The Veil of Secrecy Despite plea bargaining’s potentially significant outcomes, to date it is not recognised or controlled in

The Veil of Secrecy Despite plea bargaining’s potentially significant outcomes, to date it is not recognised or controlled in

Victorian statute. Instead, it is governed by three non-legally binding Office of Public Prosecutions (OPP) internal policies (Dealing with a Plea Offer 2006 (Vic); Director’s Policy 3.1 2007 (Vic); Resolution of Matters & Early Issue Identification 2007 (Vic)) and limited case law (R v GAS; R v SJK (2004) 206 ALR; R v Maxwell (1995) 184 CLR 501). For example, in R v Maxwell the High Court of Australia established authority for judges to reject guilty pleas if the factual basis surrounding the charge(s) to which the defendant was pleading did not reflect the evidence (R v Maxwell (1995) 184 CLR 501 at 535). This in turn Victorian statute. Instead, it is governed by three non-legally binding Office of Public Prosecutions (OPP) internal policies (Dealing with a Plea Offer 2006 (Vic); Director’s Policy 3.1 2007 (Vic); Resolution of Matters & Early Issue Identification 2007 (Vic)) and limited case law (R v GAS; R v SJK (2004) 206 ALR; R v Maxwell (1995) 184 CLR 501). For example, in R v Maxwell the High Court of Australia established authority for judges to reject guilty pleas if the factual basis surrounding the charge(s) to which the defendant was pleading did not reflect the evidence (R v Maxwell (1995) 184 CLR 501 at 535). This in turn

In 2004, the lack of transparency surrounding plea bargain agreements became the focus of an appeal to the High Court of Australia (R v GAS; R v SJK (2004) 206 ALR). In this case, the defence argued that the prosecutor’s conduct in appealing the inadequacy of the defendants’ sentences broke their prior plea bargain agreement, which meant the basis upon which the defendants pled guilty was no longer upheld and the increased sentences imposed by the Victorian Court of Criminal Appeal were unjust and non- reflective of the original agreement (R v GAS; R v SJK [2002] VSCA 131). In addressing this issue, the court suggested that both counsel should prepare written copies of any agreements which may have impacted on, or influenced a defendant’s decision to plead guilty, where this agreement is likely to impact on the sentence (R v GAS; R v SJK (2004) 206 ALR at 42). In making this statement, the court provided some recognition of plea bargaining and the potentially negative consequences of its lack of transparency. However, it did not put forward any significant regulation or scrutiny of plea bargaining, thus limiting the decision from having any real impact on its transparency.

Three OPP internal policies provide some guidance to prosecutors when plea bargaining, for instance, encouraging them to initiate discussions with defence counsel, regardless of whether the defence approaches them (Dealing with a Plea Offer 2006 (Vic); Director’s Policy 3.1 2007 (Vic); Resolution of Matters & Early Issue Identification 2007 (Vic)). Significantly, however, these policies are non-legally binding and there are no mechanisms in place to monitor whether prosecutors uphold the policies’ requirements. Thus, there is limited public accountability on the plea bargaining process or the conduct of those involved. Furthermore, no official statistics are kept detailing when or why plea bargaining occurs, and limited information is available on the processes associated with it. In this regard, plea bargaining is engulfed by a veil of secrecy that prevents it from upholding the principle of public and open justice, because justice can not be seen to be done (Huff et al 1996; Newman 1966).

Regardless of whether or not any prosecutorial misconduct results from plea bargaining, its inability to uphold the principle of public and open justice is concerning, because it can create and fuel negative Regardless of whether or not any prosecutorial misconduct results from plea bargaining, its inability to uphold the principle of public and open justice is concerning, because it can create and fuel negative

Because it [plea bargaining] is all done behind closed doors, so to speak, there is a lot of misunderstanding about what it actually is. It is considered a deal where people are sold out, victims in particular, and the [defence] counsel and prosecutor go up to the bench and they have a whisper to the judge and it is resolved, sentence and all. The public believe that plea bargaining is the OPP letting them [the defendants] get away with certain elements of what they have done (Prosecutorial participant 2007).

In addition to shaping public opinion, public and open justice serves three main purposes: (1) to safeguard criminal justice agencies’ conduct; (2) to increase public understanding of how the legal system operates; and (3) to ensure public confidence in the legitimacy of proceedings (Allen & Hough 2008:225; Spigelman 1999). It is for these reasons that the importance of upholding the principle has been cited in case law, statute and international covenants since the early twentieth century as ‘a sound and very sacred part of the constitution of the country and the administration of justice’ (Scott v Scott [1913] A.C 417 at 473; cf Charter of Human Rights and Responsibilities Act 2006 (Vic); International Covenant on Civil and Political Rights 1966 (UN); R v Webb (1994) 122 ALR 41 at 47). In particular, as noted in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, ‘it is not merely of some importance, but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (at 259). The underlying reason for which, as Kirby (1998:8) claims, is to ‘constantly submit [legal conduct] to public scrutiny’, thereby justice is not only seen, but is scrutinised and parties held accountable for their conduct.