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Criminal Law Solicitor’s Manual Version 1.0

Criminal Law Solicitor’s Manual v1.0 Released: June 2006 Revised: November 2008 All rights reserved

© Legal Aid NSW 2006

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without permission from Legal Aid NSW.

Requests and inquiries concerning reproduction and rights should be addressed to the CEO, Legal Aid NSW, PO Box K847, Haymarket, NSW 1238.

Disclaimer

Legal Aid NSW (the Commission) has made every effort to ensure the accuracy and completeness of this manual. However, Legal Aid NSW and its staff and agents accept no responsibility for the accuracy and completeness of this manual and do not accept any liability (irrespective of how incurred including negligence) for any loss to any person, who either acts or does not act based on the information contained in this manual.

Legal Aid NSW may make changes to this manual from time to time. Examples provided in this manual are fictional and any resemblance that it may have to any person is coincidental.

Contents

Introduction________________________________________ 9

Part I: Clients______________________________________ 11

1 Clients ................................................................................... 13 The Nature and Scope of the Retainer ........................................ 13 Client Management.................................................................. 14 Appendix A The Course of a Matter in the Local Court ................................. 20 Letter to Correctional Centre Advising of Confidential Correspondence ............................................... 21

2 Advice and Instructions............................................................ 23 Initial Advice to Clients ............................................................ 23 Recording Your Advice to Clients................................................ 24 Taking Instructions for a Summary Trial...................................... 24 Taking Instructions from a Witness ............................................ 24 Advice to Clients and Witnesses about Giving Evidence ................. 25 Taking Instructions for Sentence................................................ 25 The Advocacy Rules and the Integrity of Evidence........................ 26 Practical Issues in Relation to Taking Instructions from Clients ....... 26

3 Reports on Clients ................................................................... 27 The Pre–Sentence Report ......................................................... 28 Legal Aid NSW Policy in Relation to Obtaining Psychological and Psychiatric Reports .................................................................. 28 Psychiatric Reports .................................................................. 29 Psychological Reports............................................................... 30 Psychosocial Reports................................................................ 31 Justice Health Psychiatric Assessments and Assessments by Court Liaison Nurses............................................................ 31 Medical and Other Reports........................................................ 32 Letters Requesting Reports ....................................................... 32 Asking for Changes to Reports .................................................. 32 Additional Sources of Reports on Clients ..................................... 32 Reports on Clients and LA Office Protocol .................................... 33

Criminal Law Solicitor’s Manual v1.0 iii

Contents

Keeping Reports ......................................................................33 Appendix B Authority ..............................................................................36 Authority to Release Information and Records ............................37 Authority to Release Legal File .................................................38 Medical Authority ...................................................................39 Letter Requesting Transfer of an Inmate....................................40

4 Acting for People with a Mental Illness or Developmental Disability ................................................................................41 Communicating with Clients ......................................................41 Section 32 Case Plans for People with a Mental Illness or Developmental Disability.......................................................42 Assistance in Acting for People with a Mental Illness or Developmental Disability.......................................................44

Part II: Practice Issues for the Legal Aid NSW Solicitor______ 47

5 File Management .....................................................................49 The Legal Aid Application Form ..................................................49 The File Cover .........................................................................50 Contents of the File..................................................................51 File Notes ...............................................................................51 Release of Files at the End of Representation by Legal Aid NSW......52 When a File is Transferred to Another Court .................................53

6 Ethical Issues..........................................................................55 Professional Obligations when Approaching Ethical Problems ..........56 Your Client Instructs: “I plead Not Guilty, because the Complainant will not turn up to Court”; or asks, “What will happen if the Complainant doesn’t turn up?”.................57 Contact with Complainants........................................................57 Your Client Brings the Complainant to You ...................................58 The Complainant Approaches You and Says: “I Lied to the Police”.................................................................58 Your Client Instructs: “I did it, but I want to plead Not Guilty” ........60 Your Client Instructs: “I didn’t do it, but I want to plead Guilty”......61 The Plea of Guilty is Traversed in the PSR or Psychological Assessment ............................................................................63 Reversing a Plea of Guilty .........................................................64 Disclosing your Client’s Unknown Convictions...............................65 Withdrawing from a Matter........................................................66 Assignments of Legal Aid ..........................................................68 Your Solicitor in Charge ............................................................68

iv Criminal Law Solicitor’s Manual v1.0

Contents

Appendix C Instructions to Put the Prosecution to Proof............................... 70 Instructions to Plead Guilty ..................................................... 71

7 Representing Clients ................................................................ 73 Introduction ........................................................................... 73 Appearing Amicus Curiae.......................................................... 74 Disclosing Information in Relation to Grants of Legal Aid ............... 75 Being Asked to Represent Someone Who May Not be Eligible for Legal Aid ........................................................................... 76 Dealing with the Media............................................................. 77 Complaints about the Media...................................................... 77

Part III: Representing Clients in Court __________________ 79

8 Bail Applications...................................................................... 81 Advising Clients in Relation to Bail ............................................. 81 Taking Instructions on Bail........................................................ 82 Making Observations of Your Client ............................................ 82 The Criminal Record and the Bail History .................................... 82 What to Raise and What Not to Raise in a First Bail Application in the Local Court.................................................................... 83 Taking Instructions on Strictly Indictable Offences at a First Bail Application ............................................................................. 83 Selected Ethical Problems in Relation to Bail................................ 84 Clients who are Drug Affected or Mentally Ill ............................... 85 Lodging Applications for Bail in the Supreme Court....................... 86 Legal Aid NSW’s Supreme Court Bail Section ............................... 86 Appendix D Bail Instruction Sheet ............................................................ 90 Information as to Bail for Legal Aid NSW................................... 92 Guide to Matters Going to the District Court or Supreme Court .... 93

9 Sentencing............................................................................. 95 References and Other Documents on Sentence ............................ 95 Calling Evidence in Local Court Sentence Proceedings................... 96 Appealing............................................................................... 96 Appendix E Instruction Form for Sentencing ............................................ 100 Checklist of Matters to Consider when Preparing a Matter for Sentence .......................................................... 102 Instructions to Plead Guilty ................................................... 106 Reference Layout ................................................................ 107

Criminal Law Solicitor’s Manual v1.0 v

Contents

10 Summary Trials ..................................................................... 109 Legal Aid NSW's Local Court Practise Standards ......................... 110 Checklist in Relation to the Preparation of a Summary Trial .......... 111 Appendix F Witnesses and Defence Case Summary ................................... 117 Matters to Consider in Preparation of Defence Case .................. 118 Matters of Law for the Court.................................................. 119 Examination of Issues .......................................................... 120 Anticipated Objections to the Evidence.................................... 121 List of People Involved.......................................................... 122 Chronology ......................................................................... 123 Identification Evidence Ready Reckoner................................... 124 Exhibits List ........................................................................ 125 Matters to Raise with an Accused/Witness who will be Giving Evidence................................................... 126

11 The Advocacy Rules........................................................... 128 Efficient Administration of Justice ............................................. 128 Duty to a Client ..................................................................... 129 Independence – Avoidance of Personal Bias ............................... 129 Frankness in Court................................................................. 130 Delinquent or Guilty Clients..................................................... 132 Responsible Use of Court Process and Privilege .......................... 133 Integrity of Evidence .............................................................. 134 Duty to Opponent .................................................................. 135 Integrity of Hearings .............................................................. 136 Prosecutor’s Duties ................................................................ 136

12 Recovering Costs in Legally Aided Criminal Cases ....................... 140 Matter Dismissed or Withdrawn................................................ 140 Adjournments ....................................................................... 141 Committals ........................................................................... 141 Costs Being Awarded to the Prosecution.................................... 141 Making the Application for Costs .............................................. 142 Payment of Costs................................................................... 142 Appeals to the District Court.................................................... 143 Appendix G Notice of Assignment Pursuant to Section 45 ........................... 145

Part IV: Resources _________________________________ 146

13 Reform ............................................................................ 148

14 Specialist Services at Legal Aid NSW..................................... 150

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Contents

Client Assessment and Referral Service (CARS) ......................... 152 The Children’s Legal Service (CLS)........................................... 156 The Civil Law Division ............................................................ 164 The Drug Court ..................................................................... 167 The Family Law Division ......................................................... 171 The Legal Aid Library ............................................................. 177 The Mental Health Advocacy Service (MHAS)............................. 179 The Prisoners Legal Service (PLS)............................................ 181

Index ___________________________________________ 185

Criminal Law Solicitor’s Manual v1.0 vii

Contents

viii Criminal Law Solicitor’s Manual v1.0

Introduction Legal Aid NSW’s Criminal Law Solicitor’s Manual is a resource for solicitors who practise in criminal law at and for Legal Aid NSW.

The Manual is not about substantive criminal law. The Manual deals with practical issues that Legal Aid solicitors face daily. In the chapters in the Manual on representing clients in court, the focus is on providing resources that will assist solicitors in preparation of bail, sentence, and summary trials.

The Manual contains a number of precedents, sample documents, and flowcharts. A number of these can be photocopied and can be used as you see fit.

The Manual represents what Legal Aid NSW sees as best practice in relation to dealing with our clients.

The Manual does not contain every piece of information that a Legal Aid solicitor will need to know. The Manual instead complements a number of other resources, such asLegal Aid NSW’s Practice Standards, Criminal Procedure Manual, Conflicts Policy, induction programmes, and legal resources.

The Manual is intended to be a resource that can be used both at court as well as in the office. The Manual will also be available on Legal Aid’s Intranet and Internet sites.

Although the Manual focuses on the Local Court, most of the information contained is relevant to the Children’s Court and District Court.

We hope that the information contained in the Manual will also assist lawyers who undertake work on behalf of Legal Aid NSW.

I thank the following for their contribution to the Manual:

• Lester Fernandez and Paul Townsend, the authors of the Manual.

• Nell Skinner for assistance with editing and the use of plain and consistent language, and Wendy Vivian for typing and administrative assistance.

• All those who contributed their ideas and feedback as part of the consultations that took place in the preparation of this Manual.

• Those who gave permission for their resources and material to be used in this manual. I particularly thank Richard Button SC.

Brian Sandland

Director, Criminal Law

Legal Aid NSW

June 2006

Updated version: November 2008

Criminal Law Solicitor’s Manual v1.0 9

10 Criminal Law Solicitor’s Manual v1.0

Part I: Clients

1 Clients .................................................................................13

2 Advice and Instructions ..........................................................23

3 Reports on Clients .................................................................27

4 Acting for People with a Mental Illness or Developmental Disability..............................................................................41


Part I: Clients


Part I: Clients — Clients

1 Clients

The Nature and Scope of the Retainer...........................................13

Client Management ....................................................................14 Managing Client Expectations..................................................14 Summary Trials in the Local Court............................................15 Sentence Matters ..................................................................15 Communication with Clients ....................................................16 The Client in Custody.............................................................16 The Client at Liberty ..............................................................17 The Client Conference ............................................................18

Appendix A ...............................................................................19 The Course of a Matter in the Local Court .................................20 Letter to Correctional Centre Advising of Confidential Correspondence ...............................................21

The starting point when appearing as a duty solicitor for Legal Aid NSW is to get an application for legal aid from your client and to act under that grant of aid.

The Nature and Scope of the Retainer

The retainer to act for a client is set out in Rule Number One of the Law Society's Revised Professional Conduct and Practice Rules 1995 made pursuant to s 57B Legal Profession Act 1987 (the Solicitors’ Rules):

A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness.

The retainer for a lawyer to act for a client in criminal matters is governed mainly by the Legal Profession Act, the Criminal Procedure Act, the Acts that establish and administer the Local, District and Supreme Courts, the Regulations to these Acts, and the general and largely unwritten rules of professional practise.

Legal Aid solicitors are bound by additional obligations contained in the Legal Aid Commission Act.

The retainer includes taking instructions and giving advice, as well as the preparation and conduct of the hearing of the matter to its conclusion. Your client must be advised fairly and honestly about any defence that may be available. You must not suggest, in any way, a defence to a client.

Once you accept instructions to act in a criminal matter, your client has a right to expect that you will provide frank legal advice and conduct the matter lawfully, efficiently, and competently while protecting and advancing the interests of your client to the exclusion of all other interests.



The duty owed to your client is fiduciary – that is, of the highest order of trust. The only higher duty you owe is your duty to the Court. In some circumstances, you may be required to explain this to your client.

Client Management

Managing Client Expectations

Most complaints about lawyers can be blamed on a failure to properly manage the expectations of your client.

From the very first contact with your client, your client must be fully informed about the limits of your powers and abilities as their lawyer. The first and most obvious limitation is that you are a lawyer, and can only help your client in legal matters. Your job is to advise, take instructions, and conduct the defence role in the criminal proceedings to the best of your knowledge, skill, and experience. You are not there to invent or provide defences, nor to “get your client off” the criminal charges.

