Whenever you are charged with a criminal offence there is usually the scope to try and negotiate those charges with the police prosecutor or the Office of the Department of Public Prosecutions (“DPP”). This is known as case conferencing in Queensland.
Negotiating with the Prosecution is a subtle art. This article intends to outline the process and some of the factors involved with negotiating with the prosecutors.
What is the Purpose of Negotiating?
There are three main aims with negotiating:
- To have the prosecution withdraw/drop a charge,
- To have the prosecution ‘downgrade’ a charge to a less serious one,
- To have the prosecution amend the alleged facts to make them more favourable.
Who does the Case Conferencing?
Negotiations with the police prosecution unit or DPP are almost exclusively done by lawyers. You can of course self-represent yourself and negotiate with the prosecutor and prosecutors are always willing to listen to unrepresented people, however, most people simply don't have the skills to properly negotiate with the prosecutor as it is simply not skill that they have learnt or indeed would want or need to learn.
Negotiations are an informal process referred to amongst lawyers and prosecutors as case conferencing. It is not specified how case conferencing or negotiations need to take place, however, typically it is either face to face, over the phone or where the lawyer sends written submissions to the prosecutor to consider.
What would typically happen is if the charge is reduced or withdrawn than on the next court date or on the first date if the first court mention date has not occurred yet the prosecutor would seek to amend the current charges to that reduced charge or if they are withdrawing the charge they will offer no evidence in regards to the charge and the court will dismiss the charge and the client is free to go without any punishment.
What are the Usual Grounds for Challenging a Charge?
The prosecutors’ guidelines tell them there are two grounds under which they may withdraw or downgrade a charge:
- Insufficiency of evidence.
- Public interest.
Insufficiency of evidence
This ground is concerned with whether the prosecution have enough evidence to prove the charge, or, whether there is evidence of a clear defence.
Whether the charge can be proved is in reference to the legal ‘elements’ of the offence. Each criminal or traffic offence has certain parts or elements to it that must be proved to legally establish the charge. For example, to establish a charge of drink driving, the police would need to prove:
- The defendant,
- While over the general alcohol limit,
- Drove a motor vehicle,
- On a public road.
If any one of the above elements could not be proved, then the charge would fail. An example of a submission that might succeed would be if a person was caught drink driving on private property, for example, doing donuts in his own paddock after a few beers. The obvious submission would be the defendant did not break the law because he was not on a public road.
Occasionally, the evidence for a defence, even on the police version of events, is so strong the defence would likely succeed at trial. A recent accepted submission of mine was as follows: A landlord aggressively came to the client’s front door, demanding rent money. The client’s boyfriend went outside the unit to try and deescalate the situation. Unfortunately, he was attacked by the landlord, then the landlord tried to force her way into the unit. As she was reaching into the unit her hand grabbed at my client’s face, and the aggressor’s finger incidentally went into my client’s mouth. My client then bit her finger. Our submission on self-defence was successful.
Another way a ‘insufficiency of evidence’ submission might succeed is if, although all the legal elements are there, some or all of the evidence is just too weak or inadmissible. An example of this might be a person is charged with breaching a domestic violence order. The allegation was simply that, sometime in the evening one night, the person protected by the order, who was at home, heard someone outside his house shout out ‘scum’ or something similar. He thought it sounded like the person restrained by the order. In that situation, we argued the evidence was just too weak to prove the charge beyond reasonable doubt.
Public Interest
The public interest has many factors. Some are listed below.
- Seriousness or triviality of the alleged offence,
- existence of any mitigating or aggravating circumstances,
- the youth age, physical or mental health or special infirmity of the alleged offender or a necessary witness,
- the alleged offender’s antecedents and background,
- whether or not the prosecution would be perceived as counterproductive to the interests of justice,
- the prevalence of the alleged offence,
- whether or not the alleged offence is of minimal public concern,
- the attitude of the victim of the alleged offence to a prosecution,
- likely outcome in the event of a conviction considering the options available to the court,
- the effect on public order and morale.
The more serious the offence the more likely the public interest will fall on a prosecution.
In What Circumstances are Negotiations Unlikely to Succeed?
There will be times when negotiations are unlikely to be fruitful. For example, it is a very rare day that the prosecution will drop a single charge of breaching a domestic violence order. Likewise, it is rare that the prosecution will drop a charge of drink driving or drug driving. Usually, the prosecutors will be more open to negotiating if it does not mean dropping all charges. Sometimes that will be the right result. But more often, downgrading charges, or dropping only some charges, or amending facts, are more likely to get a result.
We will give frank advice if we think a submission is unlikely to succeed, but it will ultimately be the client who makes the final decision as to whether to proceed with a submission or not.
When Would I Negotiate?
There are two parts to this answer. The first part is if there is, if a chance of a charge being dropped or downgraded. The second is if the facts can be made substantially more favourable.
The likelihood of a charge being dropped on downgraded depends on the individual circumstances of the case. There is no ‘one size fits all’ advice. Refer to what I have written above to get a sense of the relevant considerations.
Whether alleged facts of the offence should be negotiated will often depend on the evidence. For example, we had a recent case where the defendant was charged with causing grievous bodily harm. The facts originally said he pushed a woman, unprovoked, with great force over the top of a small gate and down a small staircase. This obviously sounds very bad. This version, however, was based on what one witness said, and the witness had some other questionable things included in her statement. Other witnesses, however, told a more balanced version of events: that the client and complainant were arguing at the top of the small staircase, the complainant swung her hand towards the client, and the client grabbed her hand and shoved it away in such a manner than she spun around and stumbled down the stairs. In both cases her injuries were severe, but in the version we got the prosecution to agree to, our client’s moral culpability was significantly lessened. Indeed, in my view that change in facts kept the client out of jail.
