What is a Mandatory Criminal Case Conference in New South Wales?

Mandatory criminal case conferences are an important part of the criminal justice process. 

They provide an opportunity for the prosecution and defence to negotiate and prepare for trial. 

This guide covers the essential requirements, best practices, and what to expect before, during, and after the conference.

What is a Mandatory Criminal Case Conference?

A mandatory criminal case conference applies to cases in the Early Appropriate Guilty Plea scheme (or ‘EAGP cases’), which are those where the prosecution has elected (chosen) to commit (refer) the charges to a higher court such as the District or Supreme Court, rather than leave them in the Local Court.

The conference occurs during the Local Court phase of criminal proceedings after the brief has been served upon the defence and the charges have been ‘certified’ (confirmed).

It can occur in person (which is perhaps best practice) or by way of audio/visual communication.

The conference provides a space for the defence and prosecution to discuss the strengths and weaknesses of the evidence, any pre-trial or other legal issues and the availability of legal defences.

These conferences have the potential to narrow down the issues in dispute and reach agreement whether this may be the downgrading or reduction of charges, or even withdrawal of proceedings altogether.

So, these conferences can be a time to:

• Provide additional material or information,
• Identify issues for trial, strengths and weaknesses in the prosecution case, legal defences and pre-trial issues,
• Reach consent regarding parts of the evidence and resolve otherwise disputed issues, and/or
• Come to a resolution regarding the charges.

Requirements For Case Conferencing

 As stated, a case conference occurs after the charge certificate is filed with the Local Court. 

Lawyers from the defence team and prosecution will participate in the case conference discussions. The defendant also has a say in the discussions and issues mentioned in the case conference. 

Specific requirements, such as the types of cases, timeline, attendance, and personnel, allow for case conferencing. 

Firstly, a case conference can only be held after the charge certificate is filed in the Local Court. The charge certificate details the offences that can proceed. A senior prosecutor will sign the document and ensure the correct charges are dealt with. 

Secondly, when a case does proceed to a case conference, the magistrate will adjourn the proceedings for eight weeks. The case conference will occur within the initial six weeks, with the final certificate filed in the last two weeks. 

Thirdly, the prosecution and defence teams must participate in at least one case conference, with legislation allowing for multiple case conferences for both parties. If the following case conference cannot be scheduled within the first adjournment time slot, the prosecution and defence must ask for another adjournment. 

Fourthly, the case conference must be held in person or by AVL. If the prosecution and defence cannot have a case conference due to extenuating circumstances, both parties can ask the magistrate to hold the meeting over the phone. For subsequent case conferences, there are no restrictions on how the conversations are had. 

Finally, most case conferences will include the prosecutor who verified the charge certificate, the defence counsel, and the defence solicitor. The defendant will also play a vital role in the case conference by participating in or attending the discussions. 

Exceptions to the Requirement for a Case Conference

A case conference is not required if the defendant does not have proper representation or pleads guilty, and the magistrate accepts the admission of guilt.

Furthermore, the case conference is unnecessary if a fitness issue is addressed before the conference. A magistrate can only commit the defendant for trial if they are satisfied that the question of fitness has been raised in good faith. 

Lastly, for those who stand trial with a co-defendant, there needs to be two separate case conferences with the consent of the prosecutor and co-defendant. 

EAGP Mandatory Case Conferences

As mentioned above, a case conference is not required in certain instances if the defendant pleads guilty.

The EAGP case conference requires lawyers on both sides of the law to discuss the potential for a resolution to the case.

Once it is confirmed during an administrative court hearing known as a ‘mention’ that the DPP will be electing to commit the case to a higher court, the case will generally then be adjourned for eight weeks.

After the adjournment period, both parties go to Court to identify any issues with the brief of evidence. Once the complete brief is present, the Court will ask for a charge certification. The ODPP will certify the charges by analysing the brief of evidence material and confirming the defendant’s charges. 

Furthermore, the Court will schedule a criminal case conference where the defence and ODPP discuss the case, analyse the brief evidence, and identify any legal issues regarding the plea. At the end of the conference, the case conference certificate is provided to the defendant to be filed. 

Finally, after the case conference certificate is provided to the Court and filed, both parties will come to an agreement regarding the defendant’s guilty plea. Not guilty pleas go to the District Court or Supreme Court for a trial, whereas guilty pleas are taken to the District Court or Supreme Court for sentencing. 

Negotiating Before the Criminal Case Conference

Negotiating before the charge certification is filed can be potentially beneficial for all parties. 

The type of criminal case determines which prosecuting authority the defence lawyer will contact to aid in plea discussions and negotiations. 

The criminal case conference and plea negotiations are handled by either the ODPP or DCPP offices. 

The ODPP is the Office of the Director of Public Prosecutions (NSW), which prosecutes alleged offences against New South Wales laws.. 

The CDPP is the Commonwealth Director of Public Prosecutions, which prosecutes alleged offences against Commonwealth law. 

Plea Discussions Before the Brief of Evidence

There are extenuating circumstances in which the ODPP will assign a prosecuting solicitor before the brief of evidence is served, such as the following:

• The defendant is charged with a ‘special interest’ matter,
• The defendant is charged with a matter involving death or a child sexual offence,
• A co-defendant has already been charged,
• The defendant is a serving police officer, or
• The defendant will plead guilty to the charged offence.

Plea Discussions After the Brief is Served but Before the Charge Certificate is Filed

In other instances, plea discussions can take place after the service of the brief but before the prosecution files the charge certificate. 