You may need to explain to your client that your highest duty is to the court and you cannot and will not do anything that is dishonest, improper, or unlawful in the conduct of your client’s case.

Your first contact with your client is a good opportunity to give your client an overview of the probable course of the proceedings from start to finish, when they will have to come back to court and why, how long it will take, when each stage might be reached, and the probable outcomes. Each time you see your client is an opportunity to clearly outline the next stage involved in the proceedings. Importantly, between each step it is important that your client knows exactly what you will be doing in the preparation or conduct of the case.

There is a flow chart contained in Appendix A on page 19 that is a useful guide to the likely progress of a matter in the Local Court. This flow chart can be shown or copied and given to your client.

By far the biggest complaint about Legal Aid lawyers by our clients is that each time they come to court they seem to have a different lawyer.

One important part of managing your clients’ expectations is at least to prepare clients for this. Tell your client that:

• You may not be the only lawyer who will handle the matter in its entirety.

• When your client comes back to court they may have another lawyer acting for them.

• Legal Aid lawyers, particularly duty lawyers, work in teams.

• Any Legal Aid lawyer has the skill, knowledge, and experience to deal with the matter, and that the next lawyer will be greatly guided by the notes you take of the instructions and advice. Most importantly: make sure this is true!

If you do tell your client that you will remain in the matter, then make sure it is true. Do not make promises to clients that you cannot keep.



If you think the matter is too difficult or complex for your level of knowledge, skill, and experience, then discuss this with your Solicitor in Charge before you refer it to a more senior lawyer, and tell your client the reason. Summary Trials in the Local Court

Give your client a frank assessment of their chances of acquittal. This is a very delicate part of advocacy, and you must not put undue pressure on a client to plead guilty. There has to be a balance in providing a frank appraisal of your client’s case and an assessment of the prospects of success.

If the case against your client is overwhelming, tell your client and explain the reasons why the case is overwhelming. Your advice might include the matters that the Magistrate will take into account in making a determination in your client’s matter, such as assessing credibility of witnesses.

Legal Aid NSW has a policy that in Local Court defended matters legal aid is not available where the defence is frivolous or has no reasonable prospects of success. Any refusal of legal aid on this basis will be extremely rare, and should only be made in consultation with your Solicitor in Charge.

On the other hand, if you think your client has a chance, tell them. Tell your client that there can be no guarantees of success, but, given the evidence and your client’s instructions, you think there is a reasonable chance your client will be found not guilty. Remind your client that this a reasonable prospect only and that there is, of course, a chance that they will be found guilty, and your client must be prepared for that possibility. You should take instructions on sentence as part of this preparation.

Do not give your client an assessment of the chances of acquittal dependent upon which Magistrate you get. While it may be possible for you to make an accurate prediction of the chances, it is not appropriate to undermine the criminal justice system in this way, nor to start out with an expectation of failure. It is also something that can backfire on you if repeated by your client to the Magistrate. Run the case properly, irrespective of the Magistrate. There is always the appeal.

Tell your client how you propose to run the case. It is a good idea to explain that although you are acting on instructions, decisions about how the case is to be run, and the strategy and tactics made in the case, will mostly be yours. Explain the decisions you make during the case, and why you have made them.

Involve your client in the running of the case. Look at your client in the dock or behind you when you are referring to him or her during the summary trial. Confer with your client during the breaks to talk about how the matter is going. Sentence Matters

Even if you know the Magistrate you are appearing before very well, it is dangerous to predict sentences. Indicating a range of penalties/sentences that may be imposed is wise. You should prepare your client for the worst.

Advise your client if the offence carries a prison sentence. If there is even a remote possibility of a prison sentence being imposed, tell your client.



Advise your client of the sentencing options open to the Magistrate. You can make an assessment of the probable type and length of a penalty. You can say something like “I do not think that you would be sent to prison for this, although that is possible. I think it is more likely you will be given a sentence such as [specify]. If you are given a sentence of full time imprisonment we can lodge an appeal and I can apply for bail for you.”

It is also worth explaining the obligations under each sentence that may be imposed and the impact of breaching a court order. Speak to your client about what conditions can reasonably be kept and where possible advocate for a sentence they will not breach.

If a Pre–Sentence Report (PSR) is to be ordered, tell your client the purpose of the PSR, which is to assess your client for the alternatives to full time imprisonment. Tell your client that if s/he does not cooperate with the preparation of the PSR, then the Magistrate may be left with little or no alternative to prison. Communication with Clients

As far as possible, communication with your client should take place at each stage of the proceedings, to explain what has just happened, and what is about to happen.

It may be that you can only do this “on the run” at court. If so, make sure you speak to your client before and after the court appearance. If your client is on bail, ask your client to remain at court until they have spoken to you. If your client is in custody, make every effort to visit the cells or call them in the AVL holding cells.

Use plain English when you speak to clients. It is good practice to prepare your client for this by saying something like, “Lawyers use a lot of complicated words. If there is anything you do not understand or are wondering about, please ask me. It is really important to me that you know what is going on.”

People are often very reluctant to admit ignorance of something, especially if it has just been explained to them. Be open to questions and look for clues that your client may not understand.

If possible, confirm in writing any advice or information you give to your client. The Client in Custody

A client in custody deserves special attention.

A client who has just been arrested and come into custody needs particular attention. Many clients in custody complain that they were too stressed or unwell at their first court appearance to understand what they are charged with or what happened at court. Following the initial bail refusal, it is worth advising your client how the matter is being conducted and whether a Supreme Court bail application should be lodged.

Where possible and appropriate, you should write to your client, informing them of the next court date and the purpose of the court date.

While it is very difficult in the midst of a busy duty lawyer’s practice to see clients in custody, you should try to do so whenever reasonably possible. If it is not possible to visit your client in custody you should arrange an audio-visual conference.



If the situation is that you are not able to go and see your client or confer by way of video–link, tell your client. Assure your client that you are working on their case. Spend time with your client when they are at court and ask them what information they require from you. They may want copies of police documents, or for steps to be taken to secure evidence relevant to their defence. Your client may also need a referral to see a Prisoner’s Legal Service (PLS) solicitor (see page 177) to discuss bail applications, appeals, civil law, family advice, or internal gaol problems (classification, medication, gaol charges). You might be the only person who can help.

If you have a summary trial coming up for a client in custody and it is unlikely or impossible for you to get out to see him or her or confer on the video–link, acknowledge the problem and suggest ways to solve it. If the matter is a complex one, consider (in consultation with your Solicitor in Charge) assigning the matter to a private lawyer who may have a better opportunity to see your client and prepare the matter.

If you can get out to see your client, let your client know when you are visiting. If time is too short for a letter, call the welfare officers at the prison, and ask them to pass a message on to your client, or fax a message to the welfare officers with a request that it be passed on to your client.

It is important that your client gets a copy of the brief, the police facts sheet, and to a lesser extent their criminal history. Some clients prefer not to have these documents in their cells because other inmates and prison officers may look at them, so make sure you ask your client first whether they want a copy of any of these documents.

Whenever you send such material to your client, or even a letter from you that contains material that may be privileged, you should send it in a separate sealed envelope within an envelope addressed to the Governor of the prison, including a covering letter stating that the material within the envelope addressed to your client is privileged and not to be opened by anyone other than your client. A copy of such a letter is contained in Appendix A, beginning on page 19.

Your client should be shown all evidence that is to be led in the prosecution case. This includes photographs and videos. Often you will get CCTV and other evidence served on CD or DVD. You may need to have your client brought into court to view this footage prior to listing the matter for summary trial. Alternatively you may be able to arrange an AVL conference and show him or her the material electronically. If you are able to visit your client in gaol, you can take a laptop into a gaol to show your client this material. Each gaol seems to have a different policy about laptops. Some allow them in without any difficulty, while others require you to fax ahead or require you to ask for permission. Check by a phone call with the gaol to find out its policy.

In summary, where possible, keep in touch with your client. If you are unable to do this, then at least tell your client that you are unable to. The Client at Liberty

There is little difference, in terms of communication, between a client on bail and a client in custody. Your client at liberty is generally more accessible. It is preferable to see your client in your office to take instructions and give advice, although taking instructions at court is sometimes necessary.

If taking instructions at court cannot be avoided, do everything you can to make the atmosphere of your court conference as conducive as possible to the privacy and trust–building nature of the client conference.



The Client Conference

No matter where the conference takes place – at the cells or courthouse, in prison or in your office – your client should feel that your full attention is given to your client’s matter for the duration of the conference.

Do not take or make calls during the conference, unless they are connected to your client’s matter. Ask support staff and other lawyers not to interrupt you in the conference unless it is absolutely necessary.

Beware of any conduct on your part that may give your client the impression that you are not totally committed to their case. Try to inspire your client’s confidence in you.

Vulnerable Clients

Some of our clients are more vulnerable than others. This may be because they are children, elderly, suffer from mental illness, mental disorders or intellectual disability, lack language or literacy skills or are unfamiliar with the Australian legal system. It is important to identify these disadvantages and try to address them. It may take longer to take instructions and explain the law and proceedings. You may require an interpreter. Sometimes a support person may be able to assist your client.

The Intellectual Disability Rights Service has produced a useful Fact Sheet for lawyers entitled Acting for Clients with an Intellectual Disability. This is available on the Intellectual Disability Rights Service website (at http://idrs.org.au). Clients with mental health issues may require special consideration. Legal Aid NSW conducts several workshops to help you in identifying people with mental illness; understanding their difficulties and addressing their needs. You should attend these courses after consultation with your supervisor.

More information is contained in chapter 4 “Acting for People with a Mental Illness or Developmental Disability” Useful information can also be found on the library website and on the external internet site: Mental Health Links for Lawyers (at http://www.mhl.org.au)


http://idrs.org.au/

http://idrs.org.au/

http://www.mhl.org.au/

Appendix A

The Course of a Matter in the Local Court is a diagram that sets out the possible course of a matter in the Local Court. It can be copied and given to clients.

The Letter to Correctional Centre Advising of Confidential Correspondence can be used as a precedent covering letter for letters to clients in custody.


The Course of a Matter in the Local Court

POLICE STATION

LOCAL COURT

Charge (elements) Fact Sheet

Bail

Bail Refused Bail Granted Conditions

SUPREME COURTOne application only

Bail conditions continue until sentenced or charges dismissed

Guilty Not Guilty Representations

Sentence

Brief Witness statements

CCTV DNA

Medical evidence

Reply to Brief

Hearing Witnesses give

evidence You test their evidence You can give evidence

Guilty DISTRICT COURT Appeal severity of sentence or conviction within 28 days

Not Guilty

Dismissed

Other Considerations

Section 4 application District Court appeal forms Application to remit filing fees

Application to vary bail conditions Time to pay fines

Discount

No Discount

4 weeks

6 weeks

Letter to Correctional Centre Advising of Confidential Correspondence

[Date]

The Governor

Dear Governor

Re: Privileged Letter or Parcel for Delivery Pursuant to Section 110 Crimes (Administration Of Sentence) Regulation 2001

Inmate:

MIN:

Attached to this correspondence is an envelope addressed to you and also a second envelope marked “Privileged Material for Delivery Unopened to Inmate”.

You are respectfully requested to deliver the material to the inmate without the envelope being opened, inspected, or read by any other person other than this inmate.

I am advised that Legal Aid NSW, and its employed solicitors are an “exempt body or person” within the meaning of Section 110 of the Crimes (Administration of Sentence) Regulation 2001. Therefore, an authorised officer under the Regulation must deliver the letter to the inmate, without opening, inspecting or reading it.

Thank you for your consideration of the matters herein.

Yours faithfully

Encl.

2 Advice and Instructions

Initial Advice to Clients...............................................................23

Recording Your Advice to Clients ..................................................24

Taking Instructions for a Summary Trial ........................................24

Taking Instructions from a Witness...............................................24

Advice to Clients and Witnesses about Giving Evidence ...................25

Taking Instructions for Sentence ..................................................25

The Advocacy Rules and the Integrity of Evidence ..........................26

Practical Issues in Relation to Taking Instructions from Clients..........26

There is no correct way to advise or take instructions. Each lawyer will have his or her own style and manner of dealing with clients and how to conduct client conferences.

Your primary consideration in taking instructions is to accurately, properly and formally record what your client says about the matter. You should also record your advice to your client to avoid a later dispute about what you said or advised.

Initial Advice to Clients

At the initial conference, you may wish to cover the following:

1. Your role as a Legal Aid lawyer, and as your client’s defence lawyer. Explain the conflicting ethical duties between the duty to your client and the court and how your higher duty to the court might impact upon your representation of your client.

2. Explain the charges including the elements of each offence, the maximum penalty, the range of likely penalties and the law about the discount for a plea of guilty. Discuss any ancillary orders that can be made (such as court costs, victim’s compensation, disqualification, compulsory apprehended domestic violence orders (ADVO), and placement on a Sex Offenders Register).

