Guidelines and Directions Manual
Charge Negotiation
Last Updated: February 2014
Contents
1.
Background ..................................................................................................................................... 1
2.
The Decision Maker in Relation to Charge Negotiations ................................................................ 2
3.
Key Policy Requirements................................................................................................................. 4
4.
Timing of negotiation ...................................................................................................................... 4
5.
Process of charge negotiation......................................................................................................... 5
6.
Negotiation principles ..................................................................................................................... 6
1.
Background
Charge negotiation involves negotiations between the defence and the prosecution in relation to the
charges to be proceeded with. Such negotiations may result in the defendant pleading guilty to
fewer than all of the charges he or she is facing, or to a lesser charge or charges, with the remaining
charges either not being proceeded with or taken into account without proceeding to conviction
(paragraph 6.14 of the Prosecution Policy of the Commonwealth).
Paragraph 6.16 of the Prosecution Policy provides that:
Negotiations between the defence and the prosecution are to be encouraged, may occur at
any stage of the progress of a matter through the Courts and may be initiated by the
prosecution. Negotiations between defence and the prosecution as to charge or charges and
plea can be consistent with the requirements of justice subject to the following constraints:
(i)
the charges to be proceeded with should bear a reasonable relationship to the
nature of the criminal conduct of the defendant;
(ii) those charges provide an adequate basis for an appropriate sentence in all the
circumstances of the case; and
(iii) there is evidence to support the charges.
However, the general requirement that must be applied to all cases is that under no circumstances
should charges be laid with the intention of providing scope for subsequent charge negotiations (see
paragraphs 2.21 and 6.15 of the Prosecution Policy).
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2.
Guidelines and Directions Manual
Charge Negotiation
The decision maker in relation to charge negotiations
Charge negotiation decisions may involve the exercise of powers of the Director under the Director
of Public Prosecutions Act 1983 (DPP Act), in particular in:
•
Discontinuing a charge/charges; and/or
•
Commencing a new charge/charges.
A number of the Director’s powers have been either delegated to senior staff or they have been
given authorisations to perform certain functions of the Director. The appropriate decision maker
for a charge negotiation proposal will depend on when the charge negotiation takes place and what
it involves. Therefore, in making a decision concerning a prospective charge negotiation, such as
whether or not to accept a potential plea, it is necessary to consider and clearly identify what the
decision involves and when it is taking place.
•
Summary proceedings or indictable proceedings prior to committal
For charge negotiation involving summary proceedings or proceedings prior to committal, the
decision of whether or not to accept a plea proposal can be made at the regional level by the
relevant Senior Assistant Director. It would only be necessary to refer the decision to the
Director if the exercise of power could be contentious or is otherwise sensitive.
The decision to discontinue a summary charge is made under s9(5A) of the DPP Act and has
been delegated to Senior Executive Band 3, Band 2, Band 1 and Band 1 (Specialist). The decision
as to whether to institute a new charge would be a decision for CDPP in consultation with the
relevant investigative agency.
•
After committal or arraignment
Charge negotiations after committal or arraignment will involve use of the ex-officio powers in
s6(2A) to 6(2D) of the DPP Act and/or the No Bill power under s9(4) DPP Act.
Ex officio powers
a) Where the defendant consents, unless the matter is politically sensitive, contentious or
is a matter the Director has decided he/she should be consulted on, the relevant Senior
Assistant Director, Assistant Deputy Director or Deputy Director may approve where the
charges are not ones in relation to which the defendant has been examined or
committed (section 6(2A) of the DPP Act).
b)
When the existing charge/s are to be replaced by a charge/s which are founded on facts
or evidence disclosed in the course of the committal proceedings and are not
substantially different in number and/or kind (for example in substance and/or
elements) to those that were committed for trial, unless the matter is politically
sensitive, contentious or is a matter the Director has decided he/she should be
consulted on, a decision as to whether or not to approve new charges following charge
negotiation can be made by either the relevant Senior Assistant Director, Assistant
Deputy Director or Deputy Director (a decision under s6(2B)(b) DPP Act). This would
include situations where the negotiation includes placing some counts on a schedule
under s16BA Crimes Act 1914.
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c)
Where the matter is politically sensitive, contentious or is a matter the Director has
decided he/she should be consulted on or where the matter is a “true” ex officio under
s6(2D) of the DPP Act, the Director must make the decision.
