- THE DUTY SOLICITOR SERVICE
- PRIORITIES OF DUTY SOLICITOR WORK
- DECIDING WHETHER TO REPRESENT/ADVISE/REFER ELSEWHERE
- ETHICAL ISSUES
- HOW TO ASSIST THE DEFENDANT
- SOME RESPONSES TO DUTY SOLICITORS
- APPEARING BEFORE JUSTICES OF THE PEACE
- THE PRISON ADVICE SERVICE
The Legal Services Commission of South Australia (‘the Commission’) provides a free duty solicitor service in the courts of summary jurisdiction to ensure disadvantaged people are not denied access to justice. The duty solicitor provides legal advice, assistance and representation to those people who face disadvantage in court due to factors such as a lack of financial resources, lack of understanding of court procedures, language barriers, cultural background, age, physical or mental health, and gender.
The duty solicitor service operates at all Magistrates courts and the Youth Court of South Australia. This service operates full time in the Adelaide Magistrates Court and the Youth Court situated in the Adelaide CBD, and is staffed by employees of the Commission. The duty solicitor service is also available in all metropolitan Magistrates and Youth Courts, as well as Mt Barker, Port Augusta and Whyalla, when the courts sit to hear the general lists. This is when matters are listed for mention, and which may proceed by way of plea or remand/adjournment.
In addition to Commission employees, local practitioners also assist with duty solicitor advice and representation at the Port Adelaide Magistrates Court, on a roster basis, and in other country areas. Prior to the adoption of the Australian Solicitors’ Conduct Rules by the Law Society of South Australia on 25 July 2011, private practitioners appearing as duty solicitors were advised in the following manner which is worth noting: “Practitioners shall not suggest to any person who consults them as members of an Advisory Service or as Duty Solicitor that such person should engage them or any firm of which they may be a member…[and] if persons ask to be recommended a practitioner to act for them, either privately or on assignment from the Legal Services Commission, practitioners may give to the person their name, address and telephone number but must also give to the person the names, addresses and telephone numbers of two other practitioners or firms of practitioners”.
The Aboriginal Legal Rights Movement (‘ALRM’) also provides a free duty solicitor service for Aboriginal people in the courts of summary jurisdiction. On occasion, duty solicitors from the Commission do assist and represent Aboriginal people in custody, usually when ALRM solicitors are not available or unable to act due to conflict.
The following outlines the duties and priorities of duty solicitor work.
|The duty solicitor’s primary role is to assist unrepresented people appearing in court that particular day, with the priority of assisting people in overnight custody to apply for bail. It is important that the duty solicitor provides assistance and representation according to the priorities set out below.|
The first priority is the representation of people in custody who have been recently arrested and who wish to apply for bail. They have usually been arrested that day, or the day/night or weekend before they are brought to the Court. This category of people requiring assistance is referred to as overnight arrests or overnight custodies [see Bail chapter].
Another category of people in custody who require assistance are those who have previously appeared on the matter(s) now before the Court but who have remained in custody and are unrepresented.
When people who are in custody appear before the Court, the court file is endorsed with DAXC for defendant appears ex-custody.
These defendants usually need the help of the duty solicitor to:
- apply for bail [see Bail chapter];
- apply for a bail assessment and/or home detention report in respect of bail for the next court date [see Bail chapter];
- make submissions in mitigation of penalty on a plea of guilty, if it is a relatively minor matter [see Guilty Pleas and Sentencing chapters]; or
- remand the matter pending lodgement of a legal aid application or for a private solicitor to be instructed [see Assistance with Legal Aid Application in the Bail chapter].
The second priority is representing people who are not in custody but need help to apply for a remand/adjournment or to enter a plea of guilty in a simple matter [see Guilty Pleas and Sentencing chapters]. Considerations relevant to the duty solicitor deciding whether to assist such a person are discussed in more detail later in this chapter (see below).
|WHEN TO REFUSE A GUILTY PLEA|
|The duty solicitor should only offer assistance where the person would be at a serious disadvantage without representation. Where more detailed preparation is required for submissions on a plea of guilty, the duty solicitor should not attempt representation themselves. Instead, they should advise the defendant to remand/adjourn the matter him or herself and instruct a solicitor or apply for legal aid promptly [see Guilty Pleas chapter].|
The third and last priority is advising people who are not in custody and are to appear in court that day. The people to help in this category are:
Unrepresented defendants generally
These defendants often need advice as to:
- potential defences;
- whether it may be in their best interests to adjourn/remand the matter and instruct a solicitor to negotiate with police prosecutions or to proceed to trial;
- possible penalties such as fines, licence disqualifications and alternative sentencing options such as good behaviour bonds and community service work; or
- whether the offence with which they are charged may potentially attract a sentence of imprisonment, either suspended or immediate.
