LSC Duty Solicitor Handbook

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Acknowledgements
ROLE OF THE DUTY SOLICITOR
The Duty Solicitor Service
Priorities of Duty Solicitor work
Priority One: Representation of people in custody
Priority Two: Representation of people who are not in custody
Priority Three: Advising people who are not in custody
Deciding whether to represent/ advise/refer elsewhere
Deciding to not represent a person
Ethical issues
Declining to act where a solicitor is already instructed
Checking instructions on a bail application or guilty plea
Conflict of interest from false instructions
Prior offences not known to the Court
How to assist the defendant
People from non-English speaking backgrounds
Using Interpreter Services
Some responses to Duty Solicitors
Gratuitous concurrence
Sullen passive aggressive
Vehement manipulative denial
Brain-damaged, fitness to plead
The altruistic defendant
Charged up or seriously ill?
Appearing before Justices of the Peace
The Prison Advice Service
Where are prisons located in South Australia?
Conclusion
PROFESSIONAL ETHICS AND COURT ETIQUETTE
Legal Professional Ethics
Standard of Conduct
Duty to the client
Conflict of Duties
Officer of the court
Confidentiality and Legal Professional Privilege
Prosecution Policy Guidelines
Court Etiquette
Appropriate attire
Before court
Report to the court
Relations with court staff
Entering the courtroom
While waiting to appear
At the bar table
Senior Counsel
Leaving the bar table
WORKING WITH ABORIGINAL DEFENDANTS
Introduction
Identity
Application of the Cross-border Justice Act 2009 (SA)
How to assist an Aboriginal defendant
Using Interpreter Services
Gratuitous Concurrence
Different ways of communicating
Issues for Duty Solicitors
Some responses to duty solicitors
Gender issues
Charged up or seriously ill?
The names of deceased people
Ceremonial obligations
Applying for Bail
Guarantors and traditional people
Sentencing considerations
Sentencing Conferences
General Sentencing Principles
Early Release on home detention
Sentencing Reports
Pre-sentence Reports
Psychiatric reports
Anthropological Reports
Commonwealth offences
Bail applications
Sentencing considerations
Discharge without recording a conviction
Relevant country courts and criminal court circuits
Aboriginal Court Day (Nunga Court)
Judicial Education
SPECIALIST COURTS
Introduction
Terminology
Co-morbidity
Criminogenic Factors
Diversion
Evidence-based practice
Intervention program
Problem-solving court
Recidivism
Restorative justice
Therapeutic jurisprudence
Bail
Bail to undertake assessment for an intervention program
Failure to comply with a condition of bail to attend an assessment
Bail for participation in an intervention program
Failure to comply with the conditions of an intervention program
Judicial Review
Sentencing Considerations
Deferral of sentence
General Sentencing Principles
Intervention program as a condition of a bond
Referral to specialist courts
Aboriginal Court Day (also known as Nunga Court)
Sentencing Conferences
Referral Process
Eligibility criteria
Assessment report
The sentencing conference
Sentencing Considerations
Drug Court
Referral Process
Eligibility criteria
Breach of District Court Bonds
Parole Board warrants
Former Drug Court participants
Assessment report
Acceptance into program
Progress reports
Progress summary report and sentencing considerations
Family Violence Court
Referral Process
Eligibility Criteria
Assessment Report
Acceptance into Program
Progress Reports
Final reports and sentencing considerations
Intervention Orders
Magistrates Court Diversion Program
Section 269 matters
Referral Process
Eligibility criteria
Assessment report
Acceptance into program
Progress reports
Progress summary report and sentencing considerations
Without conviction or penalty
Dismissal of the charge
Release on undertaking to complete the program
Other sentencing options
Treatment Intervention Program
Referral process
Eligibility criteria
Assessment report
Acceptance into program
Progress reports
Progress summary report and sentencing considerations
Youth Court
POLICE POWERS AND FORENSIC PROCEDURES
Police powers
Reasonable cause to suspect
The power to search and seize property
Search Warrants
General Search Warrants
