Your fundamental right to defend yourself against criminal charges is at the heart of Australia’s justice system. When you are accused of a crime, you are not expected to prove your innocence; it is the role of the prosecution to prove guilt beyond a reasonable doubt.

Exercising your right to plead not guilty activates a series of legal procedures designed to test the strength of the prosecution’s evidence. Understanding this process, and your legal rights at each stage, can mean the difference between conviction and acquittal.

Key Takeaways

• You are presumed innocent until the prosecution proves guilt beyond reasonable doubt.
  
• The burden of proof lies with the prosecution
  
• Legal advice early on is crucial when deciding how to plead.
  
• Pleading not guilty ensures prosecution evidence is tested in open court.
  
• Our lawyers at O’Brien Criminal & Civil Solicitors are award-winning criminal law specialists with over 20 years of experience defending allegations across Australia.

At a Glance: Your Key Rights

• Silence: You do not need to answer police questions beyond name and address.
  
• Representation: You have the right to a lawyer at every stage.
  
• Disclosure: You are entitled to see the prosecution’s evidence before trial.
  
• Cross-examination: You can challenge the prosecution’s witnesses in court.

Emergency Action Items

• Avoid making admissions, even partial ones as they can be used against you.
  
• Always speak to a lawyer before cooperating with police interviews.
  
• Keep quiet about your case with friends, family, or online as this may harm your defence.
  
• Attend every single court date as failure to appear may lead to an arrest warrant.
  

When to Seek Legal Help Immediately

• You’ve been charged with any criminal offence.
  
• Police ask to interview you regarding criminal allegations.
  
• You’ve received a Court Attendance Notice (CAN).
  
• You’re unsure how to plead or worried about penalties.

Understanding Your Rights

The Presumption of Innocence

The central principle of criminal law is that you are innocent until proven guilty. This protection shields individuals against the power of the state, ensuring the prosecution must prove its case to the very highest legal standard.

Right to Remain Silent

You have no duty to explain yourself to police or prosecution:

• You cannot be compelled to provide a statement that incriminates you.
  
• This right extends into trial; you cannot be forced to testify.
  
• Courts cannot treat silence as evidence of guilt.
  

Historical Context

These rights evolved to safeguard against wrongful convictions. Because the state has vast investigative and prosecutorial resources, protections like the presumption of innocence and the right to silence were developed to level the playing field and maintain public confidence in justice.

What the Law Says: NSW Criminal Procedure

• Criminal Procedure Act 1986 (NSW): Governs pleas, trials, and court procedure.
  
  • Section 154: When you plead not guilty in higher courts, you “put yourself on the country for trial”.
    
  • Section 192: Court must explain the charge and ensure you fully understand what you are pleading to.
    
  • Section 207: Allows a guilty plea to be changed to not guilty in narrowly defined circumstances (miscarriage of justice).
    

Early Plea Reforms (2018)

NSW introduced mandatory sentence discounts for early guilty pleas, up to 25%. This means:

• Pleading guilty early = shorter sentence if convicted.
  
• Pleading not guilty preserves your rights, but you forego that discount if later convicted.
  

Courts in NSW

• Local Court: Handles summary offences (e.g. minor assaults, low-level drug possession).
  
• District Court: Hears most indictable offences (e.g. serious assaults, robbery, fraud).
  
• Supreme Court: Reserved for the most serious charges (e.g. murder, terrorism).
  

Real-World Scenarios

Scenario 1: Assault with Factual Dispute

• Police rely on witness statements and medical reports.
  
• You say you did not commit the alleged assault.
  
• Pleading not guilty lets your lawyer challenge witness bias, reliability, and inconsistencies.
  

Scenario 2: Legal Defence Available: Self-Defence

• You admit to physically striking someone, but only to protect yourself.
  
• Self-defence is a complete legal justification. Pleading not guilty lets a court decide.
  

