Getting a court date for a criminal charge raises one big question early. Should you plead guilty or not guilty? The answer shapes everything that follows in your case. It is worth understanding the basics before you walk into the courtroom.
This guide gives general information about pleas in Australia. It uses the NSW Local Court as an example, because Legal Aid NSW sets out each step clearly. Court rules and procedures differ between states and territories, and they change over time. Online legal advice is a sensible first step, but a lawyer who knows your state’s rules should guide the final decision.
When you have to enter a plea
In NSW, you have to tell the registrar or magistrate your plea on the first court date. Legal Aid NSW says you should decide before court whether to plead guilty or not guilty. It also says you should get legal advice before you make that decision. If you are not ready, you can ask the court for more time to speak with a lawyer.
Some people can state their plea in writing using a form called a written notice of pleading. It must reach the court at least seven days before your court date. You cannot use it if you are on bail. The court can also refuse a written plea and require you to attend in person.
What pleading guilty means
Pleading guilty means you agree with the charges. You can still explain what happened and raise mitigating circumstances for the magistrate to weigh up. A guilty plea is not the same as accepting the harshest penalty. It moves the case on to sentencing. Legal Aid NSW explains this stage in its guide to pleading guilty in the Local Court.
At sentencing, the police prosecutor hands up the court attendance notice, the police facts sheet and your criminal or driving record. You then get a chance to hand up your own documents and make submissions. Character references and proof of courses or programs you have completed can be part of this. Getting these ready early can make the day less stressful.
What the magistrate considers
The magistrate looks at the penalty the law sets for the offence. Your explanation, any mitigating circumstances and your past record are also weighed. The magistrate may ask for a sentencing assessment report from Corrective Services NSW. That report can be prepared on the same day, or the case may be adjourned while it is written.
Legal Aid NSW notes that sentence discounts depend on the type of offence and the stage at which you plead guilty. That is one reason the timing of a plea matters. A lawyer can tell you if an early plea would make a difference in your case. They can also tell you which penalties are realistically on the table.
Possible outcomes after a guilty plea
A guilty plea does not always lead to a conviction in NSW. Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court can find you guilty but not record a conviction. It can also do this while referring you to an intervention program or making a conditional release order. Treatment programs can be part of this picture, which we cover in our article on drug rehab and avoiding a criminal record.
Where a penalty is imposed, Legal Aid NSW lists a range of options. They run from the least serious to the most serious. The court can also make orders about your driver licence. The main penalties are:
- a fine
- a conditional release order
- a community correction order
- an intensive correction order
- a term of imprisonment
What pleading not guilty means
You plead not guilty if you do not agree that you committed the offence. You can also plead not guilty if you agree with what happened but have a legal defence. A not guilty plea means the case goes to a hearing, where the evidence is tested. It usually takes longer than a guilty plea.
After a not guilty plea, the court may order police to serve you with a brief of evidence. This is the set of documents that make up the evidence against you. The court may also set a reply date to check the brief was served and confirm your plea is still not guilty. If you do, the magistrate sets a hearing date.
Police do not have to provide a brief for every charge. For some charges there is no reply date and the case is listed straight for hearing. Either way, you will need time to prepare. That means reading the evidence, talking to your witnesses and gathering documents or photos.
How a hearing runs
At a Local Court hearing, the prosecutor calls its witnesses first and asks them questions. You or your lawyer can then question those witnesses. Next you can give evidence and call your own witnesses, and the prosecutor can question them too. Both sides then sum up, and the magistrate makes a decision.
If you are found not guilty, the case is dismissed. If you are found guilty, the magistrate moves on to sentence you for the offence. Running a hearing yourself is hard work, especially when you have to question police witnesses. This is where proper legal help can matter most.
Changing your plea
Plans can change once you see the evidence. In NSW you can change a not guilty plea to guilty at any time before or during the hearing, without the court’s permission. You should tell the court and the prosecutor as soon as you decide. If you change your plea on the hearing day, you may be ordered to pay the prosecution’s costs of attending.
Going the other way is much harder. You can only apply to change a guilty plea to not guilty before sentencing. Legal Aid NSW says there must be exceptional circumstances. That is why it pays to get advice before you plead guilty, not after.
Getting legal help before court
Legal Aid NSW recommends legal advice before deciding how to plead. If you cannot see a lawyer beforehand, you may be able to speak with the duty lawyer at court on the day. If that is not possible, you can ask the court for an adjournment to get advice. Online legal advice can help you understand your options and prepare questions before that first court date.
Some charges sit alongside other legal problems. A charge connected to family violence may run beside a protection order, which we explain in our guide on how a violence restraining order can protect you. Reporting wrongdoing at work raises its own legal questions, covered in our piece on whistleblowing and its legal ramifications. Keeping these issues separate in your mind helps when you speak with a lawyer.
A criminal case and a parenting dispute are separate legal matters. Arrangements for children are dealt with under family law, not in a criminal case. If you are facing both at once, our article on what to do when an ex partner refuses to let you see your children may help. A lawyer can explain how a criminal charge might affect a parenting matter in your situation.
Frequently asked questions
Can I plead guilty without going to court?
In NSW, you may be able to plead in writing if you received a court attendance notice. The written notice of pleading must reach the court at least seven days before your court date. You cannot plead in writing if you are on bail, and the court can still require you to attend.
Will pleading guilty give me a criminal record?
Not always. In NSW the court can find you guilty without recording a conviction under section 10. Whether that is likely depends on the offence and your circumstances, so get advice first.
Can I change my mind after pleading guilty?
Only in limited cases. In NSW you can apply to change a guilty plea before sentencing, but there must be exceptional circumstances. Changing from not guilty to guilty is much easier.
Do the rules differ between states?
Yes. Each state and territory has its own criminal procedure laws, forms and court names. The steps described here follow NSW Local Court practice, so check the rules where you were charged.
This article is general information only and is not legal advice. Laws and court processes differ between states and territories and change over time. Speak with a qualified lawyer about your own situation before you enter a plea.