No bill powers
a) The Deputy Director or Branch Head can make the decision to discontinue charges or
proceedings after commitment or indictment where:
1. The charge or charges are to be replaced by charges which are:
•
•
founded on facts or evidence disclosed in the course of the committal
proceedings; and
either:
(a) not substantially different in number and/or kind (for example
in substance and/or elements) to the committal order; or
(b) 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, or
2. The charges which will remain either:
(a) are not substantially different in number and/or kind (for
example in substance and/or elements) to the committal order;
or
(b) 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 term “not substantially different in number and/or kind” will cover most charge
negotiation situations where there is agreement to amend the indictment from the
committal order by, for example, “rolling up” charges, scheduling charges, discontinuing
some charges and/or replacing charges with others.
This is under section 9(4) of the DPP Act.
b) Where the matter is politically sensitive, a matter of national significance or where there is
serious internal disagreement ,the Director must make the decision whether to discontinue the
charges.
•
Amending indictments
If an indictment can be amended through a procedural legislative provision or under Court
Rules, the amendment occurs without reference to the powers in s9(4) or ss6(2A) to (2D) of the
DPP Act. The decision to seek such an amendment is to be made by the regional office and the
Director should be informed if the matter is politically sensitive, the decision could be
considered contentious or the Director has previously indicated he/she should be consulted in
relation to the decision.
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Guidelines and Directions Manual
Charge Negotiation
Sentencing
Frequently charge negotiation will include negotiation concerning the CDPP’s position on
sentence. In circumstances where the defence proposes either:
•
that the CDPP agree not to oppose a defence submission that the appropriate penalty
falls within a nominated range; and/or
•
seek an undertaking that the CDPP will not appeal a sentence within a nominated
range 1;
an agreement to such a proposal needs to be made by:
•
•
•
3.
if a summary prosecution – the relevant Senior Assistant Director or the Deputy
Director.
if on indictment – the Deputy Director or, in his or her absence, the relevant Senior
Assistant Director.
if in a major prosecution, involving serious or contentious charges - the Director
Key Policy Requirements
Paragraphs 6.14 to 6.20 of the Prosecution Policy contain guidelines for charge negotiation.
In particular, paragraph 6.17 provides the following requirements that must be adhered to in
considering and agreeing to a charge negotiation proposal:
(i)
(ii)
(iii)
the charges to be proceeded with should bear a reasonable relationship to the nature
of the criminal conduct of the defendant;
those charges provide an adequate basis for an appropriate sentence in all the
circumstances of the case; and
there is evidence to support the charges.
Paragraph 6.18 provides that in considering whether to agree to a charge negotiation or not, the
decision maker must take into account all of the circumstances of the case and other relevant
considerations.
Paragraph 6.19 provides that a charge negotiation initiated by the defence must not be agreed to if
the defendant continues to assert his or her innocence in relation to the charges.
4.
Timing of negotiation
There is not a single preferred method or point of time for undertaking charge negotiation. Each
case will need to be considered in its own circumstances. It is likely that for matters that were
1
In those jurisdictions where the practice has been adopted by the courts for the prosecution to submit on the
range of the appropriate penalty, agreement to an undertaking that the CDPP will not appeal a sentence
within a nominated range need only be sought if it is outside the Crown range already settled by the relevant
branch head or Deputy Director.
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commenced after an assessment by the CDPP of a brief of evidence, that (in the absence of new
evidence or information) the charges laid will already meet the general requirements of the
Prosecution Policy and, in particular, paragraphs 2.19 to 2.23 inclusive. However, in such matters the
following issues may be relevant to discuss with the defendant’s lawyer within the context of charge
negotiation:
•
•
•
•
•
•
the “rolling up”/substitution/withdrawal of charges;
particulars of charges including date ranges;
appropriate changes to statements of facts;
jurisdiction issues;
the scheduling of some offences; or
appropriate concessions in sentence submissions/potential appeals.
Particular attention should be given to matters that have been commenced by way of arrest and
charge, again consistent with paragraphs 2.19 to 2.23 inclusive. It is not appropriate to leave charges
on foot with the intention of preserving such charges to be later “given away” in the course of
anticipated subsequent charge negotiation.
