“My lawyer told me to plead guilty” – when NSW law allows a guilty plea to be withdrawn and what it requires
A guilty plea is one of the most significant steps in a criminal proceeding. It is a formal admission of guilt before a court and it carries consequences that are immediate and lasting – a conviction is recorded, a sentence follows, and any future criminal or professional proceedings may take the conviction into account. It also carries a financial benefit for the accused in the form of a sentencing discount for the utilitarian value of the plea. For all of these reasons, courts treat guilty pleas seriously and do not readily permit them to be withdrawn.
But there are circumstances where a guilty plea can be withdrawn under NSW law – where the plea was not truly voluntary, where it was entered on the basis of legal advice that was fundamentally wrong, where the accused did not understand what they were agreeing to, or where the words of the plea itself were ambiguous in a way that means it was never a valid admission of guilt. These are not easy applications to bring, and they are not applications that succeed regularly. But they are available in appropriate cases, and for a person who genuinely pleaded guilty on the basis of bad advice and who had a viable defence they were never told about, the possibility of withdrawal is an important legal safeguard.
When can a guilty plea be withdrawn in NSW
The power to permit withdrawal of a guilty plea is not expressly stated in a single provision but flows from a combination of the common law and the provisions of the Criminal Procedure Act 1986 (NSW). Where a plea has been entered but sentence has not yet been imposed, the sentencing court has a common law discretion to allow withdrawal where the interests of justice require it. Where sentence has been imposed, the accused must generally pursue an appeal – a conviction appeal rather than a severity appeal – and seek to have the conviction set aside on the ground that the plea was not properly entered. This distinction between the pre-sentence and post-sentence position is important because the process, the court, and the applicable legal principles differ between the two.
The bad legal advice ground
The most frequently argued basis for withdrawal is that the plea was entered as a result of bad legal advice from the accused’s previous lawyer – advice that was wrong in a way that fundamentally affected the accused’s decision to plead guilty. This might include: being incorrectly advised that a particular defence was not available when it in fact was; being incorrectly advised about the strength of the prosecution case; being incorrectly advised about the elements of the offence; or being incorrectly advised about the consequences of a guilty plea in a way that led the accused to plead guilty when they otherwise would not have.
The NSW Court of Criminal Appeal has addressed these applications in numerous decisions and has identified the questions that must be answered before a withdrawal application based on bad legal advice can succeed: What advice was actually given to the accused? Was that advice wrong? If correct advice had been given, would the accused have pleaded not guilty? And is there a viable defence that could have been run if the accused had not pleaded guilty? All four questions must be answered in the accused’s favour. It is not sufficient to show that the legal advice was wrong if the accused still would have pleaded guilty with correct advice, or if there was no viable defence available in any event.
Establishing what advice was actually given is often the most practically difficult step. Lawyers take notes of advice given to clients, but those notes may not record every specific matter discussed. Where the accused’s account of the advice received differs from the previous lawyer’s account, there is a factual dispute that the court must resolve. In some cases this requires the previous lawyer to be called to give evidence about what advice was given. This is a sensitive situation that most lawyers wish to avoid, but it is sometimes necessary for justice to be done.
The equivocal plea ground
A separate and distinct ground for withdrawal is that the plea was equivocal – that is, it was not an unambiguous admission of guilt. A guilty plea is only valid if it is entered freely and voluntarily with a clear understanding of what is being admitted. A plea entered by an accused who was simultaneously asserting facts inconsistent with guilt, who appeared not to understand what they were admitting, who was visibly distressed and confused during the plea process, or whose words when entering the plea expressed reservations or conditions may be found to be equivocal.
Equivocal pleas have always been capable of being vacated at common law without the need to establish bad legal advice. The inquiry is simpler: was the plea a clear, unambiguous, and informed admission of guilt? Where the transcript of the proceedings shows that it was not, the plea should not have been accepted and can be set aside. Courts have the responsibility to ensure that pleas are properly entered at the time they are given, and where the proceedings show that this did not happen, a later application to vacate the plea on that basis has a solid foundation.
The miscarriage of justice standard on appeal
Where the plea has resulted in a conviction and sentence and the accused is appealing to the NSW Court of Criminal Appeal, the standard applied is whether there has been a miscarriage of justice. A miscarriage of justice in the plea context typically requires showing that the plea was entered without a proper understanding of its nature and consequences, or that the plea was induced by fundamental error. The Court of Criminal Appeal has the power to set aside a conviction and enter an acquittal, to set aside a conviction and order a new trial, or to confirm the conviction. Where the application succeeds, the most common outcome is that the conviction is quashed and a new trial is ordered so that the accused has the opportunity to run the defence they say they should have been able to run.
What to do if you believe you pleaded guilty wrongly
If you entered a guilty plea and you believe it was the result of bad legal advice, that you did not properly understand what you were doing, or that you had a genuine defence you were not told about, the first step is to seek independent legal advice from a different criminal lawyer as soon as possible. Time limits apply to conviction appeals, and in some cases to pre-sentence withdrawal applications. The sooner you obtain advice, the more options will be available. Waiting until long after sentence, or until a conviction is causing active problems in your life, reduces the options and makes the application harder.
At National Criminal Lawyers, we advise on guilty plea withdrawal applications before sentencing and on conviction appeals arising from bad legal advice, equivocal pleas, and miscarriages of justice. These applications are legally complex and require detailed factual investigation as well as careful legal analysis. Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
