Not Much Of A Bargain

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Once upon a time, if you did the crime you did the time. If not, you walked. Nowadays, it can be somewhat more complicated. The practice of criminal law in Australia is increasingly embracing the time-honoured US model of down-and-dirty, pragmatic plea-bargaining deals between prosecution and defence, aimed at achieving a compromise acceptable to both parties. And in recent years Australian courts have tacitly encouraged that process by routinely offering discounted penalties to those who arrive at an early decision to plead guilty on mutually-agreed facts.

Of course it’s all done in the name of administrative efficiency. The more you get people to plead guilty (and the sooner they do it) the less likely it is the court system will become clogged up with unworthy defendants challenging their charges. But unfortunately, the pragmatic plea-bargain system sometimes overlooks the justice system’s essential goal – justice. And it can often place considerable – and, in my view, occasionally unfair – pressure on people facing prosecution.

I saw a prime example of that in a case I recently conducted in a regional Queensland court.

My client was a young married man in his late 20s. He had recently started his own business as a subcontractor and he and his heavily-pregnant wife were eagerly awaiting the birth of their first child. After attending an upstairs function at a local hotel he was leaving to go home when he had the misfortune to brush shoulders with a couple of young undercover police officers on the crowded stairwell. One thing quickly led to another and he was essentially crashed tackled down the stairs by both officers. Once they’d all fallen to the bottom of the staircase he was wrist-locked, handcuffed, and had applied to him an impressive and creative array of “pain compliance techniques,” before he was eventually frogmarched out of the hotel and planted face-down in a garden bed, where his hands were securely cuffed behind his back. He was then taken back to a Police station and charged with two counts of assaulting a police officer.

My client strenuously denied his guilt from day one, complaining that he had been attacked without any provocation or other misbehaviour on his part. The problem was there were around 7 police officers ready, willing and anxious to give evidence for the prosecution, and not a single exonerating civilian witness in sight. All of the police witnesses’ statements supported the complainants’ version of events that the defendant suddenly grabbed the poor unsuspecting police officers from behind and aggressively pulled them down the staircase on top of him.

Fortunately for my client we discovered, after some digging, that the whole incident had been captured on CCTV footage of both the stairwell and the garden bed outside. The cameras had recorded only about one frame in four, but they still appeared to tell a very different story to the one being pushed by the prosecution.

That obviously got the police a little nervous, because that’s when the prosecutor came up with a plea-bargain deal. Or was it really just an ultimatum? On the eve of the trial, the prosecutor rang me with an offer – he would agree to a non-custodial penalty (meaning my client would not spend a day in jail) provided he changed his plea to guilty on both charges, but if he maintained his plea of ‘not guilty’ and was then found guilty by the Magistrate, the prosecution would push for a term of imprisonment.

That’s what plea-bargain deals quite often look like. They’re deals in the true sense of the word, but sometimes they don’t feel like too much of a bargain. That’s because the negotiation is a bit lopsided, one side (the prosecution) having all the bargaining power and absolutely nothing to lose, and the other (the accused) having no power at all, and his or her whole life on the line.

So what do you do if you’re entirely innocent? Take the deal and plead guilty, knowing at least you’ll walk away with your freedom, or take a punt, and risk finding yourself behind bars while your young wife gives birth to your first child alone? It’s a tough call.

The next morning, my client showed up at court looking like he hadn’t slept in weeks. Some people are punters, others aren’t. But this guy was neither. He was just a simple man, who had to call a spade a spade. So he maintained what he had been saying all along, that he was not guilty of assaulting anyone.

For the next two days a long procession of witnesses filed in and out of the witness box, cross-examined up hill and down dale on the contents of the CCTV tapes. Thankfully, in the end, my client’s stance was fully vindicated, and he was acquitted by the Magistrate of both charges. He and his wife shed a few quiet tears when the verdict was delivered, and he walked away a free man.

But, as he did, I couldn’t help thinking what a lottery litigation always is, and how, with some other Magistrate, on some other day and in some other way, he might not have been so fortunate. And I wondered whether, faced with the same ‘plea-bargain’ deal, I would have shown the same courage he did to stick to his guns.

Jonathan Nyst

Queensland Criminal Lawyer

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