Arguably one of the most important decisions that you will have to make if you have been charged with a criminal offence is whether to plead guilty or not guilty.
While this decision may seem straightforward, in reality, there are many things that an accused should take into account when determining how to plead.
Deciding how to plead
It is always best to seek the advice of an experienced criminal lawyer before deciding how to plead.
An experienced lawyer will be able to determine the appropriate plea for your case by taking into account a number of factors, including:
- Whether you agree with the facts outlined on the police fact sheet;
- Whether there is enough evidence for the Prosecution to prove the essential elements of your offence beyond a reasonable doubt;
- Any defences available;
- Whether it is possible to negotiate the charges with the police, (for example, sometimes the evidence may support a less serious charge and your lawyer may be able to negotiate the charge down the lessor charge);
- The penalty that is likely to be imposed (taking into account any mitigating factors and the fact that a 25% reduction of penalty is usually awarded for early guilty pleas).
Unfortunately, sometimes an accused will enter a plea before they have sought proper legal advice.
In these instances, it may be possible for an accused to change their plea.
Changing your plea from ‘not guilty’ to ‘guilty’
Changing your plea from not guilty to guilty is pretty straight forward.
You can do this at any time before your hearing, or on your hearing/trial date.
If you are planning on changing your plea to guilty, it is best to do so as soon as possible to give you the best prospects during sentencing.
While there may be a number of benefits of pleading guilty, it is important to remember that there are also a number of consequences.
If you decide to plead guilty, you are admitting to every element of the charge. It is also very difficult to appeal the conviction if you have pleaded guilty and the conviction will remain on your criminal record.
Changing your plea from ‘guilty’ to ‘not guilty’
Changing your plea from guilty to not guilty is more complicated. The process by which you do this is called a ‘plea traversal’.
In order to change your plea, you will need to seek leave from the court.
When determining whether to grant an application for leave to withdraw a guilty plea, the court will consider whether a miscarriage of justice has occurred.
The burden is on the applicant to prove that a miscarriage of justice has occurred.
What is a miscarriage of justice?
There is no definitive list of circumstances that will constitute a miscarriage of justice in this context.
However, some of the circumstances that have been identified are as follows:
- Where the applicant ‘did not appreciate the nature of the charge to which the plea was entered’
- Where the plea was not a ‘free and voluntary confession’
- Where the plea was ‘not really attributable to a genuine consciousness of guilt’
- Where there has been a ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’
- Where the plea has been induced by threats
- Where the person who entered the plea was not aware of all the facts and ‘did not entertain a genuine consciousness of guilt’
- Where an accused did not understand the nature of the charge and has had difficulties with an interpreter
- Where a lawyer has given imprudent or inappropriate advice which leads to the entering of a plea
- Where a lawyer has placed ‘improper pressure’ upon an accused
Key Takeaways
- Changing from not guilty to guilty is straightforward and can be done anytime before the trial.
- Switching from guilty to not guilty, known as a plea traversal, requires court approval to ensure no miscarriage of justice occurs.
- Factors for a successful plea change include misunderstanding charges, lack of voluntary confession, and improper legal advice.
- The process emphasizes the importance of accurate initial pleas and the potential for legal adjustments based on justice principles.
Have a question about changing your plea?
Our lawyers can advise on whether to plead guilty or not guilty. If you have been charged with a criminal offence, contact our team 24 hours a day, 7 days a week by calling 4038 1666.
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
