The Adversary System and the (In)Visibility of the Pre-Trial Process

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 192-214.


[1] The police play a key role in the prosecution process of the adversary system, despite the fact that the DPP (Department of Public Prosecutions) has been established. This a problem because:

  • The adversarial role of the police in preparing a case and prosecuting themselves is inconsistent with an open-minded inquisitorial approach to the investigation of a particular crime.
    • In other words, the investigator should be separate from the prosecutor, but they are often too proximate and answer to the same authorities.
  • The various accountability mechanisms which potentially affect the conduct of police and prosecutorial functions are largely discretionary and not enforced by the courts (no accountability).
  • The very high rate of guilty pleas and the many pressures to plead guilty further limit inquiry into the pre-trial practices and the conditions governing the police investigation,

interrogation and the production of confessions and guilty pleas.

Police Control Over Pre-Trial Processes

[2] Police are required to form two important roles in the prosecution system:

  1. Find out everything that happened
  2. Prove the case against a guilty party.

The fact that the police has to perform both roles inhibits them from doing them properly:

  • Investigation has to be an open-minded process which looks at all possible circumstances whilst the accusation is a single-minded approach which focuses on securing a conviction.
  • Because police also have to secure a conviction (as per the second role), their investigation is not done in an open-minded way, but already focused on securing a conviction.
  • Rather than looking all circumstances and collecting all possible evidence, the police zero in on a suspect early on (before the investigation is finished) and from then on, investigates in a way which helps prosecute that suspect rather than truly discover what happened (ie, the second role begins before the first has been fully performed). Thereby, the investigation has been compromised.

This is obviously a big disadvantage to the defendant (and also the community), especially considering that:

  • The investigation process is not really scrutinised by or even known to the court or the defendant.
  • The defendant will probably be unable to conduct the same investigation which the police has (not even the best lawyer would have the resources), or know what evidence which could have helped him has been discarded or overlooked.

These issues were exemplified by the Mcleod-Lindsay Case:

  • A woman was assaulted at her home. The husband was a suspect, despite the fact that the wife said it wasn't him and some testimonies, the police decided he was the one who did it.
  • The investigation then focused on proving his guilt, showing no attempt to find out whether it could have been someone else.
  • Evidence was constructed - witnesses statements which didn't help the case were discarded or amended to the effect that they did (serious issues like times have been changed).
  • ‘The prosecution case against Alexander Macleod-Lindsay was under construction before anything like a dispassionate assessment had been made of all the evidence. Consequently, important leads and possibilities were ruled out in advance of any inquiry being entered into. Witness evidence was investigated rather than finding out what in fact had happened.’

Independent Police Prosecution

[3] Due to the issues mentioned above, a debate arose as to whether all police prosecutions should be done independently. This led to the creation of the DPP.

  • The DPP solicitors now prosecute all indictable matters in NSW Local Courts for all State charges… However, the conduct of many prosecutions at a Local Court level remains in the hands of police prosecutors.
  • The Wood Royal Commission noted that the desirability of having the prosecution separate from the investigative process rests on the 'principles of independence and impartiality' (rather than fears of corruption) which are affected by:
    • The fact the police prosecutors are answerable to their superiors;
    • They do not owe a legal duty to the court in the same way as solicitors and barristers;
    • They are not subject to the same code of behaviour and professional discipline as members of the legal profession.

There has been a call to put an end to police prosecutions and move all prosecutions to the DPP. However, it is yet to be implemented.

Duties of the Prosecutor

[4] The main duty of the prosecutor is to assist the court to reach the truth. This must be done in an unbiased way.[5]

  • A prosecutor represents the community and not any individual or sectional interest. A prosecutor acts independently, yet in the public interest.
  • While the DPP’s internal guidelines and the Bar Association Rules appear to require high standards, these can be departed from with little fear of adverse comment, let alone action by either courts or professional disciplinary bodies.
  • Further guidelines can be found in the NSW Barrister's Rules (2011), Rules 82-94.

