Promoting a more efficient use of the
criminal justice system
3-5 October 2013
The Hon James Wood AO QC
Chairperson - NSW Law Reform Commission
The NSWLRC gave attention to this objective in its 2012 Report on Jury Directions
(NSWLRC Report 136), and is again addressing it, although from a different
perspective, in its current reference on Encouraging Appropriate Early Guilty Pleas
(both in indictable and summary matters). To a significant extent there is an overlap,
in particular by reason of the need to ensure that an accused receives a fair trial, and
is not inappropriately pressured to give up a right to a trial according to law.
A.
JURY DIRECTIONS REPORT
Although jury trials represent a low proportion of the total number of criminal cases,
they do absorb a considerable segment of the resources of the Courts, the DPP and
Legal Aid as well as of police. In the Report we drew attention to the steady rise that
has been seen, at least in NSW, in the length of these trials over the last two
decades, (now averaging up to 2 weeks in the District Court, and much longer in the
Supreme Court) and to the increasing complexity of the directions that Judges need
to give (with the consequential risk of appellate error).
In the Report we identified several measures that might help to address this
circumstance. The key initiatives which were recommended in this Report included
the following:
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1.
Pre-trial disclosure and case management
In general terms the jury report advocated strongly for pre-trial case disclosure
and case management and for further development by the Trial Efficiency
Working Group, of the work that had previously been undertaken in this area.
The objective is to identify true issues, to reduce the need to call unnecessary
evidence (both in the form of witnesses and documentary evidence), and to
permit the making of evidentiary and other rulings without holding up the trial
proper.
Obviously this has a substantial potential impact on flushing out guilty pleas
pre-trial, and if not, in producing a more efficient and focussed trial.
Some procedures were in place by the time the Report was delivered, and
further steps have been taken in NSW in legislating requirements for
mandatory pre-trial disclosure by the prosecution and defence.
2.
Enhanced involvement of the jury
Several recommendations were made, in the light of the concerns that were
identified as to the inefficient way in which juries are engaged in the role that
they have to perform. Our concern in this respect arose from suggestions that
modern jurors wish to feel that they have a greater involvement in the trial
process than as passive observers who are not entirely clear what they are
expected to do, or what assistance they will receive until the end of the trial.
(a)
A roadmap for the trial
We saw utility in providing the jury with more information, in the form of a
roadmap, at the commencement of the trial, that might include so far as
practicable:
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
A copy of the indictment;

A statement of the elements of each count and of any relevant
defence;

A summary of the issues so far as they have been identified pretrial;

A written set of preliminary directions concerning those elements
and issues;

A written summary of the key facts in the form of a chronology;

A folder of the exhibits whose tender is not in dispute, to which other
exhibits can be added as the trial proceeds;

A statement of what is the role of the juror in the trial;

A preliminary advice as to the circumstances in which an unanimous
jury verdict will be required (Commonwealth offences), or in which a
majority verdict may be available so as to address the current
misconceptions which
can arise
if
the latter possibility is
unmentioned until the jury indicates that it has not been able to
reach a verdict.
Depending on the nature and complexity of the trial, jurors could be given time
to read and absorb this material before the opening addresses, or otherwise
taken through it by the trial judge and/or counsel when delivering their
preliminary remarks or opening addresses.
Obviously the content of the roadmap would vary according to the nature and
complexity of the individual trial, and on the extent to which the issues and
questions concerning the admissibility of evidence had been resolved pre-trial.
It was contemplated that the Court should have a discretionary power to direct
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the prosecution and defence to prepare the necessary documentation pre-trial,
as the case may justify.
In a simple trial, the relevant documentation would be expected to provide a
bare outline, whereas in a complex trial it could be quite extensive. In either
event, the purpose would be to provide the jury with a roadmap in advance of
any evidence being called, to assist them in placing that evidence in the
context of the issues, and of the matters that the prosecution or defence
needed to prove.
Otherwise, as has been observed elsewhere, with modification for the
Australian context, the current process can be likened to telling jurors from
overseas to watch an AFL game without a scoreboard and to decide who won
without telling them what the rules are until the end of the game.
(b)
Provision of transcript during the trial
We also encouraged providing juries with a suitably edited transcript of the
evidence, and of the summing up and addresses (as the case may justify)
during the trial, either in hard copy or in electronic form that is searchable.
This would overcome the herculean if not impossible task currently expected
of jurors in recalling the evidence of each witness and placing it in the context
of issues which may not be apparent to them, or even settled, when the
evidence is led in chief or becomes the subject of cross-examination. It could
also eliminate the need for substantial portions of transcript to be read and reread during the closing addresses and summing up.
Moreover it is more
consistent with the generation Y (1976-1991 birth dates) approach to
accessing and evaluating material, for jurors to access that material in written
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form than orally, and to do so through electronic means. For generation Z
(birth dates post 1991; ie aged 22 down) this is even more applicable.
(c)
Expert evidence
A solution offered for cases where there is a significant contest concerning
expert evidence was to apply to criminal trials some of the strategies that are
used in civil trials, for example:

Convening pre-trial conferences between experts aimed at identifying the
areas of agreement, narrowing the issues and potentially encouraging a retesting of forensic exhibits or a review of any expert report;

Allowing the expert witnesses called by prosecution and defence to give
their evidence in one-block, rather than in the conventional setting days or
weeks apart (ie in the prosecution case, then the defence case and
sometimes in the case in reply) – making the competing opinions easier to
understand and evaluate even to the possible point of allowing “hottubbing” to occur;

