How criminal cases begin: Pleading guilty/not guilty, bail, and name suppression
Entering your plea: guilty or not guilty
What happens when you first appear in court?
Your name will be called out by the registrar, and you will have to stand up in the dock. If the charge cannot result in a prison term (for example, careless driving) then you will stand beside the dock. If you don’t have a lawyer to represent you, the charge against you will be read out and you will be asked whether you plead guilty or not guilty. If you have a lawyer, your lawyer will usually tell the court what your plea is.
What type of plea can I make?
You can plead guilty or not guilty. If you are not ready to enter a plea, your case will be put off to a date in either two or three weeks so that you can get legal advice, consider the information from the police and decide what your plea will be (“remanded without plea”).
When shouldn’t I plead guilty on my first day in court?
You generally will not plead guilty on that first day in the following cases:
- where the charge is serious or,
- where you want to apply for Legal Aid, or
- where you want to defend the charge, or
- where information from the police about the charge (“disclosure”) is not available.
This is so that you can talk with your lawyer before entering a plea.
What is a remand?
A remand is where your case is put off to another date without a plea being entered.
You can be “remanded at large” – where you are free to go until the next court date.
You can be “remanded on bail” – where you are released on conditions (see below)
You can be “remanded in custody” – where you are held in prison until your next court date.
Note: If you have been charged with more than one offence, you can plead guilty or not guilty to each of the separate charges against you.
What happens if I plead guilty?
If you plead guilty, this means that you admit committing the offence you have been charged with. The court will then decide what punishment (“sentence”) you will be given, see the “Sentencing” section of this chapter.
Depending on the seriousness of the charges, the judge may sentence you straight away, order a “stand-down report” for sentencing later that day, or order a full pre-sentence report before sentencing you on another day. These reports are prepared by probation officers, who are generally in the courtroom. See “How the judge decides your sentence: Reports from Probation Officers” in this chapter.
At sentencing, the police prosecutor will read out the summary of facts (these are the facts the police rely on to prove that the offence was committed) and state their recommended sentence. Talk to your lawyer if you don’t agree with some of what is stated in the summary of facts.
Your lawyer will tell the judge about your personal circumstances and your point of view about the offence (a “plea in mitigation”). The judge will then decide your sentence.
In some cases, a Restorative Justice conference may also be suitable, see “Restorative justice conferences” in this chapter.
Note: If you admit to committing the offence and it is a minor offence, you may be eligible for diversion (see “Ways to stay out of court: Diversion and Restorative Justice” in this chapter).
Can I change my plea from guilty to not guilty?
In very specific cases (“exceptional circumstances”), you can apply to change your plea from guilty to not guilty at any time up until you are sentenced.
What happens if I plead not guilty?
If you plead not guilty, it means you are saying you did not commit the offence you have been charged with and the prosecution must prove otherwise. You are entitled to plead not guilty and make the prosecution prove every aspect of the charge beyond reasonable doubt. It is their job to present all the evidence to prove the charge (for example that it was you, and not someone else, that committed the offence).
“Beyond reasonable doubt” is the standard of proof used in all criminal cases. This means that you only need to raise a reasonable doubt that you did not commit the offence to be found not guilty.
If the charge is a Category 3 offence (that is, punishable by a prison term of two years or more), you have a right to choose to be tried by a jury. You should make this choice at the time you plead not guilty, otherwise you will be tried by a judge sitting without a jury.
When you have pleaded not guilty, a date will be set for a case review (see: “The lead-up to the trial: Pre-trial processes”). If an agreement about resolving the case isn’t reached at the case review, a date for a judge-alone trial or jury trial will be set. Note that trial waiting times vary around the country. It could be well over a year before your case comes to trial.
Note: If you change your mind later on and decide you want to be tried by a jury, it is extremely difficult to change your original choice. The best thing is to get legal advice early and make a fully informed choice at the beginning.
A not guilty plea to Category 4 offence can only be entered in the High Court. Category 4 cases are transferred to the High Court after the first appearance in the District Court.
Does my plea affect whether I will be released or kept in custody?
Not necessarily. If the offence is minor and you plead guilty, you may be sentenced to a penalty other than imprisonment (for example, a fine or community service) and released on the same day (see: “Sentencing: The judge’s decision about punishment”). In other cases, the decision about whether you will be released or kept in custody is based on factors such as the likelihood that you will turn up for your next court appearance and the seriousness of the offence (see below). With more serious offences, once you plead guilty the rules change about whether you are released, and it can become much harder for you to be released.