REFORM OF CRIMINAL TRIAL
PROCEDURE
Paper 2 - Prosecution
Session
PROSECUTION DISCRETION AND THE USE
OF
APPROPRIATE CHARGES
Ian Temby QC
Barrister, New South
Wales
Introduction
The principal participants in the criminal
justice process comprise investigators (generally police), prosecutors, defence
lawyers, Judges, jurors, witnesses, and the accused. The last is the most
important: typically male[1],
under 30 years of age[2], of
low intelligence or education or both, poor, and addicted to or at least a heavy
user of alcohol or an illegal drug. He feels, with some justification, that he
is being processed by the system. He has rights, which must be respected. Some
contend that he has too many rights, but if they are to be whittled down that
must be done very cautiously indeed.
Behind these participants we find the community,
on behalf of which the system operates. Members of the public tend to forget
that they or their loved ones could well fall foul of the criminal law. They
want, and by and large receive, a criminal justice system which is fair, firm
and transparent. However they are not inclined to assume the system is free of
fault, and nor should they be.
The Standing Committee of Attorneys-General
appointed a working group on criminal and trial procedure which in its
report[3] stated its aim was
to “identify practical areas of reform which offer the greatest
potential to reduce criminal trial delay while not impacting unfairly upon the
right of every defendant to a fair trial”. Recommendations made
include ways of encouraging early pleas of guilty by offering incentives. Much
is also said about the prosecutor’s duty of disclosure, and the
desirability of forcing increased “co-operation” upon the
defence. Little emphasis is placed upon the responsibility of the prosecution to
ensure that the charges laid are appropriate. It is with that topic that this
paper is concerned.
The Accused Will Plead Guilty
...
The common experience of criminal law
practitioners in Australia is that a high proportion of convictions follow a
plea of guilty. That is more true in the lower courts, but still generally true
in the higher courts. During the last year for which
figures[4] are available,
1997-1998, about 15% of defendants charged in the higher courts were not subject
to final adjudication, because the accused died, or absconded, or charges were
withdrawn by the
prosecution[5], or an
indefinite stay of proceedings was ordered. Of the balance which proceeded to
final adjudication, almost precisely 90% of accused were found guilty. That was
a result of a guilty plea in 72.5% of cases, which is to say that accused
persons were acquitted in a little more than one third of cases fully defended
to jury verdict. Out of the pleas of guilty, slightly more than one half were
known to be such from the time the case entered the higher court stream, and the
remaining defendants changed their plea from not guilty to guilty during
proceedings in such courts.
It is a good thing that some defendants plead
not guilty, and a very good thing that some are
acquitted.[6] But undoubtedly
hopeless cases from the viewpoint of the accused are contested, because he is
pigheaded or his lawyer is stupid (both features may well be present in a given
case), which is bad for the convicted person and wastes resources. And there may
well be much opportunity to reduce the proportion of cases in which the guilty
plea is forthcoming at a late stage, not early on.
... But Only to Appropriate
Charges
The paper under consideration proceeds on the
unstated assumption that the problem lies on the defence side, and can best be
solved by offering incentives for a guilty plea, particularly if proffered early
on. But it may well be the solution, or a large part of it, lies elsewhere.
In a very high proportion of all criminal cases
in the higher courts, some involvement by the accused in conduct which is
clearly criminal in nature cannot be questioned. In such cases, the real debate
centres upon whether the correct charge has been laid in the sense that all
elements of it can be proved to the required standard, perhaps coupled with
disputation as to the principles of criminal liability. If somebody dies at the
hands of another, then generally the debate concerns intent, perhaps
self-defence or provocation (the two sometimes being run, uneasily, in harness
together), perhaps diminished responsibility by reason of some mental
impairment. Generally the real question will be whether the accused should be
convicted of murder or manslaughter. Other broadly similar examples could be
given in other areas of the criminal law.
The general approach of experienced defence
counsel is to recommend to accused persons that they plead guilty to an
appropriate charge or charges, but otherwise defend the case. Surely no less
would be required of them in any rational, principled system.
It is at least a possibility worthy of serious
consideration that in a significant proportion of cases guilty pleas are not
offered, or not offered at an early stage, because the prosecuting authorities
have selected charges which are inappropriately heavy in the objective
circumstances of the case. If and to the extent that happens, remedial action
will lead to further guilty pleas and a reduction in delays.
Relevant Guidelines
There is now to be found, at Commonwealth level
and in each of the Australian States and internal Territories, a Director of
Public Prosecutions operating under statute. Speaking generally, each is charged
with making key decisions in relation to prosecutions in a manner which is
independent of political and bureaucratic processes. All have published
prosecution policies or guidelines.