Encouraging greater use to be made of the visual presentation of expert
evidence; including for example in the case of DNA evidence the tender of
a standard audio-visual presentation explaining what DNA is, what it can
and cannot prove, and the significance of the way in which evidence in
relation to random match probabilities (whether expressed as a frequency
ratio or exclusion percentage) is presented. Additional recommendations
related to the development by the Judicial Commission of a suggested
direction to be included in the Bench Book, and the introduction of a
Practice Note in relation to the pre-trial consideration of the admissibility of
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DNA evidence, the issues arising, and the framing of a jury direction
applicable to the individual case.
3.
Closing addresses and summing up
The Report recommended a number of strategies including:
 Conferring a capacity in the trial judge to deliver a preliminary address
at the close of the evidence and before the addresses of counsel,
involving a summary of the elements of the offences charged and of
any defences, related to the issues in the trial. The purpose would be
to encourage the prosecution and defence in their addresses to focus
on the true issues in the light of the arguments they wish to press as to
the veracity, reliability, weight etc to be attached to the evidence in the
trial;
This would potentially reduce the length of the summing up in a way
that truly marshalled the arguments in the context of the issues, without
the need for a regurgitation of the evidence, although accompanied by
a reminder as to any of the appropriate warnings that should already
have been given during the calling of the evidence to which they relate
(so as to allow the jury to be aware of and to keep in mind any special
consideration that relates to that evidence);
 Encouraging greater use by the prosecution and defence of visual aids,
charts, chronologies, powerpoint presentations and so on to assist the
jury in recalling and evaluating the evidence (in place of long-winded
oral submissions which can easily result in jurors switching off);
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 Providing the jury with some practical advice as to the way in which
they might organise their discussions.
4.
Question trails
We also advocated the greater use of question trails or flowcharts that provide
a path or paths by which jurors can progress to the available verdicts. In
particular it was suggested that these question trails should be developed in
consultation with counsel and accompanied by directions that:
 Emphasise that the question trail is a guide only and is a way of
working through the jury’s deliberations;
 Make it clear that jurors do not have to address the issues in the same
sequence as that set out in the question trail;
 Explain to jurors that the question trail is intended for their individual
use in coming to the jury’s verdict; and
 Direct the jury that if, after considering all of the questions they are
unanimous (or after a Black direction, agree by a majority) that one
element of the offence charged has not been proved, they should
return a verdict of not guilty, even if they do not agree on which
particular element that is.
5.
Jury questions
We also recommend that, within limits, some greater encouragement be given
to juries to ask questions of the trial judge, in order to deal with any areas of
the evidence, the issues or the relevant legal principles, about which they are
uncertain. This should make it clear that such questions can be raised during
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the evidence, and that they do not have to be deferred to the end of the trial.
In particular we were concerned that this was another area where modern
juries can feel that they are insufficiently involved in the trial process.
6.
The Bench Book generally
Additional recommendations were made for the Judicial Commission to revisit
the current directions, many of which were somewhat technical and unduly
complex, so as to render them more user friendly, a course on which it did in
fact embark during the reference.
To advance this process the Report made some additional recommendations
for the Bench Book Committee to include in the Bench Book:
(a)
An outline of the general principles that would assist judges to identify
when a direction is required and its content, that might help to eliminate
the practice of judges over-directing juries to appeal proof a summing
up yet in a way that is ultimately counter-productive because of their
resulting complexity, and that would state that:

Jury directions should aim to inform jurors about as much of the law
as they need to know to decide the issues of fact and reach a
verdict;

The judge should direct the jury whenever necessary to protect the
fairness of the trial and to promote the public interest in seeing that
justice is done;

Jury directions must be legally accurate and fairly state the case for
the accused and prosecution;
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
Jury directions should be tailored to the particular circumstances of
the case;

The judge’s roles is to hold the balance between the contending
parties and not to enter the fray, for example, by advancing an
argument in support of the prosecution case that was not put by the
prosecution; and

Jury directions should be as clear, simple, brief and comprehensible
as possible without compromising their legal accuracy.
(b)
A basic guide and checklist for jury directions including:

General guidance on how directions should be composed and
delivered;

General guidance on how a summing up should be constructed and
delivered;

General guidance on the use of plain English principles, in particular
on avoiding forms of legalese and sentence construction that can
affect the comprehensibility of directions;

A template for use by the judge in giving practical advice to jurors as
to how they might go about their deliberations;

Advice on how to respond to jury questions about directions; and

A checklist against which a proposed summing up could be
compared for completeness.
It was also suggested that revised directions should be submitted to empirical
testing and consultation with plain English experts in order to assess their
comprehensibility.
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Revisiting “Beyond reasonable doubt”
7.
A proposal for revisiting the traditional test (subject to empirical testing) was
probably the most controversial recommendation in the Report, although it
was tempered by a recognition that this would require the High Court to
reverse its earlier approach, or the acceptance of a need for uniform
legislative reform across all Australian jurisdictions.
The reformulation that was identified for further consideration included the
following possible formulations:
(a) A direction to the effect that The Jury must be satisfied beyond reasonable
doubt so that it is sure that the accused is guilty; or
(b) Without reference to the phrase “beyond reasonable doubt”, a direction to
the effect that the prosecution proves its case if the jury is sure that the
accused is guilty; or
(c) The use of one or more of the following explanations of the expression
“beyond reasonable doubt” (if it is retained as the essential formulation),
either generally or where the jury seeks further guidance:
i.
Proof beyond “reasonable doubt” involves a very high standard of
proof that requires the jury to be sure that the accused is guilty;
ii.
The standard of proof required is higher than a belief that the
accuses person is probably guilty or even that the accused person
is very likely guilty, but does not require absolute certainty;
iii.
“reasonable doubt” involves a reasonable uncertainty that remains
about the accused’s guilt, after careful and impartial consideration of
all of the evidence;
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iv.
An imaginary, or fanciful or frivolous doubt, or one based on
sympathy or prejudice alone does not amount to a reasonable
doubt.
A reform of this kind would be consistent with one or other of the approaches
that have now been approved in England and Wales, Canada and New
Zealand.
B.
ENCOURAGING EARLY GUILTY PLEAS
Our current reference on Encouraging Appropriate Early Guilty Pleas (both in
indictable matters and matters tried summarily) shares some of the objectives
addressed in the Jury Directions reference. In addition to the impact that an early
plea can have for Court efficiency in avoiding unnecessary trials, it has a wider
potential impact in:

