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A state of Injustice - Dr Robert N Moles
Chapter Fourteen - Justice for some or for all?

A state of Injustice: table of contents

Also by Dr Moles - Losing Their Grip - The Case of Henry Keogh - Definition and Rule in Legal Theory

Plea-bargaining

Plea-bargaining is an important part of the criminal justice system and one that has aroused considerable controversy in South Australia. The DPP says that by using such negotiation processes, the department has been able to ensure one of the shortest backlogs of criminal offences waiting to be dealt with. However, he said, the arrangements that are reached in each case are based on justice, not expediency. He also said that although his prosecutors may each be dealing with as many as 100 cases at a time, any plea-bargaining reflects the evidence in the particular case and the charges which the prosecutor thinks are appropriate. [1]

Defence lawyers say that there would be little point in the DPP prosecuting on a more serious charge only to end in an acquittal. The argument in some of the cases in this chapter is that the prosecutor accepted a plea to a less serious assault charge, instead of going ahead with a murder charge, because if he had proceeded on the more serious charge and was unsuccessful, then the person accused could walk free without any punishment.

In South Australia, the DPP has said that about 80 per cent of the total workload is dealt with by plea-bargaining.[2] Given that the average cost of a criminal trial in South Australia is about $10,000 per day, it is said to be in the interest of all if matters can be resolved without the necessity for a trial. [1]

In South Australia, the DPP has said that about 80 per cent of the total workload is dealt with by plea-bargaining. [2] Given that the average cost of a criminal trial in South Australia is about $10,000 per day, it is said to be in the interest of all if matters can be resolved without the necessity for a trial.

Generally, it would seem, plea bargaining works satisfactorily, but cases such as those discussed here have caused considerable public concern. Some have said that there is no community involvement and that the way in which the process is conducted seems to lack justice. While victims have a right to an explanation afterwards, they have no say in the process, and if they do not agree with the decision to drop or reduce the charges, they have no legal avenue to insist on the original charges proceeding. [3] It has been suggested that a community commissioner be appointed to represent the views of the public. [4] How this would work is not clear. What is clear, though, is that the way in which plea bargaining has been used in South Australia has seriously eroded the community’s confidence in the criminal justice system.

The difficulty with the cases in this chapter is that whilst the prosecutor said that lesser charges were accepted, because a prosecution for more serious charges may not succeed, there are those who think that his judgment in this respect was not correct. After looking at some of the more recent cases, we will discuss the review by the Solicitor-General of South Australia which examined some of the more contentious cases. It was that review which led to the resignation of the then Director of Public Prosecutions, Mr Paul Rofe QC.

Scott Aitken (January 2000)

Scott Aitken, 43, was driving his four wheel drive vehicle when it went over an embankment (a 27 metre drop) onto a freeway under construction killing two of his four children. [5] It was alleged that he had a container of petrol with him in the vehicle, and he was smoking a cigarette at the time of the incident, although he did not normally smoke. His daughter Hayley, 17, who survived the crash, said that she believed that he crashed the car deliberately and that he intended to kill himself and all his children. Her brother Hayden, 11, also survived. Lauren, 8, and Callum, 10, were killed in the crash. Aitken was originally charged with two counts of murder and two of attempted murder, which would have carried a possible sentences of life imprisonment upon conviction.

Mr Aitken’s case never went to trial. Following negotiations between the DPP, Mr Rofe QC, and defence counsel, the charges were reduced to causing death by dangerous driving and grievous bodily harm. Mr Aitken pleaded guilty to those charges.

Mr Aitken had claimed that he had swerved to avoid a dog which had run across the road. A key witness was another member of Aitken’s law firm who said that he had seen a dog in the area after the time of the crash. [6] Surprisingly, the witness did not come forward to give that evidence until some twelve months after the crash. He said that the delay in coming forward was on legal advice.

Mr Aitken was given a two year suspended sentence with a one year non-parole period. The sentence was suspended on condition that he enter into a two year good behaviour bond. He was ordered to undertake 120 hours of community service and disqualified from driving for six years. He was able to continue his legal practice without interruption, although he did move with his firm from Adelaide to Sydney.

