Table of Contents
To start with, if you have been charged with an offence or have been asked for an interview or for questioning, do not participate without first receiving legal advice. You do not have to speak to anyone or answer any questions. In some circumstances you may be required to provide your name and address. You are entitled to receive legal advice or have a lawyer present, and it is essential to ensure you get a criminal lawyer who has plenty of experience in matters like yours.
On this page, you can expect answers to the most commonly asked queries people have in relation to wanting to plead not guilty for offences they are being accused of, interviewed about or charged with.
You can expect to learn all the essential information for anyone facing charges in NSW, including key information that family members and friends providing support need to understand.
Here we unpack:
- What are pleas?
- When is a plea entered?
- Is there a difference between not guilty and innocent?
- If I plead not guilty what happens?
- What is the process in NSW?
- Early guilty plea sentencing discount eligibility
- What is plea bargaining?
- Can I change my plea from guilty to not guilty?
- What are the potential disadvantages of pleading not guilty?
- Does a not guilty go on your record?
- If found not guilty do I have a criminal record?
- Does pleading not guilty increase your sentence if ultimately found guilty?
- Do you get bail money back if found not guilty?
- Can I claim back legal costs if found not guilty?
- Do I need a lawyer if I plead not guilty?
If you are unsure of whether to plead guilty or not, read this page first. Then visit our page about pleading guilty in NSW. Links to that page and related topics can be found at the end of this page.
Types of Pleas
What Are Pleas Exactly? What Is A Not Guilty Plea?
A plea of ‘Guilty’ or ‘Not Guilty’ is to be entered for each alleged offence.
When you (or your lawyer) tell the Court whether you are pleading Guilty or Not Guilty, this is known as entering pleas. Unless you seek an adjournment to seek legal advice, pleas are generally entered at the first Court event.
If you enter a plea of ‘Guilty’ for an alleged offence, you are admitting guilt in relation to the crime/s you have been charged with. You can either proceed to Sentence, which means that you are accepting all of the allegations set out in the Fact Sheet, or you can agree that you are Guilty of the offence but disagree with the information contained in the Fact Sheet. If you disagree with the Facts, your lawyer may be able to negotiate on your behalf to amend the Fact Sheet, or your matter will be listed for a Disputed Facts Hearing where the Court will hear the evidence and determine the Facts.
If you enter a plea of ‘Not Guilty’ to an alleged offence, you are either:
- Denying you committed the offence; or
- Admitting you engaged in the alleged act, but you have a legal defence for doing so.
If you enter a plea of ‘Not Guilty’, your matter will be listed for a Defended Hearing. After the Court hears the evidence, a decision will be made about whether you are Guilty or Not Guilty of the offences.
The Prosecution has to prove, beyond a reasonable doubt, that you are guilty of the offences you have been charged with.
Beyond a Reasonable Doubt is a phrase commonly used in criminal matters. It essentially means that the Prosecution needs to prove, to a high standard, that there is no other reasonable innocent explanation and that you are guilty of the alleged offences. This standard is different in AVO matters, where the Court only needs to be satisfied that it was more likely than not that the allegations occurred. The test for AVO’s is much lower than for criminal charges.
Pleading Not Guilty NSW
Is There A Difference Between Not Guilty And Innocent?
Yes. Not Guilty does not mean the same as innocent.
- Innocent means that the alleged offender definitively did not commit the offence.
- Not Guilty is the decision made by a Court when the prosecution cannot prove beyond a reasonable doubt that the person is guilty of an offence to the requisite standard.
You will have heard the phrases “innocent until proven guilty” or the legal principle “presumption of innocence”. That being said, the Court generally does not use the words’ innocent’ or ‘innocence’. The Court only decides, after considering all of the evidence, whether it is satisfied that the person is guilty of an offence to the level of proof required.
When Is A Plea Entered?