Saving victims and witnesses the ordeal of a trial;

Encouraging appropriate charging and early assessment of the merits of the
case;

Advancing the prompt resolution of criminal cases, thereby enhancing public
confidence in the justice system – “justice delayed is justice denied”;

Preserving the shrinking resources of the police, DPP and Legal Aid for those
cases that must go to trial; and

Avoiding an unnecessary wastage of the time of jurors and witnesses.
The need for a comprehensive review of the process that, on the one hand results in
late pleas, and that on the other hand, might facilitate early pleas has become critical
in NSW with a significant growth in the number of cases committed for trial in the
NSW District Court over the last 2 years. This has had a substantial impact on the
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trial backlog and on the remand population, even though statistically the number of
reported crimes has been declining. What has become evident is that there is a
need to address the roadblocks, as well as the inefficiencies that exist across the
criminal justice process generally, and that almost certainly more than one reform
strategy will be needed.
1.
Last minute pleas in NSW
The experience to date in NSW, despite several initiatives that have been
introduced over the years, continues to be one in which too many cases listed
for trial turn into pleas at the last moment. In recognition of the fact that a very
high proportion of cases in the criminal justice system are resolved by a plea
of guilty, the challenge that is faced is to encourage that outcome early in the
process rather than at the end. This requires a consideration of why people
plead late and of what can be done to encourage an earlier resolution.
It is fair to say that there is more than one reason for late pleas. Factors that
we have identified include:

The prosecution brief is served late and/or is incomplete when first served;

The defence believes that the prosecution tends to overcharge the
accused at the outset, either by preferring a more serious charge than was
appropriate, or by advancing unnecessary multiple charges arising out of
the one event, and will be prepared to negotiate a reduction in or
withdrawal of some charges later in the proceedings;

The defence believes that additional information is likely to be served
closer to the trial that may be of assistance to its case;
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
The defence believes that the Court will be flexible in applying the
sentencing discount, notwithstanding the lateness of the plea, in order to
keep its lists moving;

Because of limited resources, prosecution and defence counsel with
sufficient experience to make a realistic assessment of the case, and with
the authority to negotiate a “settlement”, are not engaged sufficiently early;

The accused is not prepared until the last moment to acknowledge his
predicament or wishes to postpone the inevitable, or hopes that the case
will fall over due to the non-availability of witnesses or to a change in their
testimony (a not uncommon event in the Local Court, especially in the case
of domestic violence offences, the number of which has increased
dramatically and has been said to represent up to 40% of police work in
some local area commands);

The initial instructions given to the defence may be untrue or inadequate;
or alternatively the initial advice given may be over optimistic;

The Legal Aid fees structure is such that some lawyers in private practice
may see it in their interest to delay encouraging the accused to offer a plea
until the day or the trial so as to receive the preparation and appearance
fee;

A lack of continuity in legal representation, on each side of the record, that
results in insufficient attention being given to the case until the last
moment.
The initiatives that have been tried in NSW to overcome these hurdles include
the following:
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1990-1999
Legislation was introduced initially in the form of s 439 of the
Crimes Act 1900 (NSW), and re-enacted in the Crimes
(Sentencing Procedure) Act 1999 (NSW) s 22, requiring the
court to take into account the fact that an offender has
pleaded guilty and permitting the imposition of a lesser
penalty for that reason.
1993-1996
A sentence indication pilot scheme was implemented at the
District Court. The Scheme was discontinued on the basis of
an evaluation by BOCSAR that it did not result in an increase
in early guilty pleas or guilty pleas generally.1
2000
In R v Thomson; R v Houlton2 the NSWCCA delivered a
guideline judgment indicating that the utilitarian value of an
early plea may result in a sentencing discount of 10-25%,
depending upon the timing of the plea – ie a plea entered at
committal has a more significant utilitarian benefit than a plea
entered at first listing (arraignment) which in turn has a
greater benefit than a plea entered at the beginning of the
trial.
It was pointed out that the greater the difficulty of
assembling the evidence and the greater the length and
complexity of the trial, the greater the utilitarian value of the
plea.
Between
2004 & 2008
A Criminal Case Processing Committee formulated a model
to reduce the number of matters that were committed and
1
2.
D Weatherburn, E Matka and B Lind, Sentence Indication Scheme Evaluation: Final Report
NSW Bureau of Crime Statistics and Research (1995); NSW, Sentencing Council, Reduction in
Penalties at Sentence (2009) [8.33].
R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383.
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prepared for trial but that resulted in a late plea of guilty,
leading to the introduction in 2008 of a Criminal Case
Conferencing Trial (CCC) in the Local Court at the Downing
Centre and Central Sydney with the following features:

The convening of a compulsory conference between
representatives of the prosecution and defence prior to
the committal hearing, for the types of cases that were
included in the trial, (ie excluding the most serious
cases where it was highly probable that a jury would
convict the accused and the interests of punishment,
retribution and community protection were such that a
discount could not be given); and

A statutory formula prescribing a 25% discount for a
plea received before committal, reducing thereafter to
12.5%.
2009
The principles to be considered when applying a utilitarian
value to an early guilty plea that is permitted pursuant to s 22
of the Crimes (Sentencing Procedure) Act, 1999 were
outlined by the Court of Criminal Appeal in R v Borkowski,3
where it was noted, inter alia that:

It was not permissible for Judges to establish a
discount practice applicable in a particular court that
did not comply with established sentencing principles;

3
A plea offered on arraignment should normally not
R v Barkowski [2009] NSWCCA 102.
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exceed about 15%;

The utilitarian discount does not include a discount for
remorse, or take into account the strength of the
prosecution case, nor does it reflect saving witnesses
from giving evidence;

The discount can result in a different form of sentence
but that sentence should not be further reduced by
reason of the plea;

Where an offer of a plea is rejected by the prosecution,
but reflects the trial verdict, a discount can be given;

