Plead Not Guilty

Should I Plead Guilty?

Step 1: Obtain the evidence

The first step before attending court is to obtain the evidence. You should engage a criminal defence lawyer to do this for you.

As experienced criminal lawyers, we routinely obtain evidence from the police. The evidence in the summary jurisdiction is called the ‘police brief’. The evidence in the superior jurisdiction is called a ‘hand up brief’, but this article is more concerned with pleading not guilty in the Magistrates Court. Following the link for pleading not guilty at trial.

Once we have received the police brief of evidence, we look through it to see if anything is missing.

• At the start of the brief will be a witness list and an exhibit list. It is important to consider what is listed here and then see if the corresponding materials have been provided.
• In many instances all the evidence will not be listed, such as investigative notes kept either in hard copy with the informant, or in electronic format on the Victoria police database, these records are called LEAP entries or Law Enforcement  Assistance Program records. These are an electronic running log of the investigation. 
• There are other materials such as medical records or mental health records that might be required, but to obtain these is a complicated process, and outside the scope of this article. 

Following receipt of all the evidence, it is important to consult with your lawyer. You lawyer will ask you questions which will form the basis of your instructions. 

It is also important to remember that whether you plead guilty or not guilty is always a matter for you. No one can ever force you to plead guilty although through the process, magistrates, prosecutors and even some lawyers can put immense pressure on a person to plead guilty.

At the end of the day, as any good criminal defence lawyer knows, it always the clients choice in terms of how they plead, but what is important is that an experienced criminal solicitor has considered all of the evidence that is available and provided clear advice about the pros and cons of contesting the matter. Things that need to be considered; 

• Advice from an experienced criminal lawyer, preferably one that specialises in criminal defence work.
• Whether the prosecution has a strong case against you? The answer to this question will be determined by whether your lawyer believes that the prosecution can make out the elements of the offence or whether you have a criminal defence.
• There are many criminal defences available in relation to a criminal charge. Any defence needs to be considered in consultation with legal advice from a competent criminal solicitors that has experience running contested hearings. 
• Dribbin & Brown Criminal Lawyers has excellent relationships with some of Victoria’s top barristers. We will be able to secure the very best advocate to assist in presenting your case to the magistrate, although unfortunately financial considerations play a part here, it is expensive to run a matter all the way to a contested hearing. 
• Once your lawyer has received clear instructions to contest the matter, then it is off to the first stage of proceedings. 

Step 2: Case conference or contest mention

• From there, we must attend court. The first preliminary court hearing is called a case conference.
• A case conference can occur at the first court listing or following a number of adjournments, but it must occur before the matter can be advanced.
• At a case conference, negotiations begin between the defence and the prosecution. The defence can encourage the prosecution to withdraw the charges. If the defence and prosecution cannot agree, the matter will either proceed to a further case conference, a contest mention or a contested hearing.
• A further case conference might be necessary for police to consider their position or simply to allow time for further materials to be provided to defence. It is common for lawyers from our office to give police more time, particularly if they believe that a withdrawal is likely. Getting a withdrawal at a mention stage is always a lot cheaper for our clients then running the matter all the way to only have police withdraw on the morning of court. 
• If the matter proceeds to a contest mention a prosecutor will be assigned and will usually. This is good because it usually means the prosecutor will be across the matter and more robust discussions can occur, often leading to a resolution. 
• From a contest mention, the matter will proceed to a further contest mention if necessary or to a contested hearing, where the matter will be determined, and a not guilty plea formally entered.

Step 3: Contested hearing in the Magistrates’ Court

What is a contested hearing?

• A contested hearing is the final stage in summary proceedings in the Magistrates Court and is an opportunity for defence to cross examine any witnesses the prosecution intend on calling to prove their case. Unlike case conferences or contest mentions, a contested hearing will usually take a day or multiple days to complete. After hearing all of the evidence the magistrate will make a decision whether the elements of the charge have been proven beyond a reasonable doubt. Unless the magistrate is satisfied beyond a reasonable doubt the magistrate must find the accused not guilty and strike out the charges. 

