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Encouraging earlier guilty pleas will deliver swifter, more certain justice and reduce stress for victims and court delays.
Currently, all briefs of evidence provided by the NSW Police Force to the prosecution and defence are required to be in a form which is admissible in court. This can be time-consuming to prepare, so there is often a delay in providing those briefs.
Under the reform, the NSW Police Force will be required to provide a simplified brief of evidence. This brief must still contain all the material that forms the basis of the prosecution case, is relevant to the accused, and affects the strength of the prosecution case. However, not all of this evidence will be required to be in a formal admissible form when the brief is provided to certify the charge. The evidence will need to be provided in an admissible form, where necessary.
This means prosecutors will have the information they need to determine the charge earlier and the defence can make an informed decision about a plea without delays.
Senior prosecutors have the experience and authority to determine the most appropriate charge. However, in most cases, they are not currently engaged until late in the criminal process, often after a trial date is set. As a result, charges can be withdrawn or amended late in the process. This uncertainty means defendants often delay their plea.
Under the reform, a senior prosecutor will review the brief of evidence as soon as it is served, and confirm ("certify") the charges that will proceed. This will ensure the defendant is charged with the most appropriate offence as early as possible.
Currently, there is no formal requirement for prosecution and defence lawyers to discuss a case before it progresses to trial.
Under the reform, senior lawyers for the prosecution and defence will be engaged earlier, and will be required to participate in a case conference. The defendant will be required to be available during the case conference to give instructions to their defence lawyers, where possible.
This conference will allow for meaningful discussion about the case, maximising opportunities for early guilty pleas and narrowing the issues to be dealt with at trial.
Currently, Local Court Magistrates are responsible for deciding whether matters should be committed for trial, based on the evidence available to support the charge. In practice, magistrates usually make these decisions without a hearing, and only about one per cent of committal cases are dismissed.
Under the reform, the substantive decision by the magistrate to commit a case for trial will be removed. Instead, senior prosecutors will perform the function of screening out cases through charge certification.
This will save time in the Local Court, but will also maintain existing mechanisms for the accused to test the strength of evidence by cross-examining witnesses, where appropriate.
Cases will be better managed as senior legal representatives from the prosecution and defence will be responsible for matters from start to finish.
The common law currently provides for a sentence discount of up to 25 per cent for an early guilty plea, which is applied flexibly by the courts. This means that a defendant who enters a plea at a late stage of the process, even on the day of trial, may still get the benefit of the maximum sentence discount.
The reform will tightly prescribe the following sentence discounts for indictable offences based on the timing of the plea, providing a clear incentive to plead guilty early.
Judges will retain the discretion to provide no sentencing discount (or a lesser discount) in cases of extreme culpability.
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