Feld, Francine --- "Choice of court: summary trial or trial on indictment?" [2017] PrecedentAULA 59; (2017) 142 Precedent 36

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CHOICE OF COURT: SUMMARY TRIAL OR TRIAL ON INDICTMENT?

By Francine Feld

INTRODUCTION

In all Australian jurisdictions, legislation provides for the hearing of some indictable offences summarily in Magistrates’ courts. The category of indictable offences triable summarily is growing. Last year, New South Wales (NSW) legislated to increase the number of indictable offences that may be tried summarily.^[1] The move was justified on pragmatic grounds, the stated objective being to ‘reduce court delays for all participants in the criminal justice system’.^[2] The reduction in delay would be achieved by reducing the number of trials that would be heard in the NSW District Court.^[3] The particular offences chosen to become eligible for summary disposition was justified on the premise that the range of sentences typically given (in the majority of cases) after conviction for those offences in the District Court was within the penalty range available to the Magistrates’ Court (two years or less of imprisonment for a single offence or a total of five years for multiple offences).^[4]

The effect of the change (assuming that summary disposal is in fact chosen by the relevant parties) will be a reduction in criminal cases determined by a judge and jury. This is consistent with a gradual trend away from jury trials in criminal cases, not only in practice, but also in sentiment among some commentators.^[5] This thinking is in contrast to the situation in civil cases, where there has been a recent call for a return to jury trials after a period in which juries have become almost non-existent in the civil jurisdiction.^[6] Curiously, the same reason for reducing the use of jury trials in criminal cases (to reduce delay) is offered as justification for re-introducing jury trials in civil cases. It is thought that trial by jury would speed up the disposition of civil cases because juries, unlike judges, do not need to give reasons for judgment.

The actual likely effect of the use of juries on the efficient administration of justice in criminal and civil jurisdictions is an interesting question, but is not the focus of this paper. Neither is it the purpose here to argue generally about the merits of jury trials compared with summary justice or, for that matter, trial on indictment by judge alone.

This paper is concerned only with this question: in criminal cases, when given a choice, is it better from the accused’s perspective, to proceed summarily or on indictment before a jury?^[7] There is no simple answer: it really is a matter of forensic judgement based on the particular case at hand. Nevertheless, there are some factors (practical as well as forensic) which typically arise for consideration.

Before considering those factors, it may be helpful to set out the position in each jurisdiction regarding indictable offences that may be tried summarily, and the scope of the accused’s choice in such matters.

INDICTABLE OFFENCES TRIABLE SUMMARILY

Trial on indictment is the procedure ordinarily used where an accused has been charged with a serious offence. It is the manner of proceeding in a higher court before a judge or jury (or sometimes before a judge alone) after some kind of committal process during which, after a plea of not guilty, the accused has been committed to stand trial.

A summary offence is the procedure by which less serious offences (and consequently the vast majority of criminal offences) are tried in Australia. Summary trial procedure is similar to the procedure for trial on indictment except that it requires neither a prior committal procedure nor a jury. It is also typically heard in a lower court before a magistrate, is quicker, much shorter in length and less costly than a trial on indictment.

Throughout Australia, there are numerous categories of offence, including, regulatory offences, simple offences, crimes, misdemeanours, indictable offences, summary offences, and so on. However, all Australian jurisdictions recognise a distinction between the following three types of offence (however described):

• Strictly indictable offences: those that must be dealt with on indictment in a higher court either before a judge and jury or sometimes before a judge alone;

• Strictly summary offences: those that must be dealt with summarily in a lower court before a magistrate; and

• Offences triable either way: those that may be dealt with by either procedure depending on an election made by the appropriate person – prosecutor, accused or the court.

Apart from this, there is little uniformity in the legislation of different parliaments in effecting this arrangement. Each of them differs with respect to the following three questions:

• What determines whether an offence will be strictly indictable, strictly summary or triable either way?

• What is the ordinary (or default) proceeding for offences that are triable either way?

• Who determines the procedure for an offence triable either way?

With respect to the first question, in Victoria for example, indictable offences include all offences that carry a penalty of five years to life imprisonment. Offences triable either way are those that carry a penalty of five to 10 years. In NSW, all offences punishable by more than two years’ imprisonment are indictable. Whether or not they may be tried summarily will depend on whether they are listed in one of two tables in the Criminal Procedure Act 1986 (NSW). Consequently, offences triable either way are known in NSW as “table offences”.

