Part 3Compulsory
conferences
Note—
This Part requires an accused person’s
legal representative and the prosecution to participate in a compulsory
conference in relation to an offence before the accused person is committed
for trial for the offence except in certain circumstances (for example, where
the accused person enters, or agrees in writing to enter, a guilty plea before
a conference is held or if the offence is an offence for which a compulsory
conference is not required to be held under the Part). The Part sets out
various requirements concerning the holding of such a conference. A compulsory
conference certificate must be prepared after the holding of a conference that
certifies various matters agreed to by the parties at the conference
(including, for example, an offer by the accused person to plead guilty to an
offence that he or she had been charged with before the conference or an offer
by the accused person to plead guilty to an alternative offence to the offence
that he or she has been charged with). The certificate may be used by a
sentencing court in limited circumstances to verify matters such as an offer
to plead guilty to a specific offence.
6Compulsory
conference
(1)
A compulsory conference must be held in
accordance with this Part in relation to an indictable offence unless:
(a)
the offence:
(i)
is an offence to which section 16 does not apply,
or
(ii)
is any other offence prescribed by the
regulations, or
(b)
the accused person pleads guilty to the offence
before a pre-conference disclosure certificate in relation to the offence is
filed in accordance with section 9, or
(c)
the accused person pleads guilty, or agrees in
writing to plead guilty, to the offence before the date and time set down
under section 7 (2) for the holding of the conference, or
(d)
the accused person has no legal representative,
or
(e)
the prosecution is not conducted by the Director
of Public Prosecutions, or
(f)
a Magistrate makes an order under subsection (5)
that the compulsory conference need not be held.
(2)
A compulsory conference in relation to an offence
may not be held unless the prosecution:
(a)
has served (or caused to be served) on the
accused person or the accused person’s legal representative a copy of a
brief of evidence in relation to the offence that complies with section 8,
and
(b)
has served (or caused to be served) on the
accused person or the accused person’s legal representative a copy of
the pre-conference disclosure certificate in relation to the offence,
and
(c)
has filed the pre-conference disclosure
certificate with the Local Court.
Note—
Section 7 contains requirements concerning the
time at which a compulsory conference must be held, the service of briefs of
evidence and pre-conference disclosure certificates and other compulsory
conference steps.
(3)
The purpose of the compulsory conference is to
determine whether there is any offence or are any offences to which the
accused person is willing to plead guilty and any other matters referred to in
section 12 (3) on which the accused person and the prosecution are able to
reach agreement.
(4)
Evidence of anything said between the parties, or
of any admission made, during a compulsory conference or during negotiations
after the conference concerning a plea to be made by the accused person is not
admissible in any proceedings before a court, tribunal or body, except as
provided by section 13.
(5)
A Magistrate may, on application by the accused
person or the prosecution, order that a compulsory conference need not be held
in relation to an offence if the Magistrate is satisfied that exceptional
circumstances exist that would make it impossible or impracticable to hold the
conference or that it would be highly unlikely that the holding of the
conference would achieve the purpose referred to in subsection
(3).
(6)
The Magistrate is to make a record of the reasons
for making the order.
s 6: Am 2009 No 106,
Sch 4.12.
7Compulsory conference
timetable
(1)
For the purposes of this section, the compulsory conference steps are the
following steps taken with respect to a compulsory conference between the
legal representative of an accused person and the prosecution:
(a)
service of a copy of a brief of evidence
complying with section 8 on the accused person or the accused person’s
legal representative,
(b)
service of a copy of a pre-conference disclosure
certificate complying with section 9 on the accused person or the accused
person’s legal representative,
(c)
filing of the pre-conference disclosure
certificate,
(d)
the holding of the compulsory
conference,
(e)
filing of a compulsory conference
certificate.
(2)
The date and time set for the holding of the
compulsory conference must be before the date and time set down under section
60 of the Criminal Procedure Act
1986 for the taking of prosecution evidence in any
committal proceedings with respect to the offence.
(3)
If a compulsory conference is required to be held
in relation to an offence in respect of which a court attendance notice was
issued:
(a)
section 60 (1) of the Criminal Procedure Act 1986 is to be
read as requiring the Magistrate, on the date on which the pre-conference
disclosure certificate relating to the offence or offences is tendered (or at
such later time or times as the Magistrate determines), to set the matters
specified in paragraphs (a) and (b) of that subsection,
and
(b)
section 60 (1) (a) of that Act is to be read as
not applying to written statements and copies of any proposed exhibits
identified in the statements (or a notice relating to the inspection of them)
previously served in accordance with section 8 (3) of this
Act.
(4)
The dates by which copies of the brief of
evidence and pre-conference disclosure certificate are to be served in
relation to an offence are to be set by a Magistrate in accordance with this
section:
(a)
except as provided by paragraph (b), on the date
on which the court attendance notice is filed in respect of the offence or at
such later time or times as the Magistrate determines, or
(b)
if the offence is an offence in relation to which
an election is made in accordance with Chapter 5 of the Criminal Procedure Act 1986 to deal with
the offence on indictment—at the time the election is made or at such
later time or times as the Magistrate determines.