In an unusual move, the Coroner, who had commenced an inquiry before the initiation of the criminal proceedings, re-opened his inquiry into the crash, after the criminal proceedings had been concluded. By law, the coronial inquiry is not allowed to continue whilst there are criminal proceedings pending. The Coroner received a report from an American crash expert (by email) regarding the circumstances of the crash. In his reconstruction of events however, the expert used a Ford Explorer. Aitken had been driving a Mitsubishi Pajero. [7] It has been argued that the performance capabilities of the two vehicles differ significantly.

The Coroner concluded that the circumstances were consistent with the crash resulting from an accident. Channel 7 Today Tonight subsequently broadcast a number of programs dealing with this matter. [8] Aitken’s case was subsequently referred to the Solicitor-General for further consideration.

Andrew Priestly (December 2002)

Mr Priestley, aged 32, had been out drinking one night and and hit a cyclist as he was driving home. He dragged the man for over 6 kilometres. He was originally charged with manslaughter, which carried a possible sentence of life imprisonment. Priestley said that he would plead guilty if the prosecution reduced the charge to one of death by dangerous driving, which they did. He was sentenced to four years imprisonment, with a non-parole period of two years. In December 2002, the Court of Criminal Appeal increased the sentence to six years and three months, and doubled the non-parole period to four years. [9]

Darren Schmidt (June 2003)

Mr Schmidt, 29, killed a young woman by shooting her in the head with a handgun. He disappeared from the scene and reappeared some days later in the company of his solicitor. He said that it was a horrible accident. He said he had the loaded gun in his apartment, and it went off accidentally when the woman was handing it to him. He was originally charged with murder, which carried a possible life sentence. He said that he would plead guilty if the prosecution reduced the charge to one of manslaughter, which they did. The prosecution and defence tendered an agreed statement of facts which said that it was accepted to be an accident, and that Schmidt, who was a member of one of the ‘bikie gangs’, was remorseful about what had happened. He was sentenced to three years and nine months, with a non-parole period of fifteen months. As he had already been in custody for twelve months, he only had another three months to serve.

According to the media report, the gun was never recovered, which was strange. Surely the accused would have known where the gun was and, if it had the young woman’s fingerprints on it, then this would have provided important confirmation for his story. However, without the gun, there is only his word to substantiate the claim that it was an accident. [10]

Paul Nemer (July 2003)

Mr Nemer, aged 19, said he was telephoned by a female friend in the early hours of the morning one day in August 2001. She was calling from her mobile phone and sounded quite hysterical. She said that she and her girlfriend had been walking along the street after going to a nightclub and now she was scared that they were being stalked by a rapist and that she feared for her safety. [11] Nemer took a loaded gun from his house and went to find her. When he met up with the young women, both of them were fairly hysterical. They pointed in the direction of a white van. Nemer ran over to the van and fired his gun. It so happened that the driver was a Mr Williams who was a newspaper delivery-man going about his rounds. He had not noticed the girls walking along the road. He was shot in the face, with the bullet only narrowly missing his brain. He lost an eye, but not his life.

Nemer was initially charged with attempted murder but, in return for a guilty plea, the charge was subsequently reduced to one of endangering life. The DPP and defence counsel tendered an agreed statement of facts to the court, which included the recitals that Nemer was very distressed and remorseful about what had happened. He said that he only meant to fire in the general direction of the van, and that it had not been his intention to shoot the driver. The judge told Nemer, ‘You must consider yourself very fortunate because the Director of Public Prosecutions has deemed to accept your pleas to a lesser charge’. He went on to say:

“If it had not been for your plea of guilty, I would have sentenced you to four years imprisonment. I take into account your plea, and I reduce the sentence to three years, three months imprisonment. I set a non-parole period of two years. I suspend the sentence upon you entering into a bond in the sum of $100 to be of good behaviour for three years, and during a period of two years, to be under the supervision of a community corrections officer. [12]

A bond differs from a fine in that the amount specified in the bond has to be paid only if the terms of the bond are broken. A suspended sentence does not have to be served, and a bond does not have to be paid, if the person continues to be of good behaviour for the specified period.

