By John McKechnie AO KC, Life Member of the Law Society
Charge negotiation is an essential part of criminal justice. Many pleas of guilty result from successful negotiations with the prosecutor. Yet there are few enforceable controls over the process.
A prosecutor is part of the executive arm of government. A decision whether to indict will affect someone and change their lives. Exercising discretion to accept a plea to some or all counts on an indictment has similar effect.
For all that, a prosecutor does not actually exercise the power of the state. In the administration of criminal justice, only a judicial officer wields power to impose an economic sanction by way of fine or to deprive a citizen of liberty by ordering imprisonment. None but a judicial officer has power to compel reluctant citizens to give evidence or face penal consequences. Judicial power is not at large. It can be exercised only if there is a matter before the court, whether in controversy or not.
What happens when a court is prevented from exercising the full range of judicial power because the parties – prosecution and accused – have negotiated an arrangement whereby the accused will plead guilty on agreed facts to offences that do not fully embrace the criminal conduct?
The answer may be that the rule of law is distorted by the plea bargain and there is no available remedy to correct the distortion.
It is well established:
- A judicial officer is not bound by any agreement by the parties as to an appropriate penalty or sentence. A prosecutor may not, in negotiations or in court express an opinion about the possible range of sentences imposed for like conduct. A judge must be astute to ensure that the court is being given accurate, reliable and complete information concerning alleged assistance by the accused and the benefits said to flow from it: Barbaro, Zirilli v R (2014) CLR 58. Left unsaid is how that can be accomplished if a court cannot look behind a plea bargain.
- In Maxwell v R (1996) 184 CLR 501 the High Court held it ought now be accepted that certain decisions involved in the prosecution process are, of their nature, insusceptible to judicial review. Other than exceptional circumstances, decisions on indictments and charges are a matter for the Executive, personified by the prosecutor.
The Maxwell principle was reinforced in R v GAS; R. v SJK [2004] HCA 22; 217 CLR 198 and other cases. Maxwell was decided over 30 years ago; GAS over 20 years ago. It is past time for a review of the principle. Charge negotiations are now a pervasive aspect of criminal procedure.
Although the High Court essentially ceded judicial power to the Executive, it did leave open at least the possibility of intervention by acknowledging there may be exceptional circumstances that would justify such a course. The High Court has affirmed judicial intervention in the face of prosecutorial misconduct in other aspects of criminal procedure. A court may protect its processes from abuse or oppression by staying an indictment or ruling certain evidence inadmissible.
A trial is expensive. A plea of guilty much less so. The utilitarian value of an early plea of guilty is acknowledged in the Sentencing Act s 9 AA by a discount on sentence.
Expense is not only or even mainly monetary. Criminal lists are crowded. Delays in getting matters to trial are increasing. Advances in technology such as DNA analysis, increases both time to trial and cost. Delay has adverse effects on victims waiting for resolution and the reliability of a witness’s memory with the passage of time. Some accused spend months in custody awaiting trial. There is no recompense if eventually acquitted. Gladstone’s words “Justice delayed is justice denied” have never been more true.
The workload in a prosecutor’s office is relentless. A prosecutor cannot control input. Prosecution notices commencing proceedings are issued by other agencies, mainly police. A prosecutor must assess each indictable charge by reference to the facts, usually contained in depositions and exhibits.
A prosecutor cannot control output. The prosecutor’s office must service as many criminal courts that become available each day.
As numbers of charges swell there is inevitable increase in all the justice agencies putting strain on existing resources.
Clearly charge negotiation, plea agreement, plea bargain, call it what you will, is a sensible piece of criminal procedure. While not directly mirroring mediation that now occurs in all superior court civil matters, there are similarities.
The DPP in Western Australia has prosecution guidelines that include charge negotiation. The Director of Public Prosecutions Act expressly provides that the DPP may issue a statement of Guidelines intended to be followed in the performance of the DPP’s function. As the DPP’s jurisdiction encompasses all offences including those regulatory offences outside traditional criminal law, public authorities that conduct prosecutions for such offences must take account of the Guidelines. Some such as Worksafe have their own policy that conforms to the DPP Guidelines.
