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Can you change your plea if you entered the wrong plea?

Most people are not familiar with the court process and the complexities of the legal system. As a result most people don’t fully understand the law and what defenses might be available to them in a criminal matter. Sometimes after receiving legal advice a person realizes that he/she entered the wrong plea.

Fortunately the law allows you to change your plea, but it is not always easy.

Changing a plea of not guilty to guilty.

This is usually an easy process. Sometimes when an accused has time to think about the case and considers all the facts and evidence against them, they decide to change their plea to one of guilty. The Court knows that this sometimes happens and will assist the accused to ensure that the guilty plea is indeed the correct plea and that the accused understands the implications of changing the plea. You can change your plea to guilty at any court date before your matter is heard and decided by the Magistrate.

Changing a plea of guilty to not guilty

This can be much harder. Once the court accepts your guilty plea, it is considered that you admit to all the elements of the offence that you are charged with. This means that the prosecution does not have to prove your guilt.

To change this guilty plea to a plea of not guilty you have to provide the court with evidence of why you are changing your mind and withdrawing the guilty plea. To convince the Magistrate you have to satisfy the Court that not allowing you to change your plea would amount to a “miscarriage of justice”. The Magistrate must be convinced that proceeding with your matter to sentencing on your guilty plea will not be in the interest of justice.

Although this sounds like a difficult process, the Courts have allowed many accused in the past to withdraw their guilty pleas. The following examples might assist you to understand when you can change your guilty plea to not guilty.

Accepted reasons for changing your guilty plea to not guilty

  • You were not “in possession of all the facts and did not entertain a genuine consciousness of guilt” when you entered a guilty plea. (Regina v Davies (NSWCCA, 16 December 1993, unreported) and Regina v. Favero (1999) NSWCCA 320
  • Your guilty plea was not “a free and voluntary confession” (Regina v Chiron (1980) 1 NSWLR 218 at 220 D-E)
  • Where the “plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty… some circumstances which indicate that the plea of guilty “was not really attributable to a genuine consciousness of guilt”  (Regina v Concotta (NSWCCA, 1 November 1995, unreported) Also see Regina v Murphy (1965) VR 187 at 191.
  • The “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt” (Maxwell v The Queen at 511)
  • There was a “mistake or other circumstances affecting the integrity of the plea as an admission of guilt” (Regina v Sagvi (1986) 22 A.Crim. R 73 at 80)
  • The person “did not appreciate the nature of the charge to which the plea was entered” (Regina v Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233)

Get legal advice

As you can see from the above examples, it is not always easy for an accused person to convince the Court to withdraw a guilty plea. If you feel that you have entered the wrong plea, get legal advice as soon as possible. An experienced lawyer will be able to explain your options to you and advise on the best way to proceed with your matter.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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