With respect to the second question, in some jurisdictions, the default position is that ‘either way’ offences will proceed via indictable procedure (committal followed by trial in a higher court), unless a party elects for the matter to be dealt with summarily or the courts thinks that it would be appropriate for the matter to be heard summarily. In others, the default position is the opposite – such offences will be tried summarily unless an election is made to have them dealt with otherwise.

And finally, as to who may choose how such offences are to proceed, in some jurisdictions the consent of the accused in the manner of proceeding will always be necessary, while in others it will be a matter solely for the prosecutor. In some, the court itself will have the discretion, or sometimes the obligation, to determine the issue with or without the consent of the parties. Again, to take Victoria as an example, the default position is that ‘either way’ offences will proceed as indictable offences unless the Magistrates’ Court considers in a given case that it is appropriate that it be tried summarily, and the accused consents to it being so tried.^[8] In determining the appropriateness of summary trial, the court must consider such things as the nature and seriousness of the offence, the likely complexity of the hearing, and the adequacy of sentences available to the court in the particular case.

In NSW, on the other hand, the default position is that all table offences will be tried summarily unless an election is made otherwise by the prosecutor (Table 1 and 2 offences^[9]) or by the accused (Table 1 offences only^[10]) to proceed as for an indictable offence. The effect is that in NSW the manner of trial will be determined in many cases by the prosecutor and there is no need for the accused’s consent. Furthermore, the court has no discretion to decide how the matter should proceed.

In spite of the considerable variation among them, in all Australian jurisdictions there is some, if variable, scope for the accused to choose the manner of disposal of “either way” offences (either by way of election, application or consent).^[11]

WHY CHOOSE SUMMARY TRIAL?

The relative chance of acquittal, followed closely by the likely penalty if convicted are perhaps the issues foremost in the mind of the accused and will therefore have the greatest bearing on the decision about which forum to choose. However, there may be many other practical issues of importance to the accused and these must be balanced against the factors that may be conducive to the best forensic outcome. For example, it may be that an accused, for reasons of anxiety or other life circumstances, would prefer a speedy resolution of the matter even if that involved forgoing a greater chance of acquittal. Therefore, the decision about the choice of court will involve a fine balancing of the interests in any particular case.

Efficiency, cost and media publicity

Summary trial is more expeditious, efficient, and cost-effective than trial on indictment. Time frames for the filing of documents in Magistrates’ courts are much shorter than in higher courts. Without the need to cater for juries, the summary trial itself is considerably shorter and therefore less expensive than a trial on indictment.

The median time between arrest and finalisation of a defended hearing in the District Court of NSW is 714 days, compared with 187 days in the NSW Local Court.^[12] For some accused, a delay of many months to years would be intolerable, regardless of the final outcome. A well-known accused or celebrity, for example, who might suffer disproportionately from protracted media coverage, may welcome the substantially shorter time frames in the Magistrates’ courts.

For many accused, the question of cost and delay might be reason alone (regardless of the outcome) to prefer summary trial. But, it should also be noted that delay can have a bearing on the chance of acquittal. If your case depends on calling witnesses who may forget, or become unavailable, over time, then a shorter wait before trial will be an important consideration..

However, the advantages of shorter delays overall must be balanced against the potential for disruption to the flow of the trial in the lower courts. Magistrates’ courts have a very heavy workload and operate according to strict allocation of time. Their listing arrangements mean that trials that do not finish within the allocated time may have to go over to another date some weeks later (multiple times), thereby losing some of the benefit of a short, concentrated trial process. For example, the adjourning of a trial half-way through the cross-examination of a witness could, in some cases, have a detrimental effect on the accused’s defence.

Lower penalty

The lower penalty range in Magistrates’ courts is perhaps the primary factor, from the point of view of most accused, in the choice between summary or indictable procedure. In NSW, the maximum penalty available to a Local Court Magistrate is two years’ imprisonment for a single offence or a total of five years for multiple offences.^[13] For many offences this is substantially lower than the penalty available in the higher courts.

Consider, for example, a charge of aggravated breaking and entering with intent to commit a serious indictable offence. In NSW, this is a Table 1 offence - an indictable offence triable summarily unless the accused or the prosecutor elects otherwise.^[14] The maximum penalty for this offence if it were heard on indictment is 20 years. The most that could be given by the Local Court after summary conviction would be two years. Of course, if the objective seriousness of the offence is low (as it should be if the prosecutor has not elected to proceed on indictment) it would be unlikely that the accused would be exposed to a substantially greater penalty if s/he elected instead to be tried in the District Court. However, the risk posed by the higher maximum available in the higher court will often be sufficient to warrant choosing the summary jurisdiction.