There was public outrage at what was perceived to be the very lenient sentence imposed upon Nemer. [13] He came from a wealthy family and there was much media debate about whether or not he was being treated more favourably than someone from less affluent circumstances would be. The DPP said that he would be reluctant to lodge an appeal because he accepted the sentence handed down and he took the view that an appeal would have no reasonable prospects of success. The Premier immediately announced that he would have the matter re-examined by the Solicitor-General, who would also advise the government on its ability to lodge an appeal against the ruling. The Solicitor-General found that there were in fact ‘good grounds’ for an appeal. [14]

One of the points raised in the appeal was that the psychiatric report on Nemer, although it had been lodged in court, was not brought to the attention of the judge by counsel. The account of the incident in this report was ‘plainly inconsistent’ with the statement of facts put before the judge.

A second point was that the gun which was handed in by Nemer was not the same one that was used in the assault. At least, it was said, the barrel on the gun handed in did not match the one that fired the bullet at Mr Williams. [15] This is important, for if the gun had been changed or adapted, it would indicate that the accused was not being straightforward with the authorities. No charges were brought with regard to firearms offences.

The Attorney-General took advice from the Solicitor-General who advised that the Attorney-General had the power to direct the DPP to lodge an appeal. The Attorney-General then instructed the DPP to appeal the matter on sentence. The appeal, although formally applied for by the DPP, was to be argued by the Solicitor-General. Just before the appeal was due to be heard, Nemer asked his legal counsel to bring a case for judicial review of the Attorney-General’s decision. They argued that the DPP was statutorily independent and that any purported direction to him by the Attorney-General undermined his independence and was, therefore, an invalid exercise of power by the Attorney-General.

Three Supreme Court judges sat as the Full Court  of the Supreme Court to hear the judicial review argument (a civil matter), and then in the same sitting, they sat as the Court of Criminal Appeal to hear the appeal against the sentence. Of the three Supreme Court judges, two thought that the judicial review argument should be rejected, and then they determined that the appeal against the sentence should be allowed. The suspension of Nemer’s sentence was cancelled and he was required to serve a prison sentence of four years and nine months, with a 21-month non-parole period.

An application by Mr Nemer for special leave to appeal to the High Court was refused. The High Court said: 

“We are not persuaded that it is arguable that there has been any miscarriage of justice in this matter or that it is in the interests of justice in the particular case, or more generally, that there be a grant of special leave in this matter. [16]]”

The Premier, Mr Rann, in commenting on the Nemer case, told the South Australian Parliament that this was ‘an important outcome for justice in this state’. He went on to say, ‘It maintains the accountability of the criminal justice system ultimately to this Parliament’. [17]

At least we now know where to look to for the answers to the questions raised by this book.

Parliamentary accountability

In April 2004 the Solicitor-General submitted to the Attorney-General a further report as part of the original request to advise on the Nemer case and associated issues in the process of plea bargaining. [18] The Solicitor-General found that although ‘Mr Rofe QC at all times acted in good faith and in accordance with what he believed to be his duty, overall the conduct of the prosecution of Mr Nemer was inept’. According to the Solicitor-General the prosecution case was ‘overwhelming’ and the ‘error of the sentencing judge was contributed to by the confused submissions put by the DPP’, submissions which were ‘the product of his imperfect assessment of the prosecution case’. He found that it was ‘inappropriate’ for Mr Rofe not to have disputed the version of the facts put forward by the defence and that Mr Rofe’s reasons for not doing so were ‘unpersuasive’. He said that the DPP had failed ‘to properly record and confirm the terms of the arrangement’ between the prosecution and the defence -- neither Ms Powell QC nor Mr Rofe had made notes of their discussions. He further pointed out that 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 the police and Mr Williams’.

The Solicitor-General also looked at the plea bargaining in the case of Schmidt. He concluded that Schmidt ‘was sentenced on a particularly favourable version appearing in the agreed facts.’ Further, it was his view that ‘the agreed facts were inconsistent with the evidence of Dr James [the pathologist]’. Again, 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’.