3. Analyse the evidence – whether it is outlined in a facts sheet or contained in a brief. Briefly discuss any evidence that may be inadmissible and the nature of the legal argument about that evidence. If you note in the brief or the facts that a defence may be suggested, explain what that means to your client. Give an opinion about the strength of the case.

4. Explain that any information provided by your client is confidential. Answer any questions your client might have, and then take instructions.


Part I: Clients — Advice and Instructions

Recording Your Advice to Clients

Try to make a thorough record of the advice you have provided. It may be as simple as “I advised client of A, B, and C.” If your note cannot be detailed, a note in a briefer form can be used – such as “Advised re: charge, elements, facts, and penalty.” The notes you take will offer some protection against complaints, disputes, and allegations of incompetence on traversal of plea applications.

Taking Instructions for a Summary Trial

The best way to take instructions is in your client’s own words, which you can set out as a formal proof of evidence. It should be in the first person and in clear paragraphs in chronological order, or ordered by topic, and typed or neatly handwritten.

You will invariably need to ask questions to clarify certain issues or get more details. Be careful not to lead your client. You are not to suggest defences or facts. Your questions should be open ended, just like an examination in chief. You should not make suggestions to your client, so that there is no later situation where your client may assert, “My lawyer told me to say that.”

If possible, ask your client to write out her or his version. This will almost never be complete, and is not a substitute for the signed instructions you will prepare, but it is a useful starting point, and should be kept with or attached to the instructions you prepare.

Always date the instructions you take. If you take instructions in a number of sessions over different dates, make sure you note each date.

Ask your client to sign and date each page of their proof of evidence once it is complete.

It is always important to have conferences with your client without victims and witnesses being present.

Taking Instructions from a Witness

Instructions from a witness are taken in the form of a proof of evidence or statement. That is, in the witness’ own words, in the first person, in paragraphs, in chronological or topical order, typed or neatly handwritten. The instructions should be signed and dated by the witness on each page. Give the witness a copy of their proof of evidence or statement to take with them and ask them to bring that copy to court when they come to give evidence.

It is very important that you do not lead the witness in any way in taking the statement. Like taking a statement from your client, you do not want to be open to any assertion that you suggested the evidence. You will inevitably have to ask the witness questions to clarify matters or get more detail, but you do so in open questions. It is like examination in chief, and tell the witness this is very much like how they will be asked questions in court.



Advice to Clients and Witnesses about Giving Evidence

You cannot coach your client or witnesses, but you can advise your client and witnesses about the role of the prosecutor and the likely topics of cross–examination.

The following are general rules in relation to giving evidence that you can give your client and witnesses:

1. Listen carefully to each question, no matter who asks it.

2. Only answer the question you are asked.

3. Answers should be as brief as possible.

4. If you do not understand a question, say so.

5. If you do not hear a question, say so.

6. If you do not know the answer, say so.

7. If you do not remember something, say so. Do not make something up.

8. Answer questions truthfully, even if you think the answer will hurt the case. Do not make up something that you think will help the case.

9. In cross–examination, answers should be “Yes”, “No”, “I don’t know”, or “I don’t remember”.

10. The only time when an answer in cross–examination will not be one of the four above is when the cross–examiner asks you to explain something. Then go right ahead and explain.

11. If you hear anyone say, “I object” do not answer the question unless the Magistrate tells you to. This is especially important if you hear me say it.

12. At the end of cross–examination, I am allowed to ask further questions in re–examination to clarify any issue that may have arisen in cross–examination, so do not worry if you are cut off in an answer or explanation, I will cover it then.

Wherever possible, take your client and any witnesses into the courtroom before the summary trial starts and show the witness the geography of the courtroom, where the witness box is, where the Magistrate sits, where you will be, where the prosecutor will be, and where the accused will be.

Finally, explain to witnesses that they will have to wait outside the courtroom until they are called to give evidence, and explain this is so that their evidence is not influenced by what has been going on beforehand.

Taking Instructions for Sentence

Instructions for sentencing in the Local Court are usually a kind of shorthand or note, and would not usually require your client’s signature. It is a note of the background material about your client, the offence and any other relevant material, which you will tell the Magistrate in your submissions.



The Checklist of Matters to Consider when Preparing a Matter for Sentence in Appendix E, beginning on page 99, on sentencing, is a helpful guide to the topics and areas of information to cover when getting instructions.

The Advocacy Rules and the Integrity of Evidence

Advocacy Rules A43 – A50 relate to the integrity of evidence. You should refer to these Rules to clarify how to conduct any dealings with your client and witnesses.

The Advocacy Rules are reproduced on page 127 of this Manual.

Practical Issues in Relation to Taking Instructions from Clients

Be mindful that clients may have several reasons not to fully disclose their instructions to you, such as unfamiliarity with you and the court system, being afraid of the consequences or difficulty in acknowledging a problem to family. Clients may take time to trust you sufficiently to provide you with full instructions.

Depending on your workload and the way your office operates, you may be able to see your client on more than one occasion in order to confer with your client and take instructions. This is particularly important in matters that are more complex.

Once you have developed a rapport with your client you should encourage them to speak openly. Explain that if they change their instructions or remember something important they should tell you so you can represent them effectively.

The responsibility of providing complete instructions depends on both you and your client: give your client the ability and opportunity to provide you with their complete instructions.


Part I: Clients — Reports on Clients

3 Reports on Clients

The Pre–Sentence Report............................................................28

Legal Aid NSW Policy in Relation to Obtaining Psychological and Psychiatric Reports ................................................................28

Psychiatric Reports ....................................................................29

Psychological Reports .................................................................30

Psychosocial Reports ..................................................................31

Justice Health Psychiatric Assessments and Assessments by Court Liaison Nurses ......................................................................31

Medical and Other Reports ..........................................................32

Letters Requesting Reports .........................................................32

Asking for Changes to Reports.....................................................32

Additional Sources of Reports on Clients .......................................32

Reports on Clients and LA Office Protocol ......................................33

Keeping Reports ........................................................................33

Appendix B ...............................................................................35 Authority..............................................................................36 Authority to Release Information and Records ...........................37 Authority to Release Legal File.................................................38 Medical Authority ..................................................................39 Letter Requesting Transfer of an Inmate ...................................40

You should think very carefully about getting reports of any kind about a client. Reports, other than a Pre–Sentence Report (PSR), are expensive and Legal Aid NSW has budgetary constraints. Depending on what Grade you hold within Legal Aid NSW, you may need to get approval from a senior lawyer before you order a report.

Your decision to get a report will be made in close consultation with your client. In some matters, such as a s.32 Mental Health (Criminal Procedure) Act application, you will usually need a report to support the application.

Reports take time, and the delay in sentencing can be an issue for your client. You need to advise your client of the advantages and disadvantages of getting a report, and get instructions about whether your client wants you to obtain a report.

Once you have a report, you need to allow your client to read it carefully, or read it to your client. You should get instructions on whether the report should be tendered. If the report is a PSR, get instructions that address whether you should object to anything contained in the report.



The Pre–Sentence Report

The purpose of a PSR is “… to furnish important background material to assist the sentencing judicial officer and to assess the offender as to his or her suitability to undertake various forms of punishment, not to assess or suggest what the punishment in a particular case should be”: R v Errol John Amos (Unreported, NSWCCA, 27 November 1996) per Ireland J, with whom Gleeson CJ and McInerney J agreed.

The PSR assesses your client for alternatives to full–time prison. If the only option is a sentence of full–time imprisonment, do not ask for a PSR unless you have a good reason (such as the report being directed towards a finding of special circumstances).

You have no control over what goes into the PSR as it is prepared for the court. PSRs are increasingly including extraneous opinion material such as assessments of clients’ future risk of offending. If these comments are included in the report, and are not favourable to your client, you should object to the material being taken into account on sentence.

One way of limiting unfavourable material in a PSR is to consider getting an ‘options only’ report rather than a full written PSR. The options only report is directed towards assessing only your client’s suitability for the alternatives to full–time imprisonment. These are usually provided by duty probation officers.

While there are disadvantages to PSRs, there are also times when they will be helpful. They are an assessment of your client, and may provide persuasive material in favour of your client.

If the circumstances of your client or the nature of the offence leave a realistic option of an alternative to full–time prison, you would be duty bound to advise your client of the benefits of obtaining a PSR. PSRs are also useful in appeals to the District Court.

If you are requesting a PSR, remind your client that they need to be punctual, courteous, and forthcoming in the interview with their probation officer. You can tell your client the sorts of questions they are likely to be asked in the preparation of the report.

Legal Aid NSW Policy in Relation to Obtaining Psychological and Psychiatric Reports

Legal Aid NSW’s policy in relation to reports in criminal sentence matters is that psychologists and/or psychiatrists are not to be engaged unless there are exceptional circumstances.

Psychological/psychiatric reports have to be approached carefully. If you are using these reports solely to get background material about your client before the court, then you are wasting them. There are more efficient and effective ways to get this material before the court.

You need to remember the cost involved of obtaining reports and the need to be cost–efficient. This may mean, for example, that you need to arrange for a client in custody to be transferred to a Sydney gaol to be seen by a psychiatrist/psychologist to save travel costs. An example of a letter to the Department of Corrective Services requesting the transfer of a client for this purpose is included in Appendix B, beginning on page 35.

Different circumstances will dictate what type of report will best assist your client. This Chapter provides suggestions and practical tips to help you determine what type of report will best suit your client’s situation.



Psychiatric Reports

Psychiatric evaluations are the only way to determine whether a mental illness or psychiatric illness is present. Generally speaking a psychiatrist (if s/he is not your client’s treating doctor) will see your client on one occasion in the preparation of a report.

If your client fits any of the criteria below then you may wish to consider whether a psychiatric evaluation and report will be of benefit:

• The unusual nature of the facts of a matter.

• Has a current or recent history of ongoing psychiatric treatment.

• Displays or reports obsessive–compulsive behaviours.

• Displays unusual behaviours, is psychotic and hears voices or has delusional or paranoid thoughts.

• Has attempted suicide on one or more occasions.

• Has taken anti–psychotic medication.

• Displays significantly violent or aggressive behaviours.

• Has a history of depression (whether treated or not).

• Is or has been on a Community Treatment Order.

• Is on a Disability Pension.

You may consider asking your client the following questions:

1. Who is your doctor?

2. Have you ever been involved with a local community health team?

3. Have you ever been involved with a local mental health team?

4. Have you ever had a caseworker?

5. Have you ever seen a counsellor?

6. Have you ever had a financial case manager (protective officer)?

7. Do you take tablets or medicine or receive injections?

8. Who first prescribed your medication?

9. Have you had any admissions to hospital, and if so, why?

Getting this information will provide a useful history of your client’s mental health. If you need to establish whether your client was mentally ill at the time of the offence then you will need to get a psychiatric assessment.



Psychological Reports

Psychological assessments determine the presence and extent of a developmental disability, developmental delay, psychological disorder, or abnormal psychological functioning.

Clinical psychologists rely on a range of psychometric tests to assess personality and a person’s level of functioning. In assessing for a developmental disability, for example, they will determine what a person may or may not understand, and describe what they can or cannot accomplish. These tests are commonly referred to as cognitive, developmental, and adaptive functioning.

It is important to recognise that some clinical psychologists have particular expertise in specific areas. For example, they may specialise in anxiety disorders, depressive conditions, attachment issues (as they relate to young children), eating disorders, substance abuse disorder, obsessive–compulsive disorders, or personality disorders such as sociopathy.

If your client meets some of the criteria below then you may wish to consider arranging a psychological assessment.

If your client:

• Attended special classes at school.

• Attended a special school.

• Uses simplistic or child–like language.

• Cannot focus or stay attentive during the interview.

• Does not seem to understand why they are seeing you.

• Does not seem to comprehend the court process or likely consequences of their arrest.

• Shows no or flat affect during the interview (for example, lacks expression and responds without voice inflection).

• Routinely answers "yes", as they may not want to give the impression they do not understand.

• Has difficulty making decisions.

• Is a poor historian.

• Has filled out the legal aid application form in a way that suggests problems with literacy and numeracy.

• Has difficulty focusing on the issue at hand.

• Over–reacts emotionally and irrationally.

You may consider asking your client the following questions.

1. Have you ever seen a psychologist before?

2. Have you ever seen a counsellor?

3. Have you ever had a caseworker?

4. Have you ever been involved with Ageing and Disability Services?



5. Did you attend a special school or special classes at school?

6. Who is your main person you go to for help or advice?

When arranging a psychological assessment ask the psychologist to also conduct an ‘adaptive functioning test’ and to include the raw scores for all tests. This information is essential when organising referrals to the Department of Ageing and Disability for disability case management.

Psychosocial Reports

Psychosocial reports are prepared in–house by Legal Aid’s Client Assessment and Referral Unit (see Client Assessment and Referral Service (CARS) on page 151 for a description of this service).