Other search warrants and police powers
General Police Powers
Stopping, searching and detaining vehicles, vessels and people
Searching on land for stolen vehicles
Drunk and disorderly people
Request for personal details
Request for information about the identity of drivers
Power of Arrest
Arrest for offending
Arrest for outstanding warrant(s)
Arrest for interstate offence(s)
Arrest for intervention orders
Arrest for restraining orders
Arrest for breach of parole
Application of the Cross-border Justice Act 2009 (SA)
Arrest procedure
Delivery to nearest police station
Investigation of a suspected offence
The rights of an arrested person
Police caution
Telephone call
Solicitor, relative or friend
Right to an interpreter
Right to silence
Application for Police bail
Refusal to allow a telephone call or presence of a particular person
Use of reasonable force
Procedures to be humane and in accordance with medical standards
Search procedures
Identity procedures
Forensic procedures
Suspects procedures
Definition of a serious offence
Simple identity procedure
Authorisation for a forensic procedure
Offenders procedures
Directions to persons not in custody
DNA Database Systems
Police questioning and interviewing
Identification parade
Being Charged
Taking Instructions for Overnight Advice Service
COURTS AND JURISDICTION
Courts
The Magistrates Court
The District Court
The Supreme Court
The Court Heirarchy
Commencement of Court Matters
Summons
Complaint
Information
Categories of offences
State offences
State Legislation
Expiable Offences
Summary offences
Minor Indictable Offences
Major indictable offences
Commonwealth offences
Commonwealth Legislation
Summary Offences
Indictable Offences
Establishing the elements of an offence
Strict liability (responsibility)
WARRANTS
Introduction
First instance warrants (warrants of apprehension)
Failure to answer a summons
The form of a warrant
Endorsements about bail
Defective arrest warrants
Cancelling a warrant
Non-attendance at court – summons not served
Non-attendance at court - failure to answer bail
Warrant for failure to perform community service (unpaid fines)
Interstate warrants for unpaid fines
Parole warrants
Bench warrants
Extradition warrants
Persons in prison
Persons determined to be “under restraint”
Persons not “under restraint”
Invalid extradition warrants
Bail for extradition orders
Supreme Court review
BAIL
Introduction
Priority one: overnight custody
Bail is important
Eligibility for bail
Bail authorities
Bail granted by police
Bail granted by a Magistrate
Bail granted by a District Court Judge
Bail granted by a Supreme Court Judge
Applications for release on bail
Presumption of bail
Factors rebutting the presumption
Presumption against bail
Conditions of bail
Enforcement of bail agreement
Guarantors
Taking instructions for a bail application
The structure of a bail application
Order of address
Submissions for an unopposed bail application
Submissions where bail is opposed
Bail submissions
1. Personal circumstances
2. Address the allegations
3. List good bail risk factors
4. Focus on contentious issues
5. Proposals for bail conditions
The outcome of the application
If the Magistrate is undecided
Bail assessment/enquiry report
Psychiatric report
Home detention bail assessment report
If bail is refused
If bail is granted
When not to apply for bail
Homicide arrests and other sensational matters
Fresh arrests where previous serious matters
Negative bail assessment report containing prejudicial information
Insuperable prosecution objections to bail
Bail pending appeal
Unrepresented Defendants
Suppression orders
GUILTY PLEAS
Introduction
Legislation relevant to guilty pleas
Accessing case law relevant to guilty pleas
Loose-leaf services
Penalty Summaries
General Sentencing Principles
Factors relating to the offence
Factors relating to the victim
Factors relating to the defendant
Factors relating to the underlying principles of sentencing
Other relevant considerations
Cooperation with law enforcement - s 10A
Discount for early guilty plea - ss 10B and 10C
The imposition of pecuniary sums
Trifling offences
Penalty without conviction
Taking instructions to advise whether to plead guilty
Refusal to give advice or representation on a plea
