Traversal Applications (Changing your Plea of Guilty)

Who can apply

This arises in various situations and the most common reasons are:

• You were self-represented and confused about what plea to enter 

• A solicitor entered the plea on your behalf without giving you proper advice to make an informed decision

• A solicitor entered the plea on your behalf incorrectly due to miscommunication

• You were not fully informed of all the details of the charge at the time of entering the plea

Section 207 of the Criminal Procedure Act reads as follows:

(1) An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.
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(2) The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.

In order to be successful in this application, you must be able to demonstrate to the court that a miscarriage of justice occurred. There is a non-exhaustive list of examples provided in the matter White v R [2022] NSWCCA 241 which illustrates circumstances in which a plea was incorrectly entered and it would be a miscarriage of justice to not allow the defendant to change their plea.

These include: ‍

• the circumstances in which the plea was given;

• the nature and formality of the plea;

• the importance of the role of trial by jury;

• the time between entry of the plea and the application for its withdrawal;

• any prejudice to the Crown from the plea’s withdrawal;

• the complexity of the charged offence’s elements;

• whether the accused knew all of the relevant facts intended to be relied upon by the Crown;

• the nature and extent of legal advice to the accused before entering the plea;

• the seriousness of the alleged offending and likely penalty;

• the accused’s subjective circumstances;

• any intellectual or cognitive impairment suffered by the accused;

• any reason to suppose that the accused was not thoroughly aware of what they were doing;

• any extraneous factors bearing on the plea when made, including threats, fraud or other impropriety;

• any imprudent and inappropriate advice given to the accused affecting their plea;

• the accused’s explanation for seeking to withdraw the plea;

• any consequences to victims, witnesses or third parties that might arise from the plea’s withdrawal; and

• whether there is a real question about the accused’s guilt.

Process in making the application

If you wish to change your plea from guilty to not guilty, after giving your lawyer instructions, your lawyer will do the following: 

• File a notice of motion with the court 

• Annex supporting affidavits and evidence to the court 

• List the matter for an allocated hearing time 

• Make arguments and submissions to the court on your behalf