By Sophie Coulson
The Attorney-General announced last month that the ‘Early Appropriate Guilty Plea’ (“EAGP”) Reforms proposed by the Law Reform Commission (“LRC”) will be implemented in early 2018. This post outlines the proposed changes and the motivation for each change.
In November 2014, the LRC published a report titled ‘Encouraging Appropriate Early Guilty Pleas’. The report made a number of proposals addressing the ever increasing delays in our higher courts. Submissions were made to the LRC by various agencies, all differing in views on the proposed changes. The one thing that they could all agree on was that something needed to be done to address the increasing delays and backlogs.
The NSW Bureau of Crime Statistics and Research (“BOCSAR”) examined the median number of days it took for a matter to progress from the date of arrest to the completion of the matter. It is not surprising that a comparison of the median number days between 2010 and 2013 demonstrated that the delays are increasing each year. The assessment shows that:
- The median number of days for trial matters increased from 452 to 517; and
- The median number of days for sentence matters increased from 407 to 483[i].
These delays have certainly increased over the past four years, demonstrated by, among other things, the frequency in which trial matters are not reached and the fact that defendants are now waiting for over 12 month for their trial to be heard. These delays can only been addressed by major changes to our current system. Without such changes the situation will continue to worsen.
We know, thanks to the statistics below, that a plea of guilty is eventually entered in most matters. The issue is that most guilty pleas are not entered until after committal. If we are looking for reasons as to why we are experiencing increasing delays, this is a great example. In 2013:
- 83% of criminal matters heard in the District Court of NSW were resolved by way of a guilty plea;
- 35% of these guilty pleas were entered late; and
- 66% of these late guilty pleas were entered on the first day of trial[ii].
The later the guilty plea, the more resources involved and the longer the delay. What is causing these pleas to be entered so late? One figure that troubles me, and may provide an explanation to this question, is that 63% of the pleas entered on the first day of trial were to an amended charge?[iii] This figure is telling us that it is taking far too long to settle the appropriate charge for the offence and that earlier negotiations are proving to be ineffective.
If you are anything like me, you will be surprised by the statistics and wondering what can be done. Thankfully, the LRC has done the hard work for us and propose a blueprint restructuring our current system. This new system requires a “holistic, inter-agency and cross-disciplinary” response to the proposed changes and is outlined below.[iv]
Current system and statistics
It is essential to understand how the current system is operating prior to examining the blueprint and proposed changes. In the 2012/2013 financial year:
- 41% of matters were dispensed of in the Local Court;
- 31% were committed for trial; and
- 28% were committed for sentence.
Of the 30% of matters committed for trial, 46% eventually entered a plea of guilty[v].
In 2013, 83% of all matters in the District Court were resolved by guilty plea. An alarming 35% of these guilty pleas were entered after committal. The statistics relating to guilty pleas entered after committal are provided by the Office of Director of Public Prosecutions (“ODPP”) and are as follow:
- 30% of matters committed for trial proceeded to a defended trials;
- 29% of accused persons entered a plea of guilty on the first day of trial (63% of which were to an amended charge);
- 23% of accused persons entered a plea of guilty between arraignment and the first day of trial;
- 12% of matters were discontinued by the prosecution; and
- 6% of matters were disposed due to mental illness or other matters[vi].
In an ideal world, the appropriate charges would be laid from the outset, the relevant evidence would be made available earlier and an accused person would be in the position to enter a guilty plea prior to committal thereby receiving the highest available discount. The current delays would reduce as would the backlog. We do not live in an ideal word systemically but the LRC proposals aim to get us closer to this position.
So how long it is taking matters to progress through the system? BOCSAR assessed the average number of days it took for indictable matters to travel from:
- The arrest to the date of committal; and
- The committal to the finalisation of the matter.
In 2010, the average number of days it took a matter to progress from the arrest date to the date of committal was 226 days. By 2013, this figure had increased to 286 days[vii]. In 2009, the average number of days it took a matter to progress from the date of committal to the finalisation of the matter was 204 for matters committed for trial and 163 days for matters committed for sentence. These figures increased to 231 and 197 respectively by 2013[viii].
For a full discussion of the statistics refer to chapter two of the report
The obstacles in our current system
As lawyers, we know that the best questions start with who, what, when, where and why. We know the ‘what’. I now turn to the ‘why’.
The first reason why late pleas are common is because the police charge cannot be proven or it does not reflect the criminality of the offence. It has become common practice for the police to commence proceedings on one charge and the ODPP to finalise those exact proceedings on a different charge. As highlighted above, 63% of day of trial pleas were entered to amended charges[ix].