Unable to take proper instructions and consider the matter in full:
Real likelihood of a penalty of imprisonment:
No likelihood of a penalty of imprisonment
Giving advice and/or representation on a plea
Advising defendants about whether to plead guilty
Defendants who wish to make a “convenience plea”
The importance of accurate recording of instructions and advice
When to accept instructions to appear on a guilty plea
Defendants in custody
Defendants not in custody
Special ethical considerations
Acting for a defendant who has changed instructions from not guilty to guilty
Acting for co-charged defendants on a guilty plea
Where the defendant gives implausible instructions
Instances where instructions should not be accepted
Conducting a plea of guilty as a duty solicitor
Objectives of a simple guilty plea
Obtaining signed instructions
Negotiation and advice before making submissions
Police Prosecution contact numbers
Pre-sentence and psychiatric reports
Pre-sentence reports
Psychiatric reports
Taking instructions for a guilty plea
SENTENCING
Underlying sentencing principles
Retribution
Deterrence
Rehabilitation
The safety of the community
State offences
Divisional Penalties
Sentencing related definitions
Pleading guilty and the finding of guilt
Conviction
Sentence
The sentencing process
How a sentencing court informs itself
The presence of defendants during sentencing procedure
Sentencing considerations
The Criminal Law (Sentencing) Act 1988 (SA) sections 10, 10A, 10B and 10C
Aggravating factors
Mitigating factors
Specific discount for an early plea of guilty and cooperation with law enforcement
Character and antecedents of the defendant
Information about injury, loss or damage suffered by a victim
Victim impact statements
Pre-sentence reports
What the Court must not have regard to in Sentencing
Sentencing options
Sentencing for multiple offences
Reduction of minimum penalty
Substituting or adding penalties
Home Detention Orders
Trifling applications
Penalty without conviction
Examples of submissions
Situations where section 16 should be argued
Circumstances where the court will not usually invoke section 16
Pecuniary orders
Fines
Compensation Orders
Victims of Crime Levy
Court fees
Cost orders
Forfeiture Orders
Restitution of property
Community service
Restrictions on the performance of community service
Application to vary, revoke or extend a community service order
Breach of Community Service Order
Conversion to community service
Good behaviour bonds
Variation, revocation, discharge of bonds
Breaches of bonds
Education programs
Imprisonment
Suspended sentence of imprisonment
Partly suspended sentence of imprisonment
Suspended sentence with a home detention condition
Breach of suspended sentence
Intervention and Restraining Orders
After sentence
Reasons for sentence
Rectification of sentencing errors
Re-sentencing for failure to comply with an undertaking under s 10A Criminal Law (Sentencing) Act 1988 (SA)
Parole
The fixing of non-parole periods
Release on parole
Parole conditions
Breaches of parole
Breach of firearms conditions or condition not to commit an offence
Breach of other parole conditions
Apprehension and hearing for breaches
Sentence for offences committed whilst on parole
Release on home detention
Breaches of prison regulations
Appeals
Remission of sentence
Commonweath offences
Social security offences
Pleas for social security charges
Other Commonwealth matters
General sentencing options for Commonwealth offences
Discharge without recording a conviction
Record a conviction and release on a bond
Community service order (CSO)
Recording a conviction and imposing a sentence of imprisonment
Breach of recognisance release orders
Where the defendant is serving or subject to another sentence
Where the defendant is sentenced to Commonwealth and State offences
Setting non-parole periods for State and Commonwealth offences
Global penalty
Reparation orders
Sentencing appeals
PENALTY SUMMARIES
Brief penalty summaries
Drug Offences
Traffic Offences
Comprehensive penalty summaries
Commentary
DRUG OFFENCES
Introduction
The Controlled Substances Act 1984 (SA)
Possession
Drug categories
Controlled Drug
Drug of Dependence
Controlled Plant
Controlled Precursor
Prescription Drug
The Regulations
Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA)
