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Prosecution Guidelines

Chapter 4. Charge resolution

This Chapter sets out how and why the option of charge resolution in appropriate cases is necessary for the effective and efficient conduct of prosecutions.

Published 29 March 2021

4.1 Introduction

This Chapter sets out:

  1. why charge resolution is important
  2. when charge resolution may occur
  3. the principles applying to preparing a statement of agreed facts
  4. the principles applying to the decision to have certain offences taken into account when the offender is being sentenced for another offence
  5. special provisions concerning an accused person who is without legal representation.

4.2 Why charge resolution is important

The option of charge resolution in appropriate cases is necessary for the effective and efficient conduct of prosecutions. It relieves victims and other witnesses of the burden of having to give evidence, provides certainty of outcome and saves the community the cost of running trials. However, charge resolution must be based on principle and reason, not on expedience alone.

The resolution of charges is a legitimate way of progressing criminal proceedings. The law recognises the benefits to the criminal justice system of appropriate early guilty pleas, and sentencing discounts are available in most cases to reflect their utilitarian value. The earlier an appropriate plea is offered, the greater the benefits to the offender and the community in general.

4.3 When is it appropriate that charge resolution occur

A matter may only be dealt with by way of charge resolution if it is in the public interest to do so. In determining whether a charge resolution is in the public interest, the following factors are to be considered, in addition to the public interest factors outlined in Chapter 1, the decision to prosecute:

  1. the charge or charges to proceed appropriately reflect the essential criminality of the criminal conduct capable of being proven beyond a reasonable doubt and provide an adequate basis for sentencing
  2. the evidence available to support the prosecution case is weak in a material way, even though it cannot be said that there is no reasonable prospect of conviction, and the public interest will be satisfied with an acknowledgment of guilt to certain lesser criminal conduct
  3. the cost saving to the community is significant when weighed against the likely outcome of the matter if it went to trial
  4. charge resolution will save a witness from having to give evidence in court proceedings, where the desirability of this is a particularly compelling factor in the case 

Discussions between the prosecutor and an accused’s legal representative on the appropriate charge resolution of a matter must occur as part of a case conference, where one is required, and may occur at any other stage as the matter progresses through the courts.

Consultation with victims and police

In considering whether to accept a plea from the accused, the  victim and the  officer-in-charge must be consulted and their views properly considered, although the public interest is the overriding consideration.

Pursuant to s.35A Crimes (Sentencing Procedure) Act 1999, where charge resolution has occurred the prosecutor must file a certificate to verify that these consultations have taken place or, if it they have not taken place, the reasons why. Chapter 5: Victims and witnesses sets out the requirements for communicating with and consulting victims about charge resolution.

In most cases it will be appropriate to inform the accused’s legal representative that the prosecution will only accept a plea offer if its terms are clearly set out in writing. In all cases, written records should be maintained of charge resolution discussions and consultation with the victim and officer-in-charge.

If a charge resolution proposed by the accused is determined not to be in the public interest, the prosecutor may consider whether to propose an alternative resolution, having regard to the factors set out above.

4.4 Statement of agreed facts

It is desirable for the prosecution and the accused to reach agreement on the facts on which the offender should be sentenced and for there to be a  statement of agreed facts signed by the prosecutor and by or on behalf of the offender.
A statement of agreed facts:

  1. must not grossly distort the facts as a basis upon which to secure charge resolution
  2. precisely identify the facts both the prosecution and the offender accept and indicate any facts or issues in dispute
  3. should not include facts that would invite the court to sentence for a more serious offence than that for which the offender stands to be sentenced.

The views of the victim (in accordance with the requirements in Chapter 5: Victims and witnesses) and the officer-in-charge regarding the contents of the statement of agreed facts must be obtained. A written record must be maintained to explain how and when the statement of agreed facts came into being.

4.5 Taking offences into account – Form 1 offences

It is up to the prosecutor to determine whether or not an offence is suitable for placement on a Form 1 as part of a charge resolution. This decision should be based on principle and reason, not administrative convenience or expedience alone. The prosecutor should have regard to:

  1. the need to ensure that the offences for which the offender will be sentenced adequately reflect the totality of the admitted criminality
  2. the relative seriousness of, and the maximum penalties for, offences for which the offender will be sentenced and on the Form 1, including consideration of aggravating factors 
  3. the relationship between the principal offence and the Form 1 offences, taking into account the need to represent individual victims and episodes of offending on the indictment
  4. the public interest in convictions being recorded for certain offences.

The maximum penalty for a Form 1 offence should generally be less than the maximum penalty available for the principal offence. In some circumstances it may be appropriate for offences with the same maximum penalty as the principal offence to be placed on a Form 1 – for example, where there are multiple offences of a similar nature – provided doing so would not create an imbalance between the principal offence and the Form 1 offences.

There is generally a public interest in convictions being recorded for:

  1. failure to appear
  2. firearms offences
  3. serious offences against police officers
  4. breaches of apprehended domestic violence orders
  5. offences committed while on bail or other forms of conditional liberty
  6. offences for which penalties increase for second or subsequent convictions
  7. offences in relation to the administration of justice
  8. traffic offences where the offender has a poor traffic record.

The views of the victim (in accordance with Chapter 5: Victims and witnesses) and the officer-in-charge about taking offences into account on a Form 1 must be obtained.

The Form 1 should set out the date and other particulars for each offence so they can be readily identified. Details about Form 1 offences should be included in any statement of agreed facts.

These same considerations apply to placing Commonwealth offences on a schedule attached to another Commonwealth offence. This can only be approved, however, by an officer with the appropriate delegation from the Commonwealth Director of Public Prosecutions.

4.6 Unrepresented accused

Particular care must be taken when dealing with an accused person who is without legal representation. The prosecutor’s duties of fairness and disclosure mean that the accused must be appropriately informed of the prosecution case, the course it will take and procedural issues.

A prosecutor must maintain a detachment from the accused and should never advise the accused about legal issues or how the defence is to be conducted.

The fact that the accused is without legal representation does not mean that the prosecutor is prohibited from engaging in charge resolution discussions. However, caution should be exercised in the following manner:

  1. any plea offer made by the accused is to be considered and responded to in writing
  2. telephone contact with the accused should be avoided wherever possible, and take place in the presence of a witness if it is unavoidable
  3. face-to-face contact with the accused should only occur in the presence of a witness 
  4. contemporaneous notes should be taken of any telephone or face-to-face communication that does occur
  5. a written record should be maintained of all information and material provided to and received from the accused
  6. where appropriate, a prosecutor may communicate with the accused through the court.

A prosecutor should be aware that special legislative protections apply to vulnerable persons and complainants in sexual assault matters that prevent them being directly cross-examined by a self-represented accused.