The reason for a delay in the plea is generally
irrelevant and its utilitarian value can be reduced
where the plea arises from a plea bargain or where the
accused waited to see what charge will be pursued.
2010
BOCSAR released a review of the CCC, which concluded
that it was not meeting its stated objective of increasing the
rate of early guilty pleas,4 although that is not an assessment
which has met with universal agreement by the key
stakeholders.
2012
The Criminal Case Conferencing Trial Act 2008 (NSW) was
repealed, with the consequences that the plea/charge
bargaining process is currently unregulated (save for the
ODPP
4
guidelines)
and
essentially
depends
on
the
YW Wan, C Jones, S Moffat and D Weatherburn, The Impact of Criminal Case Conferencing on
Early Guilty Pleas in the NSW District Criminal Court, NSW Bureau of Crime Statistics and
Research (2010).
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personalities and trust of those representing the prosecution
and the defence.
2.
Case management in NSW
Some case management strategies have now been developed that are
directed at narrowing issues and facilitating more focussed trials and that also
have an eye on flushing out cases that should be resolved by a plea. In
summary they include the following:
Local Court
A Local Court Practice Note has been introduced applicable to summary
proceedings and proceedings for indictable offences that are dealt with
summarily (Local Court Practice Note Crim 1), which makes provision for:

Appearance by the defendant at a first mention to enter a plea;

A plea of not guilty will lead to an order for service of a brief, followed by a
second mention 6 weeks later at which time, if the prosecution does not
elect for a District Court trial, the matter will be listed for hearing;

A plea of guilty will be followed by a 2 week adjournment to allow the
prosecution to consider an election (Table cases), or otherwise set for
hearing of the plea.
A separate Practice Note applies to strictly indictable matters that need to be
committed for trial (Local Court Practice Notice Comm 1), which makes
provision for:

A first mention, unless a plea of guilty is entered, when an order is made
for service of a brief within 6 weeks and a further mention for reply in
8 weeks;
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
A second mention which may be adjourned for not more than 6 weeks to
allow negotiations (unless a plea of guilty is entered or committal is
waived);

A third mention at which orders are made for the filing of submissions by
an accused in relation to the need for witnesses at a committal within
2 weeks;

A fourth mention, at which an order will be made for a hearing to deal with
any such application or otherwise for the fixing of a date for the committal
hearing.
In general terms these timelines are imposed rigidly, and a question has
arisen as to whether they allow sufficient time for negotiation.
Higher Courts
Consequent upon commencement of the Criminal Procedure Amendment
(Mandatory Pre-Trial Defence Disclosure) Act (NSW) 2013, the case
management structure in the higher courts that was contained in the Criminal
Procedure Act (NSW) 1986 (introduced by the Criminal Procedure
Amendment (Case Management) Act (NSW) 2009, applicable from 1 February
2010) have been significantly strengthened.5
The scheme now in place,
effective from 1 September 2013, makes provision for:

Directions to be given at the first mention in the Court after committal with
respect to the future conduct of the trial;6

An order to be made for pre-trial hearing, at which the Court can make
orders, determination or findings, or give directions or rulings for the
5
6
Criminal Procedure Act (NSW) 1986 pt 3, div 3.
Criminal Procedure Act (NSW) 1986 s 136.
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efficient management of the trial,7 including ordering a pre-trial conference,
setting a timetable for pre-trial disclosure, rulings on evidence and on
questions of law;

A holding of a pre-trial conference aimed at identifying agreement as to
the evidence to be admitted;8

Mandatory pre-trial disclosure of:
o the prosecution case;9 the prosecution notice to comply with s 142
setting out the indictment; a statement of facts; a copy of all statements
and documents to be adduced in evidence; a copy of any expert report;
a copy of any information etc not disclosed that may be relevant and of
any information relevant to the reliability of a prosecution witness or
adverse to the credibility of the accused;10
o the defence response,11 setting out the nature of the defence; the
matters in issue; any points of law to be raised; any expert report; any
requirement for the prosecution to call surveillance witnesses; any
issue in relation to exhibit continuity, transcript accuracy and
documentary authenticity; and any issue as to the indictment;12
o the prosecution response, (in general terms) identifying those matters
raised in the defence response that are in issue and any evidentiary
matters whose admissibility is disputed, as well as any additional
material not already disclosed that might assist the defence;13
7
8
9
10
11
12
13
Criminal Procedure Act (NSW) 1986 s 139.
Criminal Procedure Act (NSW) 1986 s 140.
Criminal Procedure Act (NSW) 1986 s 141.
Criminal Procedure Act (NSW) 1986 s 142.
Criminal Procedure Act (NSW) 1986 s 141.
Criminal Procedure Act (NSW) 1986 s 143.
Criminal Procedure Act (NSW) 1986 s 144.
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
Permitting the court to dispense with formal proof of those matters that are
not disclosed by the defence as being in dispute, and to allow evidence to
be led in the form of a summary if satisfied that this would not be
misleading or confusing or result in unfair prejudice;14

Providing sanctions for non-compliance;15

Providing for inferences to be drawn where there is non-compliance;16

Providing for the disclosure requirement to be on-going until conviction,
acquittal or termination of the charges;17

Permitting the Court to waive the requirements but only if “in the interests
of the administration of justice”.18
The newly introduced provisions are to be subject to a review after 2 years to
determine:

Whether they have been effective in reducing delays and in promoting the
efficient management and conduct of trials;

Whether the interests of justice have been effected; and

Their costs impact.19
District Court Practice Note
Assuming compliance is not waived, then the current practice note of the
District Court contemplates postponing the disclosure provisions until very late
in the life of the proceedings, since it provides for:

Notice of the prosecution case to be given to the accused no later than
3 weeks prior to the date set for the trial;
14
15
16
17
18
19
Criminal Procedure Act (NSW) 1986 s 145.
Criminal Procedure Act (NSW) 1986 s 146.
Criminal Procedure Act (NSW) 1986 s 146A.
Criminal Procedure Act (NSW) 1986 s 147.
Criminal Procedure Act (NSW) 1986 s 148.
Criminal Procedure Act (NSW) 1986 Schedule 2, s 80.
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
Notice of the defence response no later than 10 days prior to the trial date;