All criminal charges in NSW have a first Court date which is referred to as a ‘Mention’ or ‘first Mention’. This is where you are asked to enter your plea. You can elect to enter a plea or request an adjournment to seek legal advice.
It is essential that you seek legal advice before entering a plea of ‘guilty’ or ‘not guilty’.
If I Plead Not Guilty What Happens?
If you are facing a criminal offence, it is a good idea to familiarise yourself with the process, as set out below.
Sometimes people are given an AVO in addition to criminal charges.
If you have an AVO but no criminal charges, there is no plea to be entered, as it is a civil matter, as shown in the diagram below. While you still need to respond to the AVO, you don’t need to enter a plea like you do for criminal matters. It is only if you breach the conditions of the AVO that you may be charged with a criminal offence.
The NSW Criminal Justice Process & NSW AVO Process
If There Is An Associated AVO
For an AVO, the Provisional AVO is automatic when Police take it out. At the first Court event, if the matter is not finalised, then the AVO automatically becomes an Interim AVO.
At the first Court event, if you consent (agree to it), a Final AVO will be made. If it is contested (that is, you dispute the AVO), then the Court will provide dates for the filing (lodging) of evidence, and the matter will be adjourned for a compliance check. If all evidence has been filed, then a Hearing date will be set.
After hearing the evidence, the Court will decide whether to make a Final AVO or dismiss the application.
The NSW Criminal Justice Process
Regardless of the nature of the offences alleged, your matter will first go to the Local Court for what is called the ‘First Mention’. On this occasion, if you have not already obtained legal advice (we highly recommend you do!), you should seek an adjournment for legal advice. If you do not wish to obtain legal advice, then you may be asked whether you wish to plead guilty or not guilty. Your plea will then be recorded on the Court file, which means that you have entered a plea.
If you are facing criminal charges in NSW, you will likely be facing offences under the Crimes Act (NSW laws) or the Criminal Code Act (national laws), or both. Although a person may be charged with offences under different laws, including the Drugs Misuse and Trafficking Act and the Road Transport Act, these are the main laws for criminal matters.
If there are both criminal charges and an associated AVO, then the AVO process follows the criminal process.
If there is a plea of guilty for the criminal charges, the Court will generally make a Final AVO at the time the charges are finalised.
Otherwise, if a plea of not guilty is entered, the matter will be listed for Reply which is where you will tell the Court whether you are maintaining your plea of not guilty or whether you wish to change your plea to guilty. If you maintain your plea of not guilty, your matter will be listed for Hearing. At the Hearing for the criminal charges, the Court may dismiss the charges but still make a Final AVO because the standard of proof is different (i.e. the standard is lower for AVO’s as this is a civil matter).
A Final AVO can be made prior to criminal charges being finalised if this is done by consent.
The two processes look like this:
Note: A PDF version for full screen viewing can be found here.
Many federal offences take the same path as NSW State matters. Summary Offences can be heard in the Local Court, in which case they will follow the above process. Indictable (serious) offences and Strictly Indictable (very serious) offences may follow the Early Appropriate Guilty Plea (EAGP) process. This process generally only applies to matters that are going to the District or Supreme Court. However, even if your matter is following the EAGP process, your lawyer may be able to negotiate to have your matter finalised in the Local Court. This will depend on a number of factors including the offences you have been charged with.
There is still a discount available to people who plead guilty to less serious charges that remain in the Local Court, but the process is not part of the EAGP scheme, and the percentage discount depends on when the plea is entered.
Pleading Not Guilty NSW | What To Know
Early Guilty Plea Discounts For Criminal Charges
The Early Appropriate Guilty Plea (EAGP) scheme applies to defendants whose matters will be finalised in the District or Supreme Courts, unless otherwise negotiated by your lawyer for the matter to remain in the Local Court. The scheme encourages early guilty pleas by offering discounts on sentencing.
