Negotiations can occur at any stage after a charge has been laid. They can be initiated by either the ODPP lawyer or the defence lawyer.
Depending on the complexity of the case, some negotiations can take place over an extended period of time.
Resolving cases before a trial
Courts have an expectation that ODPP and defence lawyers talk to each other throughout a criminal prosecution.
Although it is not possible to resolve every case, the Court still expects the lawyers to explore whether it's possible to resolve the case without a trial.
Throughout the court process, both lawyers will update the court about the progress of any negotiations.
Offer to resolve
When a defence lawyer suggests a resolution to the ODPP lawyer, this is often referred to as an offer to resolve.
The ODPP lawyer must then properly consider that proposal.
Once this is completed, the ODPP lawyer consults their Senior Legal Manager or the DPP who decides whether the offer should be accepted or rejected.
Only the DPP or a Senior Legal Manager can make the decision to accept or reject the offer.
Given the large number of matters the office handles, it is not possible for the DPP to be personally involved in every decision - however the DPP is ultimately responsible for them all.
Before making any final decision to accept a proposal, the DPP has an obligation to inform and consult certain people, including victims of serious offences.
- If agreement is reached, all parties involved will be advised and the case will proceed to sentencing.
- If no agreement is reached, the matter will proceed to a trial.
Do plea negotiations always mean a lesser charge or sentence?
A common misconception is that negotiations will always result in charges being reduced or downgraded. This is not the case.
In some cases, the prosecution might believe the only way to resolve a matter is for the accused to plead guilty to the offences as charged. Negotiations may not progress very far, and the matter may need to proceed to trial if the accused is not prepared to plead guilty.
In other cases, the prosecution may believe it is appropriate to accept an offer to resolve. This can be for a number of reasons, such as:
- the views and wishes expressed by the victim of the offence
- the available evidence to prove the charges
- possible legal defences that an accused may have in connection with the charges
- legal and factual issues arising from the case - such as objections to how evidence was collected or how a witness was interviewed
- new evidence coming to light as a result of continuing police investigations.