Why the criminal file gets read by an appeal court
A convicted client has every reason to look for an appeal point, and the conduct of their own lawyers is an obvious place to look. The two common forms are an application to withdraw a plea of guilty, and a conviction appeal alleging incompetence of counsel. In both, the client swears an affidavit about what they were and were not told, privilege over the relevant communications falls away, and the lawyer's file is produced and picked over.
The High Court accepts that the conduct of counsel can produce a miscarriage of justice, but the question is an objective one. In TKWJ v The Queen (2002) 212 CLR 124 the complaint was that defence counsel had not called character evidence. The Court found no miscarriage, because there was a reasonable explanation for the decision: it was an informed and deliberate forensic choice. A note made at the time that records the choice, the reasons, and the client's agreement is how you show a decision was informed and deliberate rather than an oversight.
Instructions on plea
The plea is the client's decision
A plea of guilty is only valid if it is entered in the exercise of a free choice: Meissner v The Queen (1995) 184 CLR 132 at 141. The same judgment makes clear that advice or argument that merely seeks to persuade an accused to plead guilty is not improper, however strongly it is put, because reasoned advice leaves the client free to choose.
The NSW Barristers' Rules say the same thing in practical terms. Rule 39 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 requires a barrister to advise the client generally about any plea and to make clear that the client has the responsibility for, and complete freedom of, choosing the plea. Rule 40 permits advice in strong terms that the client is unlikely to escape conviction and that a guilty plea is generally treated as mitigating.
So the note has to show two things that pull in different directions: that you gave firm, specific advice, and that you left the choice with the client. Record both in terms. 'Advised the prosecution case on count 1 is strong, and gave reasons. Advised that the plea is the client's decision alone, and we will run the hearing if the client instructs us to plead not guilty.'
What the advice on plea should cover
- The charge and its elements, explained in plain words, and the maximum penalty.
- The evidence in the brief and your assessment of its strength, element by element.
- Any defence raised by the client's account, and your advice on it.
- The agreed or proposed facts, and that the client will be sentenced on them unless they are disputed.
- The likely sentencing range, without a promise.
- The discount for a plea and how timing affects it.
- Consequences beyond sentence that matter to this client: licence, visa, working with children check, firearms, employment.
- That the client does not have to decide today, where time allows.
Advice on the sentence discount
In NSW, for offences dealt with on indictment, the discount is fixed by s 25D of the Crimes (Sentencing Procedure) Act 1999: 25% where the plea is accepted before committal, 10% where the plea comes after committal but at least 14 days before the first day of trial (or at the first available opportunity after complying with pre-trial notice requirements), and 5% in any other case, with some variations where offers to plead have been made. For matters not dealt with on indictment, s 22 requires the court to take the plea and its timing into account without fixing a percentage. In Victoria, s 6AAA of the Sentencing Act 1991 deals with the court stating the sentence it would have imposed but for the plea.
Because the NSW discount drops sharply at committal, the date on which you gave the discount advice matters. A client who pleads late and gets 10% may say nobody told them 25% was available. The note should record the percentages you quoted, the cut-off dates, and the client's response.
Signed instructions
There is no statutory requirement in NSW that instructions to plead guilty be in writing. The Court of Criminal Appeal has nonetheless been critical of practitioners who act on important instructions without written confirmation: see R v Favero [1999] NSWCCA 320 at [12] and [15]. The safe practice is signed instructions for every plea of guilty, and for any other decision the client may later regret: not giving evidence, not calling a witness, accepting a set of facts, or rejecting a charge negotiation offer against advice.
File notes still matter when signed instructions are missing, and when they exist. In Garcia-Godos v R (Cth) [2015] NSWCCA 144 the applicant sought to withdraw his plea, claiming he had never instructed his lawyers to plead guilty and had been pressured. No signed instructions had been taken, and the District Court judge was critical of that. The application still failed, and the CCA found no error, because the conference notes and the lawyers' evidence overcame the gap. The notes recorded things like the client saying he did not want to go to trial, and the advice that it was a matter for him whether he went to trial or pleaded.
Signed instructions are a summary. The conference note is what shows how the client got there. Keep both. If the client cannot read English, record who interpreted, that the document was read to the client in their language, and have the interpreter sign as well.
Conferences in custody
Custody conferences produce the worst notes on most criminal files, for understandable reasons. Visits are short, you may not be allowed a laptop or phone, audio-visual link (AVL) slots run to the minute, and you often see several clients in one trip. They are also the conferences most likely to be disputed, because the client was under pressure and nobody else was there.
- Record the centre, whether the conference was in person, by AVL or by phone, start and finish times, and who was present, including any interpreter or support person.
- Note whether the client had the brief, the facts sheet or the relevant pages in front of them, and whether they had read them or had them read to them.
- Record anything that affects the quality of the instructions: the client was unwell, distressed, withdrawing, newly medicated, or said they had not slept.
- If the AVL link dropped or the time ran out before advice was finished, say so, and say what was left to cover.
