This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Disputed Facts Hearings (ACT)


Most people are familiar with the two ways a defendant can choose to deal with a criminal allegation against them: they can plead guilty or not guilty. However, many cases involve defendants who wish to take responsibility for the offence they have been charged with, but who take issue with the statement of “facts” provided by the police. These cases often proceed to what are known as disputed facts hearings.

Representations as to disputed facts

Depending on the extent of the divergence between the prosecution version and the defence version of events, it may be possible for the defendant’s solicitor to write representations to the Office of the Director of Public Prosecutions, which runs all ACT prosecutions, and propose that a different version of the alleged facts be tendered to the court to allow the matter to be finalised as a plea.

The DPP’s prosecution policy is to take into account the following considerations when deciding whether to agree to representations by the defence:

  • Do witnesses appear to be honest and reliable?
  • Do any appear to be exaggerating or defective in memory?
  • Do any have a motive for being less than candid?
  • Could their credibility be attacked?
  • Is the prosecution in the public interest?
  • Is the defendant likely to be found guilty?

Often, through negotiations between the prosecutor and the solicitor for the defendant, an agreement can emerge. In those cases, the matter is listed for sentence and the agreed facts go forward as the basis on which the defendant will be sentenced. But not all cases finalise so neatly.

Running a disputed facts hearing

When representations fail to resolve a matter, the defendant can instruct that the case be taken to a disputed facts hearing. When this occurs, the defendant acknowledges that the elements of the offence – including the relevant level of intent, where applicable – are made out. However, they do not accept the contextual matrix presented by the police. The result is a disputed facts hearing.

A disputed facts hearing runs, on a plea of guilty, much in the same vein as a full contested hearing on a plea of not guilty. The prosecution goes first, calling its evidence and having its witnesses available for cross-examination by the defence. At the close of the prosecution case, the defence case begins, which may or may not involve the defendant giving evidence. If they do not give evidence, the jury must be told (or judges and magistrates must direct themselves) that their silence is not evidence of guilty, does not constitute an admission by the accused, many not be used to fill gaps in the prosecution case and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond a reasonable doubt. This is known as an “Azzopardi direction” from the case of Azzopardi v The Queen (2001) 205 CLR 50 per Justices Gaudron, Gummow, Kirby and Haine.

That said, in a disputed facts hearing, it is more likely than not that a defendant would be advised by his or her solicitor that giving a version of events was critical to his or her chances of success.

Disputed facts in R v Vardai

The judgment of Acting Justice Robinson in the 2020 ACT decision of R v Vardai clearly showed the workings of a disputed facts hearing. The charge was recklessly inflicting grievous bodily harm, for which the maximum penalty is 13 years imprisonment.

As is not uncommon in disputed-facts matters, there was an area of agreement: the date, time and place of the incident and that the victim was at a taxi rank with colleagues when approached by the defendant and two associates. There was an argument, with the defendant punching the victim in the head and the victim then falling to the ground, hitting his head on the pavement. Beyond that, the differences in the version of the prosecution and the defendant were marked.

In essence, the prosecution contended that the assault was unprovoked and that one of the males in the offender’s group had said something of a “smartarse” nature towards the victim’s group. The victim brushed the comment off with words to the effect of “whatever” and then turned towards his group of friends, with his back to the offender’s group. The offender had then punched the victim in the back of the head.”

The defence contended that, as he and his friends were walking past the victim, the victim called out to one of the defendant’s colleagues and the group stopped while the victim and the colleague spoke. The colleague introduced the victim to the offender and some remark was made about the offender’s name that he took exception to. A short verbal argument ensued, and the victim grabbed the offender by the shirt. The offender then punched the victim once hard to the face.

Decision

The judge found that the victim had no memory of the incident, having drunk a lot and also taken ecstasy and speed. An independent witness, who had been smoking outside a nightclub, was “understandably uncertain about some details” of an event four years earlier but “did his best to recount the events of the night.”

The defendant’s colleague was “less persuasive” and the offender himself was “not overly persuasive.”

Nonetheless, the offender’s version was accepted by the court. His Honour found, “It is not possible to determine to any great level of confidence the circumstances of the assault. The effect of drugs and alcohol combined with the passage of time also influence that degree of confidence …

“The plea of guilty was entered at an early opportunity … it needs to be remembered that a plea of guilty is an admission of all of the elements of the offence. It is not an admission of every fact which might be relevant to an element of the offence. It is not said that the statement of facts tendered to the Magistrates Court in any way bound the offender when appearing for sentence in the Supreme Court. By negotiation between the parties, that could be so in some cases, but it was not so in this case.

“It is a common feature of sentencing hearings that there will be a contest regarding disputed facts. Here there was such a contest. The contest was resolved in favour of the offender. In my view, that does not, in any way, detract from the value of the plea of guilty to the offence. Remorse and contrition need to be aligned with the actual facts relating to the offending as does the utility of any plea need to be aligned to those same facts. Had the offender been unsuccessful in relation to that contest of fact then it would be necessary to reassess the value of that plea. Matters of contrition, remorse and utilitarian value would need to be considered.”

As it turned out, the defendant, who was facing 13 years in prison, was placed on an Intensive Corrections Order, an effective prison sentence but served in the community. “Such an order will, in the circumstances of this case, provide that the offender is adequately punished for the offence,” His Honour concluded.

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