How to deal with the deals?

T a b l e o f C o n t e n t s

I Introduction
A The Phenomenon Plea-Bargaining
B Comparative Approach

II Australia
A Development of plea bargaining process in Australia
B Terminology
1 Implicit plea bargaining
2 Charge bargaining
3 Sentence indication bargaining
C Preconditions for plea bargaining in Australia
1 Role of the prosecution
2 Accused’s free decision whether to plea guilty
3 Role of the defendant’s counsel
4 Written form
5 Preconditions concerning sentence indication bargaining
(a) Sentencing only by the court
(b) Sentence discount
(c) No indication of the likely sentence by the court
(d) Sentence indication by accused’s counsel
(e) Sentence indication schemes
D The role of plea bargaining in Australia

III Germany
A Plea bargaining in Germany
1 Terminology
2 Development
3 Reform approaches
B Preconditions of plea bargaining in Germany
1 Guiding principles of the German Criminal procedure (Prozessmaximen)
(a) Principle of legality (Legalitätsprinzip)
(b) Principle of directness (Unmittelbarkeitsgrundsatz)
(c) Principle of public trial (Öffentlichkeitsprinzip)
(d) Principle of oral hearing (Mündlichkeitsgrundsatz)
(e) Principle of inquisitorial process
2 Fair and equal treatment
3 Exclusion of matters
4 Compulsory control of the court
5 No inappropriate pressure on the accused
6 Maximum sentence
7 Publicity of plea bargaining
(a) Disclosure of the plea negotiations in the trial
(b) Record of proceedings
8 Participation of all parties to the trial
9 Release on remedy (Rechtsmittelverzicht)
(a) No release on remedy on plea bargaining agreement
(b) Release on remedy after proclamation of sentence
(c) Qualified explanation on rights of appeal (Qualifizierte Rechtsmittelbelehrung)
C The role of plea bargaining in Germany

IV Comparison
A Pre-trial negotiations vs. compulsory court’s involvement
B Sentence indication vs. maximum sentence indication
C Public vs. secrecy
D Statutes vs. doctrine of precedence

V Conclusion

I Introduction

A The Phenomenon Plea-Bargaining

Plea bargaining has been and still is an important issue in Australia and Europe.

Interestingly, in Australia only a few articles focus on the phenomenon plea bargaining. This cannot properly represent the importance of plea bargaining in the criminal procedure and the whole judicial administration system.

In Germany plea bargaining is intensively discussed after the German Federal Constitutional Court and the German Supreme Court made first attempts to regulate and implement the phenomenon in the existing criminal procedure.

B Comparative Approach

This essay will discuss selected issues concerning plea bargaining in order to describe its nature in the criminal justice system. At a first glance, both countries follow relatively different ways to address plea bargaining. But by examining the preconditions for plea bargaining in both countries many similarities can be investigated as to how both countries address the phenomenon.

After presenting the preconditions for plea bargaining in Australia and Germany both systems are critically reviewed by focussing on particular issues being important from a comparative point of view.

II Australia

A Development of plea bargaining process in Australia

Plea bargaining is a common practice in the Australian criminal justice system.^[1] It can be seen as an accepted legal procedure.^[2] The informal approach of plea bargaining offers advantages not only for the accused himself but also for the community.^[3]

The accused often benefits of a lighter sentence in exchange for pleading guilty.^[4] Additionally, the timeframes between the charge and the disposition are reduced and so the anxiety of the accused is limited.^[5] Plea bargaining can also avoid a criminal conviction and the stigma associated with it.^[6]

The community profits because cases are disposed efficiently.^[7] Especially delays in the judicial administration are effectively addressed.^[8] Costs for trials and judicial infrastructure are reduced.^[9] A speedy resolution of trials avoids trauma for victims of criminal offences.^[10] Witnesses are not obliged to give evidence.^[11] Plea bargaining delivers a flexible approach being often closer attached to the peculiarities of the case and being often fairer in the final outcome.^[12]

B Terminology

The term plea bargaining or deal^[13] comprises a lot of different often informal negotiations. It is sometimes described as misleading.^[14] Consequently, before starting the analysis of the Australian plea bargaining system the different types of plea bargaining have to be classified.