Through case law, the following rules have been established:

  • The prosecutor is not required to disclose material favourable to the defence.
    • Lawless:[6] - the Crown has suppressed evidence that would have disadvantaged their case.
  • There is a discretion on the part of the prosecution upon who they can call to give witness. However, the judge may make a comment to the jury about the failure to call a witness if he thinks it is relevant.
    • Re Van Beelen:[7] - police discounted an evidence of someone confessing because he was an unreliable person.
    • Apostilides:[8] - police didn't call some known witnesses.
  • No duty to disclose indemnity.
    • Jamiesen:[9] Crown granted indemnity to witness, who then answered incriminating questions which the Defence did not think he was going to answer (they wouldn't have called him otherwise).

Plea Bargaining

[10] The criminal system, which is already a very delayed process, only works because the majority of people plead guilty (and thus there is no dispute). Plea bargaining is the process where the defendant and the prosecution seek to settle the case by getting the defendant to plead guilty. To get the guilty plea, the defendant is usually offered concessions, such as:

  • Sentence concessions
  • Concurrent running of charges
  • Charge reduction
  • Dropping of charges

Even innocent people often plead guilty, just to make things better. It is also very common for a defendant to change his plea to guilty at a latter stage (after much persuasion by the defence counsel). This was discussed by R Mack and S Roach Anleu in 'Balancing Principle and Pragmatism: Guilty Pleas':[11]

  • Plea discussions between the defence and prosecution are common and normal.
  • The discussions are not so much a negotiation process - more of a co-operative effort by both sides to see what charges are easy to prove and therefore might as well be pleaded guilty to, whilst the other are dropped.
  • A well conducted system of discussions carried out by professionals could enhance the efficiency of the system.

There has also been research on the role of magistrates in granting adjournments for the purposes of producing a guilty plea:[12]

  • Although the magistrate has no direct role in producing a guilty plea, he may be involved in that process.
  • Magistrates express their desire that counsel and prosecutor talk with one another with regards to a plea change in various ways:
    • Granting adjournments.
    • Letting the defendant know he should seek legal advice (who might convince him to make a guilty plea)
    • Informing the defendant about the advantages of a guilty plea

Plea bargaining is usually separated into two subcategories:

  1. Charge bargaining - agreement to plead guilty, but to a less serious charge (ie, manslaughter rather than murder)
  2. Sentence bargaining - agreement to plead guilty after an indication of a lesser sentence from the judge.

In reality, there are many more things which might induce a defendant to plead guilty, such as favourable bail conditions, contact with family members, access to drugs etc.

Charge Bargaining

[13] Both the DPP and the police have discretion as to which charge should be laid, and whether to accept a plea to a lesser charge.[14] According to the NSW DPP Prosecution Guidelines (2007):

  • A plea of guilty should be taken into account in mitigation of sentence. The earlier the plea is made, the greater the benefit.
  • Negotiations are encouraged.
  • Negotiations should be conducted based on reason and principles rather than simply expediency.
  • Written records of negotiations should be kept for transparency.

The advantages and disadvantages of charge negotiations were discussed in the NSW Sentencing Council report, Reduction in Penalties at Sentence. Acceptance of lesser pleas are encouraged for a variety of reasons:

  • Saving cost and time to both the state and the defendant
  • Saving witnesses from having to appear
  • More conclusive determination of guilt
  • Rewarding (by concessions) those who co-operate with the authorities.
  • Better to punish the accused with a lesser charge than failing with a greater charge.
  • Allowing police and DPP to devote more resources to other matters and obtain further information (where a defendant gives info about other criminals during negotiations)

The reasons against such charge negotiations include:

  • These people are still guilty and should not be rewarded
  • It works against the deterrence aspect of crime punishment (ie, sentences are lighter and therefore less deterring)
  • Puts extra pressure on the defendant to plead guilty, even when he is not.
  • Facts which might be within the public's interest might not become available now
  • The process of negotiation can be abused or conducted in a bad manner where either of the legal representatives are inexperienced, lazy, too focused on expediency, or have any sort of relationship with one another.