The ODPP will assign a solicitor to the case and contact the defence lawyer for this matter. 

The ODPP will tell the defence team the identity and level of the charge certifier so the plea discussions can begin.

Plea Discussions After Charge Certification but Before the Case Conference

The final instance is if the prosecution and defence need to discuss a plea after the prosecution has filed the charge certification but before the case conference has occurred. 

In this case, the case must be discussed in advance of the conference. Discussions made well in advance mean that the prosecutor can uphold their obligations to law enforcement and the victims of the crime, and the defence lawyer can gather enough information from his or her client. 

Organising the Mandatory Criminal Case Conference

A case conference is typically arranged as follows:

Scheduling the Conference (Location, Timing, Duration)

After conversing with the prosecutor about the proper time and date, the defence lawyer organises the conference. The case conference is approximately one hour long and will be in-person or via AVL. 

Gathering and Organising Necessary Documentation/Evidence

Correctional centres will have dedicated conference studios that allow the defendant to use the audio/visual system for the meeting. The defence team should ensure the audio visual lonk occurs within the correctional centre’s operating hours, usually between 9 a.m. and 3 p.m. 

If the defendant is not in custody, private lawyers can use their facilities or take them to Legal Aid to utilise the meeting rooms. 

The prosecution and defence must join the case conference through Just Connect, allowing video collaboration and scheduling via audio/visual studios. 

Coordinating with Participants to Ensure Preparedness

The prosecution and defence must decide if they will have the case conference in person or via audio/visual link. 

For those who want to meet in person, lawyers can find local meeting rooms, a local court meeting room, the local court registrar, or the correctional centre. 

For parties that wish to use an audio/visual system, the prosecution and defence can use JUST Connect to schedule a time and find a suitable facility for accessing this software. 

The defence team should brief the defendant on what will be discussed, the meeting time, and location. 

Preparing For a Mandatory Case Conference

There are a few key steps to prepare for a mandatory case conference, which include:

• Reviewing the case file and identifying key issues/points of contention,
• Developing a negotiation strategy and fallback positions, and
• Anticipating questions/arguments from the other side.

Prosecuting attorneys and defence lawyers should be aware of the prosecution’s ethical obligations, including those regarding coordinating and consulting with complainants. 

Attending the Mandatory Case Conference

The mandatory case conference involves multiple steps for the defence lawyers, the defence and the prosecution. 

Before the Case Conference

The criminal defence lawyer needs to ensure that the defence is ready before the case conference begins. 

The defence lawyer will confirm the defendant’s instructions (answer last-minute questions, explain the process, etc.), place the defendant in the audio/visual studio, and book an interpreter if needed. 

Commencing the Case Conference

The defence lawyer will join the meeting via the audio/visual link after the allotted time for explanation to the defendant has expired. 

Once the defendant is not on the audio/visual link or in the meeting room, the defence lawyer can start the case conference via phone or in-person meeting. 

During the case conference, the defence lawyer listens to instructions from the defendant. 

While the defence lawyer consults with the defendant, the audio/visual link is paused, or the defence lawyer goes to a separate room where the defendant is waiting. 

Upon Finalisation of the Case Conference 

After the case conference is over, the defence and prosecution can discuss if another meeting is required. 

Discussions held at the case conference are confidential and cannot be discussed after the fact with any party. 

Subsequent case conferences can be held via telephone, in-person, or AVL link for those who require them. 

The most common reasons for additional case conferences include further discussions regarding settling a plea, reducing trial issues, incapable attitudes toward resolving the case, or requiring witness testimony or hearing. 

After the Case Conference

A case conference will need to be prepared after the conference is completed.

This official document includes a range of information such as any offers made, as well as a statement from the defence lawyer confirming they have provided the defendant with the proper advice. 

The purpose of the case conference certificate is to provide the judge with enough information during sentencing to make an educated decision based on the plea and applicable offences. 

The contents of the case conference certificate include: 

• The charged criminal offences ,
• Offers by the defendant to plead guilty to the offence/s,
• Offers by the prosecution to the defendant to accept guilty pleas,
• If the defence or prosecution has accepted or rejected the offers,
• The offences that require a trial or sentencing, and
• And any additional offences relating to the initial charges against the defendant. 

The prosecution and defence lawyers will create the final case conference certificate after the case conferences have ended and the plea discussions are finalised.

The defendant only signs the case conference certificate if they want to plead not guilty. 

Filing The Certificate 

The prosecutor files the charge certificate with the Court in a sealed envelope, which is kept in the court file. 

If the charges are changed, the prosecutor must file a new amended charge certificate with the Court before the case conference certificate is filed. 

Only the prosecution and defence lawyers can see the case conference certificate once the certificate is filed with the court registry. 

Confidentiality of the Conference

Addressing the confidentiality of the case conference certificate, the admissibility of information within the case conference, and the publishing restrictions of the case conference material is crucial to understanding this type of meeting between the prosecutor and the defence team. 

Case conference certificates are confidential. 

A case conference certificate, evidence between parties, and evidence of anything said between parties during plea discussions after a case conference fall under the scope of confidentiality. 

The only exceptions to the rule are relevant sentences or appeal proceedings if the defendant changes his or her plea or professional misconduct proceedings occur. 

Mandatory criminal case conferences are important because they reduce issues within the Court and allow for guilty pleas prior to a court date. 

Defence teams and prosecutors can collaborate to prepare a brief of evidence, charge certificate and admissions to allow for speedy sentencing within the court system.