Basically, there are two forms of plea bargaining in Australia. Charge bargaining and sentence indication bargaining form the two cornerstones of the Australian plea bargaining process.^[15] These two types sometimes correspond to themselves.^[16]

An additional type of plea bargaining is seen by some authors in the implicit plea bargaining.

1 Implicit plea bargaining

Beside the two types of express negotiations (charge bargaining and sentence indication bargaining) implicit plea bargaining or tacit is a form of indirect influence on the accused. He simply pleads guilty because of the hopeful expectation of a benefit, often a lenient sentence.^[17] Even though judges might tend to impose a reduced sentence when the accused pleaded guilty there is often no guaranty for the defendant to receive a sentence discount.

2 Charge bargaining

The term charge bargaining or prosecutorial plea bargaining^[18] describe the phenomenon that the prosecution or the police negotiates with the accused or his counsel.^[19]

The content of the charge bargaining negotiations can vary and can for example deal with an alternative charge, a lesser charge or the withdrawal of charges in exchange for a plea of guilty by the accused.^[20] Consequently, charge bargaining is often used in cases alternative or multiple criminal offences have been committed.^[21] Generally speaking, the accused pleads guilty in order to receive a concession by the prosecution.^[22]

Charge bargaining can include a “double benefit” for the accused being convicted for a less serious offence and sometimes receiving a sentence discount when pleading guilty.^[23]

3 Sentence indication bargaining

Sentence indication bargaining or judicial plea bargaining^[24] refers to negotiations between the accused or his counsel with the trial judge.^[25] The judge indicates a particular sentence he will likely impose in exchange for the accused’s guilty plea.^[26] The negotiations often involve the prosecution.^[27] Sentence indication bargaining predominantly does not take place in court but in the judge’s chamber.^[28]

In comparison to charge bargaining, sentence indication bargaining is rarely practiced in Australia.^[29]

C Preconditions for plea bargaining in Australia

In the following, this essay will examine not only the prerequisites for plea bargaining in Australia but also describe the effects on the parties being involved in the plea negotiations.

1 Role of the prosecution

The role of the prosecution can be described as one of the most important parties in pre-trial decision-making process. It is the prosecutor alone who decides about the charges against the accused.^[30] The Court has simply no opportunity to intervene in the pre-trial decision-making process in Australia.^[31] The judge’s only task is to give a sentence after the prosecution and the accused or his defence counsel have entered into a charge bargaining agreement and the accused has pleaded guilty.^[32] The prosecution is given a wide discretion in the way charges are led down.^[33] An acceptance of a plea to a lesser charge does for example not require a judicial approval by the court.^[34] But the victim’s view and the opinion of the police officer-in-charge will be taken into account.^[35] Overcharging has to be avoided.^[36]

2 Accused’s free decision whether to plea guilty

The defendant’s decision whether to plead guilty or not may be motivated by different reasons. Those may be the reception of a lesser sentence, the informal and quick resolution of charges, the avoidance of stigmatising public trial proceedings, the protection of a co-offender or the avoidance of uncertainty of a conviction on greater charges.^[37] These motivations often neither become apparent for the prosecutor nor for the client’s counsel.

As a consequence, there may occur the problem that the accused pleads guilty although he is innocent or did not commit a criminal offence being dealt with in the plea bargaining agreement.^[38]

Another problem could be that accused who is guilty could plead guilty although his has a realistic chance to become acquitted in a trial by a jury. The accused could plead guilty only because of pressure.^[39]

As a result, the English courts for example emphasize the accused’s freedom of choice concerning the decision whether to plead guilty or not guilty.^[40] Also in Australia a plea of guilty by an accused has to be freely and voluntarily.^[41] The accused has the opportunity to decide freely about which charges to accept when pleading guilty.^[42] The prosecution is not allowed to enter into a charge bargaining agreement if the accused maintains to be innocent.^[43] Additionally the prosecutor must not accept a plea bargaining agreement creating an artificial basis for the sentencing.^[44]

3 Role of the defendant’s counsel

Firstly, the defendant’s counsel must have the opportunity to act freely and without pressure in order to fulfil his task as legal representative of his client.^[45] As the accused’s legal adviser he has to give the client all information necessary to decide about a plea of guilty. Those information also include the opportunity of a guilty plea after plea negotiations.^[46]