Notice of the prosecution response to be given prior to the trial date.
3.
Strategies for encouraging early guilty pleas
It is accepted that encouraging early pleas is advantageous to the courts,
Police and the DPP and the Legal Aid budgets, and that it has benefits for
victims and witnesses and also for the accused (at least so far as it results in a
certainty and finality of outcome, limits the occasion for publicity and permits
the potential imposition of a less severe sentence through a discount).
However any regime in place must strike a proper balance between the
interests of trial efficiency and administrative budgetary considerations on the
one hand, and the rights of the accused on the other hand to have his or her
guilt determined by trial.
While the decision of an accused to plead guilty is one that he or she is free to
make (where of sound mind, of age and exercising a free choice) and that
needs to be respected by the court and prosecution authorities,20 it is
accepted that the justice system should not penalise an accused who
exercises his common law right to trial.
Nor should the system be such as to encourage, or perhaps more
appropriately, pressure the accused to plead guilty to offences of which they
are not guilty.
It is in the light of these considerations that the NSWLRC is looking at various
options that have been identified, and that might take advantage of the critical
20
Meissner v The Queen (1994-1995)184 CLR 132, 141.
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points in the criminal justice process to achieve a greater efficiency and
timeliness in the disposition of cases:
(a)
Pre-charge bail and statutory charging
The pre-charge bail scheme in place in the UK allows a person to be arrested
and bailed before being formally charged to allow further investigation, or for
the delivery of charge advice by the Crown Prosecution Service (CPS).
The purpose of its introduction was to ensure that the charges brought were
correct and appropriate, to avoid overcharging and to encourage early guilty
pleas.
Pre-charge bail can occur in the UK where:

A person is arrested and bailed on the street to appear at a police
station at a later date (minor offenses only);

A person is arrested and taken to a police station where there is some
evidence of an offence (but it is insufficient to charge) so that further
investigation is necessary and there is no need to hold the suspect in
custody;

A person is arrested and taken to a police station and there is sufficient
evidence to charge but the case is referred to the CPS for a charging
decision (statutory charging arising out of the Auld Report).
Bail conditions can be imposed to prevent further offending, to prevent
interference with the justice process, to assist in preserving the evidence and
to ensure protection of the victim.
In some cases the accused may be
detained while the investigation or charge decision is being considered.
The perceived advantages include the police having time to assemble a
complete brief, to give certainty as to the charge which is unlikely to change
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later in the proceedings, and to allow an early plea that will attract a maximum
discount. For that purpose, the “earliest possibility opportunity” applies at a
time when more is known on each side of the record, and when a full brief is
available and the charge is finally settled.
Criticisms have been identified concerning its possible impact, including the
risk of a misuse of police powers (fishing expeditions, inappropriate bail
conditions and overuse), and of suspects being held in limbo for prolonged
periods subject to bail restrictions.
Criticisms of this kind could be limited if time limits were imposed and the
procedure was available for a limited group of cases, for example, historical
sexual assault cases or complex and serious fraud.
It has been suggested that a scheme of this kind could assist in overcoming
the disjunction that currently exists concerning the critical points in the criminal
justice process that are likely to determine the optimum timing for a plea
negotiation. For the accused they are the point of arrest and charging, and
later the point when the case is listed for trial, while for the lawyers they are
the points when they read the brief for the first time, and the date when they
appear for trial.
The UK system does depend on the availability of duty prosecutors who are
linked to police via IT and telephone, as well as face-to-face consultation in
the most serious and sensitive cases. This has resource implications.
It is noted that the introduction of a scheme of this kind could take advantage
of the arrangements that are already in place in NSW, pursuant to a protocol
between the ODPP and NSW Police, whereby the ODPP can give advice,
where sought:
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
During an investigation, in relation to evidence admissibility;

Whether the evidence is sufficient and a case is appropriate for a CAN
(Court Attendance Notice);

With the approval of the Director or Deputy in relation to a series of
specific matters, for example, extradition, immunity, prosecution of a
police officer or public official when accused of corruption, and
homicide.
Otherwise for Local Court matters, the recent location of police prosecutors at
Local Area Commands (NSW Police Practice Management Model) rather than
by assigning them to specific courts, provides a similar direct service by which
police can seek advice from a police prosecutor who will then be responsible
for conducting the prosecution.
It is aimed at ensuring that appropriate
charges are preferred and that informed plea negotiations can occur.
It may be possible to build on this process by reinstating the Pre-Trial Unit that
previously was in place in the ODPP, and that was staffed by senior
prosecutors who conducted an early review of the cases referred to it, to
determine whether the charge was appropriate.
In the USA the need for early experienced evaluation has been recognised by
the practice in some jurisdictions of assigning more experienced prosecutors
to this stage of the trial process, and less experienced prosecutors to the trial.
Otherwise the system in place in Los Angeles and some Canadian provinces
brings the prosecutors into the case at a pre-charge but post arrest stage.
(b)
Fast track schemes
Schemes of this kind (in place in the UK and WA although recently varied in
that State) provide a distinct highway for those who plead guilty in a Local
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Court (or equivalent) to an indictable offence and who progress to sentence in
a higher court. They generally involve a specialised sentencing hearing in
which arraignment and sentencing is combined and qualify the accused for the
highest available discount. This allows a front end loading of the proceedings
and allows the early preparation of pre-sentence reports.
In the UK, the Crown Prosecution Service (CPS) and defence identify suitable
matters (based on the evidence and any admissions) where a guilty plea is
likely; and at the first hearing the magistrate is asked to send the case for an
early guilty plea hearing (EGPH), thereby avoiding the usual process for a
preliminary hearing or a plea and case management hearing. The EGPH is
treated as the “first available opportunity” attracting the maximum discount.
In Western Australia, a fast track applies for defendants who plead guilty
before committal and who are transferred to the higher court for sentence
thereby becoming eligible for the maximum sentencing discount (now 25% in
place of the previous 35%).
(c)
Sentence indication schemes
In essence, these involve submitting an agreed statement of facts to a judge
post committal, but before trial, so that an advance indication can be given of
the likely penalty (type of sentence and/or quantum) if the accused pleads
guilty – although the indication is not binding on the accused who may go to
trial. In general if an indication is given the sentencing court is restricted in not
imposing a more severe sentence; the Crown appeal right to appeal is
however preserved.
Some problems with the scheme that was formerly in place in NSW were
identified:
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
People pleading at committal sometimes received harsher sentences
even though committals preceded sentence indication hearings.

