is enough evidence such that the police have reasonable cause to suspect the person committed the crime, police will either:
- arrest and charge the offender with the criminal offence
- report the offender for the criminal offence.
When a person is to be brought to court, SAPOL decide the charges to be laid against that person. This may later be reviewed by a prosecutor. SAPOL decide whether a person is returned back into the community on bail to await a trial in court, or whether bail is refused (in which case the person remains in custody). A person held in custody can apply to the Magistrates Court for release on bail however a magistrate may choose to keep them in custody (referred to as remanded in custody). SAPOL continue to collect evidence and support victims and witnesses.
Within SAPOL there are sworn officers who are trained to prosecute offences in the Magistrates Court as well as some matters in the Youth Court. For these cases the brief is provided to the SAPOL prosecutors. For any other matters, it is provided to the Office of the Director of Prosecutions (the ODPP).
The ODPP is an independent statutory body; established under legislation to undertake prosecutions of offences against the laws of South Australia. Generally the ODPP prosecutes the more serious matters in the District Court and the Supreme Court. The ODPP can also prosecute complex or sensitive matters in the Magistrates Court or the Youth Court. The ODPP employs not only lawyers to undertake prosecutions but also witness assistance officers to support victims and witnesses.
FSSA play a vital role when the evidence that proves that a person committed a crime is scientific. FSSA staff are regularly required to give evidence in court.
The LSC was established in 1977 under the Legal Services Commission Act 1977 (SA). The LSC aims to increase access to legal services for people who cannot afford to pay for private legal representation. The LSC receives funding from both the South Australian Government and the federal government to provide legal advice, education and legal representation.
The LSC has in-house criminal lawyers that represent accused persons in all the State courts and in addition, the LSC provides legal aid funding to private practitioners. In 2012-13, there were 11,963 grants of legal aid in criminal law matters. Private practitioners performed 67% of legal aid grants in criminal law matters and the remaining 33% was dealt with by in-house lawyers.
Summary offences are heard in the Magistrate Court before a magistrate. There are no juries and magistrates decide cases.
If an offence is not a summary offence it is called an indictable offence. There are major and minor indictable offences.
Major indictable offences such as murder, manslaughter and serious sexual offences are heard in the superior courts; the District or the Supreme Court. Murder is always heard in the Supreme Court.
Minor indictable offences are heard in the Magistrates Court, unless the accused person chooses to have it dealt with in a superior court.
How a person progresses through the criminal justice system will depend on their offence; summary offences and most minor indictable offences will be heard in the Magistrates Court with the trial (and sentencing) being before a magistrate. Trials for major indictable offences happen in the superior courts, but first need to go through committal proceedings.
Currently, committal proceedings in the metropolitan areas are conducted by lawyers from the ODPP, whilst in regional areas they are conducted by police prosecutors. Once a matter is committed for trial, certain procedures are followed and a trial date set.
In the superior courts, unless an accused person elects to have a trial in front a judge alone (referred to as a “judge alone” trial), guilt is determined by a jury.
If the accused is found guilty, then at a later time they will be sentenced by a judge or a magistrate once the prosecution and the defence have had the chance to make submissions on the appropriate sentence.
If the accused is found not guilty, they are free to go.
The court system in South Australia is administered by a separate entity called the Courts Administration Authority (CAA). CAA is established under the Courts Administration Act 1993 (SA) and is independent of government. Through CAA, the judiciary in South Australia control the provision of the administrative facilities and services to the State courts. CAA is not subject to direction by the executive government, even in matters of procurement and administration.
DCS administers our prisons and delivers programs and services to offenders in prison, with the aim of reducing the likelihood that an offender will commit further crimes. Sometimes an offender receives a penalty other than imprisonment, such as a good behaviour bond. Other times a prison sentence may be suspended and the person released on a good behaviour bond.
Such community based sentences usually include conditions that the offender must comply with, for example, a condition to attend a treatment program or to live at a certain address. Some offenders are also released from prison on conditions, for example, on parole or on a home detention program. DCS is responsible for supervising these offenders in the community.
For most offenders who have been imprisoned for less than five years and a non-parole period has been fixed, release on parole happens automatically, subject to some exceptions. Other offenders must apply to the Parole Board to be released on parole.
To make such decisions, the Parole Board must assess risk. The paramount consideration of the board when deciding an application for parole is the safety of the community.
Recidivism rates are the percentage of offenders who return to correctional services within two years of being discharged. To reduce crime rates and to enhance community protection and confidence, the recidivism rate needs to decline.
Youth Justice runs the Adelaide Youth Training Centre (AYTC) designed to provide a safe and secure environment for young people detained in custody. In addition, Community Youth Justice manages young people serving long term custodial orders and young people on community based youth justice orders.