By Paul Gregoire and Ugur Nedim
The trial backlog of the NSW District Criminal Court has been at a critical level for years.
In 2015, the NSW Law Reform Commission (NSWLRC) described the “sheer volume of trial matters” pending before the court as “overwhelming”.
At the end of July last year, there were 2,042 criminal trials and 1,195 sentencing matters outstanding in the NSW District Court. This was more than double the caseload at the end of 2010, when there were 977 criminal trials and 722 sentencing matters pending.
Over the period 2012 to 2016, the average delay between a case being committed to trial and its finalisation rose by 56 percent, from 243 days to 378, according to NSW Bureau of Crime Statistics and Research (BOCSAR) figures released at the end of last month.
While the time between an accused person being arrested and their trial coming to end stood at 714 days in 2016, which was up from 512 days four years prior.
Over this same period, the number of criminal cases to go before the District Court had risen by 35 percent. This increase is despite the fact that NSW crime rates have fallen to their lowest in forty years.
The rise in the workload of the NSW District Criminal Court since 2012 is attributed to an increase in cases involving illicit drug offences, which rose by an additional 577 defendants, as well as an increase in 293 defendants on sexual assault charges, and 225 on charges of theft.
The high cost of remandees
Trials delays cause significant stress to victims and defendants, who are waiting for their cases to be heard in court.
There are significant costs involved as well, as an increasing amount of defendants are being held on remand, which means they were refused bail and are awaiting their cases to be finalised whilst being detained in prison.
BOCSAR figures revealed that as of March this year there were 12,955 prisoners in NSW correctional facilities, which is an all-time high. This is a 13 percent increase over the last two years. And 59 percent of the increase over the last twelve months was due to prisoners on remand.
In March, there were 4,469 inmates being held on remand in NSW gaols, which accounted for 34 percent of the overall prisoner population. The average daily cost to taxpayers of detaining each of these remandees is $292 a day.
Government response to the backlog
As part of the 2017-18 budget, the Berejiklian government has committed $8.5 million to fund additional court capacity at the Downing Centre Court and Parramatta District Court. This will include two new courtrooms in the city and a new State Parole Authority hearing room out west.
“The new courtrooms will allow District Court trials to be listed sooner, reducing stress for victims and ensuring witnesses can give evidence sooner,” NSW attorney-general Mark Speakman said in a press release earlier this month.
This funding follows an extra $59 million investment in measures designed to reduce court delays that were delivered by the Baird government. This included the appointment of five new NSW District Court judges, which was announced by former attorney-general Gabrielle Upton in July last year.
Late guilty pleas
A 2015 BOCSAR report outlined that “the demand for court time could be substantially reduced through earlier guilty pleas.” The report cited 2014 NSWLRC statistics that found nearly 30 percent of defendants changed their plea to guilty on the first day of trial.
The report concluded that a substantial amount of court time was being wasted due to these late guilty pleas, as it’s not always possible for a new trial to be listed on the same day that a previously scheduled trial fails to proceed.
“If more of those who ultimately plead guilty were persuaded to do so at committal, the demand for trial court time would fall substantially,” the authors of the report wrote.
Incentivised guilty pleas
In an apparent response to this line of reasoning the NSW government is planning to incentivise early guilty pleas as part of its proposed “tougher and smarter justice” reform package it announced in May this year.
Currently, the Common law provides for up to a 25 percent sentencing discount for guilty pleas. Under the proposed changes, this discount would still apply for guilty pleas entered during committal hearings at the Local Court.
However, only a 10 percent discount would be allowed for those entered at the District Court before a trial. And a mere 5 percent discount would be permitted for a guilty plea entered on the first day of trial.
But this scheme ignores the fact that cases change significantly during proceedings, and allegations against an accused can often become far less serious. This means that incentivising early guilty pleas may actually prove detrimental in regards to the lengths of sentences defendants ultimately receive.
The determinants of trial length
The duration of trials is a major contributing factor in the delays of cases proceeding before the NSW District Criminal Court.
In an attempt to identify the factors that contribute to the length of trial times, BOCSAR recently undertook a preliminary study into the matter. Its finding were released last week in a report titled, The Determinants of Trial Duration.
Researchers found that trials before the NSW District Criminal Court last on average for 8.2 days. And trials can range from one day up to 132. Variables that affect the length of trials include the regions they take place in, as well as the types of offences being tried.
District Court regions
The report revealed that there’s significant variation in the length of trial times in cases being heard in different District Court regions. Wagga Wagga has the shortest trial durations averaging out at 4.8 days a case. Whereas, Sydney has the longest, which average at 10.6 days.
The longer trials at the Sydney District Court are due in part “to the fact that complex trials are more likely to be sent to courts” in this region, as well as Commonwealth prosecutions involving “more complex evidentiary issues” being heard in these courts by convention.
Different offences were found to led to differing average trial times. Trials involving a break and enter charge were found to be 20 percent shorter. For a charge involving illegal drugs trial times were 35 percent shorter, whilst a trial involving a charge of abduction resulted in a 44 percent increase in average trial durations.
And the relationship between trial lengths and offence types varied between regions. The average sexual assault case in Dubbo was 2.38 times longer than that in Sydney. Whereas, in Newcastle a sexual assault case was on average 76 percent the length of those in the Sydney region.
The BOCSAR researchers outlined that “accurate estimates of trial duration are critical to decisions about when to list successive trials.” And while their current study improves the ability to be able to predict the length of trials, more research needs to be done.
“As the saying goes ‘justice delayed is justice denied,’” the report concludes. “The question of what constitutes an unacceptable delay in bringing a case to trial however, is ultimately a political, not an empirical issue.”
And until politicians implement policies that lead to greater reductions in the NSW District Criminal Court backlog – whether that be in a further increase in funding, or a turnaround on their “tough on crime” stance – then both victims and defendants will continue to suffer this denial of justice.