Outcomes differed between judges and led to inconsistency.

Crown appeals were common and added to delay and extra costs, and

Very often the accused sought to improve on the indication by calling
extra evidence – adding to delay.
A sentence indication scheme exists in Victoria in the County and Supreme
Courts that permits an indication of whether there would be a non-custodial or
a custodial outcome, (but not the quantum) which the accused can accept by
pleading guilty.
A scheme also exists in the UK following the 2005 Court of Appeal decision in
R v Goodyear (2005) EEWCA Crim 888. The indication is of the maximum
sentence that might be given. If the indication is accepted a more onerous
sentence cannot be passed. Similarly a sentence indication scheme exists in
New Zealand for offences heard in the District Court that allows an indication
to be given of the type of sentence to be imposed, or of a particular type within
a specified range or quantum.
(d)
Encouraging greater efficiency within the justice agencies – more
intensive case management
In the course of our consultations so far, attention has been drawn to several
possible system blockers that are related variously to resource issues, historic
work practices or culture, Legal Aid funding rules, and to an approach which
regards arrival of the trial date as providing a more useful and less costly
encouragement to the entry of a plea than early disclosure and case
management.
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A significant and consistent complaint made on both sides of the record has
been the late briefing or involvement of the prosecutor and defence counsel in
the case, or of a lack of continuity in representation, either of which means
that meaningful negotiations do not commence until just before the trial date.
On the prosecution side this has been due to a lack of sufficient prosecutors
particularly those with the authority to negotiate a settlement.
On the defence side, the limited Legal Aid budget and limited availability of
Public Defenders has similarly meant that trial counsel are not engaged until
late in the proceedings. For private practitioners engaged on a legal aid basis,
the fee structure is such that it is financially advantageous to delay
negotiations until the trial date since the fees paid for early preparation and
plea negotiation are relatively low.
It is at least arguable that early briefing and increasing the legal aid fees for
work done in connection with guilty pleas, that enables serious early
consultation in relation to charge/plea negotiation, would be cost productive.
Strategies for achieving an acceptance and application of this approach will be
explored. Alternatively more rigour may need to be applied to the new pre-trial
case management procedures to bring forward the timetable for disclosure,
and to ensure that it is in fact used by the Courts in suitable cases. This
potentially opens the need to consider a differential case management
approach. What is also under consideration is the possibility of introducing a
whole of system case management system that would remove any disconnect
between local court and higher court practices.
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(e)
Plea/charge negotiation – structured case conferencing
Early resolution through plea or charge negotiation is a common feature in
most criminal jurisdictions, that allows the prosecution to:

Downgrade the charge or charges;

Refrain from prosecuting some charges or to place them on a
form 1;

Undertake not to proceed against a defendant in return for
assistance given to the authorities in relation to other matters or
other suspects;

Allow an indictable matter to proceed summarily; or to

Amend the statement of facts.
The extent to which this can occur varies across jurisdictions, depending on
the scope of the prosecutorial discretion and the extent of judicial oversight,
and on whether local practice accepts the permissibility of the prosecution
making a recommendation to the court in relation to the sentence type, the
available range or even the quantum of an appropriate sentence.
In NSW the procedure was formalised for a while in accordance with the
Criminal Case Conferencing Trial Act before its repeal. However the process
continues on an informal basis in accordance with the DPP Prosecution
Guidelines.
In one region of NSW where a relationship of trust has been established
between the ODDP and Legal Aid, a pilot process has been established in
which incoming cases are reviewed and those that are assessed as capable
of early resolution are flagged for charge/plea negotiation between the two
agencies. Any agreement that is reached is referred to a Crown Prosecutor
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for approval, as are those cases where agreement cannot be reached.
Anecdotal evidence has suggested that this pilot is working well.
The ODDP guidelines permit resolution to occur through charge negotiation
only if the public interest is satisfied, and the views of the victim and charging
police officer are taken into account (although they are not determinative).
Consideration needs to be given whether to:

The alternative charge adequately reflects the “essential criminality” of
the conduct.

The plea provides adequate scope for sentencing.

The evidence available to support the prosecution is weak in any
material respect.

The plea saves a witness, particularly victims and vulnerable witnesses,
from the stress of testifying.
The discretion to change an agreed statement of facts is limited, being
impermissible if the change would produce a distortion of the facts, or create
an artificial basis for sentencing the offender, or exclude facts essential to
establishing the objective criminality involved.
In NSW a certificate signed by or on behalf of the Director of Public
Prosecutions must be provided to the Court, confirming that consultations
have occurred and that any statement of agreed facts constitutes a fair and
accurate account of the objective criminality of the offender having regard to
the relevant and provable facts of the case.
In NSW prosecutors cannot give an undertaking as to the sentence type or
quantum, and normally do no more than inform the Court of relevant
sentencing law and what is considered to be an acceptable sentencing range.
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If they do propose a particular sentence, or indicate that they would not
oppose a particular sentence suggested by the defence, then this is not
binding on the Sentencing Court (or an Appellate Court).
The United Kingdom has a plea bargaining system that is overseen through
various mandatory guidelines. The model differs from the NSW system in five
respects:

Plea agreements must be in writing, signed and submitted to the
court.21

Defendants are able to request a sentence indication on an agreed
charge from the Court prior to signing the agreement.

