September 25, 2022

Tullio Corradini

Trusted Legal Source

Can I change my Guilty plea to Not Guilty in NSW courts? – Crime


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What happens if you are charged with a criminal offence, and you
decide to plead guilty to it, but later want to change that plea to
a ‘not guilty’ plea? This scenario does arise and it is not
as straight forward as pleading ‘guilty’ after pleading
‘not guilty’ to a criminal offence.

Wanting to change a plea of ‘guilty’ to a plea of
‘not guilty’ is also commonly referred to by
criminal lawyers as traversing the plea or withdrawing the
guilty plea.

Here is more on
what to expect when going to court for a criminal
case
.

WITHDRAWING A GUILTY PLEA IN THE LOCAL COURT


Section 207
Criminal Procedure Act 1986 (NSW)
applies to
local court cases where you wish to withdraw your guilty plea. This
allows an accused person to, at any time after pleading guilty (but
before the sentence is finalised), apply to the court to change the
plea to ‘not guilty’ and to have the conviction or order
set aside. The court may then proceed to determine the case on the
basis of a ‘not guilty’ plea.

WITHDRAWING A GUILTY PLEA IN AN APPEAL TO THE DISTRICT
COURT

Section 12 Crimes (Appeal and Review) Act 2001 (NSW)
allows an accused person who has previously pleaded guilty and was
sentenced in the local court for a criminal offence, to appeal
against that conviction (to now plead ‘not guilty’) to the
District Court if the District Court grants leave to do this. If
the District Court grants leave, the Court can set the conviction
aside, dismiss the appeal, or set aside the conviction and remit
the case to the local court for it to be redetermined in accordance
with the directions of the District Court.

CHANGING THE PLEA TO ‘NOT GUILTY’ WHEN IN THE DISTRICT
OR SUPREME COURT

Section 103 Criminal Procedure Act 1986 (NSW) allows an
accused person who has pleaded guilty in the local court, and the
local court commits that person to the District or Supreme Court
for sentence, to change his/her plea from ‘guilty’ to
‘not guilty’ when in the District or Supreme Court. If an
accused person does this, then the court can direct that he/she be
put on trial or refer the person back to the local court.

Here is more on the common question:
is a lawyer allowed to defend a client who is guilty in
court?

WHEN A LAWYER ENTERS THE PLEA OF GUILTY WHICH YOU NOW WANT TO
CHANGE TO ‘NOT GUILTY’

If, when a plea of guilty was entered in court, you were
represented by a lawyer, and now wish to withdraw that plea to
change it to a ‘not guilty’ plea, then ordinarily the same
lawyer(s) will no longer be able to continue representing you. In
fact, they may end up now becoming a witness for the other side
(the prosecutors).

In those circumstances you will need new lawyer(s) to provide
you advice, and representation in court. Your new lawyer will, upon
appearing before the Court, advise the court of the intention to
withdraw the plea. The court will then ordinarily adjourn the case
to a hearing. The court will order both parties (prosecution and
defence) to file and serve affidavits in support of their claims as
to the basis or grounds on why the plea should be withdrawn from
guilty to not guilty.

If those affidavit’s contradict one another, then it will
usually be necessary to require your previous lawyer to attend
court on the hearing day to give evidence in order for the court to
make a determination on whether or not to allow you to change your
plea to a ‘not guilty’.

In what circumstances will the court allow you to change your
plea from ‘guilty’ to ‘not guilty’?

The Test to be Applied by Courts When Deciding Whether to Allow
the Plea to be Withdrawn

Ultimately, the court will only allow this if you can prove on
the balance of probabilities that there was a ‘miscarriage of
justice with respect the disputed charge(s). A miscarriage of
justice arises if there is reason to doubt the integrity of the
plea of guilty and there is a real question about your guilt or
innocence. This has been more recently acknowledged in the case of
Stuart v R [2022] NSWCCA 182.

