Changing your plea

Change of Plea to Not Guilty

On frequent occasions, an accused person may have a change of mind about pleading guilty and wish to change their plea to not guilty.  Unfortunately, this is not an easy process, particularly if the accused was legally represented and properly advised.  An accused person entering a guilty plea must do so with the understanding that he or she is admitting guilt to the offending behaviour.  Hence, entering a plea of guilty constitutes an admission to all elements of the offence(s) without any need for further evidence to be disclosed.

HOW DO YOU APPLY TO WITHDRAW A PLEA OF GUILTY?

An application to withdraw a plea of guilty is a procedure that requires a credible explanation as to the reason for the plea to be withdrawn.  It is incumbent upon the accused to establish a good and substantial reason for the court to allow a change of plea.  As to what constitutes a good and substantial reason is whether a miscarriage of justice would arise if the court acted upon the plea to convict and sentence the accused.  A miscarriage of justice is not satisfied because an accused person simply changed their mind.  There would have to be a miscarriage of justice where the accused can demonstrate that the integrity of the plea of guilty is in question, such as being offered an inducement or being subjected to pressure.  Other factors which may constitute a miscarriage of justice are:

  • the appellant did not appreciate the nature of the charge to which the plea was entered;
  • the plea was not made in a free and voluntary manner;
  • the plea was not really attributable to a genuine consciousness of guilt;
  • there was a mistake or other circumstances affecting the integrity of the plea as an admission of guilt;
  • the plea of guilty must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt; and
  • the accused was not in possession of all of the facts and could not have entertained a genuine consciousness of guilt.

The accused bears the onus of proof in relation to an application to withdraw a plea of guilty.  He or she must establish a bona fide reason for the Court to accept a change of plea.  It is not good enough that the accused maintains he is not in truth guilty of the offence for allowing the application.  There must be a miscarriage of justice.

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.

A plea of guilty may be entered for reasons other than a belief in one’s own guilt and include situations such as the avoidance of worry or inconvenience, the protection of one’s family and even the hope of obtaining a more lenient sentence.  There will be no miscarriage of justice in situations where a plea of guilty has been entered for the purpose of gaining some perceived advantage.

DO YOU NEED LEGAL ADVICE?

Should you, or anyone you know, require any assistance in relation to bail or any other criminal matters, contact Lawson Legal for your free initial consultation with an experienced Perth-based criminal lawyer.