What is the purpose of a Contested Hearing?

• Under 1% of matters reach a contested hearing. At a contested hearing, the defence will have the opportunity to cross-examine all prosecution witnesses and call any witnesses deemed relevant to the defence.
• This is why the preliminary hearings are so important. They are our opportunity to obtain all the information we can about the witnesses, which we then use to cross-examine those witnesses.
• The purpose of cross-examination is to examine a witness using multiple sources of information to discover any inconsistencies in what the witness is saying, to create doubt in the mind of the magistrate hearing the matter.
• A magistrate has to be satisfied beyond a reasonable doubt before finding an accused person guilty of an offence. It is not for the defence to prove anything and the burden of proof rests with the prosecution. 

What Happens After a Contested Hearing?

• If a magistrate finds you guilty the magistrate can either proceed to hear a plea in mitigation and impose a sentence or agree to adjourn the matter to allow you time to prepare a plea in mitigation along with the appropriate plea materials. 
• Regardless of the outcome here, you will have a right to appeal the decision to the County Court if you are unhappy with the outcome. 
• If the magistrate find you not guilty, you will be free to go. The charges against you will be struck out and there will be nothing recorded against your criminal record. 
• A costs application will often follow a finding of not guilty. This is where your advocate following the ruling will ask that magistrate award costs against Victoria Police. The relevant section in relation to a costs application is 401 of the Criminal Procedure Act 2009.  We have recouped hundred’s of thousand of dollars for our clients over the years, following findings of not guilty in the Magistrates Court. 

Will I be Convicted if I am Found Guilty after Pleading Not Guilty?

• Not necessary, but it is more likely given you will lose any credit you might have received for an early plea of guilty. 
• It also depends on the seriousness of the matter that you have contested and the state of the evidence at the conclusion of hearing. It might be the case that a magistrates finds that although you were guilty, your conduct was not as bad as police were originally alleging or it might be apparent that based on the evidence there were extenuating circumstances. 
• There is no clear cut answer to the above question other than, it may be possible to avoid a conviction following a plea of not guilty, which would call into operation the spent conviction legislation in Victoria. Be aware the spent conviction legislation does not apply to Commonwealth sentencing. 
• It all depends on the nature of the offence and the factual findings made by the magistrate following the conclusion of the contested hearing, along with any section 8 of the Sentencing Act, submissions that were made. 

What Happens if You are Found Guilty After Pleading Not Guilty?

• Both at common law and under the Sentencing Act 1991, the court is required to provide credit to an accused person for pleading guilty at an early stage, see section 5(2)(e) of the Sentencing Act 1991 which states;
  • whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; is an important consideration for the court. 
• The Courts have consistently acknowledged the public interest in an accused person pleading guilty at an early stage as it saves witnesses reliving the trauma of the original incident. 
• The Courts have also acknowledged that an early resolution of a matter assists in relieving the congestion of the court lists and restores the public confidence in the criminal justice system.
• Consequently the reverse applies if you run a contested hearing and lose, then you will not get the credit from the court that you might have got, if the matter had resolved early. 

All that said, the above is never a reason to plead guilty. If your instructions are that you are not guilty, then you can and should run the matter to a contested hearing, as the consequences of accepting responsibility for criminal conduct that you did not commit, can be far reaching. 

The truth is that many of our victories have occurred well before the actual contested hearing, either by narrowing the issues, obtaining further materials, or both.

See here if you are interested in pleading not guilty in the County & Supreme Courts.

If you intend to plead not guilty, it is important that you engage experienced lawyers to ensure that you give yourself the very best chance of being found not guilty.

Dribbin & Brown Criminal Lawyers have handled and won hundreds of contested hearings in the Magistrates’ Court. If you are pleading not guilty in a criminal matter, call our office today.