If entered when the matter is still in the Local Court, a 25% discount is applied. For matters heard in the District or Supreme Court, if an early guilty plea is entered up to 14 days before the first day of trial, a 10% discount on sentencing will apply. For all other circumstances, a maximum 5% discount may be applied, with the Judge to determine whether a sentencing discount (or lesser percentage discount) will be allowed.
For matters heard in the Local Courts of NSW, a discount may be available for an early plea; however, the percentage discount depends on when the plea is entered. Speak to our lawyers to learn more about the possibility of an early guilty plea discount, specific to your case.
What Is Plea Bargaining?
Sometimes also referred to as charge negotiation, plea bargaining is where the prosecution and the defence lawyer negotiate the charges.
Plea bargaining/charge negotiation can be used in all types of criminal offences.
As part of this process, your lawyer will negotiate on your behalf and may be able to reach a favourable outcome. That is, an agreement may be reached for you to plead guilty to less serious charges.
If the negotiations are successful, your matter will then proceed to sentence. Depending on the type of charges and/or the agreement reached between your lawyer and the prosecution, your case may be finalised in the Local Court, or it might be transferred to the District or Supreme Court.
Although not a determining factor, the police and victims are generally consulted about their views. However, the prosecution ultimately decides the terms of the plea bargain.
Can I Change My Plea From Guilty To Not Guilty?
Whether you can change your plea from guilty to not guilty will depend on the circumstances in which you entered the plea of guilty.
If you want to change your plea of guilty to not guilty, you may hear the Court use the words ‘Plea Traversal’. To do this, you must make an application to withdraw your pleas prior to being sentenced. If you have already been sentenced, then you may need to make an application to appeal the conviction.
There are limited circumstances in which a person may change their plea from guilty to not guilty, and the test to be applied depends on when they seek to change their plea (for example, before or after they have been convicted). The following are a few examples, but it is not an exhaustive list of the circumstances in which the Court may allow a person to change their plea from guilty to not guilty:
- You did not fully understand the nature of the charges when you pleaded guilty;
- Whether you were aware of the relevant facts the prosecution intended to rely upon at the time you pleaded guilty;
- You were given incorrect or inappropriate legal advice;
- You were pressured or threatened to enter pleas of guilty;
- Whether you suffer from an intellectual or cognitive impairment;
- If there is a real question about whether you are guilty.
When an application to withdraw a plea of guilty is made, evidence will likely need to be submitted in support of the application. After considering the reasons for the application and the evidence, the Court will decide whether to allow the Plea Traversal.
Potential Disadvantages Of Pleading Not Guilty
Although not an exhaustive list, below are a few possible disadvantages of entering a not guilty plea:
- If you plead not guilty, but are found guilty, you will not receive a discount on your sentence for entering an early plea of guilty.
- If your case is likely to be a lengthy matter, this can add to the stress, time and financial costs.
- You always risk a guilty verdict through the Court process.
Whilst we understand that there are a number of reasons people plead guilty, even if they aren’t, we strongly recommend receiving legal advice prior to entering a plea of guilty, especially if you are not guilty.
For more information about the early plea process and possible reduced sentencing penalties, see the related page links below.
Pleading Not Guilty NSW | Criminal Record & Sentencing
Does A Not Guilty Go On Your Record?
If you enter a plea of not guilty but are found guilty and the Court convicts you, that conviction will be recorded on your criminal record. Your criminal record will not show that you initially pleaded not guilty.
If, however, you are found not guilty, then the charges will not be recorded on your criminal record. That said, the police maintain a record of all offences for which someone has been charged, even if they were found not guilty or the charges were withdrawn.
What is important to be aware of, though, is that if you are found guilty after hearing or trial, you will not be entitled to the reduced penalties that may be available to you if you had entered an early guilty plea. For more information, go to this section above about the types of discounts that may be possible for early guilty pleas.
Does Pleading Not Guilty Increase Your Sentence If You Are Ultimately Found Guilty?
