Saturday, November 5, 2011

AG at Estimates: Charge Bargaining

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

The Hon. ADAM SEARLE: Minister, in March 2010 you indicated that a review of charge bargaining guidelines should be undertaken. In answer to question 445 in the Legislative Assembly, when you were asked whether you proposed to alter or review the guidelines for the Office of the Director of Public Prosecutions in relation to charge bargaining, you indicated no. Are you able to indicate what changed your mind in such a short time? 

Mr GREG SMITH: If I remember rightly, back in 2010 the proposed amendment to the Crimes (Sentencing Procedure) Act was requiring Crown prosecutors or persons who were representing the Crown on a plea of guilty to file a certificate with the court verifying that there had been consultation with the victims, but also that the agreed facts constituted a fair and accurate account of the objective criminality. The Crown prosecutors were up in arms about that and I was aware of that. It showed a lack of understanding by those proposing that. Often if a victim of crime does not want to give evidence, to get a statement of facts together that the perpetrator is prepared to plead to you often might have to remove the presence of a knife from the statement of facts, or something like that. 

Otherwise there is no plea of guilty, there is no trial—there is a no bill. But you get a result if you can get a plea to a lesser charge with perhaps less serious facts. But they were the provable facts. The original suggestion did not ask for the provable facts, it just asked that it constitute a fair account of the objective criminality. Therefore, the words "or have otherwise been settled in accordance with the applicable prosecution guidelines" were added. Putting the alternative solved the problem because the prosecution guidelines, as I understand them, allow for a summary of facts that represent what can be proved. 

The Hon. ADAM SEARLE: I think your indication in 2010 that the guidelines should be reviewed was in the context of your criticism of what you termed "plea bargaining". You were being critical that the Office of the Director of Public Prosecutions was engaging in plea bargaining in criminal matters. 

Mr GREG SMITH: I am sorry, but I do not understand that I ever criticised plea bargaining—or charge negotiation, as it is fashionably called at the Office of the Director of Public Prosecutions. 

The Hon. ADAM SEARLE: Charge bargaining. 

Mr GREG SMITH: Charge bargaining. I think I was just attacking this proposal to, as it were, remove some of the independence of Crown prosecutors proposed by the Government at that time. I was concerned that there had already been a fair bit of reduction of independence during that last term. 

The Hon. ADAM SEARLE: But do you recall calling for the guidelines to be reviewed in March 2010? 

Mr GREG SMITH: The guidelines are probably 200 or 300 pages long so I do not think I ever called for all of them to be reviewed. I think it was just this particular one about charge negotiation and it was a question of how far they had to go while naturally taking into account the views of the victim whose sensitivities must be always respected. But who is the victim sometimes and who represents the victim sometimes were issues that I do not think were being addressed properly. I heard that all they were going to do was make the Crown sign an undertaking that the facts were an objective summary of the evidence in the case, and that is what I wanted to change. I am happy with the compromise that was ultimately agreed to.

No comments:

Post a Comment