Overall, the Council approved and recommended charge negotiations, with an emphasis that they be done ethically.

Cases Relating To Charge Bargaining

Charge bargaining was also considered in Andrew Foster Brown:[15]

  • Facts: Accused was originally charged with armed robbery, later converted to a lesser charge of assault with intent to rob after a plea bargain. The court questioning why the lesser charge, and stayed the proceedings. This court considered whether they had the power to do so.
  • Held:
    • 'A trial judge has the power to stay criminal proceedings in the ground that they constitute an abuse of process'.
    • 'We do not accept that the Director of Public Prosecutions has an absolute and uncontrolled discretion which empowers him to charge an accused person in whatever way he pleases, regardless or the gravity of the conduct of the accused, and then to require the courts to give effect to his decision in that regard.'
    • However, the DPP prosecutor does have a very wide discretion. An abuse of process has a very narrow meaning, because the DPP have a lot of consideration to take into account and the court should not intervene.

Charge bargaining was also discussed in GAS; SJK:

  • Facts: a plea agreement was reached whereby the accused pleaded guilty to being an aider to manslaughter for a lesser sentence. After securing the conviction, the prosecution appealed the sentence (ie, against their own agreement), and the court imposed a harsher sentence. The accused tried to argue that this was contrary to the plea agreement.
  • Held:
    • firstly, there was not enough documentation to prove the existence of the plea agreement here.
    • Secondly, it is within the capacity of the parties to determine the sentence between them - the court will determine the sentence based on the facts available to it and without any regard to such agreements.
    • Also ,such agreements should be recorded for the benefit of both parties.

Another concept related to charge bargaining is overcharging - whereby the prosecution starts out the trial with a higher charge (which they know they can't prove), just so the accused will be intimidated into accepting a lower charge.

Clearing the Books

[16] There are often cases where suspects have a history of committing the same offence (ie, repeat breaking and entering or theft). The offender then may ask the court to take those previous offences into account when imposing his penalty for the current ('principal') offence.[17]

  • In other words, they would amalgamate the offences together.
  • This would mean the offender cannot be charged for those previous offences in the future.
    • Except when the charge for the principal offence is quashed or set aside.
  • This is beneficial to the offender because similar offences usually have concurrent sentences (ie, the multiple sentences run at the same time).
  • This is beneficial to the police because it means that the offence is classified as 'solved' and the investigation is closed, which is an important political issue etc (the police are showing better percentages, more resources for other cases).
  • Thus, an experienced suspect may be able to acquire various concessions for admitting a number of similar offences.

Sentence Indication Bargaining

[18] The concept of sentence indication bargaining (reducing one's sentence for the purpose of securing a guilty plea) is controversial in Australia. In England, the courts have made a number of observations regarding this issue in Turner:[19]

  • Counsel must be free to give the accused the best advice he can;
  • After advice the decision to plea is for the accused only;
  • There must be freedom of access between counsel and judge, but any discussion must be in the presence of both counsel and the defence solicitor if he/she desires;
  • Judges should never indicate the sentence they have in mind, whatever the plea, except if indicating the type of sentence under consideration.

A series of Australian decisions heavily critcised sentence indication bargaining.[20] The courts' argued:

  • The judge should not be involved in such processes.
  • Those discussions are usually conducted discreetly, and between the lawyers and without the accused's presence.

In the early 90s, a scheme was implemented which encouraged earlier pleas through sentence indication:

  • The accused could request a 'sentence indication hearing', in which a hearing proceeds as if he pleaded guilty and then a indicative sentence is given. He can either accept that sentence, or decide to contest the case by pleading not-guilty.
  • Eventually, the scheme was undermined because the Court of Criminal Appeal made a ruling that the sentence given by the sentence indication hearing can be appealed (and then extended) just like any other sentence.
  • Defendants distrusted the scheme, and it was eventually terminated.