Indeed, from the accused’s point of view, if the penalty available in the lower court is always lower than that available in the higher court, why would the accused ever expose him or herself to a potentially higher penalty by choosing to have a charge determined on indictment? The short answer is this: whenever the higher court might afford him or her a better opportunity of acquittal. If the chance of acquittal is sufficient to outweigh the risk of a higher penalty on conviction, then the rational choice would be to take that risk. Later in this paper, we consider the factors that might in some cases give an accused a better chance at acquittal in a higher court. But first, we should consider the issue of penalty more fully.

Does the lower maximum penalty in Magistrates’ courts guarantee that the penalty after summary conviction will be lower than after conviction on indictment? Clearly not. If the objective seriousness of an offence is low, bringing it into the lowest penalty range, why would there necessarily be any difference between the penalty that would be given by a magistrate and that by a judge? If the particular offence warranted a penalty of less than two years (within the Magistrates’ court’s range) there is no reason to think that a judge would give a higher sentence than that simply because the matter had been determined on indictment.

Moreover, some people may think that judges are on average more lenient than magistrates. There might be good psychological reasons for this. Judges deal with serious cases all the time. Magistrates deal with many more cases than judges, but they are less serious. The effect of this might be that when a magistrate encounters a more serious case than usual, he or she may overestimate its objective seriousness. And vice versa - judges may underestimate the objective seriousness when they encounter an offence lower down the spectrum of seriousness than they are accustomed to seeing. Of course, this is mere speculation, unsupported by any authority whatsoever, but it does suggest that there is no necessary connection between lower courts and lower penalties, at least when the objective seriousness of the offence is low.

Nevertheless, the lower maxima available in the lower courts is perhaps the primary reason that it is relatively rare for an accused to elect for trial on indictment rather than summary trial.

Pre-trial publicity or antagonism towards the accused

Adverse pre-trial media coverage of an alleged offence can seriously prejudice the fair trial of an accused. Where this is a real issue, or where for some other reason there is prejudice or antagonism towards the accused, summary trial before a magistrate might be preferred. Magistrates, it may be argued, are better capable than lay juries of disregarding pre-trial prejudicial information.

Recovery of costs on acquittal

One significant difference between summary trial and trial on indictment concerns the recovery of costs on acquittal. This topic is dealt with only, of course, from the aspect of the client’s interests and not that of the lawyer’s. In the event of a not guilty verdict in the NSW District Court, recovery of costs from the Crown is quite closely restricted by the Costs in Criminal Cases Act 1967 (NSW). In the NSW Local Court, there are fewer restrictions, and costs are more readily recovered where there is a summary acquittal.^[15]

Right of appeal

In most cases, there is an appeal as of right from a summary conviction or sentence. The right of appeal from a trial on indictment is more restricted and requires demonstrating an error of law. Furthermore, where an accused is sentenced to a custodial penalty in the summary jurisdiction, he or she is likely to obtain bail until the appeal is heard. An appellant from a conviction on indictment may have to demonstrate special reasons for the granting of bail awaiting appeal.

WHY CHOOSE TRIAL ON INDICTMENT?

The lower maximum penalty and the speed and efficiency of summary trial will be decisive in most cases where an accused is charged with an offence triable either way. However, there will be times when the balancing of the accused’s interests will favour opting for the indictable procedure if possible. The most compelling reason for choosing trial on indictment is where it offers a sufficiently good chance of acquittal such as to make it worth the risk of a higher penalty if the accused is ultimately convicted.

The overall rate of acquittal after a defended hearing in the higher courts is consistently somewhat higher than it is in the Magistrates’ courts, but not by a great deal (on average there is about an eight per cent better chance of acquittal in the higher courts than in Magistrates’ courts).^[16] But those statistics do not tell us which cases result in acquittal or why.

Are there any general factors that determine when a trial on indictment might afford a better chance of acquittal?