Psychosocial reports can provide a comprehensive social history/background, and explain how this has impacted socially and psychologically on your client. Psychosocial reports make links between issues such as child abuse, sexual abuse, witnessing domestic violence (and other trauma), cultural dislocation, poverty, developmental disability, and their connection with substance abuse and relapse, mental illness, offending behaviour, decision making processes, responses to stress and other patterns of behaviour.

Psychosocial reports also comment, if requested, on alternatives to custodial sentences and discuss what relevant community services may be available to assist your client. Clients will generally be referred to the most appropriate service so that issues raised in the assessment can be addressed.

The assessment generally involves discussions with family members and other professionals in your client’s life.

If your client is to be sentenced utilising the principles under Fernando (1992) 76 A Crim R 58 (that is they are an Aboriginal person who has suffered disadvantage on account of their Aboriginality) then a psychosocial report can document the social, cultural, demographic and personal circumstances of your client and will include a detailed assessment of community and cultural breakdown prevalent in particularly disenfranchised indigenous communities.

Justice Health Psychiatric Assessments and Assessments by Court Liaison Nurses

These reports are requested by the Court and direct an assessment by the Corrections Health Service (usually a psychiatrist, but in straightforward cases where there is an existing diagnosis, by an experienced psychiatric nurse) as to your client’s mental health. They are frequently requested when clients have come into custody and appear to suffer from a mental illness.

Because these reports are requested by the Court, they have the same dangers that PSRs have. However, you can request that when the report is ordered by the court that the author of the report does not make any comment or repeat any comment by your client in relation to the substantive offence.

Court Liaison Nurses are usually very helpful in helping you assist clients who are mentally ill. Make use of them whenever you can.



Often the Court Liaison Nurse (a nurse attached to the Court specifically to assess people in custody who may be mentally ill) may have seen your client before you have. The nurse may have prepared a report for the Court. It is important to ask for a copy of this report. If any part of a report is inadmissible, you can object.

Medical and Other Reports

Evidence is much more persuasive than submissions made from the Bar Table. If your client suffers from some kind of medical problem that is relevant, place a short report from your client’s doctor before the court to support your submissions. If your client’s treating doctor is reluctant to provide a report, you can subpoena your client’s medical records or get an authority from your client to get copies of the records. Doctors generally show a greater willingness to provide a written report if you tell them the alternative is to subpoena them to give evidence in the proceedings.

Often your client will have reports, records, and letters from doctors and specialists that may be useful and relevant.

There are a number of authorities contained in Appendix B, beginning on page 35.

Letters Requesting Reports

It is more useful to think carefully about the specific matters that you want addressed and those matters you do not want addressed in a report, rather than simply requesting a report and giving no guidance to the author. If you use the Commission’s precedent letters, you may need to add additional paragraphs to your precedent letter to achieve this.

Asking for Changes to Reports

You may receive a report from a psychiatrist/psychologist or other report that contains part(s) that are damaging to your client’s interests.

This does not necessarily mean that you cannot use the report. You may consider contacting the report author to discuss the problematic parts in the report. If these problematic parts do not affect the diagnosis ultimately made, or the formulation of relevant options and opinions by the report author, the report author may be willing to remove these parts from the report. You should however approach this with care as the independence of the professional in providing a report should be respected.

Additional Sources of Reports on Clients

Legal Aid NSW may have copies of reports previously prepared for your client. You can get these reports from your client’s previous Legal Aid files (ask your Office Manager how to do this). The Mental Health Advocacy Service (see The Mental Health Advocacy Service (MHAS) on page 175) may also have files for your client that contain reports from civil commitment procedures. For younger clients represented by the Commission’s Children’s Legal Service (see The Children’s Legal Service (CLS) on page 155), there may be a background report on your client available on file. For clients who have appeared in the Supreme Court or District Court, there may be psychological/psychiatric reports or pre–sentence reports.



In many cases, these previous reports can be used and may obviate the need to get further reports on your client.

Reports on Clients and LA Office Protocol

Legal Aid’s LA Office database allows information on clients to be accessed.

Legal Aid’s LA Office User’s Manual states that there are specific messages regarding clients’ behaviour or circumstances that can be included in an LA Office entry in relation to a client. These go in the comments section of LA Office.

There are three priority classifications that can be included in a LA Office entry on your client, which are:

• Priority 1, which means your client has qualities or has displayed behaviour of which staff should be aware before dealing with that client. This can include violent or aggressive behaviour.

• Priority 2, which means specialist medical or other reports have been obtained in relation to your client at the Commission’s expense.

• Blank, being a message without a priority level, which can be used for general comments about your client that may assist other staff in their dealings with your client.

Whenever you are representing a client who has previously been represented by Legal Aid NSW, you should check LA Office to see whether there are comments or reports.

In addition, you should ensure that relevant information and comments are recorded in LA Office after you act for a client. This will benefit solicitors with future carriage of such matters, including private solicitors who may receive matters on assignment. However, be careful and objective about comments recorded in LA Office as they may be the subject of a FOI request.

Keeping Reports

It is a good practice to keep unmarked copies of reports on file, in case the report assists Legal Aid NSW in its representation of your client at a future time. Tendering reports that have previously been marked is to be avoided if possible.


Appendix B

The attached authorities from clients are precedents that you can copy and have your clients sign.


Authority

TO: ……………………………………………………..

……………………………………………………..

……………………………………………………..

Please release to Legal Aid NSW all information, files and records on me.

I accept that a photocopy or facsimile transmission copy of this Authority is as valid as the original Authority.

Name: ……………………………………………………………………..

Signed: ……………………………………………………………………..

Date of Birth: ……………………………………………………………………..

Date: ……………………………………………………………………..

Authority to Release Information and Records

To: The Criminal Records Unit Police Department Ferguson Centre 130 George Street Parramatta 2150

I, ………………………………………………………. authorise you to provide to me, through my solicitor, Legal Aid NSW, all details of my criminal record, (including information pertaining to spent convictions within the meaning of the Criminal Records Act, 1991).

Name: …………………………………….

Signed: …………………………………….

Date of Birth: …………………………………….

Date: ……………………….……………

Authority to Release Legal File

TO: ……………………………………………………..

……………………………………………………..

……………………………………………………..

I am now represented by Legal Aid NSW. Please release to Legal Aid NSW all information, correspondence, files, documents, police briefs and other documents in relation to my matter.

I accept that a photocopy or facsimile transmission copy of this Authority is as valid as the original Authority.

Name: ……………………………………………………………………..

Signed: ……………………………………………………………………..

Date of Birth: ……………………………………………………………………..

Date: ……………………………………………………………………..

Medical Authority

TO: ……………………………………………………..

……………………………………………………..

……………………………………………………..

Please release to my Solicitor, Legal Aid NSW, all information, files, and records relating to my medical/psychiatric condition, diagnosis, prognosis, or treatment, including dates of attendance, hospital admissions, and discharge summaries.

I am aware that my medical records may contain sensitive information.

I accept that a photocopy or facsimile transmission copy of this authority is as valid as the original Authority.

Signed: ……………………………………………………………………..

Name: ……………………………………………………………………..

Date of Birth: ……………………………………………………………………..

Date: ……………………………………………………………………..

Letter Requesting Transfer of an Inmate

Inmate Movements

Department of Corrective Services

By Facsimile: (02) 9289 5070

Dear Sir/Madam

Re: Request for Transfer of Inmate

Inmate: ……………………………………………………………………

MIN: ……………………………………………………………………

Can you please have ………………..………… transferred to ………………………… Correctional Centre on …………………………. so that s/he can be seen by ………………………, for the purpose of a preparation of a report for court.

I have asked …………………….. to prepare a report on …………………..…………. for his/her appearance at ………………………… Court on ………………….……….

Thank you for your assistance.

Yours faithfully

SOLICITOR

4 Acting for People with a Mental Illness or Developmental Disability

Communicating with Clients ........................................................41

Section 32 Case Plans for People with a Mental Illness or Developmental Disability ....................................................42 What CARS Can Do................................................................43 What Does CARS Need? .........................................................43 When There Are No Recommendations .....................................43 How Long Does It Take? .........................................................43

Assistance in Acting for People with a Mental Illness or Developmental Disability ....................................................44 The Community and Court Liaison Service and Nurse..................44 The Criminal Justice Support Network (CJSN) ............................44 How to Access a CJSN Court Support Person .............................44 How Can CJSN Assist with Court Support?.................................44 What can a Support Person do to Help? ....................................45

Communicating with Clients

It is important to convey very simple messages when communicating with people with developmental disabilities as well as people who are mentally ill.

People with developmental disabilities:

• May take longer to learn.

• May need special training/teaching to learn.

• May find it difficult to maintain eye contact.

• May have difficulty understanding abstract concepts.

• May have limited ability to adapt to new or unfamiliar situations.

• May have limited ability to plan ahead.

• May have limited ability to problem solve.

The following may enhance the effectiveness of your communication:

• Acknowledge that what you are explaining may be hard. For example, you can say, “I need to make sure I explain it properly. Please tell me if I’m not clear enough.” Most people with a developmental disability will try to bluff their way through rather than ask questions.

• Use short sentences, simple language, and no jargon.

• Deal with one idea at a time.

• Slow down when you speak.


Part I: Clients — Acting for People with a Mental Illness or Developmental Disability

• Check that your client understands what you are saying. Do not simply ask, “Do you understand?” Ask your client to explain it back in his or her own words.

• Use concrete concepts, as abstract concepts are especially difficult.

• Expect an answer but be prepared to wait. You may need to wait an uncomfortable time to make sure there has been time for your client to process the information and answer.

• Try not to interrupt. Do not finish your client’s sentences.

• Use signposts, such as saying “OK, that’s all I need to know about that. Now can we talk about …?”

• Use open questions. Let your client tell their story.

• Remember body language messages – these speak very loudly for someone with a developmental disability.

• Minimise distractions.

• Breaks are essential – your client is likely to have limited concentration.

• Reinforce the important messages.

Section 32 Case Plans for People with a Mental Illness or Developmental Disability

If you have a client with a mental illness or developmental disability, you should consider whether it is appropriate to make an application under s.32 of the Mental Health (Criminal Procedure) Act to have your client discharged, conditionally or unconditionally, rather than dealt with according to law.

Section 32 case plans for clients can be prepared in–house by Legal Aid’s Client Assessment and Referral Unit (CARS). Detailed information on CARS is set out in



Client Assessment and Referral Service (CARS) on page 152.

The following information sets out what the CARS can do to assist in relation to s.32 case plans. What CARS Can Do

1. Action a treatment plan.

2. Liaise and negotiate with community based organisations and government departments.

What Does CARS Need?

Developmental Disability Mental Illness Client contact details Client contact details

A psychological assessment A psychiatric evaluation

Signed client consent form Signed client consent form

Police facts Police facts

Recommendations Recommendations

For Department of Ageing, Disability and Home Care (DADHC) case management, CARS needs a psychological assessment that includes:

• Developmental functioning (usually Weiss).

• Adaptive functioning. • Cognitive functioning.

For Community Mental Health case management, CARS needs a psychiatric evaluation that includes:

• Diagnosis. • Recommends medication. • Other intervention.

When There Are No Recommendations

When the report makes no recommendations, referrals will be accepted on a case–by–case basis. Where your client’s situation and needs are obvious and clearly discernable from the body of the report, CARS will be able to develop a case plan. It should be noted that CARS are reluctant to create case plan recommendations in such situations, as CARS believes this is the role of the assessing professional. In addition, recommendations made by a psychologist or psychiatrist will be more readily accepted by the court. How Long Does It Take?

• Four weeks.

• DADHC case management can take longer due to the DADHC’s intake and allocation processes.

• Supported accommodation, depending on the dependency needs of your client, can take between four weeks and six months, and even up to years. This is due to a chronic lack of resources.



Assistance in Acting for People with a Mental Illness or Developmental Disability

The Community and Court Liaison Service and Nurse

Justice Health provides psychiatric expertise and advice to Magistrates when people with mental illness appear in court and are in custody or in some circumstances or are at risk of going into custody. This assists courts in identifying mentally ill people, and, if charged with minor offences, diverting them to treatment instead of incarceration.

The Court Liaison Nurse service is a valuable resource to clients who are mentally ill. Often, they will have seen clients in custody before you have, and can give you important advice and assistance in relation to those clients. They also prepare reports for the Magistrate (these are discussed in Reports on Clients on page 27). The Criminal Justice Support Network (CJSN)

The Criminal Justice Support Network (CJSN) is a service of the Intellectual Disability Rights Service Inc. (IDRS) that provides paid and volunteer support workers for people with a developmental disability who are in contact with the criminal justice system.

CJSN provides trained support people to assist a person with a developmental disability at a police station and/or at court in the:

• Sydney Metropolitan area.