Lord Justice Auld considered this issue in ‘Review of the Criminal Courts of England and Wales’ ((2001) 408):
“The practice of early charging by the police, and the prosecution’s failure to remedy the charge at an early stage, was a “significant contributor to delays in the entering of pleas of guilty”[x].
Understandably, the defence will not advise an accused to plead guilty if the evidence does not support that charge and is therefore likely to be discontinued or replaced with a different charge. The LRC Report states that this “is part of a systemic problem, whereby delaying a guilty plea in anticipation of new evidence and/or charge bargaining is considered a reasonable or even necessary defence strategy”[xi]
It is accepted that police lay charges based on indefinite and incomplete evidence all whilst under time pressures and constraints. By the time that the ODPP reassess or evaluate the charge, the majority of the evidence is available allowing a more accurate assessment of the prospects of conviction. The correct charge must be laid, and reviewed, prior to committal in order to encourage defendants to plead guilty at an earlier stage.
The next explanation for late guilty pleas, and more specifically the median number of days for matters to progress through the system, is that the guideline in the Local Court Practice Note (Com 1) is not being adhered to. The current Local Court Practice Note (Com 1) allows a period of 13 to 15 weeks from initiation to committal. In reality, BOCSAR statistics show that matters are taking much longer to reach the committal stage. In 2013 the average time it took for this process was 231 days (33 weeks)[xii]. This is over double the allocated time period as set out in the practice note.
There are two clear reasons for these delays. Firstly, defence practitioners are not receiving the brief of evidence within a reasonable time frame. Adjournments are frequently applied for as a result of no brief of evidence being served, or alternatively because the brief is incomplete and essential evidence is outstanding. The second reason is that negotiations are attempted in the Local Court but the parties negotiating do not have the relevant authority thereby rendering such negotiations ineffective. Crown Prosecutors with the necessary authority are not briefed until a much later stage. It is for this very reason that defence solicitors and barristers find that negotiations are more effective prior to trial.
The final explanation to be considered in this post is the underutilisation of committal proceedings and the effect of these proceedings slowing down the process. It has become less and less common for defence practitioners to cross-examine witnesses prior to committal with a majority of committals occurring on paper or being waived altogether. The defence successfully applied to cross-examine witnesses under sections 91 and 93 of the Criminal Procedure Act 1986 (NSW) in only six percent of matters. Most committal proceedings were conducted on the papers or waived. Statistics show that committal hearings involving cross examination of a witness only occurred in 365 of 5947 matters[xiii].
Having considered the flaws in our current system, and the causes of such flaws, it is now time to review the changes proposed by the LRC. It should be noted that the changes only apply to strictly indictable matters or indictable matters where an election has been made by one of the parties.
Stage one – Early disclosure of the evidence and early charge advice
Under the new blueprint, the ODPP, and the defence, will receive a preliminary brief of evidence on the first mention date, or alternatively after the ODPP has assessed the charges. The brief must contain the evidence that supports and forms the basis of the prosecution case and affects the strength of that case. The LRC report states that:
“The NSWPF must supply the ODPP, and the ODPP must supply the defendant, with an initial brief of evidence containing the key available evidence to support early determination of the charge and defence assessment of the case. This will not be to the same level of detail as needed for a trial.”[xiv]
The police must seek advice from the ODPP after an accused has been charged. In most matters, the prosecution will seek an adjournment for this purpose. The ODPP will consider the charge(s) in light of the evidence and will have the capacity to confirm, amend or withdraw the charge proposed by the police. Alternately, they can request further evidence from the officer in charge. Charge advice and certification must be conducted by a Crown prosecutor, Trial Advocate or senior graded lawyer.
The model allows up to six months for this to occur but the report prefaces this by saying that it would be a rare case for this process to take six months. The obvious concern for the defence is that an accused could be left in limbo pending the determination of the charge. This concern is heightened in cases where an accused person is in in custody.
The steps involved in stage one are as follow:
- Police will arrest and charge an accused. The accused is either granted release from the police station or brought before a court as soon as practicable to apply for release.
- On first mention, the accused is given the opportunity to apply for release. If the accused has already been released from custody then the first mention will involve the police seeking an adjournment to receive charge advice from the ODPP.
- The court will set a timetable specifying how long the police prosecutor and ODPP have to conduct this process. If the timetable is not met then the prosecution or ODPP, or both, will be required to appear before the court to explain the delay.
- Police provide the ODPP with the initial brief of evidence as soon as possible and the ODPP consider the evidence and make a charge determination. For matters proceeding on indictment, the ODPP must also certify the charge. Once certified the ODPP take carriage of the matter.
