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.
For the purpose of this article, we will use two examples. One is an assault occasioning bodily harm charge, the other is a trafficking in drugs charge.
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.
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 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- Had the AOBH charge withdrawn as our client was acting in their own self-defence after being confronted and threatened by the complainant in a pub.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 the charge 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.
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.
It's like 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;
- It was not our client that was the one trafficking the drugs
- That if our client sold drugs it was not trafficking and the charge should be reduced to supplying drugs
- That the evidence is not sufficient to convince a jury our client is guilty and the charge should be discontinued.
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.
If you need any advice on a criminal charge in Queensland and have a court appearance in any South East Queensland court we can help you. We can be contacted on 1300 952 255 seven days a week. Our website is at www.claritylaw.com.au