5.3 Protocol for Voluntary Criminal Case Conferencing - 15 July 2016

1. The Supreme Court of Western Australia will make the services of a Registrar or external facilitator available for voluntary criminal case conferencing (VCCC) of any of its indictable matters, whether before or after lodgement of the indictment. VCCC may occur in the period prior to the committal of an accused under s 44 of the Criminal Procedure Act 2004 (WA) and/or, if the matter is committed for trial, it may occur at any time after committal and before trial.
   
   
2. A Registrar of the Court will only be the VCCC facilitator for a case if it has been committed to the Supreme Court. This ensures that there is no potential for a conflict between the roles of Registrars sitting as Magistrates in the Stirling Gardens Magistrates Court and Registrars acting as facilitators for VCCC. A VCCC facilitated by a Registrar of the Court will also have case management objectives.
   
   
3. VCCC can only occur with the consent of all parties, and the consent of an accused is not valid unless he or she has first received a copy of this Protocol.
   
   
4. It can be assumed that the Commonwealth DPP will always consent to VCCC of any matter that it prosecutes. A similar assumption can be made in respect of the State DPP, but subject to its obligation to consult secondary victims in all murder cases.
   
   
5. An accused can initiate VCCC by way of a request to the Judge in charge of the criminal list. The prospects for VCCC can be canvassed at any stage of proceedings when an accused appears before a Magistrate in Stirling Gardens Magistrates Court or a Supreme Court Judge.
   
   
6. In any event, either at the first appearance of an accused in the Supreme Court or at the first status conference of a criminal matter in the Supreme Court, the presiding judge will ask the parties whether they agree to the matter being referred for VCCC. The parties should have considered this issue and be in a position to advise the presiding judge of their attitude.
   
   
7. VCCC conferences (whether before or after presentation of the indictment) will ordinarily take place in Court No 9 in the Stirling Gardens Supreme Court building. Counsel and/or the accused may be present by video link. The attendance of an accused is at the option of the defence. The Court encourages the prosecution to arrange for the officer in charge of the investigation to be present, if it may facilitate the resolution of an issue between the parties.
   
   
8. If the accused person is in custody and defence counsel requires the accused to appear by video link, defence counsel is to advise the Listings Supervisor in writing not less than seven (7) business days prior to the mediation to enable the Court to arrange the video link.
   
   
9. Prior to the conference a party should comply with any request by the Court officer for the supply of copies of any evidentiary or confessional materials in its, his or her possession, which the Court is still to receive pursuant to s 44(2) of the Criminal Procedure Act 2004 (WA).
   
   
10. In every case in which the State DPP is involved, he will ensure that prior to the conference the Court has the complete prosecution brief, the indictment (if any), a transcript of any interview between the accused and the police (if any) and the accused’s prior criminal record (if any), so that these documents can be provided to the facilitator/s. This material should be provided to the Court no later than five (5) business days prior to the date on which the VCCC is to occur.
    
    
11. In order to facilitate the process of VCCC, the parties are also encouraged to take the following additional steps:
    
    

    a) the prosecution should serve on the accused and bring along to the conference a list of facts forming part of its case that it hopes or expects are not seriously in issue; and
    
    b) the accused should serve on the prosecution and bring along to the conference a list of any formal admissions that he or she may be prepared to make.

12. VCCC conferences will ordinarily commence at 9:00am and, unless prior arrangements have been agreed, take no more than one hour (so that counsel may depart for other jurisdictions). During a conference the facilitator will seek to identify issues that might be resolved, and to discuss generally with the parties the future conduct of the case.
    
    
13. The purpose of a VCCC conference is to reach agreement, where possible, in respect of any aspects of the criminal trial process. It may include discussion about:
    
    

    a) the strength of the prosecution case
    
    b) whether the current charge reflects the evidence in the prosecution brief
    
    c) the real matters in issue
    
    d) whether agreement may be reached about matters which are not in issue and
    
    e) any matters relevant to case management.

14. To facilitate a meaningful discussion about these issues the following principles and rules apply to each conference:
    
    

    a) An accused's participation in the conference is not to be taken as an indication of any intention to plead guilty.
    
    b) A person present at a conference may draw the attention of the accused to options that are open to him or her, including the option of a plea or pleas of guilty, and the considerations that should be taken into account in evaluating those options. However the accused shall not otherwise be subjected to any pressure (directly or indirectly) to plead guilty during the course of or as a result of the conference.
    
    c) Any agreement by an accused, at the conference, to plead guilty to a charge does not inhibit in any way his or her right to enter a plea of not guilty should he or she change his or her mind after the conference and before entering a plea. However in that event it would be open to the prosecution to reconsider any other aspects of any agreement reached at the conference
    
    d) The conference does not form part of the trial process. No record of the proceedings will become part of any Court file.
    
    e) A report as to the outcome of the conference will be made by the facilitator to the Judge in charge of the criminal list. Where the objectives of the conference include case management, a case management report will be made to the Judge in charge of the criminal list. The report summarises the matters agreed.
    
    f) Nothing an accused says during a conference or that is said on his or her behalf during a conference may be used against him or her in court in the criminal proceedings to which the conference relates or in any related criminal proceedings (other than in a trialfor a criminal offence which is allegedly committed during a conference by a person present at the conference). Participation by the prosecution is conditional upon it agreeing that nothing said by an accused or any person on the accused’s behalf at the conference may be tendered in evidence at the accused’s trial on the charge or charges arising out of the subject matter of the conference.
    
    g) A party or lawyer present at the conference may use information obtained in the course of a conference to prepare their or their client’s, case for trial. This may include disclosing that information to another person. If an accused person does not wish the prosecution to know his or her defence or to investigate his or her defence before trial, the accused and/or his or her lawyer should ensure that it is not disclosed during the course of a conference.
    
    h) Whilst the court encourages frank discussions during a conference, there is no obligation on a party to disclose privileged or confidential information at a conference.

Last updated: 1-Mar-2019

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