Can a Plea Of Guilty Be Set Aside? (WA) | Armstrong Legal

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This article was written by Courtney Ashton - Solicitor - Perth

Courtney holds a Bachelor of Laws and a Bachelor of Criminology and Justice from Edith Cowan University and a Graduate Diploma of Legal Practice from the College of Law. Courtney is a dedicated practitioner who enjoys a challenge and has competently completed many traffic and summary jurisdiction matters. Courtney enjoys advocacy and has appeared in a number of drink driving,...

Can a Plea Of Guilty Be Set Aside? (WA)


Lawyers often get asked whether a plea of guilty to a criminal charge can be set aside. The short answer is yes; however, the court will only agree to do this in very limited circumstances. This article deals with when a plea of guilty can be set aside in Western Australia.

Why do people plead guilty?

It has been stated by the High Court that “a person may plead guilty for all manner of reasons”. Reasons that clients commonly plead guilty include:

  • to avoid worry;
  • to avoid inconvenience;
  • to avoid expense;
  • to avoid publicity;
  • to protect their family or friends; or
  • in the hope of obtaining a more lenient sentence.

A plea of this nature is generally referred to as a ‘plea of convenience.’

However, although there may be a number of reasons for pleading guilty, entering a plea of guilty constitutes an admission of all elements of the offence and will normally result in a conviction.

We would strongly advise anyone considering pleading guilty to a criminal offence to seek legal advice before doing so, particularly where the offences are serious.

Appealing after a plea of guilty

Where a person has pleaded guilty and then initiates an appeal, their plea will not be set aside unless they can show that there has been a miscarriage of justice. This is not easy to do, particularly where the applicant was legally represented at the time they entered the plea.

The courts have determined that there are three main circumstances where a plea of guilty may be set aside. These are:

  1. Where the appellant did not understand the nature of the charge or intend to admit guilt;
  2. Where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
  3. Where the guilty plea was obtained through improper inducement, fraud or intimidation and the like.

Whilst these are three main circumstances where a plea of guilty may be set aside, the list is not exhaustive and there may be other situations where a court would consider this appropriate.

Supreme Court decision

In a recent Supreme Court of Western Australia Court of Appeal decision, the appellant submitted that when he entered his plea he was inadequately represented by his legal practitioner. This was after the appellant had:

  • spoken to his lawyer via telephone;
  • instructed his lawyer that he wished to plead guilty;
  • read the statement of material facts in its entirety;
  • not communicated to his lawyer that he was not guilty of the offending; and
  • confirmed his instructions to his solicitor at the listed court appearance.

It was found that the man’s lawyer had fully explained the nature of the charges and the risk of a term of imprisonment being imposed.

Further, the appellant’s matter had been adjourned to a later date for sentencing and reports had been obtained to assist the court with sentencing.

At the sentencing hearing, the appellant signed instructions to confirm that he wished to plead guilty and did not advise his lawyer at the time of sentencing or after his conviction that he wished to change his plea.

In conclusion, the court found that:

  1. the appellant had understood the nature of the charges and intended to admit guilt;
  2. upon the admitted facts, the appellant was guilty of the offences; and
  3. the pleas of guilty were not obtained by improper inducement, fraud, intimidation and the like.

The application was therefore dismissed and the man’s convictions were not set aside.

Applying to set aside a plea of guilty

In order to set aside a plea of guilty, an application with supporting affidavit will need to be lodged with the relevant court registry. The affidavit will need to set out the miscarriage of justice that is said to have occurred.

The matter will then be listed for a hearing and the presiding judicial officer will make a determination of the application. If the application is successful, the plea of guilty will be set aside and the defendant will be given an opportunity to enter a new plea.

If the application is unsuccessful, the plea will stand.

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

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