• Illawarra and Shoalhaven.

• Newcastle and Hunter regions.

• Mudgee, Port Macquarie, and Central Coast.

• CJSN may be able to assist to find court support in other regional areas.

CJSN also runs a state–wide 24–hour telephone information and support line –1300 665 908 – providing information and support for people with developmental disability and those assisting them in the criminal justice system. CJSN provides after hours support, information, and access to after hours legal advice particularly for people with developmental disability in their dealings with the police. How to Access a CJSN Court Support Person

The best way to access a CJSN court support person is to ring the 24–hour state–wide support line 1300 665 908. How Can CJSN Assist with Court Support?

Check whether your client would like to have a support person to help them at court and then phone CJSN or contact the Regional Coordinator on the numbers listed above. CJSN will then arrange a support person and negotiate for them to meet your client. Court support can include related legal appointments, Youth Justice Conferences, Community Justice Centre mediation, Circle Sentencing and Adult Conferencing. Support is also provided to people who are bail refused, on remand, or already serving a custodial sentence.



What can a Support Person do to Help?

Before the court date, the support person can help to prepare your client for going to court by assisting your client to:

• Understand the basic nature of their matter and what happens at court.

• Understand the importance of attending court.

• Remember the court date and make arrangements to get there.

• Visit the court to familiarise your client with the court environment if necessary.

• To bring relevant papers with them to court.

• Understand expected behaviour/attire at court.

The support person can attend legal appointments with your client to assist with communication and provide continuity.

At court, the support person can:

• Assist your client to ask questions and get information.

• Sit with your client and help them to stay calm while they wait for their matter.

• Advise you of any special needs your client may have.

• Assist your client to communicate with you and reinforce the advice you give.

• Explain documents, ensure your client understands the outcome and implications and any action they need to take after court.

CJSN may also be able to assist you to access assessment or services in relation to your client’s disability, particularly when a s.32 application is being considered.

For further information on CJSN, you can e–mail [email protected], or phone 1300 665 908, or visit www.idrs.org.au.

Useful information can also be found on the library website and criminal law website under mental Health Resources and on the external internet site: Mental Health Links for Lawyers.


mailto:[email protected]

http://www.idrs.org.au/

Part II: Practice Issues for the Legal Aid Solicitor

5 File Management...................................................................49

6 Ethical Issues .......................................................................55

7 Representing Clients ..............................................................73


Part II: Practice Issues for the Legal Aid Solicitor


Part II: Practice Issues for the Legal Aid Solicitor — File Management

5 File Management

The Legal Aid Application Form ....................................................49

The File Cover ...........................................................................50

Contents of the File....................................................................51

File Notes .................................................................................51

Release of Files at the End of Representation by Legal Aid NSW........52

When a File is Transferred to Another Court...................................53

It is impossible to over–stress the importance of the proper management of your files. The file is the entire record of the dealings with your client in the matter. The file itself and its contents are material of potentially evidentiary value.

The file must be kept in such a way that any lawyer picking up the matter will know exactly where the matter is up to and what has happened at each stage. A lawyer who is a stranger to the file should quickly be able to give a Magistrate a brief history of the matter, and after carefully perusing the entire file should have a detailed knowledge of the matter.

A useful guide to the management of a file is for you to keep your file in such a manner that in five years time you are not embarrassed when you are cross–examined about your file by a Supreme Court Judge.

The Legal Aid Application Form

Filling out the Legal Aid application form is very important. It is essential that all the important details on the front page be filled out. This is because these details are required for proper record–keeping within Legal Aid NSW and for appropriate grants of legal aid to be made.

You should also ensure wherever possible that people applying for legal aid sign the application form. This is not always possible for clients in custody. Make sure in such cases you mark the application “in custody” or “I/C” in the place on the where the client would normally sign.



The File Cover

On the cover of the file, you must record accurately and legibly the result of each court appearance, such as each adjournment and the reason for the adjournment. This can be done very briefly on the front of the file. If however there is a complicated reason for the adjournment, set it out in a file note and write “see details inside” on the cover.

Recording the court attendance can be done in the kind of abbreviated note taking or shorthand that is used by court officers on the court papers:

Abbreviation Description Adj adjourned

BAFG bail applied for, granted

BAFR bail applied for, refused

BNAFR bail not applied for, refused

BTBS brief to be served

BUNK bail undertaking not kept

FART facts and record tendered

FH for hearing

FS for sentence

LTWG leave to withdraw granted

M mention

NAD no appearance of defendant

P plea

PG plea of guilty

PM plea or mention

PNG plea of not guilty

You should record the name of the Magistrate, your name, and if possible the name of the prosecutor and any lawyer for co–accused.

It is very important to record all bail conditions, either on the front of the file, or on a file note. If bail is granted make sure your client’s address is updated on the file.

Sentence details should also be recorded on the front of the file. If there are a lot of matters, put a brief summary of the overall sentence on the front of the file and record the sentence details on a file note.

It is important to record all of the conditions of any bond, and the type of bond – that is, whether it is a bond under ss.9, 10, 11, or 12 of the Crimes (Sentencing Procedure) Act.

The inside cover of the file is a useful place to write file notes and to record details like your client’s contact phone numbers, the phone numbers of any relevant person or organisation and contact details for witnesses.



Contents of the File

All documents relating to the matter should be in the file, in date order.

This rule can be observed in a number of variations. The most common is to divide files into different sections, such as correspondence, court documents, and the brief of evidence. There can be other categories or sub–categories within each section, plus a miscellaneous section.

The easiest way to manage a file is to divide the material into two sections:

1. Evidentiary material – police documents like facts sheets and criminal history, the brief of evidence, your instructions, any reports, copies of cases. This is the material you will need in court and needs to be organised in a sensible way.

2. All other documents – such as the application for legal aid, correspondence, accounts, LA Office record of payment and file notes.

The section with the evidentiary material should be fastened but accessible. Using a bulldog clip or spike enables you to add, move, and remove documents. This section should be separate from the actual file cover so that it is loose in the file.

It can be useful to print out the relevant sections from the Crimes Act, and any other applicable legislation, and place it at the front of the file.

The section with all other documents should be on the spike in date order, with the earliest at the bottom. The first document in any file will almost invariably be the initial application for legal aid.

File Notes

Any work or information relevant to the conduct of the matter should be recorded on the file.

It is very important to record the date, time, and contents of telephone conversations with clients, prosecutors, police, witnesses, and experts. You should record your negotiations over charges or facts. You can record your thoughts on defences or issues in the matter.

You should always record, even if briefly, any advice given to your client. All notes in files need to be signed or initialled so that the Solicitor who made the note, correspondence, or call can be identified. Make sure you put the date on everything.

Remember, your file may be the subject of an FOI application, or scrutiny by another practitioner. Do not place flippant or offensive remarks about your client on file or in e–mails.

File notes are also discussed in Advice and Instructions on page 23.



Release of Files at the End of Representation by Legal Aid NSW

When Legal Aid NSW ceases to act for a client, such as when a grant is terminated, a matter is assigned or when the client retains a private lawyer, Legal Aid NSW may be asked to provide the file to the new legal representative.

Rule 8 of the Solicitors’ Rules states that upon termination of a retainer the documents to which a client of a practitioner should be entitled will include:

8.5.1 documents prepared by a practitioner for the client, or predominantly for the purposes of the client, and for which the client has been, or will be, charged costs by the practitioner; and

8.5.2 documents received by a practitioner from a third party in the course of the practitioner’s retainer for or on behalf of the client or for the purposes of a client’s business and intended for the use or information of the client.

Rule 8.4 states that a practitioner who claims to exercise a lien for unpaid costs over a client’s documents, which are essential to the client’s defence or prosecution of current proceedings, must:

8.4.1 deal with the documents as provided in Rule 29, if another lawyer is acting for the client; or

8.4.2 upon the practitioner's costs being satisfactorily secured, deliver the documents to the client.

Rule 29 of the Solicitors’ Rules states that a practitioner must promptly, on receipt of a direction in writing from the client, deliver to the new practitioner all relevant documents to which the client is entitled and any information which is necessary for the proper conduct of the client’s business, unless the first practitioner claims a lien over the documents for unpaid costs.

Legal Aid NSW’s view is that when clients obtain new legal representation (either privately funded or through an assignment of a grant of aid) they are entitled to the following documents:

• The brief of evidence.

• The police facts sheet.

• Other court related documents.

• Any signed instructions obtained during the course of the matter.

• Notes of conferences.

Care will need to be taken in relation to the release of some of this information. For example, if you assign a matter based on a conflict that has arisen from your client’s intention to traverse a plea, any signed instructions may compromise the new solicitor’s carriage of the matter. In such circumstances, you should speak to the new solicitor to inform them of difficulties they may encounter if certain information in the file is provided. It is preferable to withhold instructions and conference notes until you have discussed their release with the new solicitor.



Remember that you must not release material related to the administration of the grant of aid (e.g. the legal aid application form) as this is prohibited by s.26 Legal Aid Commission Act. It is good practice to check with your Solicitor in Charge when you are unsure of what material to release.

When a File is Transferred to Another Court

Clients’ matters may be transferred to other courts when your client has been arrested on warrants, or is pleading guilty to the charges in your court and has matters pending at another court.

If a file is to be transferred to another Legal Aid NSW Office, send the file to the Solicitor in Charge or senior criminal law solicitor of the relevant office.

If a file is to be transferred to a court where there is no Legal Aid NSW Office that provides representation, you should follow these steps:

1. Find out who the duty solicitor will be at that court on the adjourned date. The duty solicitors will be private practitioners who appear on behalf of Legal Aid NSW and are allocated to specific dates as part of a court list.

The rosters for private lawyers appearing on behalf of Legal Aid NSW at all courts are available on Legal Aid’s “P” Drive (ask your Office Manager if you do not know how to access it). You can also contact the applicable court to find out these details.

2. Contact that private practitioner to inform them about the matter and ask what information they require and how they would like it sent.

3. Inform your client that you have contacted the duty solicitor and give your client the private practitioner’s details. You should tell your clients that most private practitioners are unlikely to see them before the actual court date.


Part II: Practice Issues for the Legal Aid Solicitor — Ethical Issues

6 Ethical Issues

Professional Obligations when Approaching Ethical Problems............56

Your Client Instructs: “I plead Not Guilty, because the Complainant will not turn up to Court”; or asks, “What will happen if the Complainant doesn’t turn up?” ..............57

Contact with Complainants..........................................................57

Your Client Brings the Complainant to You .....................................58

The Complainant Approaches You and Says: “I Lied to the Police” .....58

Your Client Instructs: “I did it, but I want to plead Not Guilty”..........60

Your Client Instructs: “I didn’t do it, but I want to plead Guilty”........61 The Law...............................................................................61 Dealing with this Situation ......................................................62 Appearing on Sentence for a Client with these Instructions..........62

The Plea of Guilty is Traversed in the PSR or Psychological Assessment ..........................................................................63 Psychological Assessment.......................................................63 Pre–Sentence Report .............................................................63

Reversing a Plea of Guilty ...........................................................64 Before Conviction ..................................................................64 After Conviction ....................................................................64

Disclosing your Client’s Unknown Convictions.................................65

Withdrawing from a Matter..........................................................66 Legal Aid is Terminated ..........................................................66 Instructions are Withdrawn or Terminated.................................67 Loss of Contact with your Client...............................................67 “An Ethical Issue has Arisen”...................................................68 Being Granted Leave to Withdraw ............................................68

Assignments of Legal Aid ............................................................68

Your Solicitor in Charge ..............................................................68

Appendix C ...............................................................................69 Instructions to Put the Prosecution to Proof...............................70 Instructions to Plead Guilty .....................................................71



There is often no right answer to an ethical problem. There are many different approaches to identifying and resolving ethical issues.

This chapter addresses some of the ethical issues that arise for Legal Aid solicitors and suggests principles to consider. In several cases, it is not possible to give a definitive answer.

This chapter does not refer to conflict of interest. Legal Aid NSW has published Conflict of Interest Policy which is available on the intranet. You should refer to it and discuss issues in relation to conflict of interest with your Solicitor in Charge if you have any questions.

You should note that there are a number of ethical issues in relation to bail, which are discussed in Bail Applications on page 81, and not in this chapter.

Professional Obligations when Approaching Ethical Problems

The Statement of Principles for Rules 17–24 of the Solicitors’ Rules states:

Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the Court, and diligent in their observance of undertakings that they give to the Court or their opponents.

Identifying an ethical problem can be difficult. As a Legal Aid solicitor, you should be aware of situations that cause a conflict or have the potential for conflict. If something about your client, or the instructions you have received from your client causes you discomfort, address it and find a solution.

You will be guided in answering ethical problems by:

• Giving considered thought to the particular matter, consulting the Solicitors' Rules and other ethical obligations that you are subject to as a solicitor.

