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I Entered the Wrong Plea! What Do I Do?


At Armstrong Legal we often have clients contact us after their matter has already been in court once or twice. Sometimes after receiving legal advice these clients decide that the plea that they entered while they were unrepresented was wrong, and they need to know if they can change it.

Changing a plea of not guilty to a plea of guilty is easy: the court knows that sometimes once an accused person has had time to think about their matter and consider the facts and perhaps the brief of evidence they decide to change their plea to guilty. This can be done at any court date before the matter is heard and decided by the Magistrate.

It can be much harder to change a plea of guilty to a plea of not guilty, because if your plea of guilty was accepted by the court, it is considered to be an admission by you of all of the elements of the offence charged, which takes away the need for the prosecution to prove your guilt.

Changing a plea of guilty to a plea of not guilty requires providing the court with evidence of why the guilty plea is being withdrawn. If you can satisfy the Magistrate that there would be a “miscarriage of justice” if the matter proceeded to sentence on your plea of guilty, then you will be allowed to withdraw your guilty plea.

Some reasons that have been accepted by courts in allowing accused persons to withdraw pleas of guilty are:

  • Where the person “did not appreciate the nature of the charge to which the plea was entered” (Regina v Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233).
  • Where the plea was not “a free and voluntary confession” (Regina v Chiron (1980) 1 NSWLR 218 at 220 D-E).
  • The “plea was not really attributable to a genuine consciousness of guilt” (Regina v Murphy [1965] VR 187 at 191).
  • Where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt” (Regina v Sagiv (1986) 22 A. Crim. R. 73 at 80).
  • Where the “plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt” (Regina v Concotta (NSWCCA, 1 November 1995, unreported)).
  • The “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt” (Maxwell v The Queen (supra) at 511).
  • If “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt” (Regina v Davies (NSWCCA, 16 December 1993, unreported)). See also Regina v Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320.

(R v Van (2002) NSWCCA 148 at [48])

If you think you have entered the wrong plea it is important that you get legal advice about your options and the best way to proceed with your matter. The criminal lawyers at Armstrong Legal have experience advising about pleas and changing them when required and will be able to help you get the best outcome for your matter.

Image Credit – alphaspirit © 123RF.com

Written by John Sutton on December 27, 2017

John is partner of Armstrong Legal and head of the Criminal Law Division. The experience John possesses, being a high quality mix of defence and prosecution skills, together with his team at Armstrong Legal, mean you can be certain of accurate, dependable and practical advice on how your matter can dealt with. View John's profile


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