The Rise of the Guilty Plea in Australian Supreme Courts: A History

Abstract

The contemporary Australian criminal prosecution process functions as a guilty plea system. The guilty plea is critical to the efficient running of criminal courts and the criminal justice system. Statutory provisions and case law almost guarantee that defendants prosecuted for serious criminal offences receive sentence reductions in exchange for guilty pleas. Whilst guilty pleas are arguably the most important mitigating factor that contemporary judges consider in their sentencing deliberations, this was not always the case. Historically, most defendants pleaded ‘not guilty’ and jury trials were the dominant mode of case disposition. Yet defendants began pleading guilty in increasingly greater proportions in some US and English courts from around the mid-nineteenth century. The ‘rise of the guilty plea’ triggered system transformation from jury trial to a guilty plea system of prosecution. This thesis is the first research to examine the rise of the guilty plea in the Australian context. It departs from previous scholarship by arguing a theoretical framework that positions the ‘guilty plea’ rather than ‘plea bargaining’ as the focus of study. The historical plea bargaining scholarship hypothesises that the guilty plea phenomenon was the outcome of emerging plea bargaining practices between prosecuting and defence counsel. However the precursors to bargaining, including public prosecution and centralised policing, were extant in the Australian criminal justice system long before guilty pleas began accelerating. This thesis argues that a plea bargaining framework is unsuited to explaining system transformation in Australian courts. This thesis employs a mixed methods research methodology to investigate guilty pleas at both a macro and micro-level of analysis. The quantitative study employs large scale data from the Australian Research Council Laureate Fellowship project, ‘The Prosecution Project’. It tracks the acceleration of defendants’ guilty pleas in more than 10,000 cases prosecuted in the Queensland, Western Australian and Victorian Supreme Courts between 1901 and 1961. It identifies the mid-twentieth century as the period when system transformation occurred in Australian courts, significantly later than hypothesised in the current scholarship. The significant mechanism driving this acceleration was the rapid increase in guilty pleas to property theft prosecutions, specifically burglary and stealing. The qualitative component of the study provides micro-level, in-depth analysis of the practices of police, lawyers, and the judiciary that influenced defendants’ guilty pleas. The analysis focuses on 60 property theft cases prosecuted in the Queensland Supreme Court, but also synthesises a range of archival sources including reported decisions, administrative records, and newspapers. This analysis identifies the key role of police practices in the pre-trial stage of the prosecution process. These practices focused on convictions obtained through confessional material, rather than investigation, but increasingly included problematic practices such as inducing confessions and guilty pleas. However, crown prosecutors and the judiciary failed to acknowledge the extent of these practices until the transformation to a guilty plea system was complete. Police practices were thus the central cog in a series of linked gears of practice involving lawyers and the judiciary that influenced defendants’ decisions to plead guilty and established the origins of the contemporary guilty plea system.