What if you do not agree with the facts sheet?

4.1The police version of events

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The facts sheet is a written account of what police say happened, prepared by the OIC and served with the CAN or shortly after. It is usually one or two pages. It describes where you were, what police did, what was found, what you said, and anything else police consider relevant, and it ends with a line about your criminal history. It is written by the person who charged you.

Here is why it matters more than almost anything else in your matter. If you plead guilty, the facts sheet becomes the version of events the Judge sentences you on. The prosecutor hands it up, the Judge reads it, and unless you have disputed it in the proper way, every sentence in it is treated as true. A facts sheet that says you were "cooperative and made full admissions" and one that says you were "evasive and initially denied ownership" describe the same event and lead to different sentences.

So the facts sheet needs to be read the way a lawyer reads it, and this lesson shows you how.

4.2Reading it like a lawyer

What to check

Go through it with a pen and mark every sentence as one of three things: agree, disagree, or do not know. Then look specifically for the following, because these are the things that move a sentence.

The drug and the quantity. Is the substance named correctly? Is the weight stated, and is it the gross weight including packaging or the net weight of the drug? A small discrepancy matters if it moves the quantity toward the traffickable threshold.

Admissions attributed to you. Any sentence that begins "the accused stated" or "the accused admitted". Did you say that? Did you say it in those words? Admissions are the most common thing people dispute and the most consequential, because they can convert a possession charge into something the court treats as more serious, for example an admission that the drug was for a friend.

Characterisation of your behaviour. Words like aggressive, evasive, uncooperative, or nervous are not facts. They are the officer's opinion, and they are there because they support a heavier sentence.

The circumstances. Where it happened, who was present, whether children were nearby, whether you were driving, whether the drug was concealed. These are aggravating features if true.

Your criminal history. Check the last paragraph. Errors here are common, and a history that is not yours or that includes matters that were dismissed will be read by the Judge unless corrected.

4.3Three kinds of disagreement

Which ones matter

Not every disagreement is worth pursuing, and the ones that are fall into three groups.

Facts that are simply wrong. The wrong date, the wrong street, the wrong weight, a history that is not yours. These are corrected by asking police to amend the sheet, which Lesson 5 covers. Police usually correct plain errors without argument.

Facts that are true but told unfairly. You were nervous rather than evasive. You said "I don't know what that is" once, before you saw what the officer was holding, rather than "initially denied ownership". These are the hardest to fix by letter, because the officer will usually stand by their description. The realistic path is to accept the sheet and then, at sentence, give the Judge your account in your submissions and your apology letter, which Module 3 prepares. Judges are experienced at reading between the lines of a facts sheet.

Facts that go to whether you committed the offence at all. The drug was not yours. You did not know it was in the car. You were not in possession of it in the legal sense. These are not disagreements about the facts sheet. They are a defence, and if you hold one of them, you should not be pleading guilty at all. Lesson 8 and Lesson 11 deal with this decision.

A plea of convenience. There is a name for pleading guilty to a charge you believe you did not commit, or to facts you do not accept, because it is faster, cheaper or less frightening than fighting it. Courts call it a plea of convenience, and the law treats a guilty plea as a genuine admission of every element of the offence. A person who pleads guilty for convenience and later regrets it will find that withdrawing the plea is difficult, because the court asks whether the plea was a true acknowledgement of guilt, not whether the person now wishes they had fought. If you find yourself in the third group above, do not resolve it by pleading guilty to make it go away. Resolve it with advice, and with Lesson 11.

Legal basis: Meissner v The Queen (1995) 184 CLR 132 (a plea of guilty must be a genuine acknowledgement of guilt; withdrawal of plea). This is a summary for general understanding. The full principles are more detailed and may not apply in all circumstances.

4.4What you can do

Your options

If the facts are simply wrong (the first group in 4.3), write to police and ask for a correction. Lesson 5 explains how, and how to do it without saying anything that harms you. Send it well before your next court date so that an amended sheet can be prepared.

If the facts are true but told unfairly (the second group), the realistic route is to accept the sheet and address the characterisation in your apology letter and submissions, as Lesson 13 and Lesson 15 show. Police rarely amend an officer's description of your demeanour on request.

If police refuse to correct a fact that would make your sentence heavier, you can plead guilty and dispute that fact. The law is then clear. If the prosecution wants the Judge to rely on a fact that makes the offence more serious, the prosecution has to prove it beyond reasonable doubt, which may mean the officer giving evidence and you cross-examining them at a short hearing. If you want the Judge to rely on a fact that helps you, you have to prove it on the balance of probabilities. This is a disputed facts hearing. It is a legitimate step after a guilty plea, and it is worth taking where the disputed fact is significant and the evidence for it is thin. It is a poor use of everyone's time where the dispute is about wording.

Two things about how to raise it. First, tell the prosecutor before court, in writing, which paragraph you dispute and ask them to withdraw it. A prosecutor who hears of the dispute for the first time at the bar table has had no chance to consider it. Second, be ready for the prosecutor to respond that if you dispute the facts you should plead not guilty. That response confuses two different things. A not guilty plea is about whether you committed the offence. A disputed fact is about how it is described at sentence. You can accept the offence and still dispute a fact, and the court has a procedure for exactly that. If it is put to you, say so, calmly, in the words below.

Legal basis: The Queen v Olbrich (1999) 199 CLR 270 (burden of proof on disputed facts at sentence); Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A (aggravating and mitigating factors). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.

4.5What not to do

Avoid

Do not argue about the facts sheet at your first mention unless you are being sentenced that day. A first mention is mostly procedural: the court finds out who you are, whether you have a lawyer, and how you intend to plead. Disputes about the facts are not decided there, and raising one before you have thought it through tells the prosecutor your case for nothing. The exception is important. If you plead guilty at the first mention and ask to be sentenced on the spot, the mention becomes your sentence hearing, and the facts sheet is tendered then and there. In that case you must raise any dispute before the facts are handed up, in the way 4.4 describes. If you are not ready to do that properly, do not ask to be sentenced that day. Take the adjournment in Lesson 2.

Do not send police your own written version of events. A letter that says "what actually happened was that my friend gave me the bag and I put it in my pocket without checking" is an admission of possession, in writing, signed by you. Lesson 5 shows you how to ask for an amendment without narrating the incident.

Do not contact anyone named in the facts sheet as a witness, and if you were with friends when it happened, do not ask them to write statements for police. Keep your dispute to the two channels this lesson describes: a request to amend, or a dispute raised at sentence.

4.6Do this now

Action