Apr 17, 2018 | Assault, Criminal Law, Domestic Violence, Miscellaneous, Recent News

Summary of reform

Encouraging earlier guilty pleas will deliver swifter, more certain justice by reducing stress for victims and court delays.

Key changes

• Early disclosure of evidence by the NSW Police Force.
• Senior prosecutors will review evidence and confirm the charges that will proceed as early as possible
• Mandatory criminal case conferencing between senior prosecutors and the defence.
• Flexible and efficient case management.
• Smarter, stricter sentence discounts for guilty pleas.

Together, these changes will enable early decisions on the appropriate charges and encourage early appropriate guilty pleas.

Rationale

Although 73 per cent of serious criminal cases end with the defendant pleading guilty, 23 per cent of guilty pleas are not entered until the day of trial. These changes will deliver benefits for victims and the community by encouraging early appropriate guilty pleas.

This reform builds on recommendations of the NSW Law Reform Commission Report ‘Encouraging appropriate early guilty pleas’ and will help deliver tough and smart justice for safer communities.

Expected benefits

The early guilty plea reform is expected to:

• reduce stress on victims by resolving criminal cases faster
• reduce the District Court backlog, leading to swifter justice for the community
• reduce time and money wasted on police, courts and lawyers preparing for trials that don’t go ahead
• see offenders enter programs to address their offending behaviour earlier
• ensure guilty pleas are only entered by defendants where appropriate.

How the scheme works in practice

Early disclosure of evidence

Currently, all briefs of evidence provided by the NSW Police Force to the prosecution and defence are required to be in a form which is admissible in court. This can be time-consuming to prepare, so there is often a delay in providing those briefs.

Under the reform, the NSW Police Force will be required to provide a simplified form of brief, which must contain material that forms the basis of the prosecution case, is relevant to the accused, and affects the strength of the prosecution case. However, not all of this evidence will be required to be in admissible form when the brief is provide.

This means prosecutors will have the information they need to determine the charge earlier and the defence can make an informed decision about a plea without delays.

Certainty about the charge

Senior prosecutors have the experience and authority to determine the most appropriate charge. However, in most cases, they are not currently engaged until late in the criminal process, often after a trial date is set. As a result, charges can be withdrawn or amended late in the process. This uncertainty means defendants often delay their plea.

Under the reform, a senior prosecutor will review the brief of evidence as soon as it is served, and confirm (“certify”) the charges that will proceed. This will ensure the defendant is charged with the most appropriate offence as early as possible.

Mandatory case conferencing

Currently, there is no formal requirement for prosecution and defence lawyers to discuss a case before it progresses to trial.

Under the reform, senior lawyers for the prosecution and defence will be engaged earlier, and will be required to participate in a case conference. The defendant will be required to be available during the case conference to give instructions to their lawyers, where possible.

This conference will allow for meaningful discussion about the case, maximising opportunities for early guilty pleas and narrowing the issues to be dealt with at trial.

Flexible and efficient case management

Currently, Local Court magistrates are responsible for deciding whether matters should be committed for trial, based on the evidence available to support the charge. In practice, magistrates usually make these decisions without a hearing, and only about one per cent of committal cases are dismissed.

Under the reform, the substantive decision by the magistrate to commit a case for trial will be removed. Instead, senior prosecutors will perform the function of screening out cases through charge certification.

This will save time in the Local Court, but will also maintain existing mechanisms for the accused to test the strength of evidence by cross-examining witnesses, where appropriate.

Cases will be better managed as senior legal representatives from the prosecution and defence will be responsible for matters from start to finish.

Smarter, stricter sentencing discounts

The common law currently provides for a sentence discount of up to 25 per cent for an early guilty plea, which is applied flexibly by the courts. This means that a defendant who enters a plea at a late stage of the process, even on the day of trial, may still get the benefit of the maximum sentence discount.

The reform will tightly prescribe the following sentence discounts for indictable offences based on the timing of the plea, providing a clear incentive to plead guilty early.

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