• Conscientiously seeking advice from more experienced lawyers. In the first instance, this will probably be your Solicitor in Charge and your colleagues. You may wish to contact the Public Defenders for advice ((02) 9268 3111). You can also seek guidance from the Ethics Section of the Professional Standards Department of the Law Society of New South Wales ((02) 9926 0333).

• Making decisions according to the duties that you owe. This in particular refers to the balancing of the duties that you owe to the court and to your client, and what priorities these have. Your overwhelming duty will always be to the court first and to your client second.


http://intranet/data/portal/00000005/public/44666001181799249601.pdf


Your Client Instructs: “I plead Not Guilty, because the Complainant will not turn up to Court”; or asks, “What will happen if the Complainant doesn’t turn up?”

Before any advice is given, tell your client that you do not want to know how your client knows that the complainant will not turn up.

Your advice to your client can be in the following general terms.

If the complainant does not turn up to court:

• The prosecutor may be forced to proceed to summary trial in the absence of the complainant, and as there will be no evidence from the complainant, the matter may be dismissed.

• The prosecution may proceed in the absence of the complainant, seeking to rely on the complainant’s statement, tendered pursuant to s.65(2) Evidence Act (maker of statement unavailable).

• The matter may be stood down in the list and the police may try to find the complainant to bring him/her to court.

• A warrant may be issued for the complainant’s arrest if s/he was subpoenaed to attend court and failed to answer the subpoena. If such a warrant is issued and executed, the complainant may be held in custody until the matter is heard, or may be granted bail.

• The prosecution may be granted an adjournment to find the complainant and ensure his or her attendance next time.

You can stress to your client that there may only be a remote possibility that the prosecutor will be forced on in the absence of the complainant.

You should advise your client that any contact between your client and the complainant that could be construed as pressure on the complainant not to attend court could result in serious charges being laid against your client.

Contact with Complainants

The Law Society of NSW has issued “Guidelines For Contact With The Complainant In Apprehended Domestic Violence Matters and in Criminal Matters” (the Law Society Guidelines).

If you must have contact with complainants, you should read the Law Society Guidelines.

Great care should be taken in dealing with complainants. You should note these particular Solicitors’ Rules:

• Rule 18: The duty not to influence witnesses.

• Rule A43 of the Advocacy Rules: A practitioner must not suggest or condone another person suggesting in any way to any prospective witness the content of any particular evidence that the witness should give at any stage in the proceedings.



If you are speaking to a complainant, you should have an independent person present at the conference, such as another Legal Aid solicitor. Under no circumstances should your client be present during the conference. It may be appropriate for any contact to be made in the presence of the prosecutor or an officer from the DPP.

It is imperative that you keep detailed file notes of any contact with the complainant, clearly dated and where possible in the exact words of each party. It is best however not to get yourself into this position.

Your Client Brings the Complainant to You

You should discourage your client from doing this. You should have as little to do with the complainant as possible, so that no allegation can be made that you have pressured the complainant in any way.

You should explain to your client that it is not appropriate for you to speak to the complainant in the circumstances, and that the complainant must speak to the prosecutor or informant.

If your client or the complainant says something like, “The prosecutor (or the informant) won’t speak to me” then you may be able to arrange for an independent lawyer to speak to the complainant. These independent lawyers may be:

• A private lawyer.

• A lawyer from a Community Legal Centre.

• The Domestic Violence Liaison Officer or a solicitor from the Domestic Violence Liaison Advocacy Service.

• A lawyer found through the Law Society Referral Scheme.

• A lawyer from the LawAccess Scheme, run by the Law Society (through which telephone advice can be obtained – 1300 888 529).

Note that an independent lawyer is not another Legal Aid lawyer, not even one from another office.

It may be appropriate to mention the matter and tell the Magistrate that the complainant had approached you and that you referred the complainant either to the prosecutor, the informant, or to an independent lawyer.

The Complainant Approaches You and Says: “I Lied to the Police”

The Law Society Guidelines state that if a complainant contacts a practitioner seeking to resile from all or part of the complaint, a practitioner should advise the complainant:

• That the practitioner acts for another party in the proceedings, and therefore cannot give the complainant any advice; and

• The complainant should get independent legal advice about the consequences of their intended course of action; and

• The complainant should contact the informant, police prosecutor, or DPP solicitor with carriage of the matter.



The Law Society Guidelines also state that:

• A practitioner should make a detailed file note regarding the complainant’s contact.

• It may be appropriate to contact the informant, police prosecutor, or DPP solicitor with carriage of the matter, setting out in writing what the complainant said.

• A practitioner must not assist the complainant in making representations to the police or assist in preparing a statement for withdrawal of the complaint.

• If a complainant contacts a practitioner suggesting that they will not attend court, will refuse to comply with a subpoena, or change the evidence they propose giving, a practitioner must make a detailed file note and ensure no further discussion is entered into and no further contact is made with the complainant.

A complainant may approach you at court, often on the day of the summary trial. You should explain that you cannot speak to them or give them advice for ethical reasons, but you can tell the court they need independent legal advice.

You can mention the matter before the Magistrate and state that you have been approached by the complainant and been made aware of the fact that the complainant requires independent legal advice before being called to give evidence.

Once you have alerted the court to the situation, the court or prosecutor should find an independent lawyer to give advice. It is not up to you to find one. Do not offer to pay the independent lawyer a legal aid rate for giving the advice. You might offer to see if any of the independent lawyers around the court are available and willing to help the court, but that is all.

Do not brief the independent lawyer as to what is happening. If you think it necessary, you might remind the independent lawyer of the provisions of ss.38 (unfavourable witnesses) and 128 (privilege against self–incrimination) of the Evidence Act, and provide the lawyer with a copy of those sections.

You need to be mindful that where a complainant approaches you and says that s/he lied to the police you then potentially become a witness in the case.

Rule 19 of the Solicitors’ Rules states that a practitioner, other than in exceptional circumstances, must not appear as an advocate when it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court.

It is for this reason that you should have another person present in a conference with a complainant or prosecution witness. If any issues arise, this other person could be called as a witness.

You should follow a similar approach to that set out above if you are approached by a prosecution witness in your client’s matter. Remember that you are free to speak to other prosecution witnesses about the evidence they will be giving. The prosecution has no “property” in these witnesses. Care should always be taken when speaking to such witnesses. You do not want to end up being a witness in your own case.



Your Client Instructs: “I did it, but I want to plead Not Guilty”

You should advise your client in accordance with Rule A17B of the Advocacy Rules, which states:

A practitioner must (unless circumstances warrant otherwise in the practitioner’s considered opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty), if your client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

If your client wishes to continue with their instructions to plead not guilty, you must be aware of the following Rules.

Rule 20 of the Solicitors’ Rules states:

20.1 If a practitioner’s client, who is the accused or defendant in criminal proceedings, admits to the practitioner before the commencement of, or during, the proceedings, that the client is guilty of the offence charged, the practitioner must not, whether acting as instructing practitioner or advocate –

20.1.1 put a defence case which is inconsistent with the client’s confession;

20.1.2 falsely claim or suggest that another person committed the offence; or

20.1.3 continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.

20.2 A practitioner may continue to act for a client who elects to plead "not guilty" after admitting guilt to the practitioner, and in that event, the practitioner must ensure that the prosecution is put to proof of its case, and the practitioner may argue that the evidence is insufficient to justify a conviction or that the prosecution has otherwise failed to establish the commission of the offence by the client.

Advocacy Rule A33 states:

A.33. A practitioner retained to appear in criminal proceedings whose client confesses guilt to the practitioner but maintains a plea of not guilty:

(a) may cease to act, if there is enough time for another practitioner to take over the case properly before the hearing, and the client does not insist on the practitioner continuing to appear for the client;

(b) in cases where the practitioner continues to act for the client:

(i) must not falsely suggest that some other person committed the offence charged;

(ii) must not set up an affirmative case inconsistent with the confession; but

(iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

(iv) may argue that for some reason of law the client is not guilty of the offence charged; or



(v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged.

The client who instructs you that s/he committed the offence but who wants to plead not guilty puts you in a difficult situation and you should advise such a client of that.

Your instructions in such a situation amount to putting the prosecution strictly to proof. You cannot put any question in cross–examination that suggests that your client did not commit the offence, nor can you call any evidence to rebut the prosecution evidence that your client committed the offence.

At the end of the prosecution case, you can only address the court that the prosecution’s evidence fails to establish a prima facie case or fails to establish your client’s guilt beyond reasonable doubt.

Your client must be advised that this is the only way the summary trial can be conducted under the circumstances. If your client insists on giving evidence in the summary trial, or on having witnesses called, you cannot continue to act in the matter, as you cannot call evidence that you know to be perjured.

In a situation such as this, it is essential that you get written instructions from your client. In Appendix C, beginning on page 69, there is an example of written instructions from your client to put the prosecution to strict proof.

Your Client Instructs: “I didn’t do it, but I want to plead Guilty”

The Law

A person may properly plead guilty to an offence for all sorts of reasons, not necessarily that the person actually committed the offence: Meissner v The Queen (1995) 130 ALR 547, (1995) 69 ALJR 693.

At paragraph 19 of his judgment in Meissner Dawson J stated that:

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.

Brennan, Toohey and McHugh JJ stated at paragraph 22 of their judgment in Meissner:

The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and so long as the plea is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

However, in order for you to be able to act for a client who instructs that they did not commit an offence but that they wish to plead guilty, your client must accept the elements of the offence.



This is clear from the judgment of Dawson J in Meissner at paragraph 19:

The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.

See also R v Allison (2003) 138 A Crim R 378. Dealing with this Situation

If your client tells you that they did not commit an offence but they want to plead guilty you should:

• Exercise real caution.

• Set aside time to consider this matter. That may need an adjournment for you to consider the matter, as well as to make an appointment with your client to discuss the implications of their instructions.

• Do not feel forced to do the matter that particular day. If your client insists on dealing with the matter on that day, they can represent themselves.

• Talk to your supervisor.

If this situation arises, the best advice is to ask for an adjournment, which will give your client time to consider their position. It is also useful to keep in mind that there may be real problems if you ask for a PSR or a psychological assessment because your client may traverse the plea in talking to the probation officer or psychologist, and that will be recorded in the report.

Ultimately, you will be left with the following options:

1. If your client insists on entering a plea of convenience (i.e. “I didn’t do it but I want to plead guilty”), the most widely held view is that it is not appropriate to act. Your client may enter the plea him/herself.

2. In the alternative, you act for your client on written instructions that they accept the elements of the offence (see Appendix C, beginning on page 69 for instruction forms).

Appearing on Sentence for a Client with these Instructions

You are constrained in addressing the objective seriousness of the offence, on the fact of the plea of guilty and on subjective features. You cannot call any evidence from your client about the facts in the case, you cannot make any submission or argument that acknowledges the acceptance by your client of the truth of the facts in the case, and you cannot say anything about contrition or remorse. You can, however, make submissions on the utilitarian benefit of the plea.



The Plea of Guilty is Traversed in the PSR or Psychological Assessment

Your response to this situation depends on what your client has actually said. It is possible that there has been an error in communication between what your client said and what has been recorded. You need to get careful instructions about whether your client agrees with what has been recorded by the probation officer or psychologist. If your client denies saying what is recorded, or says that it has been inaccurately recorded, then it may become a matter for evidence and cross–examination of the probation officer and of your client.

If your client instructs you that what is contained in the report is accurately recorded, then it depends on whether the traversal of plea happens in a PSR or a psychological assessment. Psychological Assessment

If your instructions are that your client did commit the offence, and yet something in the psychological assessment suggests that s/he said they did not commit the offence, you are compromised and you have to consider your position. It may mean that you can no longer act for your client and you must withdraw from the matter.

If your instructions are that your client did not commit the offence but maintains a plea of guilty, you might be able to continue in the matter. You have some control because you are tendering the evidence. You can decide not to tender the psychological report. You should ensure that you get written instructions from your client not to tender the report.

If the psychological report otherwise has important and useful material, you may still be able to tender the report.

Before you tender the report you must get clear written instructions from your client that acknowledge that your client said something to the psychologist that traversed the plea and that despite that, your client insists on maintaining the plea of guilty and proceeding to sentence.

When you tender the report you will need to tell the Magistrate that you are tendering the report but are not relying on material contained in paragraph x at page y.

The Magistrate may question you about this. You can inform the court that despite the material contained in the report you have unequivocal instructions to plead guilty and your client adheres to that plea.

In some circumstances, it may be necessary to call your client to give sworn evidence that s/he adheres to the plea of guilty.

You cannot address on contrition or remorse in your submissions on sentence and should be very careful if addressing on the facts. Pre–Sentence Report

A PSR is a curious piece of evidence because it is requested by you, ordered by the court, prepared by a person employed by the Department of Corrective Services, and tendered by the prosecution.

