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 interest
- 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
- 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 PROCESS
- 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
- 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
- Investigation summons for 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
- 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 TO NOT 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
- 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
- SENTENCING OPTIONS
- Sentencing for multiple offences
- Reduction of minimum penalty
- Substituting or adding penalties
- 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
- COMMONWEALTH 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
- POSSESSION
- DRUG CATEGORIES
- Controlled Drug
- Drug of Dependence
- Controlled Plant
- Controlled Precursor
- Prescription Drug
- THE REGULATIONS
- Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000
- 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
- CANNABISPERSONAL 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
- 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 EQUIPMENT 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
- Driving with a suspended driver’s licence (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
- Terminology used in the Young Offenders Act 1993
- 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
- Fundamental principles 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 LONGER TERM INTERVENTION
- FAMILY CARE MEETINGS
- CARE AND PROTECTION ORDERS
- Time limits upon lodgement of application to commencement of trial
- 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
Acts and Legislation
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