Controlled Substances (Poisons) Regulations 2011
Cannabis
Expiation of simple cannabis offences
Expiation notices
Expiation reminder notices
Expiation fees for simple cannabis offences
Prosecution of simple cannabis offences
Cannabis- Personal Use and Supply
Possession and use of cannabis
Supply or administer cannabis
Cultivation of five cannabis plants, artificially enhanced cultivation and supply
Cultivation of cannabis for sale
“To cultivate”
A step in the process of cultivation
Cultivation of cannabis deemed to be for the purpose of sale or supply
Cultivation of one cannabis plant for sale
Sale of Cannabis
A step in the process of sale
Possession of cannabis deemed to be for the purpose of sale or supply
Possession of one cannabis plant for sale
Trafficking in cannabis
Drugs of Dependence
Simple possession offences
Possession of equipment
Referral to assessment service for drug misuse intervention
Appearance before an assessment panel
Undertakings for treatment
Withdrawal of complaint, release from custody and discharge of bail agreements
Immunity from prosecution
Prosecution of a simple possession offence
Termination of referral to assessment service
Drugs of dependence - personal use and supply
Manufacture, Production, Sale or Supply (Drugs of Dependence)
Manufacturing drugs of dependence
A step in the process of manufacture
Quantity deemed to be for the purpose of sale or supply
Definition of “sell”
A step in the process of sale
Production, promotion and sale of controlled drug alternatives
Trafficking in controlled drugs
Quantity deemed to be for the purpose of sale or supply
Offences involving children and school zones
Prescription drugs
Possession of Prescription Drugs
Forged Prescriptions
Sale or supply of volatile solvents
Possession of equiptment for drug use
Sale or possession of equipment
Possession of Prescribed Equipment
Sale or supply of drug paraphernalia
Sentencing Considerations
Brief penalty summary
TRAFFIC OFFENCES
Introduction
Relevant legislation
How traffic offences are dealt with
Traffic infringement notices
Expiation Reminder Notice
Enforcement Order
In cases of hardship
Prosecution
Commencement by issuing a summons
Written plea of guilty
Failure to enter written plea of guilty and failure to attend court
Sentencing procedure for a written plea of guilty
Where the penalty may include imprisonment or a licence disqualification
Points Demerit Scheme
Summary of demerit points
Disqualification
Reduction of demerit points by a court
Penalties for driving offences
Where no penalty is stated for the offence
Licence disqualification and cancellation
Licence disqualification to commence after imprisonment
Clamping, impounding and forfeiture of motor vehicles
Common Driving Offences
Failing to stop after an accident
Failure to obey directions, answer questions or produce a licence
Driving an unregistered and uninsured vehicle
Excessive speed
Driving without due care
Misuse a motor vehicle
Driver's Licences
Driving without a licence
Suspension of driver’s licence for unpaid fines
Driving with a suspended driver’s licence
Driving whilst disqualified
The role of the duty solicitor
Penalty range
Sentencing principles for drive disqualified
Alcohol/ Drugs and Driving Offences
Alcohol and drug testing
Driving under the influence of alcohol (DUI)
Prescribed concentration of alcohol (PCA)
Driving with prescribed drug present in oral fluid or blood
Refusing a breath test
Penalties for drink driving offences
Section 47J assessment for recurrent offenders
Alcohol Interlock Scheme conditions
Serious driving offences
Aggravating factors
Reckless and Dangerous Driving
Dangerous driving to escape police pursuit
Using motor vehicle without consent
Causing death or injury by driving
Reckless and dangerous driving which causes death or harm
Aggravated driving without due care
Brief penalty summary
MENTAL HEALTH ISSUES
Introduction
Relevant legislation and regulations
Common mental health problems
The Duty Solicitor's role with mentally ill defendants
Support systems
Confidentiality
Legal issues confronting the Duty Solicitor
Identifying the legal issues
Mental incompetence and mental unfitness to stand trial
Incompetence to commit the offence
The consequences of a finding of mental incompetence
