What does “pleading not guilty” mean?
If you are charged with a criminal offence, you can choose to plead guilty or not guilty.
If you plead not guilty it generally means that you deny committing the offence.
Alternatively it may mean that you are not sure if you have committed the offence and you wish the court to hear evidence to decide whether you are guilty or not. This may arise, for example, where you have no recollection of the incident and have reason to question the prosecution’s version of the facts.
A summary of the prosecution facts in support of the charge against you are contained in a document called the “statement of material facts”. You should read this carefully to see whether you agree or disagree with the facts. If you disagree with most of the facts contained in this statement, it may mean you should plead not guilty. However, you should get legal advice to determine whether you in fact have a defence.
If you have any doubt about what your plea should be after you read the statement of material facts, you should get legal advice.
When you plead not guilty a trial date is set. At the trial the court hears evidence and a decision is made as to whether you are guilty or not.
Do I need legal advice before I plead not guilty?
Yes, it is important to get legal advice before you enter any plea, including a plea of not guilty, so that you understand:
- the seriousness of the charge
- the court in which the charge must be dealt with
- whether you need more information before you enter a plea
- whether you have a defence
- the things the prosecution need to prove
- the possible penalties that might be imposed if you plead guilty, or are found guilty after a trial.
What if the charge must be dealt with in the District or Supreme Court?
Some charges begin in the Magistrates Court but cannot ultimately be dealt with in that court. They must be sent to the District Court or Supreme Court to be dealt with.
Before you enter any plea to a charge that must be dealt with in the District or Supreme Court, you should arrange legal representation. You should not enter any plea until you have discussed your case with the lawyer who will be representing you in the District or Supreme Court.
Where can I get legal advice and representation?
Legal Aid WA operates a duty lawyer service that enables you to obtain advice and representation in the Magistrates Court. This service is not available in the District or Supreme Courts.
The duty lawyer can provide initial advice about your charge and guide you through the court processes. However, the duty lawyer cannot represent you at your trial in the Magistrates Court. Representation at trial is not part of the duty lawyer service. Therefore, you should arrange your own lawyer or be prepared to represent yourself.
Similarly, if your charge must be dealt with in the District Court or the Supreme Court, the duty lawyer cannot represent you in either of these courts. If you are due to appear in one of these courts you should organise your own lawyer as soon as possible. It is not recommended that you represent yourself in the District or Supreme Court. While you are still in the Magistrates Court, the duty lawyer can help you get an adjournment (more time) to organise a lawyer for your appearance in the District or Supreme Court.
Click here for more information about the Duty Lawyer Service.
Click here for general information about Appearing in court on a criminal charge, which includes information about obtaining legal representation through Legal Aid WA.
What happens in the Magistrates Court when I plead not guilty?
If your charge may be dealt with in the Magistrates Court, when you plead not guilty the court can immediately list your case for trial.
At the trial, a magistrate will hear evidence and make a decision as to whether you are guilty or not.
Although a duty lawyer cannot represent you at your trial, they can provide you with advice about the trial process and about your defence.
When will my trial date be?
In the Magistrates Court, your trial date will usually be about 2 to 3 months after you plead not guilty. This time will vary between courts and may be longer or shorter in your case.
The magistrate will usually give you the trial date when you plead not guilty to the charge. If this date is not suitable for you or your witnesses, you should let the court know immediately.
Do I have to appear in court before the trial date?
Sometimes you will need to attend a “callover date” or a “directions hearing” before your trial date. These are dates when the magistrate checks the progress of your case. If you are not sure whether the date you have been given is a callover date, or a directions hearing or a trial date, you should ring the court to check.
Will I get any information from the prosecution?
Depending on the charge you are facing, the prosecution may be required to give you some information about the case against you, before your trial date. This is called pre-trial disclosure. You should get legal advice to check whether the prosecution should be giving you pre-trial disclosure. If so and you do not receive anything before the pre-trial appearance, you should advise the court.
Do I have to give any information to the prosecution?
Depending on the charge, once you have received disclosure from the prosecution, you may also have to provide information to them. You should get legal advice if you are not sure whether you have to provide information to the prosecution.
Can I change the trial date?
Once your trial date is set, unless you can show you have exceptional reasons, you will not be able to adjourn (put off) your trial to another day. If you do need an adjournment you should contact the prosecution (usually the police) as soon as possible to warn them and to see if they will agree. You should ring the court registry and ask them to list the matter before the trial date so you can request an adjournment of the trial. The earlier you do this the more likely it is to be granted.
Can I change my plea to 'guilty'?
You can change your plea to guilty at any time before your trial date or on your trial date. However, it is better to do so well before your trial date because this avoids inconvenience to the court and the prosecution witnesses. Otherwise, you may have to pay the prosecution costs of preparing for the trial.
If you change your plea to guilty on a Magistrates Court matter, a duty lawyer may be able to represent you if one is available.
How do I prepare for my trial?
