By Jemma Holt
What is the Criminal Priority Programme?
The Criminal Priority Programme (CPP) is a priority listing programme designed to prioritise the listing of criminal cases eligible for the pre-recording of evidence at a pre-trial special hearing (‘PTSH’). It commenced as a pilot programme in the District Court of South Australia on 17 May 2021. The CPP, in its current form, has two main objectives:
- For those cases which are eligible for a PTSH but which also come within s 50B of the District Court Act 1991 (SA) (‘s 50B matters’) – namely, sexual offence prosecutions which involve complainants who are children or who have a disability – to dispense of the need for a PTSH by listing the trial within three to four months of arraignment; and
- To list all other PTSHs within three to four months of arraignment.
The current version of the CPP has been operating since 20 November 2023. It was preceded by a three-stage pilot program, during which the CPP was developed. For each revision of the CPP, the court provided information to the profession which set out updated listing and case management practices that corresponded to the changes.
Since its introduction, the core objective of the CPP has been to reduce delay in matters that fall within s 50B of the District Court Act 1991 (SA) – namely, sexual offence prosecutions which involve complainants who are children or who have a disability.
The early stages of the CPP focussed on prioritising the listing of PTSHs in s 50B matters. Stage 1 of the CPP sought to implement a framework to ensure PTSHs were listed and occurred within two to three months of arraignment. The latter stages of the programme introduced and developed the concept of listing priority trials instead of PTSHs. Stages 2-3 of the CPP focussed on s 50B matters listed for trial by judge alone (‘TBJA’). For those s 50B matters listed for TBJA, the aim was to secure a priority trial listing at the time a PTSH would ordinarily occur, thereby obviating the need for a separate PTSH. A key objective of Stages 2-3 of the CPP was for s 50B TBJA matters to be listed for trial within two to three months of arraignment. It remained the ongoing objective for PTSHs in non-s 50B matters to be listed within two to three months of arraignment.
The final and current version of the CPP further expanded the concept of listing priority trials instead of PTSHs. All s 50B matters – regardless of whether listed for TBJA or jury trial – are to be listed for a priority trial in lieu of a PTSH. The target time period was also revised to three to four months for both s 50B trial listings and the listing of PTSHs in non-s 50B matters. During the pilot stages of the CPP, the programme was subject to ongoing review and evaluation, which determined the necessary revisions and timing of each discrete stage of development. During this period, the CPP also responded to relevant legislative amendments.
A key feature of the CPP is the Criminal Priority List; a specialist list heard every Friday morning. The Criminal Priority List hears all new CPP matters listed for arraignment (not guilty pleas) as well as all subsequent pre-trial hearings for CPP matters. In the early stages of the CPP pilot, the Criminal Priority List was managed and presided over by a single District Court Judge. Different District Court Judges are now rostered to manage and preside over the Criminal Priority List for a one to two-month period.
The conduct of the Criminal Priority List is governed by the framework of the Criminal Procedure
Act 1921 (SA) and theJoint Criminal Rules 2022 (SA). Key pre-trial filing deadlines include:
- Not less than six weeks prior to arraignment the Prosecution must file and serve:
- the District Court Information – rr 92.1(2) and 92.3(2)
- the Prosecution Case Statement – s 123(1)(b); and
- any discreditable Conduct Notice – r 105.1.
- Defence Counsel must file and serve the Defence Case Statement not more than four weeks after receiving the Prosecution Case Statement – s 123(1)(3);
- If the trial is to be TBJA, Defence Counsel must file the election for TBJA prior to Arraignment – r 94.5; and
- If the matter involves multiple accused or multiple complainants and defence are seeking an order for separate trials or severance of counts, defence must file and serve a r 39 Notice to that effect prior to arraignment – r 102.1(2)(a).
Ideally, matters are listed for trial (s 50B matters) or for a PTSH (non-s 50B matters) at arraignment, and that listing is within three to four months. Other orders are made at arraignment, as need be, to manage outstanding pre-trial matters, including disclosure, defence requests for further disclosure, and defence subpoenas. Parties must apply to the court for an extension of time if they are unable to comply with court-imposed deadlines – r 39.1(1)(m).
