If another solicitor is acting for a defendant, it is not appropriate for the duty solicitor to appear for that defendant other than on the instructed solicitor’s specific instructions, or where the duty solicitor is unable to contact the instructed solicitor and the defendant simply needs assistance to remand/adjourn the matter. It is unprofessional to intervene if somebody else is acting. In practical terms, intervention by the duty solicitor (in the absence of specific instructions by the instructed solicitor) may interfere with the way in which he or she is conducting the defendant’s case.
Occasionally, defendants give instructions which raise doubt about the truth of what they are saying. The duty solicitor is not responsible for the veracity of a defendant’s instructions, and should always put them to the court as instructed, unless to do so would mislead the court [see Professional Ethics and Court Etiquette chapter]. Where there is a discrepancy between the defendant’s instructions (for example, as to prior offending, prior non-appearance, personal circumstances, outstanding interstate matters, drug addiction) and other indicators (for example, the Form 2 - Reasons for Refusal of Police Bail, or the allegations), and the discrepancy is not one that can be resolved by negotiation, the duty solicitor should note the discrepancy and go back to the defendant seeking further instructions by way of explanation. Where a plausible explanation is given, this may well become the thrust of a submission when the time comes to make the application for bail or submissions in mitigation. Where the explanation is not sound, at the very least, the duty solicitor is forewarned of a weakness in the defendant’s position.
|DO NOT KNOWINGLY MISLEAD THE COURT|
|While duty solicitors have a duty to put a defendant’s instructions robustly, they have a higher duty to not knowingly mislead the court. It is not in the defendant’s interests to lie to the court through counsel, because this can damage his or her credibility, and if detected, can lead to an outright refusal of bail or the rejection of submissions on a plea of guilty.|
The duty solicitor may know from previous dealings that a defendant’s instructions are false. For example, the duty solicitor may know that a defendant is charged under a false name or is on bail for other matters, but this is denied by the defendant; or that a defendant has approached a witness despite an undertaking not to do so. When an instance of this occurs, the duty solicitor cannot reconcile his or her duty to robustly put a defendant’s instructions, with the primary duty, as an officer of the Court, to not knowingly mislead the court [see Professional Ethics and Court Etiquette chapter].
When this occurs, the duty solicitor should:
- advise the defendant they cannot act for them on those instructions;
- if necessary, ask for the matter to be held over to the next list to arrange alternative representation; and
- if the defendant refuses to wait for another solicitor to act, advise the defendant that they can apply for bail or make submissions in mitigation unrepresented.
|ANOTHER SOLICITOR WILL NEED TO TAKE INSTRUCTIONS|
|The duty solicitor should confidentially advise the defendant that it is an offence to give false information on a bail application [see Bail Act 1985 s 22]. The maximum penalty is a fine of $1 250. The duty solicitor should then urgently contact another solicitor to take fresh instructions and to appear on the bail application or to make submissions in mitigation.|
|The duty solicitor cannot breach confidentiality by discussing the nature of the conflict with the other solicitor, the Court, or the prosecutor.|
Sometimes whilst conducting a bail application or a guilty plea, the duty solicitor may find themself making submissions about a person who the court may think has no prior criminal record, or a lesser criminal record than the duty solicitor knows to be the case. It is important that this situation is handled carefully so as not to prejudice the defendant’s position, but at the same time without misleading the court [see Professional Ethics and Court Etiquette chapter].
Where the defendant has a record, but the prosecutor tells the court he or she has none
It is not the responsibility of the duty solicitor to tell the court about the undisclosed record (unless of course there are specific instructions from the defendant to do so) but great care must be exercised so as not to be in a position of misleading the court [see box below].
|DO NOT MISLEAD THE COURT|
|The duty solicitor must not mislead the Court by saying the defendant is a first offender. Rather, they should make sure not to address the issue of previous character, and highlight instead other positive and mitigating factors.|
Where the record is more extensive than has been disclosed to the Court
The duty solicitor is not obliged to tell the Court about any additional prior offences but must be careful to not mislead the Court.
|DO NOT MISLEAD THE COURT|
|The duty solicitor must not mislead the Court, for example, by saying that the defendant has only ever been in trouble twice in the past if they have a long record. It is not the duty solicitor's role to ensure that the Court knows every last negative detail about the defendant. Rather, duty solicitors should highlight the factors which may assist them to achieve their client’s aims, such as release on bail, or a particular type of sentence.|
|If the Magistrate asks the duty solicitor directly directly about the accuracy of the record, the duty solicitor will need to ask for leave to take instructions from the defendant before responding. After taking instructions, however, the duty solicitor is still obliged not to mislead the Court.|