Committal proceedings

Trial on indictment is before a judge and jury following a committal procedure. In theory, if the case against the accused is weak, there may be a good chance of the charge being dismissed, especially if it were possible to sufficiently discredit the prosecution witnesses to the extent that the magistrate would find that there would be no reasonable prospect of a jury convicting. That might possibly cause an accused to take his or her chance at committal rather than proceeding with summary trial, but it is unlikely. First, in each case (committal or summary trial), a magistrate will be presiding and so, with a sufficiently weak case, the magistrate would presumably dismiss the case at summary trial in any event. Second, in most jurisdictions, committal proceedings have been streamlined so that few involve the cross-examination of witnesses and so the opportunity of discrediting witnesses is no longer always available.

Therefore, whatever advantage there is in opting for trial on indictment rather than summary trial will flow from the trial process itself. What are the advantages then of trial on indictment?

Trial atmosphere

The first thing to be said is that a trial on indictment, once it actually starts, offers a more measured atmosphere than a summary trial. Magistrates have an enormous workload. Such a high-pressure environment is not necessarily the best atmosphere in which to devote time and care to the consideration of evidence or the law. Daily transcripts will rarely be available. As mentioned earlier, there may be numerous interruptions in the trial in order to deal with urgent short matters in the list. It is fair to say that summary jurisdiction offers an expeditious, inexpensive and efficient process of justice, but it may not always be optimal in terms of accuracy and fairness of outcome.

A further consideration is that it is still the case that the majority of summary prosecutions will be conducted by police prosecutors.^[17] Impartiality may be a perceived issue (even if it is not necessarily a real one). This may be of special concern for an accused who is well-known to police who may feel that a fairer trial would be obtained with an independent prosecutor.

Jury v single magistrate

There are some cases in which having a jury of 12 lay people (rather than one magistrate) may give a better prospect of success to an accused. For example, where a matter calls for the judgment of the common person a jury might be the more appropriate choice. Imagine a pub fight, involving a claim of self-defence. Such a case will involve a judgement about the reasonableness of the accused’s response in the circumstances. It may also involve significant issues of credit. In determining such issues, it might be thought that the life experience of 12 lay jurors is preferred over that of a single magistrate.

Strength of prosecution case

A jury might be preferred in some circumstances where the case against the accused is strong. Rather than facing almost certain conviction by a magistrate, it might be worth trying one’s luck with a jury. An argot exists among experienced criminal lawyers, on which I make no comment, that it may be easier to persuade a jury of 12 people, rather than a single magistrate, that a reasonable doubt exists.

A weaker prosecution case, on the other hand, makes the decision more difficult. Imagine a case that relies heavily on identification evidence, which is notoriously unreliable. In a higher court, the judge may exclude the evidence and the jury will not hear about it. On the other hand, if it is not excluded, a jury will often put more store on it than is warranted (in spite of a direction by the judge as to its unreliability). Then again, if the case were heard summarily, the evidence will be before the magistrate. Even if the magistrate has ruled it to be excluded, any person, not just a magistrate, may be subconsciously affected.

Unfairly prejudicial evidence

The same can be said for any kind of unfairly prejudicial evidence: for example, graphic evidence or prior convictions. Such evidence will usually be kept from a jury, but if presented in the lower court, will be in the mind of the magistrate even if formally excluded from consideration by operation of the rules of evidence. The counter-argument is that if such prejudicial information finds its way into the public domain (for example, on the internet), a jury is more likely to find it and may be less likely to disregard it than a magistrate. Rules and judge’s directions not to enquire about, and to disregard, such information are not necessarily effective.

Favourable prejudice

One situation that might favour trial before a jury is where the accused can capitalise on his or her good name in the community. This might be the case where an accused is well-known and respected in a small country town. If it could be expected that any jury that would be selected to hear the trial would be predisposed in favour of the accused, a jury trial would offer an obvious advantage over a summary trial. Of course, prospective jurors are informed that they must volunteer to be excused if knowledge of the accused could affect them, but there are degrees of such knowledge, and an honest but affected prospective juror may refrain from volunteering.

CONCLUSION

The factors affecting an accused’s choice between a summary trial or trial on indictment are often inchoate and conflicting. It is difficult to articulate all of the reasons on which the decision might be based. The decision will often boil down to this: Would a jury trial offer a better chance of acquittal? If this is unclear, then choose the jurisdiction that may likely impose the lowest penalty on conviction – usually, but not necessarily, that will be the Magistrates’ court.

Francine Feld lectures in evidence law and criminal procedure, and is Director of Online Academic Programs, at Western Sydney University School of Law. PHONE [phone] EMAIL [e-mail].

