Criminal Law Matters: Issue 6

Dory: A friend of mine, her name’s Sigourney, once told me that all it takes is three simple steps: Rescue, rehabilitation, and um… one other thing?

Group of Cheering Fish: Release!

 Be very careful when entering a plea of ‘guilty’ to a criminal offence.

You do not have to be ‘guilty’ to enter a plea of ‘guilty’.  For example, sometimes you may want to just ‘get it (the court proceedings) over with’.

However if you enter a plea of ‘guilty’ (for whatever reason) you need to remember that for the purpose of sentencing you are admitting the crime you have been charged with and you will be sentenced on the facts relied on by the Prosecution.   Further you are at the mercy of the Court in relation to sentence subject only to the Court’s jurisdictional limits.

In the case of ‘Meissner’ Justice Dawson said –

 “It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred”

You can ask the District Court at the time of an Appeal, by way of Notice of Motion, to allow a change of plea. Sometimes this request is made of the Local Court in the course of the Local Court proceedings.

A client recently instructed me to apply to the Local Court to reverse her plea of ‘guilty’.

She had entered a plea of ‘guilty’ (represented by her former lawyers) in order to finalise very protracted proceedings.

She was alleged to have stolen a poster (one might think a trivial offence).  She had a strong defence and had always maintained her innocence.

The charge of larceny (stealing) was listed for hearing however on the first hearing date the matter was ‘not reached’ and adjourned due to a busy court list.  The matter was listed for hearing again several months later (and a year after the alleged offence).  My client suffers from anxiety and could not face the thought of giving evidence in the witness box.  She instructed her former lawyers to plead ‘guilty’.

The problem was that she was then sentenced to a term of imprisonment!

A home detention assessment was ordered and she was ultimately deemed suitable to serve her imposed prison sentence by home detention.

However she realised she had made a big mistake as she was not guilty of the offence to begin with and was now subject to a very serious penalty.

In this case the question became:



Section 207 Criminal Procedure Act NSW states that an accused person can apply to the Local Court to change a plea of ‘guilty’ to ‘not guilty’ ‘at any time’ before the summary proceedings are “finally disposed of”.

In the case of DD v Arab & Anor [2009] NSWCA 75 at paragraph 36 (Beazley JA) : “..The final disposition of summary proceedings, where there has been a finding of guilt after a hearing or a plea of ‘guilty’, must mean after sentence has been imposed and recorded.”

However this case was complicated by the fact that the application to reverse the plea came after the Court had imposed a sentence of imprisonment (as is required by the legislation before a home detention assessment is ordered).  Although the matter was adjourned for the home detention assessment (so the case was not finalised when we applied to the Court to reverse the plea) two (2) Magistrates both opined (and one formally ‘found’) that the Court had no power/no jurisdiction/was functus.  There was no other option other than the jail term whether it be in a jail or ‘at home’.  My client was stuck with her ‘guilty plea’ and with a jail term for stealing a poster.

In case the Court erred about being ‘functus’ the Court also ruled on the further issue as to whether there were merits in the application for a reversal of the plea.

In this case the Court found that this was a typical ‘Meissner’ case (even though my client suffers from diagnosed anxiety) and that she made an informed decision to plead ‘guilty’ to avoid giving evidence.

So if you are not guilty of an offence you should really think twice before just trying to ‘get it over with’!


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