Scenario 3: Drug Possession Case

• Police find substances in your car or house.
  
• They must prove you knew they were illegal drugs.
  
• If you had no knowledge, this is an important defence tested at trial.
  

What Authorities Can & Cannot Do

Police & Prosecution Can:

• Gather statements, forensic tests, CCTV, and physical evidence.
  
• Charge you if they have reasonable grounds.
  
• Serve you with a brief of evidence (the bundle of material they’ll rely on in court).
  

Police & Prosecution Cannot:

• Force you to provide self-incriminating statements.
  
• Stop you from accessing legal representation.
  
• Hide evidence that helps your case.
  
• Keep interrogating you once you’ve requested a lawyer.
  

Common Misconceptions

• Myth: Remaining silent makes you look guilty.
  Reality: Silence cannot be treated as guilt and often protects your defence.
  
• Myth: If police found drugs/items near me, I must be guilty.
  Reality: Prosecution must prove not just possession, but also knowledge and intent.
  
• Myth: Courts punish people for pleading not guilty.
  Reality: Courts cannot penalise you; however, you may lose out on early guilty plea discounts.

FAQs

What happens after I plead not guilty?

The court adjourns, prosecution serves evidence (brief of evidence), and trial preparations begin.

How long does it take?

• Local Court: 3–6 months.
  
• District/Supreme Court: 12–18 months or longer (serious charges).
  

Can I change my plea?

Yes, you may enter a guilty plea later, but discounts on sentencing reduce the later you change.

What if prosecution witnesses don’t appear?

If they are crucial witnesses, the case may be struck out or adjourned.

Do I have to testify?

No, you have a right not to give evidence.

Can I self-represent?

Technically yes, but extremely unwise, courts expect legal knowledge, rules of evidence, and advocacy skills from defence lawyers.

Practical Action Guide

Step-by-Step

1. Engage a lawyer immediately.
   
2. Review the police fact sheet line by line with your lawyer.
   
3. Wait for the brief of evidence before finalising defence strategy.
   
4. Tell your lawyer everything, even facts that may appear damaging.
   
5. Attend all court dates and comply with bail conditions.
   

Key Things to Say

• In court: “Not guilty, Your Honour.”
  
• To the police: “I wish to remain silent and speak to a lawyer.”
  
• When you are unsure: Let your lawyer speak for you.
  

Documentation to Prepare

• Court Attendance Notice (CAN).
  
• Police fact sheet and eventual brief of evidence.
  
• Your own timeline of events.
  
• Details for defence witnesses.
  
• Any supporting documents, emails, CCTV, or photos.

When Professional Help is Essential

You need a defence lawyer if:

• You’ve been charged with any criminal offence.
  
• Police evidence looks strong but you are innocent.
  
• You have potential legal defences (self-defence, duress, mistake, lack of intent).
  
• Your case involves serious indictable charges carrying prison.
  

Your lawyer will:

• Analyse prosecution evidence for flaws.
  
• Seek exclusion of illegally gathered material.
  
• Prepare cross-examination to test witnesses.
  
• Build a strong trial strategy.

Why Choose O’Brien Criminal & Civil Solicitors

• 20+ years’ experience defending criminal charges in NSW.
  
• Led by accredited specialists in criminal and civil law.
  
• Proven record: From minor assaults to multi-million-dollar frauds.

Read our successful Criminal Case Studies.

• Winners of the 2024 Law Council President’s Award and the 2024 Pro Bono Service Award.
• Recognised in Doyle’s Guide 2025 as a Leading Criminal Defence Law Firm.

Ready to Protect Your Rights?

Don’t wait until your trial is near. The decisions you take right now will shape the rest of your case.

📞 Call: 02 9261 4281
📧 Email:
🏛 Address: Level 4, 219-223 Castlereagh Street, Sydney NSW 2000

O’Brien Criminal & Civil Solicitors award-winning representation, proven results, trusted defence specialists.

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