You are pleading guilty to an offence, but you don’t agree with some parts of the prosecution summary or statement of alleged facts that make your conduct seem worse (“aggravating”) than it was. What does the law in Victoria say?

R v. Storey [1998] 1 VR 359 is authority for the proposition that a sentencing judge:

“may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities”.

What does this mean?

  1. The police/prosecution still need to prove facts that make an accused/defendant look bad, and they need to do this beyond a reasonable doubt. Facts that are favourable to an accused/defendant only need to be proven on the balance of probabilities- which is an easier hurdle.
  2. You can have a “Contested Plea” on aspects of the Prosecution Summary/Statement of Alleged Facts/Crown Opening. However, there are significant consequences in doing so. For instance, you may lose the benefit of showing genuine remorse, and you would not be able to argue that you saved the state and witnesses the time and expense of a trial.
  3. You should seek legal advice from a criminal lawyer practising in Victoria.

*Please note, the law in Queensland only requires the judge or magistrate to be satisfied of an allegation on the balance of probabilities.

Published by michaelkatsbarrister

Barrister in Melbourne, Victoria

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