Intersections between in-court procedures and the production of guilty pleas.(Australia)

In Australia (as elsewhere) most criminal defendants plead guilty and do not contest the charges at trial. Our research suggests that guilty pleas can result from ah intersectional process, in which in-court events interact with out-of-court activities and discussions. This article draws on an observational study of criminal matters in Australian lower courts. It examines the early stages of in-court proceedings, in particular the ways in which the judicial officer's--here the magistrate--decisions about adjournments, contribute to and are driven by the guilty plea production process. While Australian magistrates and judges have no direct role in or even knowledge of the substance of plea or charge bargaining, they can influence the circumstances for a prompt guilty plea.

Keywords: adjournments, courts, guilty pleas, magistrates

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In Australia (as elsewhere), most criminal defendants plead guilty and do not contest the charges at trial (Baldwin & McConville, 1977, 1979; Mack & Roach Anleu, 1995; Mather, 1974, 1979; Sentencing Advisory Council [Victoria], 2007). The key active role of the judge or magistrate is to sentence the defendant. In many jurisdictions, at least two-thirds of defendants, and often more, ate sentenced following a plea of guilty (Australian Bureau of Statistics, 2008, pp. 14, 26). While Australian magistrates and judges have no direct role in or even knowledge of the substance of plea or charge bargaining, they ate aware that a contested criminal trial is unusual. This article demonstrates the ways in which they can facilitate the production of a guilty plea without direct intervention, thus preserving the principles of judicial neutrality and the voluntariness of the guilty plea.

Defendants plead guilty for a variety of reasons, including: to benefit from any sentence discount, a sense of guilt of remorse, wanting to get the matter out of the way, shame, of a desire to protect another person. Guilty pleas may occur with of without legal advice. Plea negotiations between the prosecutor and a defendant's legal representative may result in reduced or different charges to which the defendant will plead guilty. The most frequent type of plea bargaining in Australia is discussions between defence and prosecution resulting in a charge reduction, which usually occur in the defendant's absence and outside the formal court proceedings (Findlay, Odgers, & Yeo, 2005; Mack & Roach Anleu, 1995; Seifman & Freiberg, 2001). Australian law is clear that judicial officers have no role in any discussions between the defence and prosecution regarding the charge, plea or likely sentence (GAS v The Queen, 2004). The risk of perceived or actual coercion and the threat to impartiality and detachment militate against judicial participation in plea negotiations (Mack & Roach Anleu, 1995).

Nonetheless, the judicial officer can play a significant role in the production of guilty pleas. A magistrate's decisions and actions can be essential for plea discussions to occur and for decisions about plea to be made. A court observation study conducted in the Australian magistrates courts (1) indicates that the adjournment (called a 'continuance' in the United States) provides a critical intersection between formal court proceedings and the informal discussions, interactions and considerations that might produce guilty pleas. A request for an adjournment provides the magistrate an opportunity to make explicit expectations about the progress and direction of a matter, especially if ir has been adjourned previously. However, the magistrate's role is at a distance, in order to maintain judicial impartiality while at the same time facilitating the conditions that can produce guilty pleas. The key active role of the judge or magistrate is to sentence the defendant.

Judicial officers sometimes have a more active or interventionist role in the various formal pre-trial conferences or contest mention systems that exist in several Australian and other jurisdictions. The emphasis in these processes is to clarify the contested issues and attempt their resolution. In some cases, the magistrate might intimate or indicate the likely sentence. This can have the effect of producing a guilty plea, either immediately or following a short adjournment (Cannon, 2008; Mack and Roach Anleu, 1995). These specialised pre-trial procedures are usually listed separately and are not heard as part of the general criminal list, which is the subject of this research.