Supreme Court

Protocol for Voluntary Criminal Case Conferencing

1. The Supreme Court will make the services of a mediator available for case conferencing or mediation of any of its indictable matters, whether before or after lodgement of the indictment. Ideally mediation will occur in the period prior to the committal of an accused under s 44 of the Criminal Practice Act.
2. Mediation 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. It can be assumed that the Commonwealth DPP will always consent to mediation 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.
3. An accused can initiate mediation by way of a request to the Judge in charge of the criminal lists. Such a request may be sent by email to Associate.VCCC@justice.wa.gov.au with a copy forwarded to the prosecution. Alternatively the prospects for case conferencing or mediation can be canvassed at any stage of proceedings when an accused appears before a Supreme Court Judge.
4. All mediation conferences (whether before or after indictment) will take place in Court No 9 in the 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. Ideally, the prosecution will arrange for the officer in charge of the investigation to be present.
5. Prior to a mediation conference a party should comply with any request by a 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 Practice Act.
6. In order to facilitate the process of mediation, 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;
   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.

7. Mediation conferences will ordinarily commence at 9 am and take no more than one hour (so that counsel may depart for other jurisdictions). During a conference the mediator will seek to identify issues that might be resolved, and to discuss generally with the parties the future conduct of the case.
8. The purpose of a mediation conference is to reach agreement, where possible, in respect of any aspects of the criminal trial process. In that regard:

   a.	an accused's participation in the conference is not to be taken as an indication of any intention to plead guilty;
   b.	those present or any of them 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 is not to 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.

9. The mediation conference does not form part of the trial process. The mediator's involvement is not as a Court official, but as a facilitator. No record of the proceedings is to become part of any Court file. No report as to any detail of the conference is to be made by the mediator. All discussions at the conference are confidential and the mediator and all parties undertake to observe that confidentiality.
10. Participation by the prosecution is conditional upon it agreeing that nothing said by an accused or any person on his or her behalf at the conference may be tendered in evidence.