NOW there is a bit of a lull in the public hysteria about so-called plea bargaining that was fuelled by the Nemer case last year, and exacerbated old wounds about others, a cooler look at the process is in order.
We will need to be thinking straight when the Government unwraps its response to the suggestions for tidying up, made by Solicitor-General Chris Kourakis. It will help if we do not revisit the moral panic that was fostered about so-called plea-bargaining, and the linked suggestion that this process somehow disregarded the rights of victims.
This is, and always was, dangerous and silly nonsense – a point which was eloquently, if ironically, made a few days after Paul Rofe resigned as Director of Public Prosecutions in the wake of Mr Kourakis’s harsh assessment of his conduct of the Nemer prosecution. That episode also involved the re-cycling of some canards about other cases in which a guilty plea had been taken.

A few days later, Michael Dawson, the chief executive of Victim Support Services, was reported as saying that victims often favoured plea-bargaining because they did not relish having to go through a fully fought trial.
The first thing to be said about plea-bargaining is that it is a most unfortunate term. It carries notions of a done deal, and it also carries some baggage from its US origins, where the negotiations can include matters of penalty. This does not and cannot happen in Australia. And the only sense in which it is a done deal is that when prosecutors tell the courts that they will not proceed on the more serious charges; the courts must deal, and only deal, with the charge that remains. The person charged pleads guilty to that lesser offence.

Chris Kourakis quite rightly discourages the use of the expression. In his report, he identified the two elements of what is involved, and proposed describing them as charge arrangements (meaning negotiations about which charge will proceed) and plea arrangements (meaning the facts which both sides will accept as being a proper basis for the guilty plea).

The idea that charge and plea arrangements are some sort of unsuitably cosy deal perhaps gains something from the emphasis that is sometimes put on resources, and not wasting the time of the courts. That is a weak reason. If the charges ought to be prosecuted, we ought to insist that resources are available for that to happen. The point is that charge arrangements only happen for a more fundamental reason – namely, that the higher charges should not proceed.

The reason that they should not proceed is that there is not a reasonable prospect that they will get up, and the prosecutor knows it. That may sometimes be difficult for victims or the bereaved to digest, but this only makes a case for careful and thorough explanation to these people. To have the prosecuting authorities knowingly dragging people before the courts on charges which have no hope would be intolerable. It would be an abuse of legal process. It would drag us into the country of show trials.

How can it be, then, that charges are laid which have no hope of success? Easy. The short reason is that time passes, and things happen. Let’s go into detail.

An offence is committed. The police investigate and report. On the basis of that report, charges are laid. Sometimes, of course, there will be a more or less immediate arrest, but even then there will be further investigation, and often further charges beyond what was charged at the time of arrest. Either way, at this stage, the person charged may have chosen to say nothing.

Even if the person charged does speak, other things may emerge later that provide a defence to the more serious charges – things which the investigating and prosecuting authorities cannot know at the time that charges are laid, and cannot be expected to know. And this is what changes the picture.

At this point, prosecutors are faced with the reality that a charge which looked good on paper before all the facts were in just will not fly. They are obliged, for the reasons already mentioned, not to run a deadset dud. They are also obliged to run charges which adequately reflect the criminality of what was done. Balancing these two duties, they accept a plea of guilty to a lesser charge. And the court decides what the penalty should be.

Those of us on the outside of these processes, not knowing the detail, can often find it difficult to understand why more serious charges were not pressed. But that tends to happen because, from the outside, we focus on the consequences. Consequences matter in assessing culpability, but they are not all that matters. Facts which we may not know, or do not pause to try to imagine, matter too. The difference between malign intention and careless indifference matters.
We routinely apply this sort of subtlety to resolving conflicts that arise in the back garden among our children, and we do not do it because we are soft on our kids. We do it because these considerations are deeply entrenched values. Do we really want the law to ignore such deep values which guide us in the rest of our lives?

Victims, of course, focus on the consequences of offenders’ behaviour, because they have suffered those consequences. We should do everything we can to vindicate the rights of victims, but we should not become victims ourselves, and we should remember that nothing can undo what has been done; nothing can fully restore victims to the position they were in before they were wronged. None of this will dissuade conspiracy theorists from running their alarmist fantasies. But conspiracy theorists overlook the fact that prosecutors do not have much of an interest in going soft. Their professional reputations and their personal success depend in large measure on their effectiveness in seeing to it that villains get what they deserve.

And none of this excludes the possibility that, here and there – including for the lesser matters that are dealt with in the Magistrates Court – there may have been some looseness about the terms on which prosecutors have accepted a plea of guilty to a lesser charge.

All the same, if people get on the bandwagon again in the way they did last year and earlier this year, the best thing to do will be to suggest they have a soothing bath and a lie-down.