6 |
Charge Negotiation |
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| 6.1 |
Negotiations between the parties are encouraged and may occur at any stage of the progress of a matter through the courts. Charge negotiations must be based on principle and reason, not on expedience or convenience alone. |
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| 6.2 |
In any case of complexity or sensitivity, the defence should be asked to put in writing a negotiated charge offer including their arguments in support of such an offer. Such offers will always be considered on a without prejudice basis. In some cases it may be appropriate to inform the defence that the prosecution will not consider an offer unless its terms are clearly set out in writing. |
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| 6.3 |
A negotiated plea of guilty may be considered if the public interest is satisfied, taking into account the following matters: |
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(1) |
whether the alternative charge adequately reflects the essential criminality of the conduct and the plea provides adequate scope for sentencing; |
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(2) |
whether the evidence available to support the prosecution case is weak in any material respect; |
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(3) |
whether the saving of cost and time weighed against the likely outcome of the matter if it proceeded to trial is substantial; and/or |
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(4) |
whether it will save a witness, particularly a victim or other vulnerable witness, from the stress of testifying in a trial. |
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| 6.4 |
A negotiated charge will normally not be appropriate where: |
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(1) |
its acceptance would produce a distortion of the facts and create an artificial basis for sentencing; |
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(2) |
its acceptance would render inadmissible facts essential to establishing the criminality of the conduct; |
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(3) |
the offender intimates that he or she is not guilty of the offence; or |
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(4) |
an offender will avoid a mandatory term. |
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| 6.5 |
In all cases, the views of the victim and the police officer-in-charge concerning the acceptance of a plea of guilty or the contents of a statement of agreed facts must be sought and will be taken into account before final decisions are made. Those views must be recorded on the file and made available to the Director's Chambers. Those views are not determinative. It is the public, not any private individual or sectional, interest that must be served. |
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| 6.6 |
The acceptance of a negotiated charge will only occur after all of the material has been reviewed by at least one Chambers’ prosecutor. Where there are differing opinions, the matter is to be referred to the Director's Chambers for review. This process is designed to protect against capricious or other ill-considered judgments. The determination of the reviewer(s) must be recorded on file. |
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| 6.7 |
Where the appropriate review has occurred, been documented on the file and the plea is approved, a prosecutor may agree to a negotiated charge. |
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| 6.8 |
Records must be made as events occur for transparency and probity. A prosecutor is required to reduce to writing any agreement that is reached. If possible the agreement should be signed by each party. A prosecutor should be familiar with GAS v R; SJK v R 206 ALR116. Any offer by the defence must be recorded clearly, including any offer that is rejected. |
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| 6.9 |
If a version of the facts is negotiated and agreed: |
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(1)
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the prosecutor must prepare or obtain a statement of agreed facts. A copy must be kept on file; |
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(2) |
where evidence is to be omitted from a statement of facts, the views of the police officer-in-charge and the victim must be sought and noted before agreed facts are adopted; |
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(3) |
where the prosecution agrees not to rely on an aggravating factor no inconsistent material should be placed before the sentencing judge: R v De Simoni (1981) 147 CLR 383. |
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| 6.10 |
Where an earlier offer has been rejected by a prosecutor any subsequent proposal to reverse the decision (where circumstances are otherwise unchanged) should be referred to the Director's Chambers. |
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| 6.11 |
In cases which are serious or potentially contentious, or involving the death of any person, no acceptance of any plea offer to lesser or fewer charges shall occur without the consent of the Director. |
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| 6.12 |
Some charges may be suitable for inclusion on a Form 6 (Disposal of Other Pending Charges) under section 107 Sentencing Act where the offender admits having committed certain listed offences - Guideline 16: Sentence. |
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| 6.13 |
If plea negotiations relate to an offender, who is also an informer, apply - Guideline 19: Informers. |
