This is often the most immediate question asked by our clients. The answer however, is not always immediately apparent.
Commencement of a prosecution
At the commencement of a prosecution a police officer will want to speak to you if you are suspected of committing an offence. You will be invited to attend a police station to “speak” to police about the matter. This is what we call a “walk-up arrest.” Alternatively, the police may simply turn up at your home or place of work arrest you there and then and convey you to a police station.
In previous VLOGS and BLOGS, I’ve said don’t answer any questions, except for providing your name and address and date of birth but importantly to remain respectful and polite at all times.
Even if you say to police that you have received legal advice and you will make no comment, the police still proceed as if the interview is going to go ahead.
Commencement of the police interview
At the commencement of the interview or at some stage into the interview, you will be told about the accusation and the person making the accusation. In essence, you will be told the facts of the alleged offence and the name of the complainant.
If it’s a straightforward matter say a common assault on someone you know, then you may in your mind come quickly to the conclusion that you did or did not assault the person. If you did not assault the person its simple – when you get to court you plead not guilty. If you did assault the person it does not mean that you plead guilty at your first appearance in court. You may have an excuse or a defence and in which case you will plead not guilty.
Invariably the offending behaviour is often more complex than the example above which may eventually result in pleas of guilty or pleas of not guilty or a combination of guilty and not guilty.
Statement of Material Facts
The Statement of Material Facts (SMF) sets out the facts of the offence brought against you. A plea of guilty means that you agree with the facts as set out. A plea of not guilty means that you do not agree with the facts as set out. Or you may agree to some of the facts and disagree with other aspects of the facts.
From a criminal lawyer standpoint, the facts as set out in the SMF must disclose an offence and that offence is set out in the Prosecution Notice (PN). Both the underlying facts must support the charge. This is an exercise which defence lawyers carefully go through to ensure that the charge is properly brought.
The next stage is for us to listen to your side of the story. This can be a lengthy process requiring you to go back in time and set out in a chronological sequence exactly what happened as far as you can remember. We deal with historical offences particularly sex offences going back 20 , 30 or even 40 years.
These sorts of prosecutions place our clients in an unenviable situation due to the lapse of time causing memory failure as to particulars of time and place and what was going on. Historical charges are also brought with long time frames – the offence occurred over a period of 12 or 18 month for example.
To plead guilty or not guilty
Nonetheless, the question as to whether you plead guilty to an alleged offence depends upon whether you agree entirely to all the facts as per the SMF. If not then the plea must be not guilty. Now the important point is that a plea of guilty or a plea of not guilty is entirely your decision. I always tell client that I will not encourage them on way or the other. My job is to go through the law that applies to the charge and then go through the facts on the basis as to whether the facts support the charge. It is then over to you as whether you disagree with the facts – not guilty or whether you agree with the facts – guilty.
I have sometimes received instructions from clients which have told me that their previous told them to plead guilty. Whilst I have no doubt that is what the prospective client may have heard or believed to be the case, this is from my standpoint, not the way to go about practicing criminal law.
A word of warning if you do plead guilty to an offence in court and for whatever reason you change your mind, it is a difficult process to set aside the plea of guilty and enter a plea of not guilty. The prevailing wisdom of the Court is that if you entered a plea of guilty and were represented by a criminal lawyer at the time in court when the SMF were read to you and on what was read out you entered a plea of not guilty, then the guilty plea must stand. The laws do allow a person to change their plea from guilty to not guilty but the hurdles are high. It is therefore in your interest to obtain competent legal advice from a criminal lawyer before you even contemplate what you intend to plead.
See a criminal lawyer first
As said earlier, for the lawyer this can be a time-consuming process often involving negotiations with the Investigating Officer IO, police prosecutions or, in the case of indictable offences, State or Commonwealth prosecution agencies. Because you may be inclined to plead guilty, see a criminal lawyer first.