Advising defendants about whether to plead guilty

Defendants who wish to make a “convenience plea”

There are people who wish to make a “convenience plea” and wish to plead guilty to get the matter out of the way simply and cheaply, but at the same time they maintain a denial of the offence. Such people may, for example, try to enter a plea of guilty unrepresented to a shoplifting charge but state to the Magistrate that they “forgot to pay”, “did not realise they had the item when they left the shop”, “didn’t know what they were doing because of medication”, or that they struck a victim of an assault charge in self-defence. The Magistrate will not accept this plea, will usually order that it be struck out and recommend that the defendant seek legal advice, often from the duty solicitor, whilst the matter is held in the court list.

Often a defendant will tell the duty solicitor that they want to plead guilty to “get the matter over and done with”. This should always ring warning bells. When this occurs it is important for the duty solicitor to ask the defendant about the following:

whether the defendant believes they are guilty of the offence(s) with which they are charged and are simply expressing a resolve to deal with the matter expeditiously (in which case the duty solicitor can advise on whether it is appropriate to plead guilty and how to do so); or
whether the defendant actually denies all or any of the elements of the charge but wishes to plead guilty anyway. This is the basis of a convenience plea, in which case the duty solicitor must be careful about what they subsequently advise.

KEEP ACCURATE AND COMPLETE NOTES
In either case it is important for the duty solicitor to record on the pink duty solicitor form exactly what instructions the defendant gives and what the duty solciitor has advised. The duty solciitor's only protection against future claims that they “made” the defendant plead guilty is the existence and accuracy of this record.

The importance of accurate recording of instructions and advice

The need for the duty solicitor to take accurate notes of instructions and subsequent advice cannot be overemphasised. People have been successful in appealing convictions or penalties due to a miscarriage of justice, on the grounds that they pleaded guilty:

on the basis of incorrect advice;
because they were misled by their solicitor (this includes a duty solicitor);
because they were pressured into pleading guilty by the solicitor (again, this includes a duty solicitor).

Not only may the defendant appeal in such cases, but the solicitor involved may be the subject of adverse judicial comment when the appeal is heard, and may also be subject to disciplinary proceedings [see Stengle v Wells [1985] SASC S4958 (Unreported, Cox J, 30 April 1985) for the full implications of the principles discussed above; Akpata v Police [2003] SASC 305and Markl v Police [2005]SASC 141for similar circumstances].

ADVISING A DEFENDANT WHO WANTS TO MAKE A CONVENIENCE PLEA
The advice a duty solicitor gives to a defendant in these circumstances must be circumspect, careful, clear and recorded in detail for possible future reference [see *Stengle v Wells [1985] SASC S4958* (Unreported,Cox J, 30 April 1995)]. The duty solicitor should: Explain that the Magistrate cannot accept a plea of guilty when the defendant is actually saying they are not guilty of the offence (for example, by denying one or more of the elements of the offence). Stress that in refusing to accept the plea the Magistrate is acting in the defendant’s best interests and in the interests of justice. Explain the elements of the offence and listen to what the defendant has to say about what happened and what they intended at the time. Where the defendant’s instructions indicate that they do not admit one of the elements of the offence (for example, in a shoplifting charge, they are saying they did not intend to steal the item), the duty solicitor should advise them that on the basis of what they have said happened, they are not guilty of the offence (they have a defence) and should contest the charge and not plead guilty. If they still insist they wish to enter a plea of guilty, and ask the duty solicitor to appear to represent them on such a plea, the duty solicitor must tell them that they can only act for them under the following circumstances: The client must be informed that by pleading guilty to the charge no explanation consistent with a plea of not guilty can be put to the court in mitigation of penalty because this would be inconsistent with the plea of guilty. It must be made clear to the client that, if represented, the duty solicitor cannot offer any explanation to the court for the admitted conduct which is inconsistent with the plea of guilty. This will usually restrict the practitioner to making submissions in mitigation of penalty relating to the clients personal circumstances and the appropriate sentencing principles to be applied. For example a discount for the plea etc. Nothing can be said to the court about the facts if they are inconsistent with the plea. It must be made clear to the client that the absence of an explanation for the admitted offending may reflect adversely upon them when it comes to sentence. For example, the court may take the view that the client has no remorse. A practitioner should inform the client about the penalty range for the offence and that by pleading guilty (depending on the nature of the charge) they may be sentenced to imprisonment. A practitioner should always obtain signed written instructions from the client reflecting that the above advice has been given and understood in deciding to plead guilty. Warning: practitioners should be very cautious about acting for clients in these circumstances. If the client shows any signs of not understanding the advice or any reluctance accepting the advice or refuses to provide signed instructions – do not act. If the client refuses to provide signed instructions or does not understand the advice then the duty solicitor must tell them that they cannot and will not act for them in a guilty plea because it is unethical for them to do so. Duty solicitors must keep detailed notes of the instructions the defendant has given and their subsequent advice to the defendant.

ADVISING A DEFENDANT WHO WANTS TO MAKE A CONVENIENCE PLEA

The advice a duty solicitor gives to a defendant in these circumstances must be circumspect, careful, clear and recorded in detail for possible future reference [see Stengle v Wells [1985] SASC S4958 (Unreported,Cox J, 30 April 1995)]. The duty solicitor should:

Explain that the Magistrate cannot accept a plea of guilty when the defendant is actually saying they are not guilty of the offence (for example, by denying one or more of the elements of the offence). Stress that in refusing to accept the plea the Magistrate is acting in the defendant’s best interests and in the interests of justice.
Explain the elements of the offence and listen to what the defendant has to say about what happened and what they intended at the time.
Where the defendant’s instructions indicate that they do not admit one of the elements of the offence (for example, in a shoplifting charge, they are saying they did not intend to steal the item), the duty solicitor should advise them that on the basis of what they have said happened, they are not guilty of the offence (they have a defence) and should contest the charge and not plead guilty.
If they still insist they wish to enter a plea of guilty, and ask the duty solicitor to appear to represent them on such a plea, the duty solicitor must tell them that they can only act for them under the following circumstances:

The client must be informed that by pleading guilty to the charge no explanation consistent with a plea of not guilty can be put to the court in mitigation of penalty because this would be inconsistent with the plea of guilty.
It must be made clear to the client that, if represented, the duty solicitor cannot offer any explanation to the court for the admitted conduct which is inconsistent with the plea of guilty.

This will usually restrict the practitioner to making submissions in mitigation of penalty relating to the clients personal circumstances and the appropriate sentencing principles to be applied. For example a discount for the plea etc.
Nothing can be said to the court about the facts if they are inconsistent with the plea. It must be made clear to the client that the absence of an explanation for the admitted offending may reflect adversely upon them when it comes to sentence. For example, the court may take the view that the client has no remorse.
A practitioner should inform the client about the penalty range for the offence and that by pleading guilty (depending on the nature of the charge) they may be sentenced to imprisonment.
A practitioner should always obtain signed written instructions from the client reflecting that the above advice has been given and understood in deciding to plead guilty.
Warning: practitioners should be very cautious about acting for clients in these circumstances. If the client shows any signs of not understanding the advice or any reluctance accepting the advice or refuses to provide signed instructions – do not act.

If the client refuses to provide signed instructions or does not understand the advice then the duty solicitor must tell them that they cannot and will not act for them in a guilty plea because it is unethical for them to do so.

Duty solicitors must keep detailed notes of the instructions the defendant has given and their subsequent advice to the defendant.

Advising defendants about whether to plead guilty : Last Revised: Mon May 21st 2012

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