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Victoria Legal Aid backs trial allocation by judiciary

Date created: 03 April 2008

Victoria Legal Aid (VLA) believes a senior judicial officer should allocate indictable criminal trials to either the County or Supreme Courts. The officer’s decision should be based on the nature and seriousness of the particular case.

VLA’s position is in response to the state Attorney-General’s announcement 12 months ago that the Government is considering creating a single criminal list for allocating indictable criminal trials. The aim is to ensure that such trials are divided appropriately between the County and Supreme Courts.

Last December Crown Counsel John Lynch released a discussion paper outlining how such a proposal might operate. It describes three main options:

  • Allocation by prosecuting agency. Currently, the Director of Public Prosecutions allocates criminal cases to the County or Supreme Court based on statutory criteria, including seriousness, complexity and public importance (although the Supreme Court has the power to overrule this decision).
  • Allocation by offence classification. Based on the UK model, the primary determinant is the nature and seriousness of the particular offence.
  • Allocation by judiciary. Based on the South Australian model, a senior judicial officer determines the jurisdiction based on the nature and seriousness of the particular case.

VLA’s supports the South Australian model, arguing that the jurisdiction should not be determined by one of the parties involved, and allocating solely on the basis of the classification of the offence is arbitrary and may waste court resources.

A second question raised by the discussion paper is whether current restrictions on the cases which can be heard by the County Court cases should be removed.

At present, treason, murder, attempted murder and child destruction can only be heard by the Supreme Court. There does not appear to be a rational explanation for this distinction, except to note that it may be a hangover (pun not intended) from the days when these were capital offences.

Other serious offences, such as trafficking or cultivating large commercial quantities of drugs, now carry similar maximum penalties to these offences yet may be heard in the County Court.

VLA, then, does not see a reason why the County Court should not be able to hear homicide and other offences, where appropriate. This would mean that the seriousness and complexity of a case would determine where it should be heard, rather than simply the classification of the offence.