Guideline 57 notes that charges should never be instigated or continued to provide scope for plea negotiation.
The latest iteration of the Guidelines is from July 2022 and includes the following:
Charge negotiations
63. A plea of guilty is a factor to be taken into account in mitigation of sentence. There are obvious benefits to the criminal justice system resulting from a plea of guilty. The earlier a plea of guilty is entered, the greater will be the benefits.
64. Charge negotiations between the parties are encouraged and may occur at any stage of the proceedings. They can be initiated by either party. They must be based on the evidence and the public interest. A written record of the charge negotiation must be kept.
65. Where the appropriate authorisation has been obtained, the prosecution may agree to discontinue a charge or charges upon the accused pleading guilty to another or others. The prosecution may also agree to amend the factual basis of a charge or charges upon a plea of guilty.
66. Charge negotiations should take into account:
(a) whether the plea of guilty reasonably reflects the essential criminality of the conduct and provides an adequate basis for sentence;
(b) whether the strength of the evidence is such that the public interest will be satisfied by the acknowledgment of guilt and certainty of conviction achieved by the negotiated plea;
(c) the benefits to the community as a result of the negotiated plea;
(d) where there has been a financial loss, whether the accused has made, or made arrangements for, restitution or compensation; and
(e) whether the plea of guilty will save witnesses, particularly vulnerable witnesses, from the trauma of protracted criminal proceedings.
67. A statement of material facts must be settled before a negotiated plea is accepted.
68. A plea of guilty will not be accepted if:
(a) to do so would distort the facts disclosed by the available evidence and result in an artificial basis for sentence; and/or
(b) the accused intimates that he or she is not guilty of any offence.
69. Whether the State is to make an application for a drug trafficker declaration or the confiscation or forfeiture of any property is not to be part of any charge negotiations.
70. In considering whether to accept a plea the investigator and victim must, if reasonably possible, be consulted. Consultations with the investigator and victim must be recorded in writing prior to any decision.
71. The views of the victim and the investigator are important but not determinative public interest factors in deciding whether to accept a negotiated plea.
72. When a plea is offered by a person in a case involving multiple accused, consideration must be given to the consequences of the acceptance of the plea for the case against the remaining accused.
73. It will not be in the public interest to accept a plea to a lesser offence from a principal offender in order to use that person’s evidence to prosecute less culpable co-accused on the more serious charge.
The Guidelines, changed and expanded over the years are excellent statements of principle.
What is the problem?
Guidelines do not have the binding nature of a rule. They are a recommendation, perhaps an indication of best practice.
The issue is not the content of the Guidelines on charge negotiation but their use. Due to the Maxwell principle there is no mechanism to review the reasons for a plea bargain or amended facts for content or accuracy. There is no opportunity to measure the plea bargain against the Guidelines.
It can be assumed that a charge, the subject of negotiation, otherwise fulfils the requirements for a trial. That is, it has survived assessment of reasonable prospects of conviction and any other discretionary matter that may render discontinuance appropriate.
The process of the plea bargain must be documented under the Guidelines and under R v GAS but is otherwise opaque. A judicial officer entering judgment of conviction after a negotiated plea has no discretion to refuse and must sentence only on the evidence and material tendered in court.
A judicial officer’s hands are tied by the plea and the statement of material facts. The latter may have involved amendment from facts gathered by the investigator, without explanation to the judicial officer as to the reason for the changes.
A judicial officer may have no knowledge of the seniority or experience of the prosecutor who agreed to the negotiated settlement or what was considered. Nor are they privy to other matters that may influence a prosecutor to some degree notwithstanding the general freedom from interference a prosecutor enjoys.
In short, the only oversight of a negotiated plea is whatever structure or procedure put in place within a prosecutor’s office. Reference to a prosecutor’s office encompasses not only the ODPP but various regulatory agencies that maintain a prosecution division. Those prosecutions are conducted by in house lawyers or briefed to the State Solicitor.