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^[1] Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Act 2016 (NSW).

^[2] NSW, Parliamentary Debates, Legislative Council, second reading speech for the Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Bill 2016, 20 September 2016, (David Clarke).

^[3] Ibid, quoting statistics from the NSW Bureau of Crime Statistics and Research (BOCSAR) that show that currently, it takes on average 11.6 months for a case to be finalised in the NSW District Court, compared with four months in the Local Court.

^[4] Above note 2.

^[5] See eg, Justice Peter McClellan (then Chief Judge at Common Law), ‘The Future Role of the Judge – Umpire, Manager, Mediator or Service Provider’ (Speech delivered at the University of NSW Faculty of Law, 1 December 2011). Furthermore, many jurisdictions have legislated to allow for the electing of trial by judge alone (ie, ACT, NSW, Queensland, SA, WA).

^[6] M Whitbourn, ‘NSW Bar Association push to reintroduce juries in civil trials in NSW’, Sydney Morning Herald, 16 February 2016.

^[7] In most jurisdictions, it is now possible to have a trial heard on indictment before a judge alone. Some of the factors to consider in requesting that procedure are relevant to the choice between a summary trial and a jury trial, but many of the considerations will not be the same. This paper is only concerned with the latter choice.

^[8] Criminal Procedure Act 2009 (Vic), s29.

^[9] Criminal Procedure Act 1986 (NSW), Sch 1.

^[10] Ibid.

^[11] The following lists the main provisions in each state and territory relevant to these questions: Crimes Act 1914 (Cth): ss4H-4JA; Legislation Act 2001 (ACT): s190; Crimes Act 1900 (ACT): ss374-375A; Magistrates Court Act 1930 (ACT): s22; Criminal Procedure Act 1986 (NSW): ss5-8, 258-273; Criminal Code (NT): s3; Local Court Act (NT): s 120-122A; Criminal Code Act 1899 (Qld): s3, 552A-552BB; Summary Procedure Act 1921 (SA): s5, 103; Justices Act 1959 (Tas): ss71-72C, Criminal Code Act 1924 (Tas): s5; Sentencing Act 1991 (Vic): ss112-113; Criminal Procedure Act 2009 (Vic): ss28-30; Criminal Code 1913 (WA): s5.

^[12] NSW Bureau of Crime Statistics and Research, NSW Criminal Court Statistics December 2016, Table 6.

^[13] The maximum penalties in the lower courts differ between the Australian jurisdictions (ranging from one year to five years for a single offence) but are always well below the maximum available in the higher courts for the same offence.

^[14] Crimes Act 1900 (NSW): s112(2). This offence may be dealt with summarily as long as the serious indictable offence is stealing or intentionally or recklessly destroying or damaging property (to a maximum value of $60,000) and the only circumstance of aggravation is that the is that the alleged offender is in the company of another person or persons: Criminal Procedure Act 1986 (NSW), Sch 1, Table 1, s8A.

^[15] The recovery of costs in summary cases is governed in NSW by the Criminal Procedure Act 1986 (NSW) which is more restrictive than the law in other jurisdictions. After the High Court’s decision in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 (which held that costs should ordinarily be awarded in favour of a successful defendant in summary criminal proceedings), the NSW Parliament moved to restrict the circumstances in which costs would be awarded in such cases (although it remains less restrictive than for trials on indictment).

^[16] This figure is based on statistics available from the Australian Bureau of Statistics, Criminal Courts, Australia, 2015-16, but is confined to an analysis of the NSW courts. It was calculated by comparing the number of defendants acquitted with the number of defendants found guilty by a court (other than those who pleaded guilty or were found guilty ex-parte) in Magistrates’ courts and higher courts, averaged over the years 2012 to 2016. Australian Bureau of Statistics 2016, Criminal Courts, Australia, 2015-16, 'Table 15: defendants finalised, summary characteristics by court level – NSW 2011-12 to 1015-16 data cube: Excel spreadsheet, cat. no. 4513.0, viewed 4 August 2017, <http://www.abs.gov.au/AUSSTATS/subscriber.nsf/log?openagent & criminal%20courts,%20table%20concordance%202015-16.xls & 4513.0 & Data%20Cubes & 7DFA5E6F4BA37E88CA2580D600135D66 & 0 & 2015-16 & 02.03.2017 & Latest> .

^[17] The Commonwealth and ACT are the only jurisdictions in which the police do not conduct any criminal prosecutions.