What Happens if the Submission is Rejected?
If the prosecution rejects the submission, then the defendant has two choices: to plead guilty to the charge as it is, or take the matter to a trial. Sometimes a trial listing can put pressure on the prosecution to reconsider a submission. Often, if we think it has merit, we will press a submission more than once as the case progresses.
Examples of Negotiating with the Prosecutor
We will use two examples. One is an assault occasioning bodily harm charge, the other is a trafficking in drugs charge.
Example 1
So let's first take the first example of assault occasioning bodily harm charge (“AOBH”). AOBH is a charge that can often lead to a prison sentence. The prosecutor must prove that;
- The assault took place;
- The assault was unlawful; and
- That the injury amounted to bodily harm.
Bodily harm means any injury that interferes with the complainant’s health or comfort.
Case conferencing often occurs once the police prosecutors brief (or most commonly known as the QP9) is provided to you or your lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened. This includes the details of the alleged assault, what background or build up to the alleged assault occurred and the alleged injury to the complainant.
The charge of AOBH can be heard in the Magistrates court only if the defendant agrees, if they do not agree the charge must be heard in the District Court. The charge carries a maximum penalty of 7 years imprisonment or 10 years if the assault took place in company with another person or if the defendant was armed or pretended to be armed with a weapon.
When looking at negotiating with the prosecutor we would in most cases take a detailed statement from the client, see if any CCTV exists, check social media to see if the complainant has posted anything about the alleged assault, check medical records of the complainant and take statements from any person who may have seen the alleged assault. We would then see what, if any, negotiations with the prosecutor could take place.
Some examples of successful case conferencing we have achieved for assault matters are;
- Had the AOBH charge withdrawn as our client was acting in their own self-defence after being confronted and threatened by the complainant in a pub.
- Had the AOBH charge withdrawn as our client was protecting his partner after she was attacked by the complainant.
- Convinced the prosecutor to reduce the charge to common assault as we were able to show the injuries did not fit the definition of AOBH. Reducing the charge to common assault meant the client was punished with a fine only and no conviction was recorded.
- Having the prosecutor withdraw a charge of serious assault after we were able to show our client was provoked by a number of racial remarks were yelled at him over an extended period.
- Being able to convince the prosecutor to withdraw the charge after convincing them that the complainant’s statement was unreliable and he was grossly intoxicated at the time of the offence.
- Having the AOBH charge withdrawn by the prosecutor after we showed that the CCTV footage was unclear and that they could not be satisfied that it was our client that assaulted the complainant and that other person’s present could have inflicted the injury.
Example 2
Lets take a look at another example, that is trafficking in drugs. This is a very serious charge and will almost certainly lead to a person serving time in prison if convicted. Trafficking is where a person carries on the business of selling or supplying drugs. The critical question is whether the defendant was in the business of trafficking drugs and this usually means a course of conduct engaged over a period of time for commercial reward. However even a single supply or sale could technically be charged as trafficking and the reward does not have to be money or might be for instance a payment of drugs for the defendant’s personal use. The prosecutor might build their case on informants, telephone intercepts, downloads of messages or surveillance of the defendant.
Negotiating this charge usually involves getting a full brief of evidence and going through that brief carefully to look to see if we can convince the prosecutor that;
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It was not our client that was the one trafficking the drugs
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That if our client sold drugs it was not trafficking and the charge should be reduced to supplying drugs
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That the evidence is not sufficient to convince a jury our client is guilty and the charge should be discontinued.
Some examples of successful case conferencing we have achieved for drug charges are;
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Had the prosecutor reduce a trafficking charge to supplying dangerous drugs so that the client served no time in prison.
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Convinced the police prosecutor to reduce supplying dangerous drugs to just possession of small amount of drugs for a 18 year old client.
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After negotiation with the prosecutor they agreed to withdraw a charge of trafficking as we pointed out they didn’t have enough evidence to successfully prosecute our client
Summary
Always ensure you engage experienced criminal lawyers if you are charged with a crime as we have found negotiating with the prosecutor after the client first tried by themselves and failed or less experienced lawyers were engaged and they had a failed negotiation can be difficult to correct.
A submission is a useful tool in a defence lawyer’s arsenal and can be used to improve a client’s legal position if used effectively. In this area, experience and expert legal advice matter.
Why should I engage Clarity Law?
We care about getting the right outcome for clients and helping them through one of the most difficult times in their lives.
In the face of a criminal law charge, selecting the right legal representation is paramount, and Clarity Law offers a unique blend of proficiency and empathy that sets us apart. Our firm is dedicated to providing clarity in the often complex world of criminal law. We believe that every client deserves a clear understanding of their rights and the legal process they're navigating.
Our experienced team of lawyers approaches each case with a commitment to open communication, ensuring you're informed every step of the way. With a proven track record of securing favourable outcomes, we have the expertise to navigate even the most intricate legal challenges.
At Clarity Law, we strive not only to be your staunch advocates but also to provide a supportive, understanding environment during this trying time. Choosing Clarity Law means choosing a team that will tirelessly work to protect your rights and pursue the best possible outcome for your case.
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