Evaluation of the CPP
The current and final version of the CPP has been operating in the District Court of South Australia since 20 November 2023. In late 2024, an independent evaluation was undertaken to consider the performance of the CPP over the 12-month period from 20 November 2023 to 20 November 2024. Whilst there has been some limited review and reporting on the CPP during the preceding pilot stages, this evaluation is the most comprehensive to date.
Results and findings
During the first 12 months of the post-pilot CPP (20 November 2023 – 20 November 2024), a total
of 67 new matters entered the CPP. The CPP dealt predominantly with those cases that attract
the highest priority, with s 50B matters occupying 91 per cent of the CPP caseload.
The four-month CPP listing window is a key objective of the priority listing initiative that is the CPP and, therefore, a key performance indicator of the CPP. All indications are that the four-month CPP listing window is not merely aspirational but realistic and achievable.
If CPP matters resolved (which they did 31 per cent of the time), they did so within the four-month window 90 per cent of the time. On average, CPP matters resolved 60 days (two months) after arraignment. The CPP matters that remained disputed were listed for trial (or PTSH), on average, only seven days outside of the four-month listing window.
The majority of the time (89 per cent), CPP matters were listed for trial at arraignment. Significantly, all s 50B CPP matters arraigned from 3 May 2024 onwards received a trial listing at arraignment. In cases where the original trial listing was outside of the four-month window (32 per cent of the time), the reasons included disclosure, fitness/competency, witness availability, and counsel availability (and combinations thereof).
Original trial listings were vacated and relisted at least 32 per cent of the time. This finding is a conservative figure. Realistically, the true figure would be higher (only 13 of the 37 s 50B CPP matters had listed trials finalised or part heard at the time of data collection, meaning that those matters which remained listed for trial at the time of data collection could conceivably have trial dates subsequently vacated and relisted.) The reasons why original trial listings were vacated and relisted were similar to the reasons why original trial listings were outside of the four-month window: witness availability, disclosure, fitness and counsel availability. Relevantly, there were many examples of avoidable listing delays, both at the time of original trial listing and when original trial listings were vacated and relisted. For example, many of the disclosure and witness/counsel availability related delays were due to oversights (either in the out of court management of a matter or during in-court appearances).
In those CPP matters which were delayed beyond the four-month listing window (51 per cent), PTSHs were only utilised 10 per cent of the time. PTSHs can and should be utilised more in conjunction with priority listing practices as part of the CPP, particularly in cases where original trial listings are vacated and relisted on multiple occasions and/or well beyond the four-month window.
Distinct from the earlier pilot stages of the CPP, the administration of the CPP appears to have successfully expanded and diversified. This expansion and diversification is imperative to the longevity of the programme. Twelve different judges presided over CPP pre-trial listings during the 12-month period. Whilst the CPP involves intensive case management, indications are that this equates, on average, to a manageable five pre-trial listings (including arraignment) presided over by three different judges.
Much of the case management framework of the CPP is provided by the Criminal Procedure Act 1921 (SA) and theJoint Criminal Rules 2022 (SA), in particular, key pre-trial filing deadlines. Whilst the levels of compliance with these pre-trial filing deadlines were generally underwhelming, corresponding trend forecasts appear to indicate an encouraging decrease in non-compliance over the 12-month period. This finding is consistent with general observations of the case management practices consistently employed in the Criminal Priority List (for example, requiring applications for an extension of time to be in writing and accompanied by a supporting affidavit). The early stages at which defence trial counsel are first appearing on a CPP matter are equally promising. However, prosecuting trial counsel are consistently appearing for the first time on a CPP matter either on voir dire or the first day of trial.
Despite early intentions to include circuit matters (District Court country circuit cases heard in Mount Gambier and Port Augusta) within the CPP pilot, they remain excluded from the CPP in practice. During the 12-month period, there were at least six s 50B circuit matters which, but for them being circuit matters, would have otherwise been eligible and included in the CPP. The delays apparent in these matters (in two matters, there was over eight months between arraignment and trial) demonstrate the need for the CPP to be expanded to include circuit matters.