The Solicitor-General made it clear in his report that prosecutors ‘must serve the public interest and not any private, individual or sectional interest’. It is their duty ‘to serve the public interest by acting fairly and to assist the court to reach a just resolution of the proceedings’.

He recommended a number of improvements in the prosecutorial practices in plea bargaining, including more prescriptive requirements as to consultation with victims and police and the recording thereof, and a Statement of Facts to be provided to the sentencing judge.

In commenting on the Solicitor-General’s report, the Premier said that he was ‘seriously concerned’ by it. ‘There were very serious and scathing criticisms of the DPP’, he said. [19]

On 3 May 2004, Mr Paul Rofe QC announced that he had resigned, although there was still  two years before his contract was due to end. He said that given the nature of the Solicitor-General’s report, it was better for the office that he ‘went now’. [20]

The Attorney-General told Parliament that in addition to his entitlements, Mr Rofe would ‘be paid $188,068 [equivalent to nine months’ salary], on account of his extensive period of service to the state, and the uncertainty of his health …’. [21]

The Premier then announced that he would be looking for a new prosecutor – one who would be like Eliot Ness, the American crime fighter in the television series The Untouchables – a ‘fearless prosecutor’ who ‘wants to knock off the bad guys and has a hide as tough as a rhinoceros’. [22]

Endnotes

1. V Oakley, ‘Settling for less’, , The Advertiser, 10 July 2003, p. 19.

2. G Kelton, ‘DPP plea: just give us a fair hearing’, The Advertiser, 2 August 2003, p. 9.

3. See V Oakley, ‘Settling for less’, ref.1.

4. G Kelton, ‘Barrister calls for public plea input’, The Advertiser, 2 August 2003, p. 8.

5.  Today Tonight, television program, Channel 7, (Adelaide), 17 March 2003.

6. Ibid.

7. Mr Wayne Chivell, (Coroner for South Australia), Finding of inquest in the matter of Lauren Kady and Callum Macdonald Aitken, 6 November 2003.

8. Today Tonight, television program, Channel 7, (Adelaide), 17 March 2003, 27 April 2004 and 28 April 2004.

9. See V Oakley, ‘Settling for less’, ref.1.

10. Ibid.
Today Tonight, television program, Channel 7, (Adelaide), 15 July 2003.

11. S Fewster, ‘An eye for $100: justice on the cheap’, The Advertiser, 26 July 2003, p. 1.

12. Sentencing remarks of Justice Sulan in the case of R v. Paul Habib Nemer and K.> 25 July 2003, No.146/2002.

13. C Hockley, ‘Power of the people’, The Advertiser, 31 July 2003, p. 1.

C Hockley, ‘Daughter’s crusade to put shooter behind bars’, The Advertiser, 1 August 2003, p. 4.

14. C Hockley, ‘What judge wasn’t told’, The Advertiser, 7 August 2003, p. 1.

15. J Pengelley, ‘Different barrel used in shooting’, The Advertiser, 7 August 2003, p. 3.

16. S Fewster, ‘After two years, Nemer appeal thrown out in 20 minutes’, The Advertiser, 14 February 2004, p. 5.

          Nemer v. Holloway & Ors; Nemer v. The Queen [2004] HCA Trans 24 (13 February 2004, at pp. 6, 7.

17. G Kelton, ‘Government “vindicated” on Nemer case’, The Advertiser, 17 February 2004, p. 12.

18. Re: Request to advise on matter of Paul Nemer and associated issues. Report to the Attorney General, Mr Chris Kourakis QC, Solicitor-General of South Australia, 7 April 2004.

19. C Bildstien, ‘Atkinson stops short of delivering Rofe verdict’, The Advertiser, 24 April 2004, p. 34.

20. G Kelton, ‘Mr DPP, Get on your bike’, The Advertiser, 4 May 2004, pp. 1, 4.

21. Attorney-General Michael Atkinson, ‘The case is closed’, (statement to Parliament), The Advertiser, 4 May 2004, p. 19.

22. G Kelton, ‘In search of our own Eliot Ness’, The Advertiser, 6 May 2004, p. 11.

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