CDPP case officers are encouraged to consider the appropriateness and timing of charge negotiation
and it is expected that they will discuss charge negotiation with their supervisor at first instance. For
indictable matters the supervising PLO should be consulted on these issues. The Senior Assistant
Director in each Branch should be consulted if the particular matter is sensitive, contentious or is a
matter in which the SAD has decided that he/she should be consulted. As noted above, charge
negotiation should occur as early as possible in a prosecution to have the maximum possible
benefit. Each Branch is encouraged to regularly discuss charge negotiation experiences at Branch
meetings.
Generally, for indictable matters, lawyers are encouraged to at least ascertain the prospect of a
charge negotiation prior to a committal hearing. In many cases, commencing negotiation after the
prosecution brief has been served would be a sound approach, as the defence would then be in a
position to assess the strength of the prosecution case. In any event, a committal report, for each
defendant, should include comments on what has been done in relation to charge negotiation.
5.
Process of charge negotiation
A charge negotiation may be commenced by CDPP lawyers by indicating to the defendant’s lawyer
that the CDPP is willing to undertake a charge negotiation in the matter in accordance with the
Prosecution Policy paragraphs 6.14 to 6.20 (which is available on the CDPP website).
Communications concerning charge negotiation are on a “without prejudice” basis and that decision
on whether any agreement is reached or not will ultimately be decided on behalf of the CDPP by the
appropriate delegate/decision maker. It is open, if the circumstances are appropriate, to indicate in
the course of the charge negotiation that the CDPP case officer themselves would support a
particular position to the CDPP delegate/decision maker. Lawyers proposing to make such an
indication should raise that intention with their supervisor and, if appropriate, their Senior Assistant
Director prior to communicating that view to the defendant’s lawyer.
CDPP case officers will keep clear and appropriately detailed written records of their communication
with a defendant’s lawyer in relation to charge negotiation on the CDPP’s correspondence file. It
would be desirable to follow up on any conversation with a defendant’s lawyers about charge
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negotiation with an email or letter (on a “without prejudice” basis) with the purpose of avoiding any
misunderstanding by them about what was discussed or the parameters of the process. The timing
and ambit of charge negotiations may become relevant at a sentence hearing in relation to the
appropriate sentencing discount to apply on a guilty plea.
Lawyers should be mindful of the risk of delay occurring through protracted, but unfruitful, charge
negotiation. CDPP case officers are encouraged to discuss the progress of charge negotiations with
their supervisors and/or Senior Assistant Director in order to reduce the risk of inappropriate delay.
Lawyers should also be mindful of communicating with the investigating officer/agency and keeping
them informed of the progress of any charge negotiation. Ultimately, of course, the views of the
investigating agency will be taken into account in making decisions about the maintenance or
substitution of charges following charge negotiation. Similarly, lawyers should consult with
victim/witnesses for matters where that is relevant.
6.
Negotiation principles
Some general principles that negotiators should keep in mind include:
•
•
•
•
•
•
•
Listen actively and acknowledge what is being said.
Focus on interests, not positions.
o Realise that each side has multiple interests.
o Be fully aware of the CDPP interests as are set out in Paragraphs 6.17 and 6.18 of the
Prosecution Policy.
Invent options for mutual gain.
o Identify shared interests.
o Ask for preferences and explore the reasons for those preferences (if possible).
o If appropriate, articulate preferences of the CDPP without making offers.
Insist on using objective criteria.
o Reason and be open to reason.
o Never yield to (unfair) pressure or emotional manipulation.
o Do not react to the position of others.
o Remember that clear objective criteria are contained in the Prosecution Policy.
Maintain a good working relationship.
o Be hard on the problem, not on the people who often (like CDPP lawyers) are
communicating on instructions.
o Be clear that the alternative of proceeding with existing charges is not a threat. It is
the course of action that the CDPP must follow absent an agreement.
What if they won’t negotiate?
o Don’t attack their position, look behind it, try to discover interests by asking why or
why not?
o Consider negotiation about the process of negotiation.
Learn from negotiation.
o No one can make you skilful in negotiation but yourself.
o Remember it is helpful to debrief with colleague/s, particularly after a difficult case.
o Ask three questions at the end of each negotiation:
 What worked in the negotiation?
 What made the negotiation more difficult?
 How might I act differently next time to get around the difficulties?
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Charge Negotiation
Focus on process not substance. It is the way we negotiate that can be learned, not
the outcome.
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