The CPP focusses on combatting delay at the post-committal stage. The earlier pre-committal stages of CPP matters provides valuable context for these ‘back end’ initiatives. Frankly put, four months at the final pre-trial stage of a matter is overshadowed by the 225 days that a CPP matter spends, on average, in committal proceedings in the Magistrates Court. Arguably, more attention can and should be given to the role and function of committal proceedings in priority matters and what delay, if any, can be mitigated during that earlier stage of proceedings.
Looking forward, potential challenges to the current and ongoing operation of the CPP include:
- a possible increase in the use of PTSHs in family violence matters and, in turn, an increase in the number of non-s 50B CPP matters;
- possible changes to the current communication partners scheme, which would increase the use of intermediaries in CPP matters; and
- possible policy and operational changes to the way in which prosecuting authorities approach the use of PTSHs, namely, to ensure that PTSHs are only utilised for adult witnesses when it is their informed choice to give evidence in that manner.
Further and ongoing monitoring and evaluation of the CPP is required, particularly in relation to
the abovementioned possible changes to relevant legal, policy and/or operational frameworks
which would impact or otherwise have potential implications for the operation of the CPP.
Recommendations
Based on identified areas of improvement, recommendations include:
- the increased use of PTSHs in conjunction with priority listing practices as part of the CPP, particularly in cases where original trial listings are vacated and relisted on multiple occasions and/or well beyond the four-month window;
- the expansion of the CPP to include circuit matters;
- greater focus on committal proceedings in priority matters and what delay, if any, can be mitigated during that earlier stage of proceedings; and
- further and ongoing monitoring and evaluation of the CPP, particularly in relation to relevant changes in policy and/or law that would impact or otherwise have potential implications for the operation of the CPP.
The CPP in broader context
Whether, and to what extent, the CPP is operating as intended is relevant to the case management and listing practices of the District Court, the wider South Australian criminal justice system, and its stakeholders. However, it also has potential wider application in the context of the development of law and policy of pre-recorded evidence in South Australia and elsewhere; notably, at a time when new and emerging research and literature are raising concerns about the widespread use of pre-recorded evidence.
Generally speaking, the direction of law and policy in recent times has been overwhelmingly in support of the increased use of pre-recorded evidence. All Australian and most other common law jurisdictions have uniformly introduced legislation that provides for ‘full pre-recording’ – recorded police interviews and recorded evidence hearings – and have thereafter proceeded to steadily expand the eligibility for pre-recorded evidence from being originally limited to children and persons with a disability to include a broader range of adult witnesses.
However, recent and emerging research and literature, in the United Kingdom (UK) and elsewhere, raises concerns about the widespread use of pre-recorded evidence, particularly with adult witnesses. Those concerns encompass a range of ‘unintended consequences’ on complainants, defendants and the administration of justice. A key objective of pre-recorded evidence at the PTSH stage is to reduce delay and the associated negative impacts of delay on both witnesses and the administration of justice. However, emerging research and literature suggests that the widespread use of PTSHs may, in fact, be contributing to delay, as well as a range of other unintended consequences across the criminal justice system. Arguably, priority listing programmes, which reduce reliance on PTSHs, are capable of delivering the benefits of reduced delay whilst avoiding the problems which appear to be associated with the expanded use of PTSHs.
It is in this context that the CPP is of particular significance. The use of priority trial listing practices to supplement pre-recorded evidence and the reduced reliance on PTSHs pre-emptively addresses many of the abovementioned concerns about the widespread use – or ‘overuse’ – of pre-recorded evidence. Arguably, such an approach is necessary for an efficient and sustainable pre-recorded evidence scheme in practice. In this way, the CPP represents a novel and progressive use of pre-recorded evidence.
This article is excerpted from the original manuscript of an article published in the Journal of Judicial Administration in July 2025. Please refer to the published article – available through Westlaw – for complete references.