The most important decision to be made by
prosecutors is whether charges should be
laid[7]. If so, the second
most important follows: what charges? It must be said that the various DPP
policies and guidelines are widely
various[8] in these and other
respects.
Commonwealth prosecutions are atypical, in that
they do not deal with ordinary
crime.[9] Most of the
workload of Commonwealth prosecutors has to do with drug importations and frauds
upon the central Government. The “Prosecution Policy of the
Commonwealth”
provides[10]:
“In many cases the evidence will disclose
an offence against several different laws. Care must therefore be taken to
choose a charge or charges which adequately reflect the nature and extent of the
criminal conduct disclosed by the evidence and which will provide the court with
an appropriate basis for sentence.”
The succeeding paragraphs of the guidelines
state that:
. While in the ordinary course the charge or
charges laid will be the most serious disclosed by the evidence, when regard is
had to such matters as the strength of the available evidence and probable lines
of defence, it may be appropriate to lay a charge which is not the most serious
so disclosed.
. “Under no circumstances should charges be
laid with the intention of providing scope for subsequent charge
bargaining.”
. Ordinarily the provisions of a specific Act,
rather than the general provisions of the Crimes Act, should be availed
of.
New South Wales has more people and more crime
than any other Australian jurisdiction. The official approach in that State is
notably pragmatic, as appears from the following excerpts from the Prosecution
Policy and Guidelines:[11]
“Charges are to be selected that adequately
and appropriately address the criminality alleged and enable the matter to be
dealt with expeditiously.”
“Prosecutors should actively pursue the
possibility of appropriate charge bargaining and summary disposal ...
considering constructively any approach by the accused in that
regard.”
In Victoria, the Prosecutorial Guidelines, not
changed since 30 June 1993, concentrate upon the decision to prosecute, rather
than the choice of charges. The same general comment may be made concerning
Tasmania and the Northern Territory.
The Queensland DPP has issued a Statement of
Prosecution Policy and Guidelines which includes the following under the heading
“Choice of Charges”:
“In many cases the evidence will disclose
offences against several different provisions of the criminal law. Prosecutors
must ensure that the charge or charges adequately reflect the nature and extent
of the criminal conduct disclosed by the evidence and will provide the court
with an appropriate basis for sentencing.
In no case must a charge be laid where there is
no sufficient evidence to warrant a considered view that there is a reasonable
prospect of success in gaining a verdict.
On no account should a more serious charge be
laid solely to induce a defendant to engage in plea
bargaining.”
The South Australian DPP by its Statement of
Prosecution Policy and Guidelines has said something similar, with more than a
touch of the Commonwealth approach,
namely:[12]
“In many cases the evidence will disclose a
number of possible offences. Care must therefore be taken to choose a charge or
charges which adequately reflect the nature and extent of the criminal conduct
disclosed by the evidence and which will provide the Court with an appropriate
basis for sentence.
In the ordinary course the charge or charges laid
or proceeded with will be the most serious disclosed by the evidence.
Nevertheless, when account is taken of such matters as the strength of the
available evidence, the probable lines of defence to a particular charge and
other considerations including the appropriate sentence, it may be appropriate
to lay or proceed with a charge which is not the most serious revealed by the
evidence.
Under no circumstances should charges be laid
with the intention of providing scope for subsequent
charge-bargaining.”
The guideline in question adds the customary
caution about the laying of conspiracy charges.
Possible Changes in
Approach
In some jurisdictions published policies and
guidelines place no or little emphasis upon choice of charges. That is
unfortunate. The general policy rule in the other Australian States and
Territories is that charges are to be chosen which adequately reflect the
criminal conduct disclosed by the evidence, and which will provide the
sentencing judge with an appropriate basis for discharging that function. The
Commonwealth and South Australian guidelines go further in stating that in the
ordinary course the charge or charges laid will be the most serious disclosed by
the evidence. That is, however, made subject to important qualifications having
to do with the strength of available evidence and probable lines of defence, and
there may be little difference in practical outcome as against the approach
urged upon prosecutors in New South Wales and Queensland.