- Once the charge determination is finalised, and in appropriate cases the charge is certified, the matter comes back before the court and a case management timetable is set. It is hoped that early charge advice will remove the expectation that charges will be varied later in the proceedings.
Stage two – Case Management
Once the charge determination and certification is complete, the ODPP will take carriage of the matter. On the first mention after this process has been completed, the ODPP should indicate to the court whether the matter is suitable for the “Early Resolution with Discount” (“ERD”) stream. A matter may be suitable for this stream if there are certain characteristics about the matter that suggest a guilty plea might be entered, or alternatively where the defence have indicated that a guilty plea is likely to be entered. Once a guilty plea is entered, the matter is transferred to a higher court for sentence.
In matters where a plea of not guilty has been entered, a timetable for case conferencing will be set. Case conferencing will be mandatory for all matters where a guilty plea has not been entered. Currently there is no formal requirement for case conferencing. Case conferencing aims to bring senior prosecutors and defence lawyers together with the hope that they can resolve the issues in dispute. Once these issues have been ventilated, it may follow that a plea of guilty is entered to negotiated charges or facts much earlier in the process. Once the conference is complete, the outcome of that conference is filed with the court.
The implementation of mandatory case conferencing aims to replace the committal process. A Magistrate will no longer make the assessment of whether there is sufficient evidence to commit a matter. Rather the Magistrate will transfer the matter for trial or sentence once the case conference is complete and the parties have signed and filed the case conferencing outcome. The existing mechanism that facilitates the testing of the strength of the evidence by cross-examination remains. The defence can apply to the court to cross-examine a prosecution witness. This will only be allowed where there are substantial or special reasons in the interests of justice[xv].
Once case conferencing is complete, the matter is transferred to the District Court or Supreme Court for trial or sentence. The Local Court will confirm the plea and transfer the matter to the relevant court. The new proposals aim to limit the amount of trial matters in the District Court. Currently the trial call-overs are over listing with an expectation that many of the matters listed for trial will resolve on the first day of trial. This new model will reduce the number of matters listed for trial thereby freeing up court time and resources.
Stage 3 – Discounts
The courts currently apply the guideline judgement in R v Thomson & Houlton (2000) 49 NSWLR 383 in respect of the relevant discount to give an offender on their plea of guilty[xvi]. The new model pushes for a more structured scheme that is consistently applied. The LRC report states that “the cut-off point at which the maximum is no longer available must be strictly defined and consistently applied”[xvii]
The LRC proposes a three tiered discount regime enforced by statute. The regime would operate as follows:
- A 25% discount will only be available for matters where a plea of guilty has been entered in the Local Court. The exception to this will be in circumstances where an accused offered to plead to a charge that they are later convicted of;
- A 10% discount will be available for pleas of guilty entered in the District or Supreme Court; and
- A 5% discount will apply to pleas of guilty entered on the day of trial.
Matters that form part of the ERD Stream, that is where a plea of guilty was entered in the Local Court and is transferred to the higher court for sentence, will attract a 25% discount on sentence. If the Judge does not apply this discount, they must record their reasons why[xviii].
The delays and backlogs currently experienced in our higher courts are worsening. Major changes are considered appropriate and such changes were proposed by the LRC in late 2014. The Attorney-General announced that these changes will be implemented in early 2018.
The proposed changes discussed above require legislative amendments, adjustment to Local Court practices and procedures and changes to in house procedures from the agencies involved. The drafts to the proposed legislative amendments will be available soon.
[i] NSW Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics (2008-2013).
[ii] Ibid at table 3.6.
[iv] Ibid at [1.55].
[v] NSW, Office of the Director of Public Prosecutions, Annual Report 2012/2013 (2013) 27.
[vi] NSW, Office of the Director of Public Prosecutions, Annual Report 2011-2012 (2012) 38; Information provided by NSW, Office of the Director of Public Prosecutions (3 July 2013).
[vii] NSW Bureau of Crime Statistics and Research, NSW Local Courts from 2009 to 2013.
[ix] NSW Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics (2008-2013) at table 3.6.
[x] RE Auld, Review of the Criminal Courts of England and Wales (2001) 408.
[xi] Australian Law Reform Commission, Encouraging appropriate early guilty pleas, Report No 141 (2014) at 4.18.
[xii] NSW Bureau of Crime Statistics and Research, NSW Local Courts from 2009 to 2013.
[xv] Ibid at [3.43].
[xvi] For NSW offences (not federal offences).
[xvii] Ibid at [3.44].
[xviii] Ibid at [3.45].