If you are found guilty and you have entered a plea of not guilty, you will not receive additional penalties when sentenced. However, you will not have the benefit of receiving a discount/reduction on sentence that may otherwise have been available if you had entered an early guilty plea.
It can also be challenging to demonstrate remorse for your actions when you have consistently maintained your innocence throughout the process.
This is just one of the reasons why you should obtain expert criminal law advice before entering a plea.
If Found Not Guilty Do I Have A Criminal Record?
A criminal conviction is what is put on a criminal record, so if you are found not guilty of the alleged offences, then these charges will not be visible on your criminal record. Information about the charges will, however, be kept on your police record, which is different to your criminal record.
Pleading Not Guilty NSW | Reimbursement of Court & Legal Costs In NSW
Do You Get Bail Money Back If Found Not Guilty?
As long as the person on bail has attended all Court hearings and complied with all of their bail conditions, then any money provided as surety will be refunded. This applies to all people, regardless of whether they are found guilty or not guilty. There is a process to apply for a refund of the bail money. You should ensure that you have the original or a copy of the documents you signed, as well as the receipt for payment of the bail money. If you are unsure about the process, you should seek advice from your lawyer, who can assist you with this process.
If, however, the person breaches their bail conditions, then the person who paid the surety (bail money) may not receive this back, even if the defendant is ultimately found not guilty. If this occurs, the Court will issue a Forfeiture Notice, and you will have the opportunity to formally object before the Court confirms the Order for the bail money to be forfeited.
Can I Claim Back Legal Costs If Found Not Guilty?
In criminal law matters, it may be possible to claim back legal costs if you are found not guilty. An Application for Costs must be made at the time the charges are withdrawn, the person is acquitted, or the charges are otherwise dismissed.
The Court may make an Order for costs to be paid for a specified amount. It is helpful if the amount to be paid is agreed, otherwise there may be a short hearing about the amount of costs to be awarded, which may require evidence to be submitted, thereby resulting in extra fees being incurred.
To be successful in obtaining a Costs Order, you must show that either:
- The investigation was conducted improperly;
- The person was charged without any reasonable basis;
- The prosecution failed to make proper enquiries and investigate evidence that would suggest the person is not guilty, or they should not have been charged; or
- There are exceptional circumstances relating to how the case was conducted.
The other way costs may be awarded if a person is found not guilty, the proceedings are discontinued, or if a person successfully appeals a conviction, is by asking the Court for a Costs Certificate. A Certificate will only be granted if the Court finds that the person would not have been charged if the prosecution conducted the investigation properly or had all facts available to them and the defendant acted properly at all times throughout the proceedings. The Certificate does NOT state the amount of costs to be paid, and an invoice showing the costs incurred and disbursements paid will need to be submitted as part of an Application to the Department of Communities and Justice.
From there, the Secretary considers the Application, taking into account:
- Whether any making of payment is justified; and
- If justified, the maximum amount for payment (taking into consideration what reasonable costs were incurred and whether another legal remedy has been or should be used to recover costs).
If, after considering the above, the Secretary determines that costs should be paid, the next step is to determine the amount to be paid.
This amount may not cover your full legal costs. The Secretary determines reasonable costs in relation to the Attorney General’s rates.
Pleading Not Guilty NSW | Do I Need A Lawyer If I Plead Not Guilty?
If you intend to plead not guilty, even if you are innocent, you should seek legal advice from a highly experienced criminal lawyer.
Despite the Prosecution having the “burden of proof” to prove that the person is guilty of the charges, there are many ways in which innocent people can be found guilty. And, for people who are guilty, it is crucial that they obtain legal advice to avoid facing more significant and serious sentences than if they had the insights, advice and support from someone who understands criminal law cases of the kind you are facing.
We can advise on the options available to you to help you get the best outcomes, based on your specific circumstances.
We have two office locations – Penrith & Blacktown – as well as phone and online consultations if preferred.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.