The Early Appropriate Guilty Plea (EAGP) Process in NSW for Strictly Indictable Matters
Difference Between Indictable and Strictly Indictable Offences in NSW
In New South Wales (NSW), the difference between an indictable offence and a strictly indictable offence lies in the seriousness of the offence, the Court in which it is heard, and how it progresses through the criminal justice system. Below is a detailed comparison.
Indictable Offence (General Category)
Definition:
An indictable offence is a more serious offence that is generally triable by a Magistrate in the Local Court
Examples include:
- Assault occasioning actual bodily harm
- Drug supply
- Sexual touching
Key Features of indictable offences:
- Some indictable offences are referred to as ‘table offences’, meaning they can be dealt with summarily (in the Local Court) if both parties agree and the offence is not too serious.
- Table 1 Offences can be dealt with summarily unless either party elects for a jury trial.
- Table 2 Offences can be dealt with summarily unless the defence objects.
For more information please visit the Criminal Procedure Act 1986 (NSW), Schedule 1
Strictly Indictable Offence
Definition:
A strictly indictable offence is the most serious type of indictable offence. These must be dealt with in the District or Supreme Court, and cannot be heard in the Local Court under any circumstances.
Examples of a strictly indictable offence include:
- Murder
- Manslaughter
- Aggravated sexual assault
- Kidnapping
- Large-scale commercial drug supply
These offences follow the Early Appropriate Guilty Plea (EAGP) process if charged after April 2018. A committal process is required in the Local Court before the matter proceeds to trial or sentence in the higher Court (District Court or Supreme Court of NSW).
Summary Comparison Table
| Feature | Indictable Offence | Strictly Indictable Offence |
| Seriousness | Serious | Most serious |
| Court | Local Court | Always District or Supreme Court |
| Committal Process | May be bypassed if dealt with summarily | Required |
| Examples | Sexual touching, mid-range PCA, drug possession etc | Murder, rape, kidnapping, large-scale drug supply etc |
| Electable to Local Court? | Sometimes (if Table 1 or Table 2) | Never |
This letter is intended to provide you with comprehensive information about the Early Appropriate Guilty Plea (EAGP) scheme, including its statutory framework, practical application, and the implications for your defence strategy. We urge you to take some time to read over our letter to you to ensure that you understand this legal process.
This information does not cover the process required for matters which are dealt with summarily (i.e in the Local Court). For more information on this process please visit our dedicated link here.
What is the EAGP Process?
The Early Appropriate Guilty Plea (EAGP) process is a legislative scheme introduced in New South Wales to streamline the resolution of strictly indictable criminal matters. Its primary objective is to facilitate the early identification and resolution of issues in serious criminal cases by encouraging timely guilty pleas. In doing so, it aims to reduce delays in the justice system and improve the efficiency of Court proceedings.
The EAGP process is governed by Part 2, Division 1A of the Criminal Procedure Act 1986 (NSW), supported by the Criminal Procedure Regulation 2017 (NSW) and supplemented by Local and District Court Practice Notes. The process applies specifically to strictly indictable offences. The scheme involves structured stages including the service of a brief of evidence, charge certification by a senior prosecutor, mandatory case conferencing, and potential committal for sentence or trial.
When Does the EAGP Scheme Apply?
The EAGP scheme is applicable in all matters involving strictly indictable offences that are prosecuted by the Office of the Director of Public Prosecutions (ODPP). It also applies where the ODPP elects to deal with a Table 1 offence on indictment. These matters commence in the Local Court but are ultimately committed to the District or Supreme Court for finalisation.
The scheme is not applicable to summary offences or those prosecuted by police. It is specifically designed for serious charges requiring determination in higher Courts, where the sentencing powers and procedural rules differ significantly from those in the Local Court.
Step-by-Step Overview of the EAGP Process
The EAGP process consists of several structured stages that occur sequentially, beginning in the Local Court and culminating in the District or Supreme Court. Each stage is designed to ensure procedural fairness while also promoting efficiency in serious criminal prosecutions. The following steps outline how the EAGP process typically unfolds:
A. First Mention in the Local Court:
At your initial Court appearance, the matter is ordinarily adjourned for up to 8 weeks to allow time for the police to prepare and serve the brief of evidence. This mention is procedural in nature, and a plea is not required at this stage. The Court will make standard EAGP orders, including setting a timetable for the service of materials and future Court dates.
B. Service of Brief of Evidence:
The police must serve the full brief of evidence on us, generally within 8 weeks. In our experience and in some cases, this time may be extended if the police require more time or are continuing their investigations. This brief contains all documents the prosecution intends to rely on, including witness statements, forensic reports, expert evidence, CCTV footage, and police facts. We will review the brief thoroughly with you to assess the strength of the case against you.
C. Charge Certification – s 61 Criminal Procedure Act:
The police provide the brief of evidence to the DPP and a senior DPP prosecutor must then review the evidence and file a ‘charge certificate’ confirming which charges will proceed, which will be withdrawn and so forth. The objective is to ensure that only charges supported by admissible evidence are pursued. You cannot enter a plea until this certificate has been filed.
D. Case Conference – ss 66–67 Criminal Procedure Act:
After the charge certificate is served, we will participate in a mandatory case conference with the DPP. This is a mandatory opportunity to discuss plea offers, raise evidentiary issues, and potentially resolve the matter without trial. A ‘case conference certificate’ must be signed and filed to summarise what was discussed and whether the agreement was reached.