The situation is more difficult if the plea of guilty is traversed in the PSR. The PSR is part of the Crown case on sentence. You have no control over the material contained in it and do not have the option of stating you do not rely on something in the report.



A PSR is different to a psychological assessment. A psychological assessment is a piece of evidence that comes into existence only through you and is tendered by you.

If the plea of guilty is traversed in the PSR and your client tells you that the PSR contains an accurate record of what s/he said to the probation officer, it will be very difficult for you to continue to act for your client and you should consider withdrawing from the matter. Certainly, you must withdraw if your instructions are that your client did commit the offence and the PSR says that your client said that s/he did not commit the offence.

It is possible in some situations that what is said in a PSR may not compromise your instructions. In such situations, while it is not appropriate to say in submissions, “I do not rely on that part of the PSR”, you could deal with the matter by noting what is said and telling the Magistrate that despite what is recorded, your client maintains the plea of guilty. This should only be done when you have clear written instructions to do so.

Reversing a Plea of Guilty

Before Conviction

An accused may at any time before a conviction is entered decline to adhere to a plea of guilty and enter a plea of not guilty. This should not cause a problem for the accused. It is analogous to the situation in an indictable matter where a person pleads guilty in the Local Court and is committed to the District Court or Supreme Court for sentence, and then declines to adhere to the plea. The Judge must accept that situation and set a trial date. There is no application for leave to withdraw the plea: see s.106 Criminal Procedure Act.

In this situation, your problem may be that your instructions have changed. If so, you should make a judgement about whether you should stay in the matter. If in doubt, speak to your Solicitor in Charge and consider withdrawing from the matter.

There is no real problem for you if your instructions have not shifted in relation to the instructions on the facts alleged, for example, if your client had previously said nothing about the facts other than, “I want to plead guilty.”

Remember that your client has a right to change instructions. Sometimes you are walking a fine line, and if your client’s instructions start to shift in any material way, you may have to consider whether you are able to continue to act. You should never get yourself into a situation where you are calling evidence that you know to be false. After Conviction

There is a possibility that at some stage your client may wish to withdraw the plea of guilty. For this reason, you should get your client to sign written instructions on the plea. These instructions should partially protect you from a claim that your client, for example, never gave you instructions to plead guilty.

While it may not be possible for you to get written instructions from every client on the plea of guilty, there will be certain clients from whom you should obtain signed instructions. This will always be a matter for your judgement.

If your client indicates that s/he wants to reverse the plea of guilty after a conviction has been recorded, you can no longer act and must withdraw from the matter.



The situation will become very difficult for you because your client will have to seek leave to withdraw the plea of guilty. Your client will have to satisfy the court that he or she ought to be allowed to withdraw the plea, and will have to lead evidence as to how a plea of guilty came to be entered in the first place.

You may be called to be a witness – either for your client (who will now be your former client), or for the prosecution in its case opposing the application to withdraw the plea of guilty. If the court is satisfied that the plea was entered upon sound legal advice and with proper instructions, then your client will have to convince the court that the plea of guilty should not stand.

If the prosecution wants to call you to give evidence, you should approach the matter with caution. Speak to your Solicitor in Charge before you speak to the prosecution. You must exercise great care in any discussion you have with any prosecutor about giving evidence. You must not disclose any confidential material unless you have an unequivocal waiver from your client of legal professional privilege.

If either side subpoenas the production of your client’s file, any question about legal professional privilege relating to material in the file is a matter to be argued by your former client’s new lawyers. You should refer the subpoena to Legal Aid NSW’s Solicitor, who is attached to the Strategic Policy and Planning Division.

If your former client calls you to give evidence, you should ask the lawyer acting for your former client in precise terms whether or not your former client is waiving privilege, and get the answer in writing. Similarly, if the prosecution calls you to give evidence, you should ask your former client’s new lawyer whether or not privilege is waived, and get the answer in writing.

If privilege is not waived, you may not give any information to the prosecution that might breach your former client’s privilege. If you are giving evidence in court and a question is asked to which the answer may breach privilege, you are required to answer the question unless some objection to the question based on privilege is upheld. It is not for you to make the objection but for the lawyer acting for your former client.

Once privilege is waived, it is waived for all information or material in your knowledge or possession. In other words, your former client cannot be selective about waiving privilege over some, but not other, material. Once privilege is waived, it is waived about everything.

Disclosing your Client’s Unknown Convictions

As a general principle, defence lawyers have no duty to disclose to the court or prosecution any material adverse to your client’s interests and should not do so unless instructed by your client.

There is no duty to bring to the court’s attention other convictions that impact upon sentence: Boyd v Sandercock [1990] 2 Qd R 26.

If the issue of character and the accuracy of your client’s criminal record arises in a summary trial, you need to be aware of Advocacy Rule A30, which states:

A practitioner who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.



Although in a summary trial you are not bound to disclose your client’s previous convictions, you must not suggest that your client is a person of good character.

If the Magistrate asks “Is the record admitted?” you can not mislead the court, and must advise the court that you are not instructed to answer that question. This may prompt a further line of inquiry that may reveal the full record. Remember that you can not mislead the court.

If your client’s record is inaccurate or incomplete and has been tendered on bail or at sentence, you are not obliged to draw the inaccuracy to the attention of the prosecution. However, you are constrained in what you can do with the record. You cannot positively assert that something that is true if your instructions indicate it is not true. Therefore, you cannot take advantage of an absence of entries on a criminal record and make submissions that your client is person of good character.

This may limit your submissions on a summary trial, bail application, or sentence when addressing your client’s background and previous convictions.

Withdrawing from a Matter

Rule 5 of the Solicitors’ Rules relates to the termination of retainer and states:

5.1 A practitioner must complete the work or legal service required by the practitioner’s retainer, unless –

5.1.1 the practitioner and the practitioner’s client have otherwise agreed;

5.1.2 the practitioner is discharged from the retainer by the client; or

5.1.3 the practitioner terminates the retainer for just cause, and on reasonable notice to the client.

The nature of the retainer to act for a client in a criminal matter is such that, once Legal Aid NSW takes instructions and appears “on the record” you will remain in the matter to its completion, unless and until, for some good reason, you cease to act.

There are a number of reasons why you may cease to act:

• Legal aid is terminated.

• Your instructions are withdrawn or otherwise terminated.

• You have lost contact with your client.

• An ethical issue has arisen. Legal Aid is Terminated

There are numerous occasions when clients are represented by Legal Aid NSW for one appearance only or for an initial appearance, such as on a bail application where they are granted bail, or when represented at court seeking an adjournment. Subsequently, clients may not be eligible for legal aid or may not provide verification/instructions, meaning that they can no longer be represented by Legal Aid NSW.



It will always be a matter for your judgment as to whether you need to advise the court (in person or in writing) that you are no longer appearing. Where matters are listed for mention, you may not consider it necessary to appear to advise the court that you no longer appear. On the other hand, if legal aid for a summary trial is not terminated within a reasonable time before the court date, you should appear and seek leave to withdraw from the matter on the basis that legal aid has been terminated. See Representing Clients on page 73 for the information that can be divulged to the Court in relation to termination of a grant of legal aid. Instructions are Withdrawn or Terminated

If your instructions are withdrawn or terminated, you are no longer retained to appear. If you consider it appropriate to do so, you can mention the matter and inform the court that your instructions have been withdrawn. You do not need to seek the Court’s leave to withdraw. Loss of Contact with your Client

The mere fact that your client has not appeared on the day set down for the hearing of the sentence, summary trial or mention is not of itself a reason to withdraw.

You should make all reasonable inquiries to find your client. If you are unable to contact your client, you do not have to withdraw. There may be any number of reasons why your client is not present at court: your client may have been arrested on other charges, is sick, may have had an accident, is in hospital, or has had other misadventure.

You can make an application for an adjournment to allow you to make further inquiries to find your client and get him or her to court on the next occasion. This might pose a difficulty, as you do not actually have any instructions to apply for an adjournment. If this is a problem, you can technically avoid making a formal application for an adjournment by suggesting to the Magistrate that the matter be adjourned for a short time to allow you to make the inquiries.

While it is not proper to oppose an application by the prosecution for a warrant to be issued under these circumstances, you can ask the Magistrate to consider not issuing a warrant until the next occasion or ask that the warrant “lie in the office” for a week or more to allow you to try to find your client and get him or her to court.

Before you can withdraw on the basis that you have lost contact with your client you must have reached the belief that your inquiries or attempts to contact your client have no reasonable prospect of success. The Supreme Court Rules and District Court Rules, allow you to withdraw without leave so long as you give “reasonable notice” of ceasing to act to “all parties, the registrar and the Criminal Listing Director” (see Rule 5 Part 53 District Court Rules).

If you are aware that your client is not going to appear and there is no proper reason for your client not to appear, it is appropriate and open for you to seek leave to withdraw.



“An Ethical Issue has Arisen”

Where an ethical issue prevents you from staying in the matter, the correct approach is to seek leave to withdraw. If you say to the Magistrate, “I seek leave to withdraw, an ethical issue has arisen”, or words to that effect, the Magistrate must and will grant leave for you to withdraw without further inquiry (see, for direct analogy, Part 53.5 (4) District Court Rules).

You may be asked what the nature of that difficulty is particularly if it looks like a matter will have to be adjourned and valuable court time will be lost. You may only be able to answer in the most general terms, and certainly not be divulging privileged information to the court. Being Granted Leave to Withdraw

Where leave is sought to withdraw from a matter, it does not have to be granted. The Magistrate may refuse you leave to withdraw. If so, you must remain in the matter. In practice, this rarely happens.

The Magistrate cannot refuse leave where you indicate that it is an ethical problem that forces you to seek leave to withdraw.

Assignments of Legal Aid

In this chapter there are several references to situations where Legal Aid must withdraw and matters will need to be assigned. Note that Legal Aid NSW’s Criminal Procedure Manual sets out the procedure for assigning matters.

Your Solicitor in Charge

Your Solicitor in Charge or senior criminal solicitor may be the first person you speak to about your ethical conflicts. Your Solicitor in Charge will be able to give advice, give you permission to assign matters and be generally appraised of the issues within your criminal practice.


Appendix C

The attached documents are instructions to put the prosecution to proof and to plead guilty when your client denies committing an offence. You can photocopy these instructions and have your clients sign them.


Instructions to Put the Prosecution to Proof

I ………………………………. instruct my solicitor, ……………………………

of Legal Aid NSW, that the prosecution is to be put to strict proof in my matter.

My lawyer has advised me that putting the prosecution to strict proof means that:

1. I cannot give evidence in the hearing.

2. I cannot call any witnesses in the hearing to say that I did not commit the offence or provide any alibi.

3. My lawyer cannot cross–examine any witness in any way that suggests that I did not commit the offence.

4. The only issue in the hearing will be whether or not the prosecution evidence is sufficient to convict me of the offence.

……………………………………………. …………………………

SIGNED DATE

Instructions to Plead Guilty

I ………………………………. instruct my solicitor, …………………………… of Legal Aid NSW, that I plead guilty to …………………………….. ………………………………………………………………………………………...

I understand that in pleading guilty I accept the elements of the offence.

The elements of the offence are:

•

•

•

•

•

I have chosen to plead guilty freely. There has been no pressure from any person to enter this plea of guilty, despite the fact that I say I did not commit the offence.

My lawyer has advised me that in the submission on my sentence to the Magistrate, nothing can be said that suggests that I accept the truth of the facts alleged, or about any contrition or remorse for committing the offence.

My solicitor has told me that the maximum penalty for the offence is ...............

……………………………………………. …………………………

SIGNED DATE

7 Representing Clients

Introduction..............................................................................73

Appearing Amicus Curiae ............................................................74

Disclosing Information in Relation to Grants of Legal Aid .................75

Being Asked to Represent Someone Who May Not be Eligible for Legal Aid .........................................................................76

Dealing with the Media ...............................................................77

Complaints about the Media ........................................................77

Introduction

Section 24 of the Legal Aid Commission Act states that:

(2) In practising as, or performing the functions of, a solicitor under this Act:

(b) a member of staff of the Commission has all the functions of a solicitor employed by a person practising as a solicitor on the person’s own account, and

(c) the Chief Executive Officer and each member of staff of the Commission:

(i) shall observe the same rules and standards of professional conduct and ethics as those that a private legal practitioner is, by law or the custom of the legal profession, required to observe in the practice of that profession, and

(ii) are subject to the same professional duties as those to which a private legal practitioner is subject by law or the custom of the legal profession in the practice of that profession.


Part II: Practice Issues for the Legal Aid Solicitor — Representing Clients

Appearing Amicus Curiae

A court has an inherent or implied power to give leave to an Amicus curiae, or friend of the court. The power is exercised to ensure the court is properly informed of matters which it ought to take into account in reaching its decision and is appropriate where the decision involves an important question of law affecting the community generally or persons other than the parties, in particular a disadvantaged person.

