Reversing a Guilty Plea

I am often contacted by both unrepresented and represented defendants who have pleaded ‘guilty’ in the Local Court but, for good reasons, wish to change their pleas to ‘not guilty’ before their matters are finalised.

This article summarises the law on ‘reversing’ a plea.

When can I apply to change my plea from guilty to not guilty?

The short answer is: anytime before your sentencing has been finalised.

Section 207 of the Criminal Procedure Act states that:

1. An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.
2. The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of guilty.

What do I have to show for my plea to be changed?

The short answer is: you must show that a ‘miscarriage of justice’ would occur if you are not permitted to change your plea; see Boag v R (1994) 73 A Crim R 35.

Circumstances which would cause a ‘miscarriage of justice’ include:

• where you ‘did not appreciate the nature of the charge to which the plea was entered’; see R v Ferrer-Esis (1991) 55 A Crim R 120,
• where the plea was not ‘a free and voluntary confession’; see R v Chiron [1980] 1 NSWLR 218,
• where there was a ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’; see R vSagiv (1986) 22 A Crim R 73,
• where the ‘plea was not really attributable to a genuine consciousness of guilt’; see R v Murphy [1965] VR 187,
• where the ‘plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty’; see R v Cincotta NSWCCA, 1 November 1995 (unrep),
• where the plea was equivocal or ‘made in circumstances suggesting that it is not a true admission of guilt’; see Maxwell v R (1996) 184 CLR 501,
• where you were ‘not in possession of all of the facts and did not entertain a genuine consciousness of guilt’; see R v Favero [1999] NSWCCA 320.

Does this mean it is relatively easy to change my plea?

The short answer is no, it is not easy to change a plea of guilty to not guilty.

This is because:

1. the onus on you to prove that there would be a ‘miscarriage of justice’ if you are not permitted to change your plea, and
2. you will normally have to ‘give evidence’ outlining why there would be a ‘miscarriage of justice’; see Wong v DPP (2005) 155 A Crim R 37. You can give this ‘evidence’ on the witness stand and / or by way of ‘affidavit’ (ie a sworn statement).

Further, the High Court case of Meissner v R (1995) 184 CLR 132 found that:

‘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 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’.

The question of whether to make an application to ‘reverse your plea’ is important and can be difficult.

Your best bet is to obtain legal advice from an experienced criminal lawyer before reaching your decision.