E. Committal for Trial or Sentence:
Upon completion of the case conference, the matter returns to the Local Court for a committal hearing. If a guilty plea is entered, the matter is committed for sentencing. If not, it proceeds to trial. This marks the end of the Local Court’s involvement and transfers jurisdiction to the District or Supreme Court unless the negotiations allow for the charges to be dealt with summarily in the Local Court.
Transfer to the District Court
Following committal, your matter is transferred to the District Court (or the Supreme Court, depending on the severity of the offence). If you have entered a plea of guilty, your matter will be listed for a sentencing hearing, during which the judge will consider the facts of the offence, your subjective circumstances, any mitigating or aggravating factors, and the applicable sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Should you maintain a plea of not guilty, the matter will proceed to trial. Trials in the District Court are typically heard before a jury unless a judge-alone trial is ordered. The trial process is more formal and involves the presentation of evidence, examination and cross-examination of witnesses, and legal submissions by both parties. The Court will determine your guilt or innocence based solely on the evidence presented.
Why the Timing of Your Plea Matters
The timing of your plea has a direct impact on any discount applied to your sentence. Pursuant to section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), a defendant who pleads guilty at the earliest practicable opportunity may receive a sentencing discount of up to 25%.
The discount is tiered as follows:
– A plea entered before committal for trial: up to 25%
– A plea entered after committal but before trial: up to 10%
– A plea entered during trial: up to 5%, or none in some circumstances
This discount serves to acknowledge the utilitarian value of a timely guilty plea, as it reduces the burden on the Court system and may spare victims and witnesses the trauma of giving evidence.
Evaluating the Risks and Benefits of Pleading Guilty or Proceeding to Trial
When deciding whether to plead guilty or contest the charges at trial, careful consideration must be given to both the legal and personal consequences. A plea of guilty entered at an early stage, particularly prior to committal, attracts the maximum available sentencing discount under section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), which is currently set at 25%.
Such a plea also signifies acceptance of responsibility, remorse, and often expedites resolution, reducing the emotional toll on both the accused and any alleged victims. It may also open the door to non-custodial sentencing alternatives such as Intensive Correction Orders (ICOs), Community Correction Orders (CCOs), or Conditional Release Orders (CROs), depending on the objective seriousness of the offence and your criminal record.
By contrast, proceeding to trial offers you the opportunity to challenge the allegations. The prosecution bears the burden of proving each element of the charge beyond a reasonable doubt. However, trials are inherently uncertain, can involve significant delays, and may expose you to harsher penalties if you are found guilty after contesting the matter.
More information about sentencing outcomes and plea considerations can be found on our website here or contact one our parramatta criminal lawyers.
The Legal Burden of Proof – Beyond Reasonable Doubt
In all criminal proceedings, the burden of proof lies with the prosecution. It is the responsibility of the Crown to prove, beyond reasonable doubt, each essential element of the offence with which you are charged. This is the highest standard of proof in the legal system and serves to protect the presumption of innocence.
Our Parramatta criminal lawyers urge the fact that you are not obliged to give evidence or prove your innocence. If the prosecution fails to establish its case to the required standard, you must be acquitted. This foundational principle of criminal law underscores the importance of scrutinising the evidence and identifying weaknesses in the prosecution’s case.
Strategic Considerations in EAGP Cases
A well-informed legal strategy is essential when navigating the EAGP process. It is common during the charge certification and case conference stages for negotiations to occur between defence and prosecution. These discussions may result in the withdrawal of certain charges or amendments to the agreed facts, which can significantly affect the potential outcome.
The strength of the prosecution case, evidentiary weaknesses, the availability of legal defences, and the personal circumstances of the accused all play a role in determining whether a plea of guilty or not guilty is appropriate. These considerations will be thoroughly assessed by our team in order to provide you with accurate and tailored advice.
The Importance of Providing Consistent and Truthful Instructions to Your Lawyer
It is essential that you provide us with full, frank, and accurate instructions from the outset of your matter. Legal professional privilege ensures that anything you disclose to us for the purpose of legal advice remains confidential.
A common issue that can severely weaken a defence is where a client changes their version of events multiple times. Inconsistent instructions may undermine your credibility and can restrict our ability to advance certain arguments or call you to give evidence.
Furthermore, we are bound by ethical obligations and cannot knowingly mislead the Court. If your version of events continues to shift, it may become impossible for us to represent you effectively, and in some circumstances, we may be ethically obliged to cease acting for you.
It is imperative that you provide to our Sydney Criminal Lawyers any supporting material (text messages, CCTV, phone data, witness statements, etc.) to our team as early as possible. A delay in providing relevant evidence can affect the development of your defence strategy and reduce opportunities for early resolution.
Conclusion and Next Steps
The EAGP process presents both challenges and opportunities, depending on the circumstances of your case. In some instances, the process can be used to your advantage by securing a timely and fair resolution. The EAGP process can take between 6 and 12 months in duration, and we accordingly advise you to prepare yourself for this lengthy process. In this regard, our role is to ensure you understand your rights, the process, and your options.
We will continue to progress your matter and advise you in accordance with your instructions and in your best interests.
Should you have any questions about the contents of this advice, please do not hesitate to contact us.
