13. Plea Negotiation and Agreement

13.1   The prosecution may be invited by the defence to resolve a matter by agreeing to the accused pleading guilty to fewer or lesser charges than those already laid. In rare circumstances, the prosecution may itself put this suggestion to the defence. In these circumstances three tests must be satisfied:

  1. there is admissible evidence available to prove the charges to which pleas have been offered;
  2. the charges adequately reflect the criminality of the conduct alleged against the accused;
  3. the charges give to the court adequate scope to impose penalties appropriate to address that criminality.

13.2   Ordinarily, plea negotiations should be accompanied by agreement between the prosecution and defence on the statement of facts to be presented to the court as the basis for sentencing. Such statement should not distort the provable facts or provide an artificial basis for sentencing. In some cases some facts may not be able to be agreed and may need to be litigated in what is commonly known as a “Newton inquiry” where evidence is called to enable the court to resolve disputed issues for the purposes of sentencing.

13.3   Considerable time and expense can be saved by accepting pleas to appropriate charges. Victims and witnesses can be spared the stress and inconvenience of testifying. The criminal justice process operates more efficiently with such a resolution, without compromising its effectiveness and public support.

13.4   Negotiated pleas must not be accepted if the accused maintains his or her innocence of the charges.

13.5   In all cases where negotiations are under way, the prosecutor should consult where appropriate with the investigator in charge of the case and any victim of crime, so as to inform them of the action being contemplated and of the reasons for it. The prosecutor must receive their views and take them reasonably into account when decisions are being made – not by way of instructions but as another means of informing such decisions.