Most people encountered by duty solicitors at court are likely to be in an emotional state, which can range from mild nervousness to a high degree of distress and anxiety. It is important for duty solicitors to exhibit courtesy, attentiveness and patience in order to instil in defendants the necessary confidence in the work done on their behalf. The following discussion provides insight into some of the situations which may be encountered during duty solicitor work.
On occasion, a defendant will be from a non-English speaking background, such as a person of Aboriginal descent or a newly-arrived migrant [see Working with Aboriginal Defendants chapter for detailed discussion about Aboriginal defendants]. These defendants may perceive the duty solicitor as an authority figure, or part of an alien court system. Being appropriately polite and respectful to a defendant is always important, but particularly so when dealing with people from these backgrounds.
In relation to newly-arrived migrants, many have come from war torn countries where civic society has disintegrated. Many have witnessed and survived unimaginable trauma involving family members, friends, associates and themselves, and they continue to suffer from those experiences. Past experiences of authority figures, especially those in the police and the military can mean that some defendants are particularly distrustful. In addition to this there can be cultural and religious barriers to understanding the legal system. These defendants also often have an inability to speak and understand English. All of these factors mean that the defendant is likely to experience a high state of stress and anxiety.
|THE DUTY SOLICITOR'S CONDUCT IS IMPORTANT|
|The duty solicitor must maintain their integrity by being patient and courteous at all times.|
Gender issues inevitably arise for duty solicitors dealing with Aboriginal people (particularly traditional people) and some newly-arrived migrants [see Working with Aboriginal Defendants chapter].
Female duty solicitors who find themselves acting for traditional men should always be wary of the prospect that they will not receive full or adequate instructions, because the defendant will feel constrained about talking to a woman. This is a cultural issue. In these circumstances, if a female duty solicitor needs to take instructions from a man who is clearly uncooperative or uncomfortable, it will generally be advisable for her to seek the assistance of a male person when obtaining instructions.
Similar considerations apply when male duty solicitors attempt to obtain instructions from women, particularly if there is any hint that the issues which need to be canvassed could give rise to a sense of shame. Again, the most prudent course of action is for the male solicitor to ask a woman to assist.
|AWARENESS OF GENDER ISSUES|
|It is important that the duty solicitor is alert as to whether their gender is affecting their ability to assist a defendant, and whether it is appropriate that a duty solicitor of the same gender assists the defendant rather than them.|
Some people from different cultures do not directly address an issue. Rather, they will come to the issue in a slower manner, and even then, they may not directly speak of the issue. When this occurs, the duty solicitor has to possess the virtues of patience and sympathetic understanding, and must listen attentively to the person's story. The telling of a story is an essential aspect of many cultures, and the telling itself reveals trust towards the listener. The person’s account of their situation may contain seemingly irrelevant details, but their confidence in the duty solicitor will largely depend upon the ability of the duty solicitor to glean the essential information from their story, as well as provide good and accurate legal advice.
Many people from non-English speaking backgrounds may give the appearance of understanding the court process. The duty solicitor must always be on guard against the possibility that this appearance is deceptive. A person disadvantaged because of a language barrier can be relatively powerless when confronted by alien institutions and authority figures, and may adopt a strategy of always agreeing or saying what they think the person in authority wants them to say, regardless of the truth of the matter.
|ASSESS HOW MUCH THE DEFENDANT UNDERSTANDS|
|The duty solicitor should not rely on what others tell them about a particular defendant’s knowledge and command of English. Rather they should test it out for themselves. If a defendant shows signs of agreeing, in English, to virtually any proposition that they put to them, especially contradictory propositions, even when put in plain English, then alarm bells should ring about the need for an interpreter. In that case, the duty solicitor should advise the defendant that they need an interpreter to assist them, and they should also inform the Court that they have given the defendant this advice.|
One small way to begin to overcome the disadvantage faced by people from non-English speaking backgrounds is through communication with the assistance of an interpreter. In accordance with the Evidence Act 1929, a witness who is not reasonably fluent in English is entitled to be assisted by an interpreter to give oral evidence in any court proceedings [see Evidence Act 1929 s 14]. The interpreter must take an oath or affirmation that they will interpret accurately [see s 14(1a)]. Where an affidavit or other written deposition in another language other than English is to be received in evidence, the original document must be accompanied with a translation of the material in English and an affidavit by the translator confirming the translation accurately reproduces the original material [see Evidence Act 1929 s 14(2); Police Powers and Forensic Procedures chapter for other rights to an interpreter].
It is very much the task of the duty solicitor to try to relate the abstract rights and duties of the Summary Offences Act 1953 and the Summary Procedure Act 1921 to the immediate experience of the defendant and their situation. It is important to keep in mind, even when seeking the assistance of an interpreter, that many legal concepts are either uninterpretable or culturally foreign. It is useful to avoid using legal jargon: instead, the duty solicitor should describe the situation that the person is in and their rights using general terms and plain English only.
|REQUEST AN INTERPRETER|
|If the duty solicitor has reason to think the defendant is not able to grasp even the simplest concepts such as bail, adjournment or the circumstances that have brought them to court, then clearly it will be necessary for the duty solicitor to ask the court to arrange for the services of an interpreter. Be aware that this might cause some inconvenience to the court, and while being courteous in your application, stand firm, explain the defendant’s particular difficulties, and cite s 14 of the Evidence Act 1929.|