73% of criminal cases result in the accused pleading guilty to serious criminal charges.

23% of people accused of a serious criminal offence are entering a guilty plea at a late stage of the case. Particularly on the day of trial in the District Court.

For serious criminal cases, from when a case starts in the Local Court, it can take between 6 months to 2 years, for a matter to reach a trial in the District Court.

This means, in the period from the arrest of the accused, when the case begins in the Local Court till  the time when he/she pleads guilty (when the case reaches the District Court), a significant amount of resources and time is being used, creating a backlog in the courts.

If a matter is going to end up with the accused entering a plea of guilty, then it is much more beneficial that it be entered earlier than later, for the benefit of the accused, the victim(s) of the crime, witnesses, and the operation of the criminal justice system, including the courts- for obvious reasons. Delay creates uncertainty, stress and causes further expense to everyone involved- including the everyday taxpayer.

 What is Causing the Delay?

This significant delay, which is taking up unnecessary resources, is being caused by the late pleas of guilty being entered by more than half of the serious criminal cases in the NSW courts.

In order to find a solution to the unnecessary delays, the reasons for the late pleas of guilty must be identified. We can then implement appropriate procedures and laws to reduce the delays.

The new laws being introduced in NSW have considered the causes of delay, and now attempt to address it by encouraging earlier pleas of guilty.

Why are Defendants Entering a Late Plea of Guilty?

A late plea of guilty is creating a backlog and delay in NSW courts, creating greater stress to the accused, witnesses, victim(s) of the crime, and a significant diversion of NSW police resources away from other necessary work. This is caused by the following main reasons:

  • The prosecutions delay in serving the evidence to the defence. This also causes the following 2 main problems:
    • It often drives the accused’s expectations that the nature of the case will change; and
    • It leads to a prosecutor being involved late, who will eventually prepare, appear in the case, reassess, negotiate or change the charges. This causes delay in the reassessment of the charges.
  • The person accused of the crime ends up holding back on entering a plea of guilty because of his/her intention to postpone the inevitable penalty, a denial of the seriousness of his/her predicament until the first day of trial in the District Court, and/or in the hope that the case will be withdrawn by police upon a realisation of the absence of enough evidence or witnesses.
  • Absence of a continuation of legal representation results in a break in the preparation of the case, which includes advice and negotiations.
  • The Defence lawyers belief that more effective negotiations will take place shortly before the trial begins.
  • The Defence lawyers belief that the court will be flexible in applying a utility early plea discount, where the plea of guilty was entered late in the case.
  • The Crown Prosecutors, who have the authority to negotiate, are briefed in the case late.
  • The prosecutions acceptance of a plea to a lesser charge late in the case.
  • The Defence lawyers perception that it is common for the prosecution to overcharge early, whereby the charge will be reduced later in the proceedings (as the case advances).
  • The expectation by Defence lawyers, that further evidence will be disclosed closer to the trial in the District Court.

The New Laws Trying to Encourage More Early Guilty Pleas to Reduce Delay

The new laws will now significantly affect people accused of crimes, alleged victims, witnesses, prosecutors and defence lawyers.

The new laws will change the way cases are run and prepared, with the hope that it will get rid of, or reduce, the delay in serious criminal cases in NSW court proceedings.

The following changes are now being implemented into NSW Law:

  • Cause for Delay 1: The expectation that the initial charge filed against an accused will be changed at some later stage by the Office of the Director of Public Prosecutions (DPP), often on the first day of trial in the District Court.

The old system

This expectation has arisen largely because the DPP have usually been getting involved at a late stage of the case, by which time, significant time has passed.

By the time a DPP reviews the evidence at that late stage, the charges often do get changed.

The new system

After the charge has been initially laid by the NSW police Force, the DPP will now be required to get involved, to revise the evidence, in order to confirm, change, or withdraw the charge(s). This is to occur before the case reaches the case management stage in the Local Court.

The DPP will then certify the charge. If the charge is certified by the DPP, it will mean the charge should proceed. This attempts to get rid of the hope that the charges may later change (which has been a cause for delay in the old system).

Practically, a police charge will be laid against the accused. The matter will then come before the local court on the first day, when it will then be adjourned to the second court date in the local court. Between the first court date and second court date, the DPP will be required to review the evidence, and provide a charge certificate (or it may withdraw the charge(s)).