(5)
The compulsory conference steps are to be taken
in accordance with a timetable fixed by a Magistrate in accordance with any
relevant practice directions of the Chief Magistrate.
(6)
A registrar may exercise the Magistrate’s
functions under subsection (5).
(7)
A compulsory conference step may be taken after
the date and time or period fixed with the leave of a Magistrate, if the
Magistrate is satisfied that special circumstances
exist.
8Brief of
evidence
(1)
The brief of evidence relating to an offence or
offences to be the subject of a compulsory conference is (subject to
subsection (2)) to consist of documents regarding the evidence that the
prosecutor intends to adduce in order to prove the commission of the offence
or offences and is to include:
(a)
any written statements taken from persons the
prosecutor intends to call to give evidence in proceedings for the offence or
offences, and
(b)
copies of any document or other thing identified
in such a written statement as a proposed exhibit or advice as to where any
such document or thing may be inspected.
(2)
A copy of the brief of evidence is to comply with
any other requirement applicable to it that is prescribed by the
regulations.
(3)
The brief of evidence is to be served (or caused
to be served) by the prosecution on the accused person or the accused
person’s legal representative in accordance with the timetable set under
section 7.
(4)
Service of a copy of a brief of evidence for the
purposes of this Part does not (except as otherwise provided by this Act)
affect any other requirement under the Criminal
Procedure Act 1986 to serve a brief of evidence or written
statement on the accused person.
9Pre-conference disclosure
certificate
(1)
A pre-conference disclosure certificate is a
document prepared by the prosecution before the holding of a compulsory
conference with the accused person’s legal representative that:
(a)
sets out the offence or offences (including any
back up or related offences within the meaning of section 165 of the Criminal Procedure Act 1986) with which
the accused person has been charged, and
(b)
certifies that:
(i)
a copy of a brief of evidence referred to in
section 8 is in the possession of the prosecution, and
(ii)
the prosecution has disclosed all material in its
possession that is of relevance to the matters on which agreement is to be
sought at the compulsory conference, and
(c)
confirms that the prosecution considers the
evidence is capable of establishing the elements of the offence or offences
charged, and
(d)
indicates whether the prosecution has excluded
any such offence from the operation of section 16 under section
18.
Note—
Section 16 contains provisions relating to
sentence discounts for benefits associated with guilty
pleas.
(2)
A copy of the pre-conference disclosure
certificate is to be served (or caused to be served) by the prosecution on the
accused person or the accused person’s legal representative in
accordance with the timetable set under section 7.
(3)
A pre-conference disclosure certificate is
conclusive evidence of the matters certified in it in any proceedings in the
Local Court with respect to the offences set out in it and the completeness
and accuracy of the matters may not be challenged in any manner in such
proceedings.
(4)
A pre-conference disclosure certificate is to be
in the form approved for the time being by the Director-General of the
Attorney General’s Department.
(5)
The pre-conference disclosure certificate is to
be filed with the Local Court in accordance with the timetable fixed under
section 7.
(6)
A pre-conference disclosure certificate must be
signed by or on behalf of the Director of Public
Prosecutions.
(7)
Nothing in this section affects any immunity that
applies by law to the disclosure of any information, document or other thing,
including, for example, legal professional or client legal privilege, public
interest immunity and sexual assault communications privilege under Division 2
of Part 5 of Chapter 6 of the Criminal
Procedure Act 1986.
s 9: Am 2009 No 106,
Sch 4.12.
10Explanation of accused
person’s rights
(1)
When the Magistrate sets a timeframe for the
holding of a compulsory conference, the Magistrate must give to the accused
person a statement in writing that explains:
(a)
the effect of this Part and the accused
person’s rights in relation to this Part, and
(b)
the effect of sections 16–18 of this Act
and the accused person’s rights under those sections.
Note—
Sections 16–18 of this Act set out the
sentence discounts that a court must or may allow for a guilty plea in
relation to certain indictable offences.
(2)
The statement must be in the form of words
prescribed by the regulations.
11Persons who are to be present
at compulsory conference
(1)
The following persons must (subject to this
section) be present during a compulsory conference:
(a)
an officer of the Office of the Director of
Public Prosecutions representing the prosecution,
(b)
the accused person’s legal
representative.
(2)
A requirement under this section that a person be
present for the purposes of a compulsory conference is taken to be satisfied
if the person is present or available by way of an audio visual link or
telephone.
(3)
The accused person’s legal representative
is to obtain the accused person’s written instructions concerning the
matters referred to in section 12 (3) before participating in the compulsory
conference unless it is reasonably practicable to obtain those instructions in
person, by audio visual link or by telephone during the
conference.
