Withdrawing a Plea of Guilty in the Magistrates Court (Vic) | Armstrong Legal

Call Our National Legal Hotline

1300 038 223
Open 7am - Midnight, 7 days
Or have our lawyers call you:

This article was written by Adam Elbob - Associate - Werribee

Adam Elbob holds a Bachelor of Laws and Bachelor of Arts with a major in criminology and a minor in policy studies. He completed his Practical Legal Training at the College of Law. Adam is admitted to practise law in the Supreme Court of Victoria and the High Court of Australia. Adam brings with him an array of experience in...

Withdrawing a Plea of Guilty in the Magistrates Court (Vic)


When an adult is charged with criminal offences in Victoria, they will have to attend the Magistrates Court to answer to the charges. An accused person may choose to plead guilty on the first occasion, or to obtain the brief of evidence and assess the strength of the prosecution case before deciding how to plead. In some cases, a person may enter a plea of guilty but subsequently decide they want to plead not guilty instead. This article deals with withdrawing a plea of guilty in the Magistrates Court in Victoria.

Pleading guilty in the Magistrates Court

In the Magistrates Court, an accused person may elect to accept responsibility for an offence at any stage right up to the contested hearing. The courts commonly extend leniency at sentencing, also known as a ‘plea discount’, to defendants who enter an early plea of guilty, as this is seen as saving the court time and resources. This means that a person who pleads guilty on the first occasion will receive a slightly lower penalty than they would receive if they were found guilty after a contested hearing. The further a matter proceeds towards a contested hearing, the less likely the court will be to provide the accused with the benefit of a sentencing discount for entering a plea of guilty.

A person who enters a plea of guilty must understand the implications of this and intend the plea to proceed. A plea of guilty is an admission of guilt for an offence. Once a person has entered a plea of guilty, they have indicated to the court that they accept the summary of alleged facts prepared by the police as an accurate reflection of the incidents before the court.

The importance of a plea of guilty is discussed in the case of Meissner v R (1995) 184 CLR 132, where it was stated that the “law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt”.

Withdrawing a plea of guilty

If a person wishes to change their plea after they have entered a plea of guilty and instead contest the charges, they must apply to the court and provide evidence of the reason for the plea to be withdrawn. The applicant must establish that there is a substantial reason for the court to allow the application because a miscarriage of justice would occur if the court acted upon the original plea and proceeded to sentence.

The test for withdrawing a plea of guilty: Miscarriage of justice

In the case of Weston v R (2015) 48 VR 413, Redlich JA expressed the test as requiring an applicant “to show an issuable question of guilt” and the existence of some circumstance that affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to their plea.

In the case of Keenan v The Queen [2020] VSCA 105, the Victoria Supreme Court of Appeal set out certain factors which may influence a person to plead guilty, which do not undermine the validity of the plea. These factors include entering a plea of guilty to avoid worry, inconvenience or expense, to avoid publicity, to protect family or friends or in the hope of obtaining a more lenient sentence. The Victorian Court of Appeal has found that a plea entered for one or more of these factors will not be set aside unless a miscarriage of justice is shown.

Seek legal advice before pleading guilty

It is extremely important that you do not rush into entering a plea of guilty without seeking legal advice and adequate representation. This is because withdrawing a plea of guilty requires the accused to meet a heavy onus. With adequate representation, a person will only enter a plea of guilty after having the opportunity to receive sound legal advice and to assess all of their options.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Armstrong Legal
Social Rating
4.8
Based on 382 reviews
×
Legal Hotline
Open 7am - Midnight, 7 Days
Call1300 038 223