Unfitness to stand trial
Summary
The consequences of a finding of unfitness to stand trial
Fitness to instruct
Assisting unrepresented defendants
Unrepresented defendants attended by a case worker or relative
Bail applications
Bail conditions where the defendant seeks a voluntary psychiatric admission
Bail conditions where there is a Mental Health Act 2009 order for involuntary detention
Bail assessment report
First instance warrants
Sentencing considerations and submissions
Mitigating Factors
Rehabilitation
Deterrence
Safety of the community
Alcoholism and gambling addiction
Commonwealth offences
Summary matters
Indictable matters
Sentencing considerations
YOUTH COURT
Introduction
Relevant legislation and regulations
The Youth Court of South Australia
Jurisdiction and powers
The judiciary of the Youth Court
The criminal jurisdiction of the Youth Court
Youth Court Rules
Magistrates Court Rules 1992
Youth Court Practice Directions
Confidentiality of Proceedings
Closed court
Reporting restrictions on court proceedings
Applying for a suppression order
Reporting restrictions on police cautions and family conferences
The Young Offenders Act 1993 (SA)
Terminology used in the Young Offenders Act 1993
Youth Justice Administration Act 2016
Training Centre Visitor
Charter of Rights
Assessment on admission to a training centre
Management and treatment of training centre residents
Safe rooms
Prohibited treatment
Use of force
Pre-court diversion for minor offences
Minor offence
Informal police caution
Formal police caution
The nature of a formal police caution
Powers and sanctions available in relation to a formal police caution
Failure to comply with a formal police caution
Family conference
The nature of a family conference
Powers and sanctions available to a family conference
Failure to comply with a family conference
Court proceedings
Commencement of prosecution
Jurisdiction to hear and determine criminal matters
Criminal investigation and arrest
Bail
Youth Court bail instructions
The role of the Families SA officer
Placement into suitable accommodation
Conditions of Youth Court bail agreements
Sentencing considerations
Social Background Report
Penalties
Power to impose a custodial sentence
A sentence of home detention
Suspending a custodial sentence
Power to impose an obligation
Undertaking from guardians
Community Service
Power to disqualify from holding or obtaining a driver’s licence
Remittance or reduction of court fees
Record of appearance kept
Detention provisions
Conditional release from a training centre
Transfer to prison from a youth detention centre
Specialist intervention programs
Youth Court Diversion Program
Youth CARDS (Youth Court Assessment and Referral Drug Scheme)
The civil jurisdiction of the Youth Court
The Children’s Protection Act 1993
The objects of the Children’s Protection Act 1993
State intervention for children “at risk”
Definition of “abuse or neglect”
Notification of abuse or neglect
Removal of children in danger
Investigations
Investigation and assessment orders
Adjournment of investigation and assessment applications
Failure to comply with an order
No appeal
Voluntary custody agreements
Procedures for long term intervention
Family Care Meetings
Care and Protection Orders
Time limits upon lodgement of application to commencement of trial
Persons with qualifying offences
Evidence
Legal representation
Appeals
LEGAL AID APPLICATIONS
Introduction
Legal aid
Choice of lawyer
Contribution
Charge over real estate
Applying for legal aid
Proof of means and other relevant documents
Helping people in custody or prison apply for legal aid
When does legal aid begin?
Conditions of legal aid
Confidentiality
Payment of costs and fines
Assessing eligibility for legal aid
Guidelines related to criminal matters
Special and exceptional circumstances
What happens if legal aid is refused?
Legal Advice
Free telephone and appointment advice
Country outreach advice
Domestic violence services
Interpreters
Family Law
Child Support Unit
Community legal education services
Complaints
Other places to go for help
FREQUENTLY USED FORMS
Affidavit precedent
Notice of bail review precedent
Notice of appeal precedent
Glossary
Legislation
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