In cases of serious or complex fraud an agreement to present a joint
submission on sentence is permitted as part of
charge/plea
negotiations.22

There is court review of the terms of the agreement.

A guideline has been produced specific to plea negotiations in cases of
complex or serious fraud. This guideline outlines a specific process for
negotiations, and attempts to formalise plea agreements in this context,
by requiring the parties to provide a non-binding joint written
submission to the Court.
The joint submission in serious and complex fraud cases is of interest in that it
identifies a list of aggravating and mitigating features arising from the agreed
facts, any mitigating circumstances personal to the offender, any relevant
21.
22.
Attorney General’s Guidance on the Acceptance of Pleas and the Prosecutor’s Role in the
Sentencing Exercise (2009) C2-C3
Consolidated Criminal Practice Direction, IV.45.18(b); Attorney General’s Guidelines on Plea
Discussions in Cases of Serious or Complex Fraud (2010). The judge retains “absolute
discretion to refuse to accept the plea agreement and to sentence otherwise than in
accordance with the sentencing submissions”: Consolidated Criminal Practice Direction
IV.45.23.
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sentencing guidelines or authorities and any measures that may achieve
redress for the victim or protection for the public.
The process in the UK is subject to a greater degree of oversight by the Court,
for example, where the judge is invited by the prosecution to approve a
proposal to accept a lesser charge, or to give an indication; or where a
“Newton hearing” is carried out, (that is a hearing where a defendant wishes to
plead guilty but disagrees with the prosecution version of facts that are likely
to affect the sentencing). Additional rigour is introduced by the fact that plea
agreements are reduced to writing, signed by the parties and submitted to the
judge, and become part of the court record.
Under the Canadian Federal Jurisdiction the prosecution also have a wider
discretion than that available in NSW – for example in incorporating a
sentencing outcome in the agreement that is reached between the parties,
that can include a joint recommendation for a range of sentences or a specific
sentence, or an undertaking by the prosecution not to oppose a sentence
sought by the defence.
Although judges are not bound by joint
recommendations on sentence, clear and cogent reasons are required for
their rejection.
In the USA federal system, plea agreements, that are reached according to
numerous rules, policy documents and guidelines, are treated as contractual
in nature so that the government will be held to them.
They are understood to embrace two categories:
charge bargaining and
sentence bargaining; although they can also constitute a combination of each.
Participation by a Judge is not permitted in charge bargaining, that allows the
prosecution to drop a charge in favour of a lesser charge (an “A” agreement).
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The court is not bound to accept a plea agreement derived from charge
bargaining.
In the case of sentence bargaining, the prosecution can:

Make a recommendation to the court as to an appropriate sentence
range or as to its non-opposition to a request from the defence as to a
particular sentence or range (a “B” agreement).

Offer to agree that a specific sentence or range is the appropriate
disposition, or that a particular provision or sentencing factor should not
apply (a “C” agreement).

Agree to recommend the low end of a guideline, or to a departure from
the guideline.
The Judge’s approval is required and all plea agreements must be disclosed
in open court and filed with the court.
In this context we intend to consider whether the NSW system should:

Reintroduce a formal case conferencing process through Rules of
Court, an approach that has received some support in the submissions
and consultations, and which it has been suggested did have the
advantage of requiring the prosecution and defence to seriously
consider a resolution early in the proceedings.

Adopt policies and procedures akin to those in the UK, USA and
Canada to increase the transparency of the plea/charge bargaining
process through the requirement for any agreement that is reached to
be provided to the court and placed on the public record.
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
Increase the prosecutorial discretion, for example in not disagreeing
with a defence submission on sentence, agreeing to submit a nonbinding joint proposal, or recommending an appropriate sentence.

Impose greater judicial oversight and review of the content and effect of
plea agreements.

Allow a Judge (not the trial Judge) to participate the process – for
example by adjudicating on issues in dispute that may be preventing
resolution, or by indicating that a possible negotiated settlement would
not be accepted by the court.
Summary proceedings – encouraging early guilty pleas
(f)
Most summary jurisdictions in Australia have a formal or informal case
management system to encourage pre-trial resolution.
They include the
following:

The Victorian summary case conference and contest mention
This comprises a two stage process.
First the Summary Case Conference (SCC) which is a mandatory
unmediated criminal case conference (introduced in 2010) that involves
an out of court discussion between the prosecution and defence to
facilitate the progression of the case and to achieve early resolution if
possible. It takes place after the defence have received a preliminary
brief that contains a sworn statement giving details of the alleged facts
and evidence in support of the charges. It includes a summary of any
statements made by the defendants, a list of witnesses indicating the
evidence they will give, a list of exhibits and a statement of any orders
sought.
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The proceedings are off the record and, if the matter does not resolve,
it moves to the second stage, a contest mention (CSM process), which
involves an in court case conference, a statutory case management
tool that was introduced in 1992. It is presided over by a magistrate
and its aim is to resolve defended cases that are capable of resolution
or otherwise to narrow the issues and prepare the case for an efficient
trial. A sentence indication can be given by the magistrate at any point
in this process, although confined to whether it would be of a custodial
or non-custodial type.
The system is claimed to have encouraged:
o An early identification of guilty pleas;
o Listing certainty for matters set for trial;
o More efficient resource allocation.
o A reduced backlog.

In South Australia if after a second return, the defendant indicates an
intention to plead not guilty, the parties are directed to confer “fully and
frankfully” on seeking a resolution.
On a third return a pre-trial
conference is directed – a closed mediated short session aimed at
refining the issues or achieving resolution, at which a sentence
indication can be given by the magistrate.