If you wish to be represented at your trial you will have to instruct a private lawyer or apply for legal aid. Otherwise, you will have to represent yourself.
A duty lawyer cannot represent you at your trial.
See the heading above “Where can I get advice and representation?” for more information about the duty lawyer service and applying for legal aid.
If you will be representing yourself, in preparation for your trial you should:
Request details of the case against you
- You should contact the prosecution and request a copy of the statement of material facts (the summary of the police case against you) and a copy of your video record of interview with police, or any other record of the interview if a video record was not made. You are entitled to copies of these documents/records.
- You should also request copies of the police witness statements and details of any exhibits (such as documents or photos) that the prosecution may use at trial. Depending on the nature of the charge, the prosecution may not be obliged to provide these, however, this does not prevent you from making the request.
- Your request(s) for information from the prosecution should be made as early as possible.
Write down your version of what happened
- You should read through the statement of material facts and any witness statements carefully and think about which facts you dispute and which facts have not been mentioned by the prosecution.
- You should note down your own version of what happened as soon as possible after the incident. It is best if you do this chronologically (in date or time order). You should do this in your own words and from your own perspective. You should clarify or explain information contained in the statement of material facts and witness statements, where possible.
- You should make a list of the facts that are important to your defence and that you must remember to tell the magistrate when you are giving your evidence at trial. If you are not sure what your defence is and what facts are important, get legal advice.
- You cannot read from your notes or your list when you are in the middle of giving evidence in court, however, you can use them when you are in court but not giving evidence. For example, before you go into the witness box to give your evidence, you can look at your notes or your list to remind yourself to say certain things.
- You can use your notes and your list while you are questioning witnesses or making submissions to the magistrate about your case.
Make a list of questions for each witness
- You should make a list of the questions you might want to ask each prosecution witness at the trial.
- At the time of the trial, you may find that the witness gives evidence that is different to the information in their statement. In this case, you may not need to ask all the questions on your list. The list is just a useful guide for you, so that you do not forget to question the witnesses about important issues.
Make a list of things to tell the magistrate
- You should prepare a list of the things you are likely to want to say to the magistrate when you are summarising your case after all the evidence has been heard. At the time of trial, the evidence from you or other witnesses may come out differently than you expect, so you may have to change some of the things on your list later. The list is just a useful guide for you, so you do not forget to bring something important to the magistrate’s attention.
- Magistrates are very used to people representing themselves at trial. If you forget to bring something to the magistrate’s attention, the magistrate is likely to still take the evidence into account, as long as it is relevant to the issues in the case.
Organise your witnesses and any other evidence
- You and your witnesses must attend court on your trial date and be ready to give evidence.
- If a witness will not come to court of their own free will, you can make them attend by serving them with a witness summons to attend court on the trial date. You need to serve the summons on the witness well before the trial. You should contact the court registry to find out how to issue and serve a witness summons.
- You need to bring all documents and other evidence you wish to rely on, to the trial.
- If you want the court to consider a document at your trial, you must arrange for the person who created the document to be there to give evidence about it.
Organise child care if you need to
- It will be very difficult to represent yourself properly in court if you need to look after young children.
- If you have children, try to arrange childcare. If this is not possible, take someone with you who can mind the children outside the courtroom while your matter is being dealt with. Some courts can help organise and pay for childcare. Ask at the court registry well before your trial date.
What happens at the trial date?
Make sure you are on time. Your trial may be the only matter listed in that court on that date, or may be listed as the first trial to be heard and therefore may start as soon as the court is ready.
As soon as you get to court you should tell the orderly that you have arrived and will be representing yourself. You must then sit in the back of the court and wait for your name to be called.
Any witnesses you have should wait outside the courtroom. Make sure they do not go far, so they will be available when they are needed in court.
When you are called, walk to the front of the court and stand behind the bar table at the opposite end from the prosecutor.
- Before any evidence is called you and the prosecutor are allowed to give an “opening address”. This is an opportunity to give an overview or outline of the case from your perspective, before any evidence is heard.
- The prosecutor will address the court first, giving a brief outline of the prosecution case. If you wish, you can follow with an outline of the defence case. You do not have to give an opening address and if you prefer, you can leave your comments until after the prosecution case has finished, or leave all your comments until your summary at the end.
The prosecution case
- The prosecution presents the evidence in support of its case first.
- Before the prosecution starts its case, the magistrate should make an order that all witnesses, both for the prosecution and defence, must stay outside the court until they have given their evidence. If the magistrate forgets to make this order and the prosecutor does not remind the magistrate to make it, you should stand up and ask the magistrate to make the order.
- The prosecutor will then call the first prosecution witness.
- After the witness swears an oath or an affirmation to tell the truth, the prosecutor will ask his or her witness a series of questions. The answers given by the witness are referred to as “evidence”. Listen carefully to the evidence. Make notes of any points the witness raises that you wish to question them about.