In New South Wales, prosecutors are told to
“actively pursue the possibility of appropriate charge bargaining”
and to consider “constructively any approach by the accused in that
regard”. Surely that is as it should be. The community expects that people
who commit serious crimes will, if caught and dealt with, be convicted of an
offence and given a sentence which bears a proper relationship to the provable
conduct in question. There may, however, be no need to charge the most serious
offence of which a jury might find an accused guilty, particularly if the
penalty likely to be imposed for that more serious offence is not greater than
the maximum available for a somewhat lesser offence of which conviction is
practically certain, so that a plea of guilty becomes likely. To give an
example, it may be appropriate to charge malicious wounding rather than
attempted murder. There seems to be every reason why discussions between
prosecutor and defence counsel as to the perceived strength of the prosecution
case should be encouraged. To the extent that leads to matters being disposed of
following a guilty plea, without derogating from the need to see appropriate
convictions obtained and sentences imposed, that is surely a good thing. There
will of course still be many cases in which a defended trial is justified.
Role of Judges
Save in most exceptional circumstances, a court
cannot instruct a prosecutor as to what the indictment should contain. So much
is clear from Maxwell v
R.[13] In that
case, Dawson and McHugh JJ. said at 513:
“The decision whether to charge a lesser
offence, or to accept a plea of guilty to a lesser offence than that charged, is
for the prosecution and does not require the approval of the court. Indeed, the
Court would seldom have the knowledge of the strengths and weaknesses of the
case on each side which is necessary for the proper exercise of such a function.
The role of the prosecution in this respect, as in many others, ‘is such
that it cannot be shared with the trial judge without placing in jeopardy the
essential independence of that office in the adversary system’. R. v
Apostilides (1984) 154 C.L.R. 563 at 575.
In R. v Brown (1989) 17 N.S.W.L.R. 472
at 479-480, the Court of Criminal Appeal recognised the substantial practical
limitations imposed upon the power of the courts to control the exercise by
prosecuting authorities - of their discretion in such matters as the choice of a
plea with which an accused is to be charged or the acceptance of a plea of
guilty to a particular charge. The Court rightly observed that the most
important sanctions governing the proper performance of a prosecuting
authority’s functions are likely to be political rather than legal.
Nevertheless, the Court concluded that in an appropriate case a court may need
to give effect to its own right to prevent an abuse of process. That conclusion
is undoubtedly correct, but the need for a court to exercise its inherent power
to protect its own process should in this context rarely, if ever, arise. A mere
difference of opinion between the court and the prosecuting authority could
never give rise to an abuse of process.”
In that last respect, Gaudron and Gummow JJ.
said at 535:
“It follows from the nature of a
criminal trial, in which the prosecution bears the onus of proving guilt beyond
reasonable doubt, that it cannot be an abuse of process to proceed on a lesser
charge, ... merely because there is evidence which, if accepted, would sustain a
more serious offence.”
The same learned judges said at
534:
“It ought now be accepted, in our view,
that certain decisions involved in the prosecution process are, of their nature,
insusceptible of judicial review. They include decisions whether or not to
prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to
present evidence, and, which is usually an aspect of one or other of those
decisions, decisions as to the particular charge to be laid or prosecuted. The
integrity of the judicial process - particularly, its independence and
impartiality and the public perception thereof - would be compromised if the
courts were to decide or were to be in any way concerned with decisions as to
who is to be prosecuted and for what.”
Conclusion
Prosecuting authorities throughout Australia
should be encouraged to ensure that their policies and
guidelines:
. deal with the question of choice of
charges;
. require prosecutors to ensure that the charge
or charges laid adequately reflect the criminal conduct disclosed by admissible
evidence, and will provide the court with an appropriate basis for sentencing;
and
. sanction discussions with defence counsel with
a view to facilitating the appropriate choice of charges.
If acted upon, the approach urged would help
reduce delays without in any way compromising a principled approach. Finally, it
is important that judges maintain, in this as in other respects, their roles as
neutral and disinterested referees.
Endnotes
[1] Australian Bureau of
Statistics, “Higher Criminal Courts, Australia, 1997-1998" - 88% of
finalised defendants were male.
[2] ABS, as above - 51.5% of
defendants finalised in the relevant year were aged 17-29.
[3] Issued September
1999.
[5] These cases may reward
further study: were a significant proportion of the cases withdrawn perhaps
over-charged in the first instance?
[6] Prosecution services with a
conviction rate approaching 100% are either excessively timid, or to be found in
authoritarian States.
[7] The most important, but not
the most difficult. Decisions whether to grant an indemnity, so a potential
accused becomes a witness, are fraught with difficulty.
[8] The lack of orthodoxy is
bewildering: is there not a best practice available?
[9] Murders, burglaries and so
on.
[11] Issued March 1998 -
paras. 3 and 4.
[12] Issued July 1999-
Guideline No. 1.
[13] (1996) 184 C.L.R.
501