Tasmania has introduced a CMS system along the lines of the Victorian
model, at which an indication as to sentence type can be given.
Evaluation in 2012 has recommended statutory implementation.
Variations of the above can be seen in the ACT and the Northern Territory.
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Although NSW does have a practice note that is directed at ensuring that
summary criminal trials proceed within strict time standards, it does not
accommodate, at least expressly, the use of either:

an unmediated case conferencing; or

a magistrate managed case conferencing process; or the giving of a
sentence indication (either as to type or quantum).
(g)
Some miscellaneous strategies
Among the other possible approaches to be considered are the following:
 Mediation – An example of which is in place in Western Australia for
serious trials in the Supreme Court, under which an experienced former
judge(s) engages in a mediation process with the prosecution and
defence, to determine whether a plea/charge agreement can be
reached. This would desirably be combined with the delivery of training
to Crown Prosecutors, Public Defenders and legally aided lawyers in
negotiation/mediation skills, as well as the preparation of some
guidelines as to the process to be followed.
 Discount structure – A possible way of increasing the incentive to
plead earlier would be to restructure the timeframe for the discount
levels and to give that legislative effect. Various possibilities exist, of
which one example is that in place in South Australia, for pleas in the
higher courts, that allows:
o A discount of up to 40% for a plea that is given not more than
4 weeks after the first appearance;
o A discount of up to 30% for a plea given more than 4 weeks after
a first appearance but before committal;
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o A discount of up to 20% for a plea given between committal and
10 weeks after the first date fixed for arraignment;
o A discount of 10% thereafter.
This framework is subject to some qualifications and is also subject to a
legislative statement of the matters that the Court is to take into
account.23
Various other formulations for the progressive reduction of the available
discount can be developed, and in the submissions and consultations
so far there has been some support for giving the quantification of the
discount a more specific legislative direction.
The real issue with a discounting regime, however, lies with the
uncertainty that a defendant might have when informed of the
availability of a discount that is expressed as a percentage, as to what
this means in real terms. A reference to a percentage discount is not
necessarily meaningful unless the defendant know the term of years to
which the percentage is to be applied. The uncertainty is potentially
compounded by the fact, as accepted by the authorities, that there is no
single correct sentence for any given case – rather what is assumed is
the existence of an appropriate range.
Some strategies have however been identified in the submissions that
are directed at increasing the awareness of defendants of the discount
provisions, and of the benefits of offering an early guilty plea, including
for example:

23.
The provision by police of relevant information when charged;
Criminal Law (Sentencing) Act 1988 s 10C.
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
The provision of relevant information by magistrates or by the
Local Court at the time of first appearance;

The introduction of a requirement for defence lawyers to provide a
certificate at arraignment, or before a matter is fixed for trial,
confirming that the accused has been given appropriate advice
concerning the operation of the discount system.
Whatever is done in this context, it does need to be directed at
achieving a consistency in outcome, otherwise it will remain difficult for
meaningful advice to be given to a defendant.
Moreover absent
consistency, some defendants may prefer to take their chance of being
listed before a judicial officer who is believed to be lenient or flexible in
applying the discounting provision.
Encouraging consistency in this respect might also remove the belief
that exists, in some quarters, that the “first available opportunity” is in
truth a moving target.
 Introducing a procedure to settle factual issues following the
provision of an indicative plea - A possible approach identified so far
would permit an accused to indicate a provisional intention to plead
guilty (an indicative plea) subject to agreement being reached on the
facts for sentence. This would allow the case to be listed simply for the
purpose of resolving any dispute on the statement of facts prepared by
the prosecution.
 Relaxing the hearsay rule – prior representations – One possibility
under consideration would involve an amendment of ss 65 and 66 of
the Evidence Act 1995 (NSW), or the introduction of specific legislation,
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to allow the tender in evidence of the account of a victim and/or witness
that is electronically recorded in the immediate aftermath of an incident
constituting an offence.
Although this kind of evidence can be tendered where the witness or
victim is unavailable, it cannot be tendered where that person is
available to give evidence, unless they give unfavourable evidence (ie
evidence contradictory of the contemporary account).
Allowing its tender generally would not preclude cross-examination, but
it could lead to the giving of more reliable evidence that is unaffected by
succeeding events or by other well recognised forms of contamination,
including loss of memory for detail over time.
Obviously the decision to allow its tender would be subject to the usual
discretion based on a balancing of its probative value and risk of unfair
prejudice, taking into account whether or not the circumstances in which
the prior representation was made it unlikely to be a fabrication. It
would also involve the giving of a warning of the kind that is currently
given in relation to the tender of the pre-recorded evidence of a sexual
assault victim.
 Expedition of the delivery of forensic reports and transcribed
conversations and of the brief - A problem identified by a number of
stakeholders has been the delay in the delivery of certificates
concerning drug and DNA analysis, and also of transcripts/translation of
intercepted conversations (it being the practice of the transcription
service to delay preparing a transcript until a committal or trial date is
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set to avoid unnecessary work). A similar complaint has been made of
police drip feeding the brief to the ODPP.
Any delay in this regard can have a real impact on the advice to an
accused whether to plead guilty or to go to trial. The solution probably
depends on the allocation of sufficient resources to enable the forensic
laboratory and the police to prepare and deliver the relevant certificates
or transcripts or brief, in a timely way, but early investment at this stage
may save costs later.
 Increasing the jurisdictional limit of the Local Court or expanding
the list of table offences - An increase of the jurisdictional limit of the
Local Court to allow the imposition of imprisonment of up to 3 years
could improve the efficiency of the justice system, particularly by
reducing the cost and delay associated with jury trials. It would also
reduce the incidence of committal, and in circumstances where a
defendant was aware of the limit on the available sentence provide
some incentive to plead early.
The downside might relate to an
increase incidence of appeals to the District Court, placing an extra
burden on the ODPP.
 Eliminating or further restricting the committal process - A question
does arise as to whether, if pretrial disclosure and case management is
properly carried out, there is still a role for the committal process, save
in exceptional cases. It is noted that in the UK the committal process
has been removed.
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If the committal process is retained then it would seem desirable to ensure
that it serves a dual purpose of establishing whether an accused has a case to
answer, and of ensuring that all of the evidence which the prosecution intends
to use is on the table, and that a charge which is appropriate for the criminality
involved is settled. Upon that basis the next step of arraignment should be
one in which the prosecution and defence are appropriately represented.
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