- Take a signed instructions form in with you. If it cannot be signed on the day, note why and have it signed at the next attendance or at court before the plea is entered.
- Write the note up the same day. Dictating it on the way out of the car park is better than reconstructing four conferences on Friday.
If anything raises a question about fitness or the client's capacity to give instructions, record what you observed and what you did about it. The same applies to a young client or a client with a cognitive impairment, where you should also note how you checked understanding, for example by asking the client to explain the advice back to you.
The duty to the court and the confessing client
The duty to the court and the administration of justice is paramount under r 3 of the Australian Solicitors' Conduct Rules, and r 19 prohibits deceiving or knowingly or recklessly misleading the court. Rule 20.2 deals with the client who confesses guilt to the solicitor but maintains a plea of not guilty. The solicitor may continue to act, but must not falsely suggest that someone else committed the offence or set up an affirmative case inconsistent with the confession. The solicitor may put the prosecution to proof, and may argue that the evidence does not establish guilt or that for some reason of law the client is not guilty. The solicitor cannot continue if the client insists on giving evidence denying guilt.
When this comes up, the note should record what the client actually said, because 'I did it' and 'I was there but I didn't touch him' lead to very different constraints. Then record the advice you gave about how the rule limits the defence, and the client's acceptance of those limits. The reverse case needs a note too: a client who says they are not guilty but wants to plead guilty to get it over with. Record the advice that a plea is an admission of every element, the client's reasons, and their instruction, and get it signed.
Legal Aid file requirements
If you do panel work, the file standard is a condition of the work and it is audited. The Legal Aid NSW Quality Standards require panel lawyers to keep clear and legible file notes of all conferences, including the information and advice provided to the client (cl 13.2.2), and file notes of all conferences, views and other specific attendances (cl 13.2.3). Clause 20.6 requires signed instructions from the client if they intend to plead guilty or consent to any order, or where that is not reasonably practicable, clear file notes of advice and instructions. Counsel must keep detailed file notes of any advice that is not confirmed in writing (cl 30.3). Files are to be stored securely for seven years after completion (cl 45.3).
Those clauses are specific to Legal Aid NSW. Other commissions publish their own panel practice standards, so check the current version for your state. As a working rule, a file that meets the NSW standard will hold up anywhere: a note for every conference and appearance, advice recorded, plea instructions signed.
Privilege, and when it falls away
Conference notes recording confidential advice and instructions are privileged, and the privilege belongs to the client. That has two practical consequences. First, write notes of client conferences as if only the client and your firm will read them, but know that the client can waive privilege, and does so over the relevant communications when they attack your advice on appeal or in a plea withdrawal application. At that point your note is likely to be read closely by people looking for gaps. Second, notes of conversations with police, prosecutors, witnesses and co-accused's lawyers are not confidential client communications, and different rules apply. Keep them as separate notes. Are attendance notes privileged? covers this in more detail.
Be careful with recordings. Recording a conference creates a new sensitive document and raises consent issues. Recording consent is all-party in NSW, WA, SA, Tasmania and the ACT, and one-party in Victoria, Queensland and the NT, with the federal Telecommunications (Interception and Access) Act 1979 sitting over the top for calls. A written note avoids all of that.
Checklist: criminal file notes
| Event | What the note should record | Signed by client? |
|---|---|---|
| First conference | Charges explained, client's account, bail position, costs or grant of aid, next date | Costs agreement or aid application |
| Advice on plea | Elements, evidence, defences, facts, range, discount percentages and cut-off dates, collateral consequences, that the choice is the client's | Yes, instructions on plea |
| Charge negotiation | Offer made or received, advice, instructions to accept or reject | Yes, especially if rejecting against advice |
| Agreed facts | That the facts were read by or to the client, any disputed paragraphs | Yes, initial the facts |
| Decision not to give or call evidence | Advice, reasons, client's agreement | Yes |
| Client confesses but maintains a not guilty plea | Client's words, advice on ASCR r 20.2 limits, acceptance | Yes |
| Custody or video link conference | Centre, mode, times, who present, documents the client had, condition of client | Where practicable |
| Every court appearance | Court, bench, appearances, what happened, orders, next date, advice given after | No |
| After sentence | Sentence explained, appeal rights and time limits advised, client's response | Preferable if appeal is declined |
For the general file obligations that sit under this, see the law firm file note compliance checklist and what the conduct rules require of file notes.
Worked example note
The client, charge details and dates below are invented.
- The charge
Assault occasioning actual bodily harm, section 59(1) of the Crimes Act. In the Local Court, next date 13 August for plea. Jayden is in custody. Bail was refused on 22 July.
- Jayden's account
He was at the hotel and argued with the complainant. In his words: 'I pushed him, he went over the stool. I didn't punch him.' He accepts he was not defending himself. He says he had 8 to 10 drinks.
- Advice on the charge and the evidence
- What must be proved: an assault, and that it caused actual bodily harm. A push is enough for the assault. Medical records show a fractured wrist from the fall, which is actual bodily harm. The prosecution does not need to prove he meant to cause the injury.
