Disputed Facts Hearings

When a person is charged with a criminal offence, they may plead guilty or contest the charges. Less commonly, a person who is facing a criminal charge may admit the offence but dispute the facts as they are alleged and particularized by the prosecution. When this occurs, the court will hold a disputed facts hearing to establish how the offence occurred. This page deals with disputed facts hearings in Australia.

Settling disagreements about facts

In some cases, it may be possible for the defence and prosecution to agree to amend the statement of facts so that it accords with the accused’s memory of what happened. This is particularly likely where the divergences between the two versions of what happened are small.

The prosecution would generally prefer to amend facts and avoid the need to take a matter to hearing provided the changes sought do not significantly alter the level of seriousness of the offending.  However, if the changes sought conflict with witness accounts or other evidence the prosecution may refuse to make them.

If an agreement is reached between parties, the police statement of facts will be amended, and the matter can proceed to sentencing. If no agreement is made, the matter can be listed for a disputed facts hearing.

What happens at a disputed facts hearing?

When a matter is taken to a disputed facts hearing, the defendant admits that all of the elements of the offence are made out. However, they do not admit that the offence occurred in the way that is described in the police precis, or summary of facts. A disputed facts hearing runs in the same way as a full contested hearing, except that the evidence is confined the aspects of the case that are in dispute.

The prosecution will call evidence first, seeking to establish that the offending transpired in the way that it alleged. The defence will have the opportunity to cross-examine each witness and expose any weaknesses in their testimony. The defence will then have the chance to call its own witnesses, which the prosecution may subject to cross-examination.

As in any contested criminal hearing, the accused does not have to give evidence. If they choose not to give evidence, this cannot be taken as evidence of guilty and cannot be sued to draw inferences about the case.

In some disputed facts hearings, the evidence that comes out in court does not fully support either the prosecution or the defence’s version of what happened. When this occurs, the court will make findings as to what occurred and proceed to sentence the accused based on those circumstances.

Sentencing discount

If an accused admits to being guilty of an offence but disputes the facts alleged, they may be eligible for a sentencing discount for entering a guilty plea. The sentencing discount will generally be extended to an accused if the version of events that is eventually accepted by the court is different from the prosecution’s summary of alleged facts that accompanied the charges. This will be the case even where the evidence that comes out in court is not the same in every respect as the version of events that the defence put forward.

If the court accepts that the offence occurred in the way that the prosecution originally alleged, it is likely that no part of the sentencing discount will be extended to the accused due to the time and expense involved in running a disputed facts hearing unnecessarily.  

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