Additionally, it is his task to make sure that the defendant only pleads guilty if he is guilty.^[47]

But the accused’s counsel also has to oppose the benefits of a plea bargaining agreement with the likely outcome of a trial after a not guilty plea.^[48] This could be for example a strong case of the prosecution, which could not successfully be contested.^[49] Given that a plea of guilty would be advantageous for the client concerning the evidence the legal counsel can also recommend plea negotiations.^[50]

4 Written form

Written records of the plea bargaining negotiations are important in terms of transparency and accountability.^[51]

For charge negotiations many Directors of Public Prosecution have create guidelines emphasizing the necessity of a written record of the charge negotiations and their results.^[52]

5 Preconditions concerning sentence indication bargaining

Sentence indication bargaining in contrast to charge bargaining meets particular concerns in Australia. Whereas charge bargaining is allowed and practiced widely in the pre-trial decision process sentence indication bargaining is seen as not desirable.

(a) Sentencing only by the court

A principle of the Australian criminal procedure is that the judge is entitled to give a sentence.^[53] He is the only one to impose a sentence on the accused.^[54]

The judge exercises his sentencing discretion in the public interest.^[55] The sentencing judge investigates the facts being necessary for the sentence in the particular case.^[56]

When exercising his discretion the sentencing judge is not bound by any agreement between the prosecution and the accused or his defence counsel.^[57] That means that a fixed sentence in a plea bargaining agreement offered by the prosecution cannot bind the court.^[58]

(b) Sentence discount

As seen before the judge is independent in finding an appropriate sentence and he is not bound by whatever agreement between the prosecution and the accused or his defence counsel as to the sentence. There is also no general sentence discount for the accused.^[59]

Neither can the accused rely on an offered sentence discount by the prosecution nor is he entitled to demand a sentence discount just because he pleaded guilty. However, the sentence discount as a benefit of a plea of guilty is often practiced in Australia.^[60] Some Australian states even support sentence discounts by statutory provision.^[61]

Judges sometimes advise defendants of the opportunity to get a sentence discount if they pleaded guilty.^[62] It is not unusual that a sentencing judge considers the defendant’s plea of guilty if it for example avoids the interrogation of witnesses or victims in a trial.^[63] It is not “illusory” to get a sentence discount for a plea of guilty.^[64]

(c) No indication of the likely sentence by the court

The crucial issue concerning sentence indication bargaining in Australia is the question whether a judge should be allowed to indicate the likely sentence in pre-trail plea bargaining negotiations.

The English courts for example have emphasized that negotiations involving the judge in private pre-trial plea negotiations would be generally undesirable.^[65] An English judge can only be contacted if it is really necessary in terms of fairness to the accused and the judge has to be careful in treating such communication.^[66] Sentence indication is allowed in the exceptional case that the judge is able to indicate a sentence independent of the fact whether the accused pleads guilty or not.^[67]

[...]

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^[1] Wilson and Another v McCormack [1968] Tas SR 55, 61; Peter Clark, ‘The public prosecutor and plea bargaining’ (1986) 60 (4) Australian Law Journal 199, 200; Simon Bronitt and Bernadette McSherry, Principle of Criminal Law (2005) 101; John Willis, ‘Pre-trial decision making’, in George Zdenkowski, Chris Ronalds and Mark Richardson (eds) The Criminal Injustice System – Volume Two (1987) 59, 86; Kathy Mack, Pleading guilty: Issues and practices (1995) 20; Paul Gerber, ‘When is plea bargaining justified?’ (2003) 3 (1) Queensland University of Technology Law and Justice Journal 210, 211; Robert D. Seifman and Arie Freiberg, ‘Plea Bargaining in Victoria: The Role of Counsel’ (2001) 25 Criminal Law Journal 64, 68.

^[2] Paul Gerber, above n 1, 212; Robert D. Seifman and Arie Freiberg, above n 1, 64.

^[3] F. M. McGuire, ‘Plea bargaining – Its significance in the Australian criminal justice system’ (1981) 6 (4/5) Queensland Lawyer 102, 106; Law Book Company, Laws of Australia, vol 11 (at 8 June 2008) 11 Criminal Procedure, ’11.6 Pre-trial Procedure’ [11.6.17]. See also Peter Clark, above n 1, 210.