Local Government authorities are active prosecutors and tend to brief lawyers from the private profession. The statutory independence for prosecutorial decisions within the DPP may not be replicated within local government or regulatory agencies. The DPP is busy enough coping with the criminal workload from police, let alone supervise other agencies.
A judicial officer may be told the basis of the plea or amended facts but, following Maxwell, this is a courtesy not a precursor to the exercise of judicial power.
While the investigator and the victim should be consulted, there is no requirement to give effect to their wishes – guideline 71. Reconsideration may be sought and allocated to another prosecutor but this is an appeal from Caesar to Caesar. It is not a wholly independent review.
Plea bargains are said to be made in the public interest. Public interest is an elusive and chameleon construct by judges to justify the exercise of discretion or judgment. When judicial officers speak of acting in the public interest, the public is never actually consulted about what its interest may be.
Decisions made by executive officials such as a prosecutor are routinely explained by reference to the public interest. But saying so is conclusionary, not explanatory. Reference to the public interest can become a catch all to justify a discretionary judgment without other explanation or exposure of the reasoning behind the decision.
Why a factual basis for a plea is amended – Guideline 65 – may but need not be explained. This becomes problematic when the depositions paint a different picture to the agreed amended facts. What is a judicial officer to do if confronted by a significant variation of facts between the statement of facts relied on by the prosecution and accused as part of a plea bargain, and the depositions tendered in evidence to inform the judicial officer as to sentence?
If amended because the original statement of facts was in error, there is no issue. But if amended because of unsworn representations by an accused, that is a different matter. Witnesses sign depositions under penalty if false. There is no corresponding sanction for an accused if the factual basis being contended for in negotiation is wrong. In a trial of issues an accused must satisfy the court about any matter of mitigation on the balance of probabilities. Does the same standard apply in negotiations? Who, apart from the prosecutor, knows!
This is not to suggest that there is presently misconduct in the plea negotiations conducted daily by prosecutors including police and regulatory authorities. The issue is the opacity of the process and lack of judicial review.
Why might a plea bargain affect the rule of law
Only a judicial officer can exercise the power of the state in criminal administration. The executive branch lends its aid to the judicial branch by enforcing orders and executing warrants but does not directly exercise judicial power.
If inaccurate facts are put to a judicial officer to form a basis for sentence, or if the offences to which the accused will plead do not reasonably cover the extent of the criminal conduct, then the rule of law is distorted. Unconsciously the judicial officer may not be performing their constitutional duty to its full extent. That duty is to exercise the power of the State and impose the appropriate sentence arising from specific criminal conduct identified by the judicial officer.
A judicial officer is enjoined to act according to the principles of open justice. The negotiations that lead to a plea bargain are not open.
Prosecutors are bound by professional obligations including the Legal profession uniform conduct (barristers) rules 2015 and the DPP Guidelines. If, despite those strictures, there is prosecutorial misconduct over a plea bargain, there appears to be no effective sanction. The only other party to the proceedings is the accused who is unlikely to complain about a successful (from their point of view) negotiation. Investigator and victims can be heard but their input may be subsumed by unspecified public interest criteria.
In the absence of a proper contradictor it is difficult to see how a judicial officer could ever find exceptional circumstances in a plea bargain sufficient to stay an indictment.
One solution
So there remains in the criminal justice system a flaw that on occasion may distort the proper exercise of judicial power.
All steps in criminal procedure are eventually capable of review – except plea bargains.
The Maxwell principle was laid down before the increased volume of plea negotiations in jurisdictions across Australia. It is time to revisit the restraint on judicial review and require, as opposed to request, that the basis of a plea bargain or an amendment to the statement of facts be explained and justified in open court.
The NSW Crimes (Sentencing Procedure) Act s 35A offers a possible model. A prosecutor must file a certificate verifying, among other things:
- any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines.
Meanwhile judicial officers must remain astute that they have accurate reliable information about a plea bargain before exercising judicial power.
