House of Assembly – Hansard

[This version of the document has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

Hon Michael Atkinson
Attorney-General
Minister for Justice
Minister for Consumer Affairs
Minister for Multicultural Affairs

19 April 2004

PLEA BARGAIN REFORMS RECOMMENDED BY KOURAKIS REPORT

A raft of reforms to South Australia’s plea bargain process have been recommended by Solicitor-General Chris Kourakis QC after concluding his enquiries into the Paul Nemer case.

The initiatives have been detailed in a report released today by Attorney-General Michael Atkinson.

The report was first ordered on 30 July 2003 following the manifestly inadequate sentence handed down to Paul Nemer for shooting newspaper delivery man Geoffrey Williams in the eye. 

Part one of the report provided the Solicitor-General’s advice into the Nemer case and whether the Attorney-General had the power to direct an appeal in that case. Based on the report a direction was given and a subsequent appeal was upheld by a majority of the Full Court of the Supreme Court. Paul Nemer was re-sentenced to 4 years 9 months imprisonment with a non-parole period of 1 year 9 months.  The sentence was not suspended.  The High Court refused Nemer’s application for special leave to appeal.

Part two of the report examines the Nemer plea arrangement and plea bargaining generally.

“Firstly, I would like to highlight the Solicitor-General’s comments that the work of the prosecutors of the DPP has been of the highest standard and they enjoy and deserve the respect of the legal profession, the judiciary and the wider community (para 5),” said the Attorney-General.

“The Solicitor-General also finds that the public can be confident that the general principles by which the office selects charges and prosecutes guilty pleas properly serve the public interest (para 5).

“In addition, I acknowledge the report’s adverse findings about the manner in which the DPP himself conducted the Nemer case.

“Mr Kourakis found that although the DPP ‘acted in good faith and in accord with what he believed to be his duty, overall the conduct of the prosecution of Nemer was inept’ (para 9).”

Mr Kourakis specifically found:

There was ‘no clear record of all the terms of the agreement on the prosecution file’ (para 7);

Errors of the sentencing judge were ‘contributed to by confused submissions put by the DPP’(para 6);

The DPP failed ‘to appreciate the real culpability of Nemer’s conduct’ (para 6);

‘It was inappropriate [for the DPP] not to dispute the version of facts put forward by the defence’ (para 9);

‘The appropriate response of any experienced prosecutor in the position of Mr Rofe QC would have been to contest the defence version and to insist on Nemer giving evidence’ (para 58);

The findings of the Court of Appeal after Nemer had given evidence and challenged prosecution witnesses confirms ‘the strength of the prosecution evidence that was obvious from the time of committal’ (para 57);

There were no ‘valid reasons consistent with accepted prosecutorial practices for making such a concession’ (ie not dispute the defence version of facts) (para 9);

‘Mr Rofe QC was wrong to agree not to make an issue of the discrepancy over the gun barrel’ as some explanation was required before the defence case in mitigation could be confidently accepted (para 45);

‘Mr Rofe’s concessions contributed to the manifestly inadequate sentence first imposed on Nemer’ (para 10);

‘The errors made by Mr Rofe QC might not have been made if he had properly conferred with other members of the prosecution team and if he had meaningfully consulted with the police and Mr Williams’ (para 10);

‘The manifestly inadequate sentence first imposed on Nemer resulted from a failure to sentence him according to the facts proved on the statements’ (para 6);

‘It was misleading [for the DPP] to tell Mr Williams that he would have to concede that a suspended sentence was within the ambit of the sentencing judges discretion without telling him that Mr Rofe QC himself would not make submissions that the most appropriate sentence was one of immediate imprisonment’ (para 51);

It was inappropriate ‘for Mr Rofe QC to concede that the suspension of the sentence was within the ambit of the sentencing judge’s discretion’ (para 59);

‘Suspension of the sentence of imprisonment should have been opposed in the circumstances of this case’ (para 59).

“It is reassuring to note the Solicitor-General’s comments that errors in prosecuting Nemer did not result from any serious or systemic deficiency in the guidelines or practices of the office in prosecuting guilty pleas,” said the Attorney-General.

The Solicitor-General has however recommended refinements in the detail of those guidelines and practices.  They are (para 13):

More prescriptive requirements as to consultations with victims and police and recording and reporting of negotiations should be adopted;

Unless there is good reason not to do so a Statement of Facts should be provided to the sentencing judge setting out any facts agreed or not disputed and identifying material facts that remain in dispute;

Prosecutors should be directed to clearly inform sentencing courts whether they oppose, support or have no submission to make on whether an unusually merciful sentence should be imposed;

The DPP should be directed to inform the Attorney-General  where in serious cases the police or victim strongly object to the plea arrangements or whether there is a real doubt about whether the charge or factual basis provides an adequate basis for an appropriate sentence;

A position of Crown Counsel appointed by the Governor should be created.  The Crown Counsel would prosecute complex trials and appeals on behalf of the DPP and provide independent advice to the Attorney-General if required (para 201-204, 212).

“The recommendations appear reasonable and sound,” said the Attorney-General.

“Subject to consultation with the DPP I am minded to accept the recommendations of the Solicitor-General with respect to the changes to plea arrangements and the prosecution of guilty pleas.”

The Solicitor-General’s report also examined the plea-bargain arrangements associated with the death of Stacey Brown, who was shot in the eye at very close range while alone in the room with Darren Schmidt.  The case was referred to the Solicitor-General following representations from her family and the police. 

Schmidt was sentenced following the acceptance of a guilty plea to manslaughter and the DPP agreed not to proceed with the charge of murder.

The Solicitor-General found that:

Schmidt was sentenced on a ‘particularly favourable version appearing in the agreed facts’ (para 78);

In the view of the Solicitor-General ‘the agreed facts were inconsistent with the evidence of Dr James [the forensic pathologist] (para 78);

If Schmidt were required to give evidence and his version not accepted, ‘a much more serious sentence is likely to have been imposed.’ (para 78)  (Schmidt was sentenced by Justice Sulan to 3 years 9 month imprisonment with a non-parole period of 15 months.  The sentence was not suspended);

‘Neither the relatives of the deceased nor the police officers were consulted between the time an offer to plead was proposed and its in principle acceptance’ by the DPP (para 72); 

‘There was no record on the file of the reasons for deciding that the public interest was better served by accepting a plea to manslaughter than by proceeding to trial on murder’ (para 72);

The decision to accept the plea ‘warranted much more careful consideration and consultation than the file notes record’ (para 77). 

However the Solicitor-General concludes that this may well be a case whereby after proper assessment and consideration the same decision might have been made (para 80).

The Solicitor-General also considered the case of Chawulak.  The section of the Solicitor-General’s report dealing with this case has not been released publicly on advice of the Solicitor-General owing to the extensive court suppression orders that still apply.

The Solicitor-General does however conclude that this case does not fall within the ambit of his enquiries in relation to plea bargain arrangements.

“I will be speaking with the Director about the findings of the report,” said the Attorney-General.

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