^[4] Paul Gerber, above n 1, 211; Paul Byrne, ‘Plea bargaining’ (1988) 62 (10) Australian Law Journal 799, 800. The majority of defendants pleads guilty in Australia, David Brown (et al), Brown, Farrier, Neal and Weisbrot’s criminal laws: Materials and commentary on criminal law and progress in New South Wales (4th ed, 2006) 185.

^[5] Richard Kolalich v Director of Public Prosecutions (NSW) (1990) 47 A Crim R 71, 79; Arie Freiberg and John Willis, ‘Sentence indication’ (2003) 27 Criminal Law Journal 246, 248.

^[6] Paul Byrne, above n 4, 80.

^[7] John Willis, above n 1, 88; Mark Findlay, criminal law – Problems in context (2nd ed, 2006) 210; L. Waller and C. R. Williams, Criminal Law: Text and Cases (10th ed, 2005) 22. See also DPP Guidelines (Vic) guideline 2.6.1; ODPP Guidelines (NSW) guideline 20 (1); DPP Guidelines (WA) guideline 73; DPP Guidelines (Qld) guideline 14.

^[8] R v Joseph Rahme (1991) 53 ACrimR 8, 18; Richard Kolalich v Director of Public Prosecutions (NSW) (1990) 47 A Crim R 71, 79. See also David Brown (et al), above n 4, 196.

^[9] R v Kevin Andrew McQuire and Robert Porter (2000) 110 A Crim R 348, 366; R v Joseph Rahme (1991) 53 ACrimR 8, 18; Paul Gerber, above n 1, 211. See also Prosecution Policy Guidelines (Cth) guideline 5.15 (i).

^[10] R v Kevin Andrew McQuire and Robert Porter (2000) 110 A Crim R 348, 366; Arie Freiberg and John Willis, above n 5, 248; Paul Byrne, above n 4, 800.

^[11] Paul Byrne, above n 4, 800. See also DPP Guideline (Vic) guideline 2.6.6 (b); ODPP Guidelines (NSW) guideline 20 (4) (d); DPP Guidelines (NT) guideline 6.3 (4); DPP Guidelines (WA) guideline 75 (e); Guidelines (Qld) guideline 14 (i) (d).

^[12] F. M. McGuire, ‘Plea bargaining – Its significance in the Australian criminal justice system’ (1981) 6 (4/5) Queensland Lawyer 102, 106.

^[13] The term “deal” is often used negatively, see Wilson and Another v McCormack [1968] Tas SR 55, 61. Plea bargaining is also described as “plea discussions”, “plea recommendations”, “plea negotiations”, “plea agreements”, “plea compromises”, Robert D. Seifman and Arie Freiberg, above n 1, 64. See also David Brown (et al), above n 4, 185.

^[14] R v Marshall [1981] VR 725, 732; Simon Bronitt and Bernadette McSherry, above n 1, 101.

^[15] Prosecution Policy Guidelines (Cth) guideline 5.13; Paul Gerber, above n 1, 210; Peter Clark, above n 1, 200. John Willis, above n 1, 85. David Brown (et al), above n 4, 186; Arie Freiberg and John Willis, above n 5, 248; Peter Sallmann, ‘Plea Bargaining – To be or not to be?’(1982) 15 (4) Australian and New Zealand Journal of Criminology 193, 193-194. This approach of distinguishing does not primarily follow a separation because of the content of the agreement but a focus on the parties being involved in the negotiations. See also Peter Clark, above n 1, 200.

^[16] John Willis, above n 1, 86.

^[17] F. M. McGuire, Plea bargaining – Its significance in the Australian criminal justice system’ (1981) 6 (1) Queensland Lawyer 1, 2; John B. Bishop, Prosecution Without Trial (1989) 182; R. D. Seifman, ‘Plea Bargaining in Victoria – getting the Judge’s views’ (1982) 6 (2) Criminal Law Journal 69, 75.

^[18] John B. Bishop, above n 17, 198-199.

^[19] R v Marshall [1981] VR 725, 732; Peter Sallmann and John Willis, Criminal Justice in Australia (1984) 74; Kathy Mack and Sharyn Roach Anleu, ‘Reform of Pre-Trial Criminal Procedure: Guilty Pleas’ (1998) 22 Criminal Law Journal 263, 263. See also Prosecution Policy Guidelines (Cth) guideline 5.12; DPP Guidelines (Vic) guideline 2.6.2.

