Diversion, disclosure and discretion

The Magistrates’ Court Act 1989 s 128A provides a statutory power for summary courts to adjourn criminal charges for a diversion hearing.

128A. Adjournment to undertake diversion program

(1) This section does not apply to-

(a) an offence punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of a licence or permit to drive a motor vehicle but not including the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act; or

(b) an offence under section 49(1) of the Road Safety Act 1986 not referred to in paragraph (a).

(2) If, at any time before taking a formal plea from a defendant in a criminal proceeding for a summary offence or an indictable offence triable summarily-

(a) the defendant acknowledges to the Court responsibility for the offence; and

(b) it appears appropriate to the Court, which may inform itself in any way it thinks fit, that the defendant should participate in a diversion program; and

(c) both the prosecution and the defendant consent to the Court adjourning the proceeding for this purpose-

the Court may adjourn the proceeding for a period not exceeding 12 months to enable the defendant to participate in and complete the diversion program.

(3) A defendant’s acknowledgment to the Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea.

(The equivalent provision in the Criminal Procedure Act 2009 is s 59.)

When the diversion program was introduced, it was something of a mind-shift for those of us more familiar with the adversarial approach and its emphasis on formal sanctions in an escalating hierarchy.

The tensions between restorative and adversarial approaches aren’t completely resolved yet.


In one recent contest-mention hearing, the prosecution was unaware the accused person was convicted of other criminal offences after he was charged with the contest-mention offences.

His solicitors were aware of that, but didn’t disclose it when the Court was asked to consider diversion.

Ordinarily, an accused person’s lawyer is under no obligation to disclose their client’s bad character or criminal history. (This is part of the presumption of innocence and the obligation on the prosecution to prove its case — and on sentencing all, things adverse to the accused — beyond a reasonable doubt.) The most well-known statement of this principle is by Lord Diplock:

A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to facts, although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister’s knowledge: Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 220.

That’s reflected in Rule 14.10 of the Professional Conduct and Practice Rules 2005 for solicitors:

14.10 A practitioner will not have made a misleading statement to a court simply by failing to disclose facts known to the practitioner concerning the client’s character or past,
when the practitioner makes other statements concerning those matters to the court, and those statements are not themselves misleading.

and Rule 159 of the Victorian Bar’s Practice Rules for barristers:

159. Where on sentence a barrister is aware of a client’s previous convictions which have not been made known to the court by the prosecution, a barrister is under no duty to
correct the omission of the prosecution. However, the barrister remains under a duty not to mislead the court and therefore should not make any submission capable of being regarded as an assertion that the client has no previous convictions.

(There’s also some common sense to these rules. If I were paying some of my hard-earned to a lawyer to represent me in court, I would not be very happy if that lawyer were to pipe up and dob me in if the prosecution failed to mention something bad about me!)

There was no doubt the solicitor wasn’t legally or ethically obliged to remedy the prosecution’s ignorance of his client’s subsequent convictions.


But, that wasn’t the end of the matter. The magistrate had an inkling the accused had some sort of criminal history…and it turned out, that criminal history was from charges heard by that same magistrate! Diversion Coordinators are pretty diligent about unearthing everything they think might be relevant under s 128A. And magistrates rely on that information before they grant diversion.

So in this case, the magistrate considered the accused wasn’t suitable for diversion. The issue wasn’t so much one of legal and ethical obligations in the traditional adversarial framework, but rather, case-management concerns in a therapeutic framework.

The only appellate case so far to consider s 128A is Rumbiak v Hough [2004] VSC 95. In that case, the Supreme Court held that the consent of the parties was only one necessary step to a grant of diversion. The section also requires a formal acknowledgement of responsibility by the accused, and a finding by the Court that diversion is appropriate in the case.

[25] …However, the making of such an order is at the discretion of the Magistrate, as indicated by the words “the Court may adjourn the proceeding” in section 128A(2), and the several prerequisites for the making of the order are set out in that provision. The agreement of the parties cannot determine the matter.

[26] Mr Lurie deposes to his instructions that the plaintiff was willing to acknowledge responsibility for offending for the purpose of enabling participation in a diversion program, and that he had discussions with the informant and the police prosecutor as a result of which it was agreed that the plaintiff and the prosecution would consent to the plaintiff participating in a diversion program. He notified the Magistrate that the plaintiff sought referral to diversion and that the informant and the prosecutor agreed. The prosecutor informed the Magistrate that she consented to that course.

[27] However, there is no evidence before me that the plaintiff’s readiness to acknowledge responsibility for the offence was notified to the Magistrate as required by section 128A(2)(a). Mr Batten submitted that that acknowledgment to the Court was implied by his counsel’s request for diversion. I do not accept that submission. The acknowledgment to the court of responsibility for the offence is a formal step of a serious nature, analogous to a plea of guilty, which should be carried out formally by the accused in open court. That acknowledgment is not a matter for implication.

[28] Nor is there any evidence of a finding by the Magistrate that it seemed appropriate to him that the plaintiff should participate in a diversion program, as required by section 128A(2)(b). Mr Dennis submitted, and I accept, that before making that finding it would be necessary for the Magistrate to consider such matters as whether the plaintiff had prior convictions and the gravity and circumstances of the offence. There was no evidence to suggest that His Worship had any evidence of such matters before him.

It’s pretty clear the Court is entitled to collect a full history of the accused. But it’s not entirely clear if that means defence lawyers must volunteer it in all circumstances under the current provisions. From what I see, most lawyers do volunteer such information, and many magistrates are canny enough to directly ask if they know of any subsequent matters, which brings into play the ethical obligation to not knowingly mislead the court.

Section 59 in the Criminal Procedure Act 2009 contains the same (or substantially the same) provisions, so I expect the exact same considerations will apply when it commences operation, probably in October 2009.

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