- The evidence: CCTV shows a two-handed push and no punch. There are two witnesses. Jayden's own account proves the offence. On his account there is no self-defence. The prosecution case is strong.
- The facts sheet: paragraph 4 says he punched the complainant. The CCTV does not support that. We will write to the police prosecutor asking to change paragraph 4 to 'pushed with both hands' before any guilty plea.
- Advice on sentence
- Discount for pleading guilty: the matter is staying in the Local Court, so the court must take the plea and its timing into account (section 22). Earlier is better, but there is no fixed percentage. A guilty plea on 13 August will be treated as early.
- Likely sentence: full-time custody is possible because of his record (two earlier common assaults). We will ask for a sentence assessment report. No promise made about the outcome.
- Whose decision it is
Told Jayden the plea is his decision alone. If he tells us to plead not guilty, we will run the hearing and test the evidence. No pressure to decide today.
- What Jayden said
'I did it, I just didn't punch him. I want it over with. I'll plead if they fix the facts.'
- Jayden's instructions
- Plead guilty to assault occasioning actual bodily harm on the amended facts.
- If paragraph 4 is not changed, plead guilty and dispute paragraph 4.
- He understands he will be sentenced on the facts.
- Signing: instructions cannot be signed over video link. We will bring the form to the court cells on 13 August and have Jayden sign it before the plea is entered. He agrees.
- Observations
Jayden was calm and followed the advice. He repeated it back: 'Guilty means I admit the push and the wrist. They still decide the sentence.'
- Next steps
- Letter to the prosecutor about paragraph 4 today.
- Ask Jayden's mother for character references. Jayden consents to us contacting her.
- Diary: court cells, 13 August, 8:45am.
If that client later swears he was told to plead guilty and never understood the facts, the answer is on one page: his account, the advice element by element, the explicit statement that the decision was his, his own words, and the plan for signed instructions.
Keeping this up on a list day
A criminal practice runs on volume. Six matters in the list, three cells conferences, calls from families in between. Notes lose that contest unless making one takes almost no time. Two things help: a fixed template so every plea conference note has the same headings in the same order, and a way to get the note made the same day.
CallNote works from a transcript that already exists. If your phone system or video platform produces a transcript of a client call, you paste it, upload it or forward it by email, and CallNote returns a structured attendance note in your firm's own format in about two minutes. After an in-person or cells conference, you can dictate a voice memo and work from that. CallNote never records a call, never joins a meeting and never stores call audio. You review the draft, fix it, then publish it, which seals the note so any later change shows as a dated amendment. Data is hosted in Sydney, encrypted, and not used to train AI.
There is no native integration with LEAP, Smokeball or Actionstep, so the note goes onto the matter as a PDF or by copy and paste. You can try the format in the free attendance note generator, or see the for law firms page. For the consequences of a thin file more generally, read what happens if you don't keep file notes and file notes as evidence.
Common questions
Do instructions to plead guilty have to be in writing in Australia?
There is no general statutory requirement, but it is the expected practice. In NSW the Court of Criminal Appeal has criticised practitioners who act without written confirmation of instructions (R v Favero [1999] NSWCCA 320), and the Legal Aid NSW Quality Standards require signed instructions for a guilty plea or, where that is not reasonably practicable, clear file notes of advice and instructions.
What should a file note of advice on plea include?
The charge and its elements, the evidence and your assessment of it, any defence on the client's account, the facts the client will be sentenced on, the likely range, the sentence discount and its timing, collateral consequences, a clear statement that the plea is the client's decision, the client's own words, and the instructions given. Add the date, time, place and who was present.
How do file notes protect against an incompetence of counsel appeal?
The test is objective. In TKWJ v The Queen (2002) 212 CLR 124 the High Court found no miscarriage of justice where counsel's decision not to call evidence was an informed and deliberate forensic choice. A contemporaneous note that records the decision, the reasons and the client's agreement is the practical way to show a choice was deliberate and that the client was advised.
Can a client withdraw a guilty plea by saying they were pressured?
They can apply, and the court will look at whether the plea was a free choice (Meissner v The Queen (1995) 184 CLR 132). Strong advice is not improper pressure. In Garcia-Godos v R (Cth) [2015] NSWCCA 144 the application failed largely because the lawyers' conference notes contradicted the client's account, even though signed instructions had not been taken.
What file notes does Legal Aid NSW require from panel lawyers?
The Legal Aid NSW Quality Standards require clear and legible file notes of all conferences including the information and advice given, notes of all conferences, views and other attendances, signed instructions for a plea of guilty or clear file notes where signing is not reasonably practicable, and secure storage of files for seven years after completion. Other states have their own panel standards.
Are notes of a conference with a client in custody privileged?
Yes, if they record confidential communications made for the dominant purpose of legal advice or the proceedings. The privilege is the client's. It is waived over the relevant communications if the client later attacks the advice in a plea withdrawal application or an appeal, which is when the note will be read most closely. General information only, not legal advice.