^[20] R. Douglas, ‘Pre-trial withdrawals – trial, bargain, or pseudo-bargain’ (1983) 16 (4) Australian and New Zealand Journal of Criminology 210, 211; Mark Findlay, above n 7, 210; Peter Clark, above n 1, 200; Mark Findlay, Stephen Odgers and Stanley Yeo, australian criminal justice (3rd ed, 2005) 123. See also Paul Byrne, above n 4, 799-800.

^[21] L. Waller and C. R. Williams, above n 7, 22; Mark Findlay, above n 7, 210.

^[22] John B. Bishop, above n 17, 182; David Brown (et al), above n 4, 186; Peter Clark, above n 1, 199.

^[23] John B. Bishop, above n 17, 198-199.

^[24] John B. Bishop, above n 17, 192.

^[25] Sometimes sentence indication bargaining is also described as “getting a quote”, Peter Sallmann and John Willis, above n 19, 75; Peter Clark, above n 1, 200; David Brown (et al), above n 4, 186.

^[26] Peter Clark, above n 1, 200; F. M. McGuire, ‘Plea bargaining – Its significance in the Australian criminal justice system – A postscript’ (1983) 7 (4) Queensland Lawyer 71, 71; L. Waller and C. R. Williams, above n 7, 22; Mark Findlay, Stephen Odgers and Stanley Yeo, above n 20, 123.

^[27] Peter Clark, above n 1, 200.

^[28] Mark Findlay, Stephen Odgers and Stanley Yeo, above n 20, 123; Peter Clark, above n 1, 200.

^[29] Peter Clark, above n 1, 200. See also Law Book Company, Laws of Australia, vol 11 (at 8 June 2008) 11 Criminal Procedure, ’11.6 Pre-trial Procedure’ [11.6.14].

^[30] GAS and SJK v The Queen (2004) 78 ALJR 768, 793.

^[31] Wilson and Another v McCormack [1968] Tas SR 55, 61.

^[32] See Maxwell v The Queen (1996) 70 ALJR 324, 329.

^[33] Mark Findlay, Stephen Odgers and Stanley Yeo, above n 20, 123; Law Book Company, Laws of Australia, vol 11 (at 8 June 2008) 11 Criminal Procedure, ’11.6 Pre-trial Procedure’ [11.6.12]; DPP Guideline (Vic) guideline 2.6.4. See also Criminal Procedure Act 1986 (NSW) s 153 (1) (b).

^[34] R v Andrew Foster Brown (1989) 17 NSWLR 472, 480. See also David Brown (et al), above n 4, 187.

^[35] See for example DPP Guidelines (NT) guideline 6.5; DPP guidelines (WA) guideline 77; DPP Guidelines (SA) guideline 2 (4) (j) and (k); ODPP Guidelines (NSW) guideline 20 (5).

^[36] See DPP Guidelines (Qld) guideline 14 (iii). Concerning the tendency to overcharge see David Brown (et al), above n 4, 196; Peter Clark, above n 1, 212; L. Waller and C. R. Williams, above n 7, 22; Robert D. Seifman and Arie Freiberg, above n 1, 66; John Willis, ‘Pre-trial decision making’, in George Zdenkowski, Chris Ronalds and Mark Richardson (eds) The Criminal Injustice System – Volume Two (1987) 59, 87; Richard G. Fox, Victorian Criminal Procedure – State and Federal Law (1992) 50.

^[37] Kathy Mack and Sharyn Roach Anleu, above n 19, 264.

^[38] Peter Clark, above n 1, 213; Paul Gerber, above n 1, 215; John B. Bishop, above n 17, 184; Ainslie Lamb and John Littrich, Lawyers in Australia (2007) 276.

^[39] F. M. McGuire, ‘Plea bargaining – Its significance in the Australian criminal justice system’ (1981) 6 (4/5) Queensland Lawyer 102, 105. See also Robert D. Seifman and Arie Freiberg, above n 1, 65.

^[40] R v Turner [1970] All ER 281, 285; R v Terry Michael Inns (1974) 60 Cr App R 231, 233.

