A report recently released by Monash Arts criminologist Dr Asher Flynn, in collaboration with her colleague Dr Kate Fitz-Gibbon (Deakin University), has sparked wide debate about plea-bargaining in the Victorian justice system.
Released in June 2012, the study examines the operation of the offence of defensive homicide from 1 November 2005 until 30 April 2012 and shows that since its implementation, 16 of the 21 convictions of defensive homicide have resulted from the Crown accepting a guilty plea to the lesser offence – the result of private negotiations between the prosecution and defence. Flynn and Fitz-Gibbon argue that greater transparency and scrutiny is required in Victoria, particularly with respect to homicide plea deals, to increase public confidence in the administration of justice.
The report has created a high level of discussion and debate in the Victorian community and the State Attorney-General Robert Clark has indicated that following the completion of an internal review, they will be seeking advice from the Department of Justice to amend Victoria’s defensive homicide laws to address the very problems identified in the study provides the first evaluation of the use of plea deals in cases of defensive homicide since the laws’ introduction in November 2005. It highlights that defensive homicide is operating in ways significantly different from those anticipated when the then-Government first introduced the laws.
The research draws from 63 interviews conducted with members of the Victorian judiciary, Office of Public Prosecutions and the defence counsel and is the first report of its kind to provide insight into stakeholder perceptions of plea-bargaining in Victorian homicide cases. The report argues that while there is a place for plea bargaining in Victoria, the absence of any externally transparent records of the deals means there is a lack of data available to explain how often, in what cases and why plea bargaining is used, which is particularly concerning in cases involving the most serious form of criminal misconduct. While the DPP has three internal policies and some provisions in place to guide prosecutorial discretion and ensure the appropriateness of deals made in homicide cases, the study questions whether these internal mechanisms are sufficient to compensate for the absence of any external transparency pertaining to plea deals. At this stage, because there is no external information or records available as to when and why the plea bargain was accepted, we do not know.
Dr Flynn explains that access to detailed information about plea bargains would “allow us to examine how often plea deals occur, in which cases, and whether we need 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.”
The Age, Herald Sun and ABC network have also profiled the findings of this report extensively, which shows that this research has contributed to national interest and debate at both a state and national level.
For more information see:
- “Murder ‘deals’ under fire” – front page – The Age 25/06/2012: http://www.theage.com.au/victoria/murder-deals-under-fire-20120624-20wmh.html
- “State to change defensive homicide law” – front page – The Age 26/06/2012: http://www.theage.com.au/victoria/state-to-change-defensive-homicide-law-20120625-20ymx.html
- Download article in Melbourne University Law Review (2012) vol 25, issue 3, can be found here: http://mulr.com.au/issues/35_3/35_3_6.pdf
- “Getting away with murder” – TV interview on the ABC’s national breakfast show and article published in the ABC news: http://www.abc.net.au/news/2012-06-25/27getting-away-with-murder27/4090824?section=vic