(4)
If the accused person has been charged jointly
with any other person with the offence concerned, a separate compulsory
conference is to be held for each co-accused. However, a joint compulsory
conference may be held for two or more such co-accused, with the consent of
the prosecution and each of the co-accused concerned.
(5)
A joint compulsory conference may be held only if
the requirements of sections 6 and 10 have been complied with for each
co-accused.
(6)
The regulations may make provision for or with
respect to the use of audio visual links for the purposes of compulsory
conferences.
(7)
In this section, audio visual link means facilities
(including closed circuit television) that enable audio and visual
communication between persons at different places.
12Compulsory conference
certificate
(1)
The prosecution and a legal representative who
acted on the accused person’s behalf at the conference must complete a
compulsory conference certificate after a compulsory
conference.
(2)
The compulsory conference certificate is to be
signed by the prosecution and the accused person before it is filed in
accordance with subsection (4).
(3)
The compulsory conference certificate is to
certify as to the following matters:
(a)
the offence or offences (including any back up or
related offences within the meaning of section 165 of the Criminal Procedure Act 1986) with which
the accused person had been charged before the conference and for which the
prosecution will seek committal of the accused person for trial or
sentence,
(b)
any alternative offences to those referred to in
paragraph (a) discussed at the compulsory conference,
(c)
any of the offences referred to in paragraph (a)
or (b) to which the accused person has offered to plead
guilty,
(d)
whether the accused person or the prosecution has
accepted or rejected any such offers,
(e)
if the accused person has offered to plead guilty
to any offence and the offer has been accepted by the
prosecution—details of the agreed facts on the basis of which the
accused person has offered to plead guilty and details of facts (if any) in
dispute,
(f)
any additional offences with which the accused
person has been charged to which the accused person has offered to plead
guilty and agreed to ask the court to take into account under section 33 of
the Crimes (Sentencing Procedure) Act
1999,
(g)
if the accused person considers the brief of
evidence provided inadequate information to enable the accused person to
assess the prosecution’s case—details of the
inadequacy.
(4)
The prosecution is to file the compulsory
conference certificate in a sealed envelope with the Local Court in accordance
with the timetable set under section 7.
(5)
The compulsory conference certificate may, on
application, be amended after it has been filed and before the accused person
is committed for trial or sentence with the consent of, and in the presence
of, the prosecution and the accused person or his or her legal
representative.
(6)
A requirement under this section for a compulsory
conference certificate to be signed is satisfied if the document:
(a)
is authenticated by means of a facsimile of the
relevant signature, or
(b)
is authenticated in some other manner in
accordance with rules of court under the Criminal
Procedure Act 1986.
s 12: Am 2009 No 106,
Sch 4.12.
13Effect of compulsory
conference certificate
(1)
Except as provided by this section, a compulsory
conference certificate that has been filed, or a copy of such a compulsory
conference certificate, is not admissible in any proceedings before any court,
tribunal or body and such a certificate and any of its contents:
(a)
are not to be disclosed to any person other than
the prosecution, a police officer, the accused person or the accused
person’s legal representative, the victim of the offence concerned or a
member of the victim’s immediate family (within the meaning of the
Victims Support and Rehabilitation Act
1996), and
(b)
cannot be required to be produced under a
subpoena issued in any proceedings before any court, tribunal or
body.
(2)
A compulsory conference certificate, or copy of a
compulsory conference certificate, is admissible in any proceedings in a
sentencing court for the purpose set out in section 17 (7) and is evidence of
the matters certified in it.
(3)
A compulsory conference certificate, or copy of a
compulsory conference certificate, and the contents of such a certificate may
be disclosed for the purposes of a proceeding referred to in subsection
(2).
(4)
A sentencing court must refuse to admit evidence
of any compulsory conference certificate if any provisions of this Part with
respect to the holding of the compulsory conference concerned or the
preparation of the certificate have not been complied with unless it is
satisfied that there was a good and proper reason for the failure to comply
with the provision concerned and that it is in the interests of justice to
admit the evidence.
(5)
A person who discloses the contents of a
compulsory conference certificate, or copy of a compulsory conference
certificate, in contravention of subsection (1) is guilty of an
offence.
Maximum penalty (subsection (5)): 20 penalty
units.
14Certain matters not taken to
be pre-trial disclosures
The disclosure of any information during or in
relation to a compulsory conference is not, for the purposes of section 22A of
the Crimes (Sentencing Procedure) Act 1999,
a pre-trial disclosure.
Note—
Section 22A of the Crimes
(Sentencing Procedure) Act 1999 enables a court to impose
a lesser penalty than it would otherwise impose on an offender who was tried
on indictment, having regard to the degree to which the defence made pre-trial
disclosures.
15Practice
directions
(1)
The Chief Magistrate may give such directions as
the Chief Magistrate considers appropriate in connection with the practice and
procedure to be followed in proceedings relating to the taking of any
compulsory conference steps within the meaning of section 7
(1).
(2)
A practice direction given under this section
that is inconsistent with this Act or the regulations does not apply to the
extent of the inconsistency.