Circumstances You Can Change your Plea from ‘Guilty’ to
‘Not Guilty’

There is an non-exhaustive list of circumstances that may amount
to a ‘miscarriage of justice’ or in other words that raises
sufficient question about the integrity of the plea of guilty that
courts have previously acknowledged, including the following (which
is also outlined by Harrison AJ in Mao v DPP (NSW) [2016] NSWSC
946:

  • the nature of the charge to which the plea has been
    entered is not appreciated
    : R v Ferrier-Eli’s (1991)
    55 A Crim R 231 at 233

  • the plea is not ‘a free and voluntary
    confession
    ‘: R v Chiron [1980] 1 NSWLR 218 at 220

  • the ‘plea was not really attributable to a genuine
    consciousness
    of guilt’: R v Murphy [1965] VR 187 at
    191; also see Jimenez v R [2017] NSWCCA 1 where appellant was given
    incorrect legal advice that the child pornography offence required
    depiction of persons under 18, when the element of the offence
    required depiction of persons under 16.

  • there has been a ‘mistake or other circumstances
    affecting the integrity of the plea
    as an admission of
    guilt’: Sagiv v R (1986) 22 A Crim R 73 at 80

  • the plea has been ‘induced by threats or other
    impropriety
    ‘ and the appellant would not otherwise
    have pleaded guilty: R v Cincotta (Court of Criminal Appeal (NSW),
    1 November 1995, unrep

  • the plea is not unequivocal or is made in circumstances
    suggesting it is not a true admission of
    guilt
    (Maxwell v The Queen (1996) 184 CLR 501 at 511;
    [1996] HCA 46

  • The person who entered the plea was not in possession of all of
    the facts and did not entertain a genuine consciousness of
    guilt’: Favero [1999] NSWCCA 320

Other circumstances that may amount to a miscarriage of
justice:

  • Where failure of the appellant to appreciate the nature of the
    charge and difficulties with an interpreter: Iral [1999] NSWCCA
    368

  • Where the advice of trial counsel to enter the plea was held to
    be imprudent and inappropriate thus occasioning a miscarriage of
    justice: Wilkes (2001) 122 A Crim R 310

  • Where senior counsel’s inappropriate advice on the
    applicant’s ability to challenge a relevant matter of fact
    occasioned a miscarriage of justice: McLean (2001) 121 A Crim R
    484

  • Where counsel placed improper pressure upon the accused:
    Bercheru [2001] NSWCCA 102

  • where an accused is induced by threats from a fellow accused or
    police officer to plead guilty where otherwise he/she would have
    pleaded not guilty: R v Murphy (1965) VR 187 at 190

  • Where in offering a plea, an accused did not appreciate the
    nature of the charges or did not intend to admit guilt, or where
    the applicant on the admitted fact would not in law have
    been convicted of the offences charged
    : Lawson v The Queen
    [2011] NSWCCA 44 (22 March 2011) at [32]

Circumstances You Cannot Change your Plea from Guilty to Not
Guilty

Some of the instances that you cannot successfully traverse the
plea from guilty to not guilty on the grounds of a
miscarriage of justice include claims that you were
innocent
or claims that you pleaded guilty for
reason(s) other than guilt
.

The court in Sabapathy v The Queen [2008] NSWCCA 82 acknowledged
that there will be no miscarriage of justice where the court acts
upon a plea of guilty “entered in the exercise of a free
choice in what the accused believes to be his interests at the
time” and “where there is a genuine consciousness of
guilt”.

The Courts acknowledge, what lawyers refer to as a
‘convenience plea’. This is where a person can plead guilty
to a criminal charge regardless of whether or not he/she considers
him or herself (or is) guilty to innocent. People may do this out
of the avoidance of uncertainty and anxiety arising from criminal
proceedings, avoidance of publicity or expense. Some may plead
guilty to protect another, or to simply gain a sentencing discount
by pleading guilty early.

Pleading guilty out of convenience in this way does not amount
to a miscarriage of justice provided it was done out of an apparent
sound mind and understanding and out of free choice in the
interests of the person entering the plea. This was also
acknowledged in the case of Loury v Regina [2010] NSWCCA 158.

Special acknowledgment to barrister
Will Tuckey’s paper
on pleas and traversals.