Abstract
The negotiation process can be long and sometimes difficult. Although it is conducted in the shadow of the trial, away from public view, this study found there is a framework of informal rules and procedures known primarily to those within the legal community that to some extent regulates their involvement. This chapter examines in close detail how the negotiation process operates, including who is involved, when, how and in relation to what matters. This includes a discussion of the key factors considered by parties when engaging in negotiations, the various factors shaping negotiations, the role of police charging practices in negotiations, differences between negotiations in summary and indictable jurisdictions and the effects of limited resources and legal culture on negotiations.
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Notes
- 1.
The Sentencing Act 1991 (Vic) s 5(2)(e) states that in sentencing a defendant, a court must take into account whether the defendant pleaded guilty and, if so, the stage in the proceedings at which the defendant did so, or intended to do so.
- 2.
See, for example, Director’s Policy: Resolution; Director’s Policy: The Crown’s Role on Plea and Sentence Hearings.
- 3.
A pre-trial hearing in the Magistrates’ Court (either an oral hearing or it proceeds on paper) for indictable offences to test whether the Crown’s evidence is strong enough to support a conviction.
- 4.
A pre-trial hearing in the Magistrates’ Court for indictable offences that provides a forum for parties to identify the key issues for resolution, as well as those matters not in dispute.
- 5.
As will be discussed in Chap. 6, the main cases that were identified as difficult to negotiate related to cases involving homicides, where it is often too complicated to resolve on other terms, and sexual offences, due to the lack of alternative charges and obstacles like the sex offenders’ registry and high acquittal rates.
- 6.
Because the study did not include access to OPP files, this section cannot report on the involvement of the victim in plea negotiations.
- 7.
See Appendix 1, clause 11.
- 8.
Summary Offences Act 1966 (Vic) s 23.
- 9.
Ibid. s 24.
- 10.
Crimes Act 1958 (Vic) s 31(1)(a).
- 11.
Ibid. s 31(1)(b)(ba).
- 12.
Ibid. s 31(1)(c).
- 13.
Ibid. s 320.
- 14.
Ibid. s 15A.
- 15.
Ibid. s 15B.
- 16.
Ibid. s 16.
- 17.
Ibid. s 17.
- 18.
Ibid. s 17.
- 19.
The contest mention involves a magistrate, defence practitioner and police prosecutor meeting in a relatively informal manner in court to identify any matters or issues that could resolve without having to proceed to a contested hearing. The key aims of the contest mention are to refine the case issues and, where relevant, to estimate the likely length of a contested hearing. The magistrate can also provide a sentence indication at this hearing if requested by the defence. The summary case conference is a required out-of-court communication that occurs before a contested hearing in the Magistrates’ Court between the prosecution and the defence, with the aim of managing the progression of the case smoothly, including resolving matters at an early stage.
- 20.
The summary case conference is regulated by s 54 of the Criminal Procedure Act 2009 (Vic).
- 21.
Criminal Procedure Act 2009 (Vic) s 55.
- 22.
Ibid.
- 23.
See, for example, Director’s Policy: Resolution, Director’s Policy Discretion, Director’s Policy: The Crown’s Role on Plea and Sentence Hearings.
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Flynn, A., Freiberg, A. (2018). The Negotiation Process. In: Plea Negotiations. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-92630-8_5
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