Unrepresented defendants who are able to conduct their own guilty plea
These defendants need the assistance described above for unrepresented defendants generally, as well as advice about court procedures and the material they should put to the Magistrate in mitigation of penalty [see Guilty Pleas and Sentencing chapters].
|The above information for assisting unrepresented persons does not include advising people who telephone the duty solicitors’ office requiring legal advice, because they are not appearing in court on that day. The duty solicitor should refer them instead to the Legal Services Commission’s Legal Help Line on 1300 366 424 or Legal Advice Appointment Service (click here for contact details). In addition, referrals can be made to: The Law Society of South Australia Legal Advisory Service (08) 8229 0222 Appointments are available each Monday and Wednesday between 5.30pm and 7.00pm. There is a nominal fee of $25 (less for pension or concession card holders) for a 20 minute interview. Community Legal CentresRefer to the South Australian Community Legal Centre Directory at www.saccls.org.au for a list of metropolitan and rural centres which provide free legal advice and assistance.|
|DISCRETION WHETHER TO ACT|
|A duty solicitror's discretion to act for unrepresented people should generally be exercised in favour of representation where there is any dimension of disadvantage to the defendant. Many defendants are terrified of appearing alone in court. Duty solicitor refusal of assistance may simply increase their fear, make the Magistrate’s task more difficult, and possibly prejudice a satisfactory outcome.|
The following are examples where the duty solicitor would usually decide to not represent a person:
- At trial, or in the call over list to set a date for trial (where it is assumed the lawyer appearing has responsibility for the conduct of the trial);
- At special reasons applications (made before committal but after declarations are provided), committal or no case to answer submissions for indictable matters (where more senior legal representation is required);
- On complex pleas of guilty, or where there is a possibility of a sentence of imprisonment or other severe penalty (where more senior legal representation is required);
- Where the defendant’s best interest would be served by adjourning/remanding the matter to prepare detailed submissions or conduct negotiations with prosecution (defendants can request this themselves);
- On pleas of guilty to simple cannabis possession charges or simple traffic matters (where there is no risk of imprisonment. Having ascertained that there is no possible defence, the duty solicitor can assist the defendant to represent him or herself by advising of penalties, material to put to the Court, and court procedure;
- On contested and uncontested intervention or restraint order matters (defendants can represent themselves in these matters). However, if a matter involves a breach of an intervention or restraint order, then there is a risk of imprisonment, and a defendant should be advised to apply for legal aid;
- On drink-driving charges, except where the person charged is so compellingly disadvantaged there would be a risk of justice miscarrying should that person be left to their own devices before the Court (normally representation at a level more senior than the duty solicitor is required here);
- Where a defendant could readily afford to instruct a private solicitor but chooses to attend court unrepresented in the expectation the duty solicitor will provide representation free of charge;
- Where a defendant has sought numerous remands/adjournments in the past for the purpose of obtaining legal advice but, for no good reason, has neglected to do so and has now been refused any further adjournment by the Magistrate;
- Where a defendant that a duty solicitor is representing persists in hostile or aggressive behaviour. There can be no solicitor/client relationship unless he or she can be persuaded to calm down.
|A DUTY SOLICITOR CANNOT BE COMPELLED TO CONDUCT A PLEA OF GUILTY|
|A duty solicitor cannot be required either by the defendant or the Court to conduct a plea of guilty in circumstances where there is a potentially serious penalty [see Guilty Pleas chapter]. In such a case the Dietrich principle may apply and the Court may consider a stay of proceedings to allow the defendant to obtain proper legal representation [see Dietrich v R (1992) 177 CLR 292;  HCA 57].|
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.|
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.|
The following behaviours are put up as general types of behaviours which can be encountered during the course of duty solicitor work.
Gratuitous concurrence has already been discussed as an indicator that the defendant may not fully understand what has been said by the duty solicitor due to language and cultural barriers. Another situation is where the defendant simply wants to plead guilty on the first court appearance so as to get that unpleasant experience behind them, regardless of the merits of the case or possible defences.
This defendant does not want to say much, is very angry, possibly depressed and resents any intrusion on his or her personal space. This person is likely to be sceptical as to the ability of the duty solicitor to provide assistance.
Some defendants do not want to accept their situation and, knowing the system, they try to exploit the duty solicitor’s altruism by a variety of ploys, including making outrageous demands on time and resources. Some will try to call into question the duty solicitor’s competence if their demands are not met, and will suggest that a better lawyer could and would get the results they desire by fair or foul means.
On occasion, the duty solicitor will encounter a defendant who is clearly unable to give adequate instructions and for whom arises the question of fitness to plead. For example, there is a considerable body of recent literature on alcohol-related brain damage. People who have committed offences whilst severely intoxicated are likely to have poor memories, and may also exhibit symptoms of alcohol-related brain damage syndrome [see Mental Health Issues chapter]. In severe cases, the duty solicitor may need to consider requesting the defendant be referred for a neuropsychological assessment and/or obtain specialist assistance, particularly in relation to accommodation when bail applications are to be made.