This occurrence may be repeated until the key evidence is served by police to the DPP (and to the Defence), and until the DPP have reviewed the evidence and certified the charge(s).

  • Cause for delay 2: Prosecution delay in serving the evidence.

The old system

The prosecution have been serving the evidence to the defence before the stage of committal hearing in the Local Court, which is usually many months after the first court date.

The evidence is often being served very late, or incomplete.

The evidence is often delayed due to delays by third parties, such as forensic analysis. Until the essential evidence is available, the defence, nor the DPP are able to revise and determine whether the charge is appropriate.

The new system

The police will now be required to give the DPP all the key evidence available (that it relies on to make up the offence) in the Local Court at an early stage of the proceedings (instead of many months later). This will then allow the DPP to revise the evidence for purposes of certifying the charge shortly after the first Local Court date.

The new system will also require the DPP to serve the same key evidence, it received, to the defence shortly after the first local court date. This will allow the defence to understand the prosecution case, and consider pleading guilty to it after assessing the key available evidence.

  • Cause for delay 3: Absence of a formal requirement for parties to conduct meaningful negotiations in the Local Court to resolve the matter early.

The old system

The old system doesn’t have any formal system or structure for the police, prosecution and defence to have informed discussions at an early enough stage of the case, in the local court, to negotiate and resolve the case.

The new system

The new system now mandates a formal avenue and structure for case conferencing between the parties.

This involves negotiations, in an attempt to resolve the case in a quicker way, by way of an early plea of guilty on a refined set of facts or charges, or refining the issues in the case. The DPP will now have the authority, at this early stage, to negotiate and resolve the case.

Significantly, a guilty plea after the case conference negotiations phase, in the local court, will still allow the maximum utility discount on sentencing (up to 25%). This increases the chances of a more lenient outcome.

  • Cause for delay 5: The resources used in Committal Proceedings in the Local Court creates further delay.

The old system

The Committal Process previously in place, took effect in the local court to ensure there is sufficient evidence by the prosecution for the accused to be committed to stand trial in the District Court.

The Magistrate would be required to decide this, taking up more court time- while majority of the time, this occurred “on the papers”, or is waived. Oral evidence in a committal hearing rarely occurred.

The new system

The new system gets rid of the committal proceedings, and replaces it with the Local Court case management. It removes the Local Court’s discretion on whether or not to commit the case to trial.

The new system still allows for oral evidence to be given by witnesses in the Local Court, in the same way as in a committal hearing in the Local Court.

The case management, replacing the committal proceedings, in the Local Court includes a focus of resources into the beginning of the proceedings- in an attempt to resolve the case early. It includes, mandatory case conferencing for negotiations in the local court, requiring a plea before the case leaves the local court, ensuring the key evidence is served to the defence by the prosecution.

  • Cause for delay 6: Inconsistent application of the sentence discount for utility value of a guilty plea causes delay.

The old system

The law in NSW currently provides an offender with a discount of up to 25% off the penalty/punishment on the sentence, if a plea of guilty is entered at the earliest possible opportunity in court.

The late service of evidence, and changes in charges, often results in the “earliest possible opportunity” occurring later in the case, creating delay.

There is no clarity as to the cut off point of when the discount doesn’t apply, for it to be applied consistently.

The new system

The new system now provides clarity for when, and how much, utility discounts (for pleas of guilty) should apply. There is now a 3 tiered discount regime in the legislation:

Tier 1: Maximum utility discount of 25% applies, where a plea of guilty is entered in the Local Court.

Tier 2: Maximum utility discount of up to 10% applies, where a plea of guilty is entered before the first day of trial in the District or Supreme Court (after the case leaves the Local Court).

Tier 3: Maximum utility discount of up to 5% applies, in any other situation. i.e. Where a plea of guilty is entered on the day of trial.

The Judges in the District Court will have a discretion to giving no utility discount on a plea of guilty, if he/she finds the defendant has been extremely culpable.

There are many factors a Court will look into when considering the appropriate penalty to give an offender. An early plea of guilty is one of those factors in convincing the Court to give a section 10 or the new CRO to avoid a criminal conviction.

Published on 30/12/2017

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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