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Criminal lawyers encouraged to participate in diversion survey

Criminal lawyers encouraged to participate in diversion survey

By Karin Derkley

Courts Criminal Procedure 


A survey by the LIV’s Criminal Law Section hopes to clarify why diversion applications by criminal defence lawyers for their clients are apparently frequently denied without cause.

Section member Jessica Wilkinson says reasons given by prosecutors for refusing diversion applications often seem arbitrary. “A lot of prosecutors can’t give good reasoning. It’s unclear how the matrix intended to guide the decision-making has been applied.”

The LIV Diversion Working Group Questionnaire will collect information about responses to requests for diversion across a range of offences, such as family violence, driving, drug and sex offences, cross-referencing this with the court location, circumstances, age and gender, any priors, whether the informant consented to the diversion, whether the prosecutor consented, or their stated reason for why they refused the request.

“If every practitioner could volunteer two or three examples that will give us a better idea of what's being approved and what’s being refused so we can see some patterns,” Ms Wilkinson says.

Diversion may be requested by a defence lawyer in consultation with the informant (usually the police officer in charge of the investigation) and applies to low level offences where the offender has admitted liability and typically has no record of prior offending. “You have to show that the client acknowledges the offence, and that it's appropriate to deal with it by way of diversion,” she says.

An offender who receives a diversion order does not get a criminal record, which Ms Wilkinson says helps reduce the likelihood of recidivism. “The statistics show that people who have committed low-level first-time offences, without priors, generally don't come back again if they get a diversion.

However, the third condition is that the prosecution must consent to the diversion and Ms Wilkinson says decisions on diversion often seem to be made according to the personal preferences of a particular prosecutor rather than an objective measure. “There often seems to be no real standard for how the legislation is applied. It's very kneejerk and sometimes there seems to be no policy behind the decisions."

Of equal concern is that the prosecution has more sway than the informant who investigated the charge, “even though the informant in theory would have more knowledge of the matter of the accused because they're the ones doing the investigation,” Ms Wilkinson says.

If prosecutors refuse diversion, practitioners can bring the matter to an open court and tell the magistrate that they believe the matter is suitable for diversion but that the prosecution is not providing consent. “If a magistrate agrees that the person/offence is suitable for diversion, they may indicate their support for diversion which can often‘sway’ the prosecutor,” she says.

However, a magistrate does not have the power to overturn the prosecutor’s decision. “Therein lies the problem. It gives the prosecution a lot of judicial power.”

The LIV has agreed with a call by Liberty Rights Victoria for legislative reform to allow judicial officers to make the ultimate decision regarding diversion rather than the prosecution, on the grounds that diversion is more akin to a sentencing option than a charge withdrawal.

“It is inappropriate for the option of diversion to be conditioned on the consent of the prosecution, and it should be a matter for the Magistrate to decide whether diversion is appropriate, with Victoria police entitled to put forward their view on the appropriateness of such a decision,” the LIV said in a letter to the Melbourne Magistrates’ Court Diversion Review in 2015.

Participate in the LIV Diversion Working Group Questionnaire here.

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