Duty solicitors are likely to come across defendants whose concerns for others, in particular their children or relatives, outweigh their concerns for their own situation. Such defendants may be extremely cooperative with the investigating authorities, and when they present to the duty solicitor, may show signs of being more concerned about the fate of their relatives than of themselves. It is obviously necessary to indicate to them that their ability to look out for others may indeed depend upon their ability to look out for themselves by providing proper instructions.
Some defendants will be under the influence of alcohol or drugs. In these cases, if effective communication is impossible, the duty solicitor is clearly obliged to obtain instructions to have the matter held over until the defendant is able to communicate effectively. If warranted, the duty solicitor should also obtain instructions to have the defendant medically examined, particularly if he or she shows signs of alcohol or drug withdrawal. A person may be subject to alcohol or drug withdrawal when they have not had a drink or drug (or methadone or buprenorphine maintenance treatment) for some time, and may exhibit signs of sweating and shaking, or in the worst cases, visual hallucinations. When a defendant under the influence of alcohol or drugs is in custody, instructions should be obtained to warn the cell guards of the defendant's condition, and remind the cell guards if necessary of their obligation and duty of care to defendants who show signs of alcohol or drug withdrawal, or severe intoxication.
In country towns, local Justices of the Peace may hear bail applications and minor summary offences. Recent legislation has dramatically reduced the jurisdiction of Justices of the Peace to hear offences and to impose terms of imprisonment. When appearing before lay judicial officers, it is very important the duty solicitor is seen to assist the Court by providing accurate information and concise submissions on the law and the procedural aspects of a case, because the Court does not know the duty solicitor and must be able to trust their submissions.
For more information on powers of Juctices of the Peace see Justices of the Peace Act 2005.
Duty solicitors are responsible for visiting the prisons to offer advice on a wide range of matters. Yatala Labour Prison, the Adelaide Remand Centre and Port Augusta Prison are visited every week. The Adelaide Women’s Prison is visited fortnightly. Prisoners from the Mobilong Prison who request advice are contacted through audio visual link as required. Otherwise the Mobilong Prison and James Nash House are visited as required, by other solicitors from the Legal Services Commission’s Criminal Law Practice Division rather than the regular duty solicitors. All solicitors visiting South Australian prisons can be guided by the Professional Visits Guide.
Queries from prisoners range from advice about a pending criminal matter or about help to arrange representation, to family law issues like trying to arrange contact with children while in prison, and issues about the prison system itself, such as tracing missing property or attending an impending hearing before a visiting justice. Other issues may include child protection, victims of crime and civil law matters [see Sentencing chapter]. The advice provided by duty solicitors is limited to criminal related matters, however the Advice Section of the Commission provides a separate prison advice service with staff visiting the prisons to offer advice on a wide range of non-criminal matters including family law, child support and child protection.
|FOLLOW UP ON ALL MATTERS|
|Sometimes duty solicitors will be able to answer a question on the spot. If not, they should make sure that they follow up the matter and send an answer to the prisoner by letter, or contact the prisoner personally by way of a quick visit next time they attend the prison (as long as this is not too far into the future). Duty solicitors should remember that they are often the only person who can help prisoners with matters “on the outside”. Duty solicitors should note that it can be frustrating for prisoners not to be able to arrange their own affairs because of restrictions on using the phone and lack of resources.|
There are a number of metropolitan and country prisons in South Australia as follows:
The Adelaide Remand Centre accommodates remand and/or sentenced prisoners who are transported to the courts on a daily basis.
The Yatala Labour Prison is the metropolitan induction and reception prison for remand and/or sentenced adult male prisoners. It is a medium to high security prison, but also accommodates low security prisoners.
The Adelaide Women's Prison is part of the Northfield Prison complex, formerly known as the the Northfield Women's Prison or the Women's Rehabilitation Centre. This prison accommodates women on remand and women serving sentences of imprisonment.
The Cadell Training Centre is a low security adult male prison farm in the Riverland.
The Mobilong Prison accommodates medium and low security adult male prisoners.
The Adelaide Pre-Release Centre is part of the Northfield Prison complex and consists of pre-release cottages for men.
For information regarding these prisons visit: http://www.corrections.sa.gov.au/sa-prisons
Working as a duty solicitor is challenging and extremely rewarding, and it provides an opportunity to learn the basics of criminal law jurisprudence, advocacy and to become a member of an amazing group of criminal lawyers. At all times, it is important to remember there is a lot of support and advice available when it is needed.
|ROLE AS DUTY SOLICITOR|
|All at the same time, the duty solicitor has to have a thorough grasp of legal principles, substantive and procedural law, the ability if necessary to stand up to bullying or deceitful defendants, and to express sympathetic understanding to the defendant whose situation cries out for assistance. The duty solicitor must also remember their obligations as an officer of the court, and maintain integrity in all that they do and say, both to the court and to the prosecuting authorities. Duty solicitors are not alone, nor are they expected to know everything. There are many experienced solicitors practising in the criminal jurisdiction who are welcoming and available to provide them with encouragement and advice. Duty solicitors should not be afraid to seek out this more experienced company and assistance.|