When an offender has been tried in front of a jury for the offences alleged, the court will not ordinarily require a reminder of the facts established in the course of the trial. However, where the offender has pleaded guilty he may do so on the basis of the full facts as presented by the Prosecution. Alternatively, he may dispute any of them in particular concerning the surrounding circumstances of the offence alleged or any of the alleged facts.
How the dispute is resolved
If the dispute is essentially of a minor point and the judge’s sentence would be the same no matter which version is adopted, the effect of such can be glossed over.
On the other hand, if the issue is going to have an impact upon the sentence passed, then the first step is for the existence of the dispute to be communicated by Defence Counsel to the Prosecution Counsel.
The Prosecution can accept the basis, following which it is reduced to writing and signed by advocates for both sides in preparation to be presented in front of the judge. The trial judge in turn has the opportunity to accept or reject it. It is worth noting that the judge is in no way bound by any such agreement between the parties and therefore, he is free to reject it. If the basis is rejected the Prosecution are no longer bound by the agreement made with the Counsel for the Defence and should be ready to assist the judge in their usual role. Accordingly if there is a hearing Prosecution counsel presents evidence or tests the evidence for the defence in order to establish their version of events.
If the basis of the guilty plea has not been agreed, or if it has been agreed it was later rejected by the judge, there are three options for the dispute to be resolved. Firstly, the trial judge can leave the issue to a jury. The judge has the option of accepting in so far as possible the version of the defence. Thirdly a hearing could be conducted, where the judge himself is the finder of fact. There is no possibility for the judge to merely accept the Prosecution’s version of events without hearing submissions or evidence to the matter. The only exceptions are where the sentence will be the same irrespective of the outcome of such hearing or where the judge views the defence’s version of events as manifestly absurd.
For more information on:
- Hearing by the judge – A Newton hearing
- Effect on the offender