Guilty or Not (Part 1)

In other articles we have described the process of being arrested, charged, getting bail, attending court, pleading guilty, submitting a plea in mitigation, and being sentenced.

Now we will rewind that to where we entered a plea of guilty, but instead we will enter a plea of not guilty. After meeting with your lawyer, the offence, the facts, and your recollection are used to gauge whether a plea of not guilty should be entered.

Each offence has elements, similar to a checklist. Initially, it is similar to ticking the boxes and it can become obvious which plea should be entered. A plea of not guilty will be entered if the evidence is not sufficient to prove “beyond reasonable doubt” each element of the offence alleged against you (or each item on the checklist).

Alternatively, notwithstanding all the elements being satisfied by the evidence, there could still be a valid defence. Defences will be discussed in more detail in future weeks but the main defences used are self-defence, necessity, duress, and provocation.

Defences are excuses or justifications which exculpate an accused person. If a defence is successfully argued, it can remove criminal liability resulting in an acquittal. Some defences such as provocation, reduce criminal responsibility to be found guilty of a lesser charge such as reducing murder to manslaughter.

The decision of how to plead is obviously of great importance. There are many factors which are taken into account. The accused is ultimately who decides, however this is after much discussion with your lawyer.

One factor that is taken into account is a discount for an early guilty plea. Whilst there is still discretion, legislation provides that an early plea of guilty will be rewarded with between 10-25% lesser sentence than otherwise would have been delivered. This is a factor that I personally have difficulty with, but it is one of those things where you try not to put your mind to it, or you risk losing your mind to it.

There is a definite utilitarian benefit, as trials are expensive and time consuming. The issue I have is that at times it encourages inappropriate pleas of guilty, where in some cases, defendants ought not have done so. Effectively, it also penalizes those who exercise their right to a trial. Furthermore, the discount quantity is not stated and it reminds me of the rug sales with a huge discount off an overly inflated price to begin with, and you walk out of the showroom wondering if you really did benefit from a discount.

In “Guilty or Not (Part 2) we will look further into deciding whether to plead guilty or not guilty.

If you have any questions you would like answered either confidentially or via this medium, please email us at office@mjolegal.com.au

This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.

On February 16th, 2010, posted in: Know the Law by
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