“Plea bargaining”

World famous in New Zealand

A Comparative Look at Plea Bargaining in Australia, Canada, England, New Zealand, and the United States” (Marcus and others, 57 Wm & Mary L Rev 1147 (2016)) provides a timely and informative backdrop to last week’s media commentary on “plea bargaining”, in connection with the reduction from murder to manslaughter charges to which three year old Moko Rangitoheriri’s carers (while his mother attended another child in hospital) pleaded guilty.

Former University of Canterbury Dean of Law, Chris Gallavin, was widely reported saying the reduction would have been in part because “a bird in the hand is worth two in the bush”, meaning police were guaranteed a conviction. The media seized on that as acknowledgement of prosecutors’ economic and financial rather than justice incentives (although Dr Gallavin’s focus was on the variety of homicide cases falling within the definition of murder, leading to “the perversities of plea bargains”). But do New Zealand prosecutors plea bargain?

“A Comparative Look” commends New Zealand’s “thoughtful and quite comprehensive statutory oversight” of non-trial dispositions of criminal prosecutions. That generic characterisation of the more popular “plea bargain” is in part due to District Court Judge David Harvey’s observation, in contributing New Zealand’s position to the review, “plea bargain” has no official or unofficial standing in New Zealand law. Rather, the Criminal Procedure Act 2011 formalised the “sentence indication” process previously developed by courts:

  • an administration phase in which the case is readied for trial, including disclosure of prosecution evidence to the defence, and the defendant’s entry of a plea;
  • a case review hearing at which a judge is empowered to facilitate the case’s resolution in the interests of justice, at which sentence indications generally are sought; and,
  • unless pleading guilty, trial.

While there is no reliable data on resort to sentence indications and their result in terms of the plea (and an OIA request obtained the peerless response “the Ministry of Justice does not hold any records of instances of plea bargaining”), anecdotally, it is steadily rising. It is available in any criminal proceeding. The Act contains significant procedural safeguards for integrity of the prosecution process, including that sentencing indications may only be sought by an accused, and are determined by the judge only if satisfied s/he has sufficient information (including an agreed summary of facts, the defendant’s previous convictions, victim impact statements, and prosecution and defence submissions on available sentences) on which to make it. Until that point, the judge’s role is passive, although informally s/he may suggest alternative charges if the summary of facts indicates their availability. The process has engendered substantial efficiency gains in the court process, through having defendants focus on their guilt and its consequences at an earlier stage, and has become a “necessary… part of the fabric” of New Zealand’s criminal justice system.

Perhaps prematurely, given last week’s media commentary, Judge Harvey advised the review there was no public debate on the process, which was “fairly robust” and not requiring reform. Comfort may also be taken from the review’s singular commendation of New Zealand’s innovation.

[This article was first published in The Capital Letter (39/17, 10 May 2016)]

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