Serious questions over plea bargaining
Legal experts will discuss forced adoption in Australia.
Greater scrutiny of plea bargaining is needed in order to increase the public’s confidence in the administration of justice in Victoria, according to new research.
The research, by Monash University’s Dr Asher Flynn and Deakin University’s Dr Kate Fitz-Gibbon, is the first evaluation of the use of plea deals for the charge of defensive homicide, an offence introduced in 2005 largely to help create a fairer system for women who kill in response to prolonged domestic violence. It draws on over 60 interviews conducted with members of the Victorian judiciary, Office of Public Prosecutions and Defence Bar and provides insight into these stakeholders’ perceptions of the predominant use of plea bargains to resolve Victorian homicide cases.
Dr Flynn, from the Department of Criminology at Monash, said there was a place for plea bargaining in Victoria, but that the lack of legislation recognising or controlling it meant that more accountability was needed.
“These deals involve the most serious form of criminal misconduct and are shrouded in secrecy, with limited external transparency or accountability,” Dr Flynn said.
“There are no records or data kept explaining when or why plea deals are made. Without great transparency in the plea bargaining process, public confidence in the criminal justice system is negatively affected and significant and important questions pertaining to equality, justice and the effectiveness of Victorian homicide law remain unanswered."
The Victorian Department of Public Prosecutions (DPP) has internal policies, guidelines and some provisions in place to make sure any deals made in homicide cases are appropriate. The study questions whether these internal mechanisms are sufficient to compensate for the absence of external transparency.
“We found that defensive homicide is operating in ways significantly different to those anticipated by the Government upon its implementation,” Dr Flynn said.
“If the DPP is satisfied their internal processes are sufficient and all plea deals made involving defensive homicide are appropriate, then why not implement an external recording process to register when deals are made, in a similar vein to the statistics kept on the number of guilty pleas?”
The researchers believe access to such statistics will allow policymakers to examine how often plea deals occur, in which cases they occur, and whether there needs to be more accountability in the decision-making process.
“At this stage, because there is no information provided as to why the plea bargain is accepted, we do not know why these cases are being resolved as the less culpable offence of defensive homicide, and whether these decisions reflect traditional judicial values,” Dr Flynn said.
Since the publication of the research, the Victorian State Government has announced the offence of defensive homicide will be reformed to ensure that plea deals and gaps in the law are not resulting in individuals being convicted of defensive homicide as opposed to murder.