Preparing to plead not guilty

Preparing to plead not guilty

The decision to plead not guilty is up to you. Think about:

  • what advice you got from your lawyer (if you got advice)
  • if the prosecution has a strong case against you. The prosecutor will need to prove beyond reasonable doubt that you are guilty
  • your chances of being found not guilty.

Usually you will need a defence against the charge. Saying that you did not know you were breaking the law is not a good enough defence.

If you plan to plead not guilty, find out the police case. To do this, get the brief of evidence:

This helps you to work out what the police know and what they might say at the contest mention or the contested hearing.

You can also ask for the full brief of evidence. Write to the informant at least 14 days before the first court date asking for this. The informant’s details should be on the charge sheet. You can still write to them after 14 days but they may not send you the information in time.

Carefully read the brief of evidence. Note the evidence the police have. Use this to prepare your defence.

You may need to think about the penalties for the offence. For some offences the only way to avoid the penalty is to plead not guilty and win. On the other hand, if you plead guilty, the court will see that you are accepting responsibility for what happened. You might get a less severe penalty.

What should I do at court?

Go to the court counter and tell the staff that you are pleading not guilty. They will tell you to go to the prosecutor and have a summary case conference. This is a chance to work out what you and the prosecution disagree over.

If you cannot agree and you want to keep pleading not guilty, the court staff will send your file into the courtroom. This lets the magistrate know that your case can be heard.

Go into the courtroom and wait for your name to be called. This may take a while. Make sure you bow to the magistrate as you go into the courtroom.

When your name is called, stand at the opposite end of the bar table from the prosecutor. Tell the magistrate that you want to plead not guilty. The magistrate will adjourn your case for a hearing on another day.

You may go to a contest mention

This is a possible step for a not guilty case. Whether your case needs a contest mention depends on how complicated it is and how long the case might take. If the magistrate decides you need a contest mention, it will happen before the contested hearing.

At the contest mention the magistrate will want to know:

  • the main issues you and the prosecution disagree over
  • the number of witnesses that will be called at the hearing
  • how long your hearing will be likely to take.

The informant will usually be there as well as the prosecutor. The magistrate will try to get you and the prosecution to agree on as much as possible. You can ask the magistrate what would happen if you were to plead guilty. The magistrate may give an idea of the penalty. This is called a sentencing indication.

You might now feel that the prosecution has a strong case. You can change your plea. If you are charged you with more than one offence, the prosecution may drop some charges if you plead guilty to others.

You go to a contested hearing

This usually happens after you have had:

  • the summary case conference
    and/or
  • the contest mention (if you had to do that).

The hearing happens if you decide to keep pleading not guilty. It includes:

  • witnesses giving evidence
  • the magistrate deciding on whether you are guilty or not
  • the magistrate deciding on penalties, if they have found you guilty.

If you change your mind and decide to plead guilty, your case can still go ahead on that day. You should tell the court and prosecution as soon as you can if you decide to plead guilty, so that the prosecution does not organise witnesses to come to court.

Preparing for the contest mention and contested hearing

  • Get legal help. You may decide to get a lawyer to speak for you in court. Victoria Legal Aid lawyers can only represent you in a contested hearing if your case is of a certain level of seriousness.
  • Ask the court to arrange an interpreter if you or your witnesses need one. Do this at least five days before your case. If the court arranges the interpreter for you there will be no fee.
  • Organise your witnesses. Witnesses must be at court for the contested hearing. Tell them when they have to come to court. You might need to get a witness summons if your witness will not come or if their employer wants proof that they need to be in court.
  • Think about what you want to say to the magistrate in case they find you guilty. See Pleading guilty.
  • Organise your support letters and any paperwork to do with your finances. The magistrate may need to know about your weekly wage and things you have to pay for.
  • Visit the court again so you know what to expect.

Penalties

If you get a fine, you can pay it at any Magistrates’ Court. Go to the court counter and ask the staff for help.

Let the magistrate know if you might have trouble paying the fine. There are options. You can ask the magistrate to:

  • make a plan for you to pay bit by bit
  • give you community work instead of the fine.

If you do not pay, the court can issue a warrant for your arrest.

Appeals

If you do not agree with the decision you can appeal to the County Court. You have 28 days to do this. Get legal advice before you decide. You could end up with a higher penalty.

See Appealing a Magistrates’ Court decision.

Get help

Find out how you can get help with going to court for a criminal offence.