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. However, in general, the benefit of reasonable doubt is to be given to the offender.
Hearing by the judge – A Newton hearing
When the judge decides to hear arguments to the facts in dispute, he will be conducting a Newton hearing. This method will be particularly used where the issue arises from facts which are within the exclusive knowledge of the alleged offender. Nevertheless, other disputes are also resolved in that way.
In the course of such hearing the ordinary rules and principles regarding burden and standard of proof are to be adopted. Those would therefore be the same as on a jury trial of not guilty – the Prosecution bears the burden of proving all the elements to the standard of beyond reasonable doubt.
On conclusion of the evidence the judge is the one to make the decision and determine sentence according to the finding of fact in the hearing.
Effect on the offender
After having heard evidence about the disputed facts, a judge must not find the accused guilty of an offence more serious than the one to which he has pleaded guilty.
If the judge finds in favour of the offender’s version of events, then he is to be sentenced upon that basis. As a consequence, any credit due to him for an early guilty plea is to be awarded. Therefore, he still may be entitled to an up to one third reduction of sentence on the basis of pleading guilty at an earliest opportunity.
On the other hand, if the conclusion has been for the Prosecution and the judge is of the view that the hearing was unnecessary and the conduct of such resulted in distress for the witnesses or that the offender lacks remorse for the offence, then the judge might reduce the discount. It is a matter for the judge to decide whether the offender is to be penalised in losing his entitlement to an early guilty plea credit in full or a mere reduction in the proportion of such. However, the court’s approach shows that a full reduction is only justified in exceptional circumstances.
The risk of loss of guilty plea credit in a Newton hearing is of importance to an offender and should be told about the consequences in conference before any such dispute is alleged.