^[41] Meissner v The Queen (1995) 184 CLR 132. Paul Byrne, above n 4, 802.

^[42] GAS and SJK v The Queen (2004) 78 ALJR 768, 793.

^[43] See for example Prosecution Policy Guidelines (Cth) guideline 5.16; DPP Guidelines (NT) guideline 6.4 (3); DPP Guidelines (WA) guideline 76 (b).

^[44] See for example ODPP Guidelines (NSW) guideline 20 (9); DPP Guidelines (NT) guideline 6.4 (1); DPP Guidelines (WA) guideline 76 (a).

^[45] See also R v Turner [1970] All ER 281, 285.

^[46] Robert D. Seifman and Arie Freiberg, above n 1, 66.

^[47] Ibid 67.

^[48] Ibid.

^[49] Robert D. Seifman and Arie Freiberg, above n 1, 66

^[50] Ibid 67.

^[51] GAS and SJK v The Queen (2004) 78 ALJR 768, 796.

^[52] See for example ODPP Guidelines (NSW) guideline 20 (2), (7) and (11); DPP Guidelines (NT) guideline 6.8; DPP Guidelines (WA) guideline 74; DPP Guidelines (Qld) guideline 14 (iv).

^[53] Paul Byrne, above n 4, 801. Also in England sentencing is seen as being the task of the court and not of the prosecution, R v Atkinson [1978] 2 All ER 460, 462.

^[54] GAS and SJK v The Queen (2004) 78 ALJR 768, 793.

^[55] See R v Gray [1977] VR 225, 232; Chow v Director of Public Prosecutions and Another (1992) 28 NSWLR 593, 606; Malvaso v The Queen (1989) 168 CLR 227, 233.

^[56] R v Juan Francisco Uzabeaga (2000) 119 A Crim R 452; GAS and SJK v The Queen (2004) 78 ALJR 768, 794.

^[57] R v Rodney Henry Altham (1992) 62 A Crim R 126, 127; Chow v Director of Public Prosecutions and Another (1992) 28 NSWLR 593, 606; GAS and SJK v The Queen (2004) 78 ALJR 768, 794; Malvaso v The Queen (1989) 168 CLR 227, 233. See also Paul Byrne, above n 4, 802.

^[58] See also R v Juan Francisco Uzabeaga (2000) 119 A Crim R 452.

^[59] R v Holder and Johnston [1983] NSWLR 245, 268. See also R v Marshall [1981] VR 725, 733.

^[60] David Brown (et al.), above n 4, 196; Lamb, Ainslie and Littrich, John, above n 38, 147; John Willis, ‘Pre-trial decision making’, in George Zdenkowski, Chris Ronalds and Mark Richardson (eds) The Criminal Injustice System – Volume Two (1987) 59, 85.

^[61] Sentencing Act 1995 (WA) s 8 (2); Sentencing Act 1995 (NT) s 5 (2) (j); Sentencing Act 1991 (Vic) s 5 (2) (e); Crimes Act 1914 (Cth) s 16A (2) (g); Criminal Law (Sentencing) Act 1988 (SA) s 10 (g); Penalties and Sentences Act 1992 (Qld) s 13 (1).

^[62] Kahty Mack and Sharyn Roach Anleu, ‘Choice, consent and autonomy in a guilty plea system’ (2000) 17 (1) Law in Context 75, 78.

^[63] Arie Freiberg and John Willis, above n 5, 249.

^[64] Sophia Beckett, ‘Practice and procedure of indictable matters set for reform: Compulsory conferencing, prosecution disclosure, discount for early plea’ (2005) 43 (5) Law Society Journal 32, 34.

^[65] R v Turner [1970] All ER 281, 285; R v Dean Robert Warth (1991) 93 Cr App R 187; R v Carl Peter Plimmer (1975) 61 Cr App R 264; R v Michael John Ryan (1977) 67 Cr App R 177, 180; R v Anderson Ralph Coward (1979) 70 Cr App R 70, 71.

^[66] R v Turner [1970] All ER 281, 285. The judge should for example make sure that a note is take of the indication, R v Michael Joseph Cullen (1984) 81 Cr App R 17, 19.

^[67] R v Turner [1970] All ER 281, 285; R v Carl Peter Plimmer (1975) 61 Cr App R 264.