Should you plead guilty or not guilty?

11.1The decision is yours

Start here

Nobody else can make this decision for you, and this course does not make it for you. It gives you the tests and the consequences. A lawyer would do the same, and then give you their view. What follows is the closest a written course can come to that conversation.

The general principle is simple. If you did what you are charged with and no real argument exists on the elements, you plead guilty. If you dispute an element and the prosecution's evidence on it is genuinely weak, you plead not guilty. The complication is that many people are somewhere between the two, and the sections below deal with that ground.

11.2The three tests

Apply these

Test one: the elements. Go back to the sentence you wrote for each element in Lesson 8. If all three were easy to write, the prosecution can prove its case and a not guilty plea will lose. If one was hard, keep going.

Test two: the evidence, not your account. Ask what the prosecution has, not what you know. If the drug was in a shared car and nobody claimed it, the prosecution has proximity and nothing else, and that is a real gap. If the drug was in a shared car but you told police it was yours, the prosecution has your admission, and the gap has closed. Your account of what happened only matters if you give evidence, and giving evidence exposes you to cross-examination on it.

Test three: what you lose if you lose. A not guilty plea that fails costs you the discount for an early plea, the mitigation that comes with accepting responsibility, and months of adjournments. For a possession charge the practical cost is usually a heavier fine or a conviction where a CRO without conviction was available. Weigh that against the gain, which is an acquittal and no record at all. If the gap in test two is real, the gain is worth the risk. If the gap is a hope, it is not.

11.3If you plead guilty

The pathway

You tell the court at the mention. The Judge asks whether you are ready to be sentenced. If you have completed Module 3, you can say yes and the matter is dealt with that day. If you have not, you ask for an adjournment for sentence, which is routinely granted, and you use the time.

If you want MERIT or a s 14 mental health application considered, this is the moment: "I plead guilty and I ask to be referred for MERIT assessment" or "I intend to make an application under section 14 and need time to obtain a report". Say it before the Judge starts sentencing, because after sentence the opportunity is gone.

If you dispute a fact in the facts sheet, say so as Lesson 4 described, at the same time as your plea, so that the court and prosecutor know the sentence hearing will include that dispute.

11.4If you plead not guilty

The pathway

You tell the court at the mention. The Judge will set a timetable: the prosecution must serve the brief of evidence, usually within four to six weeks, you must reply indicating whether you will call evidence, and a hearing date is fixed, commonly two to four months away. At the hearing the prosecution calls its witnesses, usually the officers, and you cross-examine them. You may then give evidence, or not. The Judge decides.

A defended hearing on a possession charge is typically half a day. It is a formal proceeding with rules of evidence, and the guide on pleading not guilty in the Local Court explains it. The practical demands on a self-represented person are: reading the brief properly, working out which witness proves which element, preparing questions that expose the gap you identified, and deciding whether to give evidence yourself. If the gap is an unlawful search, the demands include a legal argument about exclusion, which Lesson 8 flagged as the hardest thing on this charge to do alone.

You can change a not guilty plea to guilty at any time before the verdict. The discount reduces as the hearing approaches, but the door stays open. The reverse is different: withdrawing a guilty plea after it has been entered requires the court's leave and is granted only where something has gone wrong, such as the plea being entered under a misunderstanding. Treat a guilty plea as final.

Legal basis: Criminal Procedure Act 1986 (NSW) ss 183 to 187 (brief of evidence), 190 to 202 (hearing); Local Court Practice Note Crim 1. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.

11.5The middle ground

Partial disputes

Most people who feel torn are not torn about guilt. They are torn about the facts sheet, about the way the officer described them, or about whether the charge should have been a caution. None of those is a reason to plead not guilty. The facts sheet is dealt with at sentence (Lesson 4). The officer's description is dealt with in your submissions (Lesson 15). The caution argument is dealt with by representations (Lesson 5), and if those fail, by putting the same point to the Judge as mitigation. A guilty plea with a well-run sentence hearing addresses all three. A not guilty plea addresses none of them and puts the discount at risk.

The other common source of doubt is pressure: a court date in three days, a Judge who seems impatient, a prosecutor who says the matter can be finished today. None of that is a reason to plead either way. Ask for the adjournment in Lesson 2 and decide with the time.

11.6When self-representation is the wrong call

The full test

This course is written for a person with a first-offence, small-quantity possession charge who is prepared to do the work in Module 3. It is not written for every person on this charge. Go through the list below honestly.

You have prior convictions for drug offences. You were on bail, a CRO, a CCO or parole at the time. The quantity is at or near the traffickable amount, or the facts sheet mentions scales, packaging, cash or messages. There is more than one charge on the notice and one of them is not a possession charge. The drug was found in a search you cannot see the reason for. The drug was in a shared space and you made no admission. You have a mental health condition that contributed to the offending. You hold a visa, a professional registration, or a working with children check that a conviction would affect. You are under 18.

If none apply, this course is enough. If one applies, this course is still useful and a single consultation before you plead would make it more so. If two or more apply, you are outside the course's design and the consultation is not optional.

The decision on how to plead remains yours alone. This course provides information to help you make it with as much clarity as possible. It does not make the decision for you and it does not replace advice tailored to your circumstances.

11.7Do this now

Action