- When the prosecutor has finished asking questions, you will be asked if you wish to cross-examine the witness. You should ask the witness questions in cross-examination if you disagree with the evidence they have given or want to clarify the evidence they have given.
- When you are cross-examining you may ask questions but you cannot make statements. You may make statements later, when you are giving your evidence.
- If you or one of your witnesses will be giving evidence that is different from what the prosecution witness has said, you must put the different version to the prosecution witness and give them the opportunity to agree or disagree and explain why their evidence is different. You should not argue with the witness.
- The magistrate may also question the witness at any time.
- When you have finished your cross-examination, the magistrate will ask the prosecutor if they want to re-examine the witness. The prosecutor can then only ask the witness to clarify or explain answers given to your questions. The prosecutor cannot raise any new matters.
- The prosecutor will then call his or her next witness and the same process will be followed until all of the prosecution evidence has been heard.
The defence case
- After the prosecution case has finished, it is your turn to give evidence if you wish to. You do not have to give evidence but if you do, you will usually give your evidence first and then call any witness(es) you may have.
- If you decide to give evidence, you will be called into the witness box and will be asked to take the oath or affirmation.
- You must then introduce yourself by providing your full name, age, address and occupation.
- You should then give your evidence. Usually it is easiest to do this chronologically (in date or time order). You cannot read statements or notes when you give evidence, but the magistrate may allow you to refresh your memory from any notes you made at the time of the incident or very close to that time. You should ask permission from the magistrate before you read from your own notes.
- Keep your evidence clear and precise. Decide the main points you want to make and stick to them. Don’t get bogged down in minor or irrelevant matters.
- The magistrate may ask questions at any time.
- When you have finished giving evidence, the prosecutor will be allowed to ask you questions or "cross-examine" you. Answer the questions as best you can. If you do not understand a question ask that it be repeated or clarified before you try to answer it.
- The magistrate will then ask you if you wish to say anything else to clarify or explain anything that came up while you were being questioned by the prosecutor.
- After you have given evidence you should call your witness(es) if you have any. You will need to take your witness through their evidence. You do this by asking short questions, one at a time. Your questions cannot suggest the answer. If your question does suggest the answer, the magistrate will tell you to ask the question again in a different way. Questions that begin with “what”, “when”, “why”, or “who” are usually appropriate.
- The prosecution will then be given the opportunity to cross-examine your witness(es).
- When the prosecutor has finished cross-examining your witness, the magistrate will ask you if you wish to re-examine your witness. You can only ask the witness to clarify or explain answers given to the prosecutor’s questions. You cannot raise new matters.
- You may then call any further witnesses and go through the same process until all of the evidence for the defence has been heard.
- When all the evidence has been presented, the magistrate will allow you and the prosecutor to comment on the evidence and say who should be believed and why. You can also suggest what conclusions the magistrate should draw from the evidence. You cannot provide further evidence in your summary.
- Once you and the prosecutor have been given an opportunity to summarise your cases, the magistrate will decide whether the prosecution has proved its case “beyond reasonable doubt”. This is the standard of proof that applies in all criminal cases.
- The magistrate’s decision is usually made immediately, but in long or complicated cases the decision may be put off to another day.
- If the magistrate decides that the prosecution has not proved its case against you beyond reasonable doubt, you will be found “not guilty” of the offence.
- If the magistrate decides that the prosecution has proved its case against you beyond reasonable doubt, you will be found “guilty” of the offence.
What if I am found not guilty?
If you are found not guilty, the charge will be dismissed and you are free to go.
If you have incurred any specific costs associated with your trial, you can ask the court to consider them. The court may order that you be reimbursed some of your costs.
What if I am found guilty?
If you are found guilty the magistrate will have to decide what penalty (sentence) to impose.
If you have any previous convictions you will be shown a copy of your record. You must read your record and check that it is correct as the court may take it into account when sentencing you.
You will be given an opportunity to speak before you are sentenced. The statements you make about sentencing are called a plea in mitigation. As part of your plea in mitigation, you should explain your financial position to the magistrate, whether you are supporting anyone and anything else which you think might be relevant.
For more information about what to include in your plea in mitigation, see Pleading guilty in the Magistrates Court.
The type of sentence imposed on you will depend on the offence and the circumstances of your case and can range from a fine or community order to imprisonment. Depending on the charge, you may also have your driver’s licence suspended, be ordered to return property or be required to pay compensation to the victim. You will usually be ordered to pay some court costs.
You will be given a piece of paper with your sentence on it. You should read this carefully. If you do not understand any part of it, ask the court immediately or get legal advice.
If you are given a fine you must pay it within 28 days unless you arrange with the court registry for more time to pay. This arrangement must be made before the 28 days is up. Click here for more information about Fines.
What if I disagree with the court’s decision to find me guilty?
If you think that the court’s decision was wrong for some reason, seek legal advice immediately. You may have grounds for an appeal, however, there are time limits for lodging appeals so you must act quickly.
Click here for more information about Appeals.
Where can I get more information?
Last reviewed: 09/11/2012