The Pressures to Plead

[21] Plea bargaining (in any form) has the benefits of:

  • Administrative efficiency.
  • Time saving.
  • Saving money.
  • Sparing witness trauma and inconvenience.
  • Obtaining information about other offences.

However, it has various downsides, such as:

  • The tendency to 'overcharge'.
  • The lack of openness and accountability.
  • The dangers of innocent people being pressured to plead guilty.
  • Erosion of public confidence in the criminal justice system.

The Discount Principle

[22] The discount principle (the accused receives credit, usually in the form of a lesser sentence, for pleading guilty) is a clear sentencing principle in Australian jurisdictions.[23]

  • In Winchester,[24] the court determined that the degree of discount afforded depends according to the reason why the defendant pleaded guilty:
    • If the guilty plea was the result of contrition (remorse), it depends on the degree to which recognition of guilt was inevitable (ie, more discount when the guilty plea was less inevitable)
    • If the guilty plea was the result of trying to save the court time and costs, the discount depends on how soon the plea was entered.

an indication of contrition, and the saving of time and cost involved in a trial.’

Statutory force is given to the discount principle in s 22 of the Crimes (Sentencing Procedure) Act 1999.

  • However, contrition is not explicitly mentioned.
  • In the guideline judgement of Thomas;Houlton,[25] the court stated that the discount should primarily have regard to the utilitarian value of the plea, as well as contrition, witness vulnerability etc.
    • The utilitarian value of the plea is generally to be assessed in the range of 10-25%.

Discounts for guilty pleas are now also governed by the Criminal Case Conferencing Trial Act 2008 (NSW):

  • Maximum discount for a plea of guilty entered at any time before the committal (i.e. at the Local Court stage) is 25%.[26]
Maximum discount for a plea of guilty entered at any time after committal, is 12.5%.[27]
  • The case conferencing scheme is working well and achieving its objectives (people pleading guilty at a late stage etc).


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, p. 192.
  2. Russell Hogg, 'Identifying and Reforming the Problems of the Justice System' in K Carrington et al (eds), Travesty! Miscarriages of Justice (1991) in Textbook, pp. 192-4.
  3. Textbook, pp. 195-6.
  4. Textbook, pp. 196-8.
  5. NSW DPP, Prosecution Guidelines (2007).
  6. (1979) 142 CLR 659.
  7. (1974) 9 SASR 163.
  8. (1984) 153 CLR 563.
  9. (1992) 60 A Crim R 68.
  10. Textbook, pp. 198-9.
  11. R Mack & S Roach Anleu, 'Balancing Principle and Pragmatism: Guilty Pleas' (1995) 4 Journal of Judicial Administration 232 in Textbook, pp. 199-200.
  12. R Mack & S Roach Anleu, 'Intersections between In-Court Procedures and the Production of Guilty Pleas', (2009) 42 ANC J of Criminol 1 in Textbook, pp. 200-1.
  13. Textbook, pp. 202-7.
  14. Criminal Procedure Act 1986 (NSW), s 153.
  15. (1989) 17 NSWLR 472.
  16. Textbook, pp. 207-8.
  17. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 31-35.
  18. Textbook, pp. 208-11.
  19. [1970] 2 QB 32.
  20. Bruce [unreported];, Bartley and Tait (1979) 24 ALR 473; Marshall [1981] VR 725.
  21. Textbook, p. 211.
  22. Textbook, pp. 211-4.
  23. Crimes (Sentencing Procedure) Act 1999, s 22.
  24. (1992) 58 A Crim R 345.
  25. [2000] NSWCCA 309.
  26. Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1).
  27. Criminal Case Conferencing Trial Act 2008 (NSW), s 17(2).
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