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 plead ‘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 consciousnessof 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 pleaas 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.

Published on 01/09/2022

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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