Most of the case law in relation to Amicus curiae has arisen in civil proceedings. The main Australian authority is the judgment of Brennan CJ in Levy v State of Victoria and Ors (1997) 189 CLR 579, which enunciated the common law test in relation to the role of Amicus curiae.

The case law has outlined the following principles in relation to Amicus curiae:

• Amicus curiae is a 'friend to the court' whose role had traditionally been to ensure that the court “is properly informed of matters which it ought to take into account in reaching its decision.”

• Amicus curiae may be heard if ‘good cause’ is shown for doing so and if the court thinks it proper.

• The hearing of an Amicus curiae is entirely in the Court's discretion.

• Usually an Amicus curiae does not play an adversarial part in the proceedings but appears to assist the court on particular points of law in a way that the court would not otherwise have been assisted.

• Amicus curiae are not parties to the proceedings, do not file pleadings or lead evidence, and may not lodge an appeal.

• A court may permit counsel or other legal practitioner to intervene in a criminal trial as Amicus curiae on behalf of an unrepresented accused person. Permission to appear as an Amicus curiae should only be granted if an applicant can demonstrate that “the parties whose cause [he or she] would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case.”

• An Amicus curiae neither acts as the legal representative of an unrepresented accused person nor otherwise appears as his or her personal representative. The role of an Amicus curiae is to support the case of the accused person, and offer the court “submission[s] on law or relevant fact which will assist [it] in a way in which [it] would not otherwise have been assisted.”

It is not appropriate for Legal Aid solicitors to appear Amicus curiae for clients who are ineligible for a grant of aid. Legal Aid solicitors should only appear Amicus curiae in exceptional matters.

Examples of the certain limited situations in which it may be appropriate for Legal Aid solicitors to appear Amicus curiae include a person in custody who may suffer from a mental illness and from whom instructions cannot properly be taken. Such a person may not be able to represent himself or herself adequately, and it may be appropriate for a solicitor to appear Amicus curiae.



Disclosing Information in Relation to Grants of Legal Aid

There may be situations where you are asked to disclose information regarding the status of a grant of legal aid. Magistrates frequently enquire about the status of a grant when legal aid has been terminated before a hearing, particularly when appeals to the Legal Aid Review Committee have been lodged.

Section 56 of the Legal Aid Commission Act provides that a person may appeal various matters to the Legal Aid Review Committee.

Section 57 of the Legal Aid Commission Act provides for an adjournment of certain proceedings. That adjournment is subject to s.57(b), which is that the appeal or intention to appeal is bona fide and not frivolous, vexatious, or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings.

Magistrates may want to satisfy themselves of these matters before determining whether to grant adjournments.

The starting point in relation to disclosing information in relation to grants of legal aid is the following:

Section 25(3) of the Legal Aid Commission Act states that:

Without affecting the generality of subsection (1) or (2), the Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person or court any information or document (including an application for legal aid) relating to the administration of legal aid.

Section 26 of the Legal Aid Commission Act states that:

(1) A person engaged in the administration of this Act must not divulge any information or document (including an application for legal aid) obtained in connection with the administration of legal aid.

Maximum penalty: 50 penalty units or imprisonment for six months.

(2) This section does not prevent the divulging of information or a document if the information or document is divulged:

(a) in connection with the administration of legal aid, or

(b) as referred to in s.25 (4).

(3) This section does not limit the operation of s.25. Consequently, a member of the Board, a member of a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission cannot be required to divulge any information or document merely because the divulging of the information or document is not prohibited by this section.

(4) For the purposes of this section, an application for legal aid includes a request for legal advice but no other form of legal aid.

The above sections are subject to s.25(4)(l) of the Legal Aid Commission Act, which states that nothing contained in s.25 (which relates to the solicitor–client relationship), applies in respect of:



(l) the divulging, with the consent of the Commission, to any court or tribunal of information or a document concerning any of the following matters:

(i) whether or not an application for legal aid has been made by a particular person,

(ii) whether such an application was granted or refused,

(iii) the grounds on which such an application was granted or refused (including information as to the means of the applicant),

(iv) whether a person has appealed against the refusal of such an application.

It is preferable to avoid being drawn into disclosing information on your client’s matter. The best way to manage this situation is to give him or her sufficient information to be able to tell the court how their appeal is progressing. Provide him or her with a copy of their Legal Aid Review Committee appeal documents and let them know whether documents have been processed and forwarded to the Legal Aid Review Committee.

Being Asked to Represent Someone Who May Not be Eligible for Legal Aid

Magistrates often refer people to Legal Aid solicitors for representation. These people may have limited understanding of the court system, or are unrepresented and facing sentences of imprisonment. Sometimes Legal Aid solicitors are called into court and asked to provide advice and/or representation.

As an officer of the court you should try to assist the court, however, it is important that Legal Aid NSW does not act in matters where there is no grant of legal aid or in matters where grants of legal aid are not available.

If you are in a position to speak to the person, you can indicate to the Magistrate that you can give limited assistance, but that:

1. There is no application for legal aid.

2. The matter may not be within Legal Aid NSW Guidelines.

3. The person may or may not meet Legal Aid NSW’s Means Test and there is no way of knowing because verification has not been provided.

4. The person may not be eligible for legal aid.

In such circumstances, the Magistrate may care to adjourn the proceedings so that the person can make an application for legal aid or find other legal representation.



Dealing with the Media

Legal Aid NSW acts for a number of clients who have high profile matters. These matters may be the subject of significant media reporting.

Clients may feel that their matters are being reported unfairly, and may want you to comment on their cases. Experience shows that engaging with the media is unlikely to assist a client’s matter in any substantial way. Therefore, no comment should be made to the media, either at court or if you are contacted subsequently for comment.

Legal Aid NSW’s policy is that enquiries from the media are to be referred to Legal Aid NSW’s Chief Executive Officer or, if the Chief Executive Officer is unavailable, enquiries are to be referred to the relevant Director, which in criminal matters is the Director of Criminal Law.

It is not appropriate for Legal Aid NSW staff to comment directly to the media unless the above process has taken place and you are given permission to comment.

Complaints about the Media

It is possible to make formal complaints to the relevant editor of the media outlet as well as to the Press Council in relation to the way that a client’s matter is reported.

Matters should be referred to Legal Aid NSW’s Director of Criminal Law by way of a detailed briefing note. Where appropriate, the Director of Criminal Law will raise the matter with Legal Aid NSW’s Chief Executive Officer.


Part III: Representing Clients in Court

8 Bail Applications....................................................................81

9 Sentencing ...........................................................................95

10 Summary Trials................................................................... 109

11 The Advocacy Rules ............................................................. 128

12 Recovering Costs in Legally Aided Criminal Cases..................... 140


Part III: Representing Clients in Court


Part III: Representing Clients in Court — Bail Applications

8 Bail Applications

Advising Clients in Relation to Bail................................................81

Taking Instructions on Bail ..........................................................82

Making Observations of Your Client...............................................82

The Criminal Record and the Bail History.......................................82

What to Raise and What Not to Raise in a First Bail Application in the Local Court ..................................................................83

Taking Instructions on Strictly Indictable Offences at a First Bail Application ...........................................................................83

Selected Ethical Problems in Relation to Bail ..................................84 Sureties ...............................................................................84 Acting for Co–accused at First Instance in a Bail Application ........85

Clients who are Drug Affected or Mentally Ill..................................85

Lodging Applications for Bail in the Supreme Court .........................86

Legal Aid NSW’s Supreme Court Bail Section .................................86 Legal Aid NSW Policies Regarding Supreme Court Bail.................86 The Supreme Court Bail Application .........................................86 Assignments of Substantive Matters.........................................87 Relevant Information for the Bail Hearing..................................87

Appendix D...............................................................................89 Bail Instruction Sheet ............................................................90 Information as to Bail for Legal Aid NSW...................................92 Guide to Matters Going to the District Court or Supreme Court.....93

Advising Clients in Relation to Bail

At a client’s first appearance after arrest, their primary concern will usually be about getting bail. However, you should be mindful of a number of issues beyond matters solely related to bail.

You should get instructions, and give advice, on matters such as:

• What should happen with the matter after the bail application is made.

• What date the matter should be adjourned to after the bail application is made.

• The difficulties in making further bail applications in the Local Court

unless it can be shown that new facts or circumstances have arisen that justify the making of a new application.



• Whether an application for bail in the Supreme Court should be lodged (see Lodging Applications for Bail in the Supreme Court on page 86).

Before you go into court, advise your client of the likelihood of bail being granted or refused. Discuss the effect of bail conditions and the consequences of breaching bail and explain what happens when bail is refused.

Taking Instructions on Bail

Appendix D beginning on page 89 has a form that can be used for taking instructions in relation to bail. It addresses important matters in relation to the criteria for granting bail. You can copy this form, fill it out and then place it inside the legal aid application form.

Making Observations of Your Client

The observations you make of your client who has recently been taken into custody may be of considerable significance later in the proceedings. These observations may be relevant to issues such as your client’s mental condition, physical condition (in relation to allegations of being assaulted by police), and instructions in relation to matters such as threats, promises or inducements by police.

Carefully and concisely note your observations and instructions in the legal aid application form or on another document, which is firmly attached to the legal aid application form.

You should make notes of the following (this is a non–exhaustive list):

1. Any injuries suffered by your client.

2. What your client says of conduct by the police.

3. Your observations of your client’s mental wellbeing.

4. Draw diagrams of injuries to your client.

5. Your general observations of your client.

The Criminal Record and the Bail History

At the bail application, the police are likely to tender a bail report or bail history. This is not your client’s formal criminal record but is instead a record used for bail purposes. You should always go through the bail record with your client, as they are often confusing and inaccurate.

Entries to check on a bail report include:

• The accuracy of the entries.

• Entries for offences that may be duplicated throughout the record (especially in relation to warrants and appeals).

• Results which are not indicated on the record (but which your client may be able to give you instructions on).



Note that the bail record is tendered for the limited purpose of dealing with bail. It should be returned to the prosecution following the application for bail and should not remain with the court papers.

What to Raise and What Not to Raise in a First Bail Application in the Local Court

A first bail application is not necessarily the time at which you need to go into the full details of your client’s case or any defences that your client might have available.

Any submissions that you put to the court in a bail application are placed on the record. Therefore, you need to be careful about what you place on the record, particularly with serious matters. Anything placed on the record can be raised later at summary trial or trial in a higher court. For example, in circumstances where identification may ultimately be an issue, a concession in a bail application that your client was present at the scene of an offence might be significant. Similarly, instructions that a client gives about an alibi witness or other similar evidence should be closely scrutinised before you place them on the record in a bail application.

It is often possible to address the strength of the Crown case by focussing on the police facts and not disclosing your client’s instructions. In other matters, you may need to put your client’s instructions to the court. An example would be where your client contests admissions that are alleged by police.

In matters that are less serious, such as those that will be finalised in the Local Court, there may be less risk in placing your instructions before the court.

Taking Instructions on Strictly Indictable Offences at a First Bail Application

You may appear in bail applications and mentions for clients charged with strictly indictable offences. Issues commonly arise about what instructions should be taken about the substantive offences when you are appearing for client who has been charged with strictly indictable offences.

There are a number of ways that such a matter can be dealt with. It will be a matter for your judgment as to which is the preferable way in a particular matter. You should make sure that the future preparation and conduct of the matter is not compromised by any instructions taken or advice given at too early a stage.

Another approach is not to take any instructions at all in relation to the alleged offences and not give your client any advice about the evidence or allegations of fact. You would not put your client’s version of what happened in the bail application. This approach might be taken if the matters will be referred very quickly to Legal Aid NSW’s committals lawyers.

When you have a client in custody charged with a strictly indictable offence, you may need to advise them that you are not the lawyer who will have carriage of the matter. Explain that it is a serious offence, which will be finalised in the District Court or Supreme Court, and they will initially be represented by a specialist committals lawyer. You may want to tell your client you want to be careful about what instructions you take, as you do not want to damage or inhibit their case later, and explain that the committals lawyer will talk to them about their case after their brief is served.



Whichever approach you take in relation to obtaining instructions, you should outline the upcoming steps in the matter, such as brief orders, reply, and Committal. The Guide to Matters Going to the District Court or Supreme Court in Appendix D beginning on page 89 is a diagram that sets out some of the steps for an indictable matter in the Local Court. You can copy this diagram and hand it to your client. You will have to explain to your client that there are many different courses that a matter can take, and that the diagram is not an exhaustive list of these.

There are situations where you may however be able to take more detailed instructions the first time that you see your client after s/he comes into custody. For example, if you are in a position where you will have carriage of a matter at committal and then instruct at trial, then you may be in a position to take detailed instructions. Another situation is where your client indicates important witnesses who may not be called by the prosecution – you may want to get names and contact details of these witnesses so that you can follow these up quickly.

It is appropriate to advise a client charged with a strictly indictable offence that the best time to make an application for bail is after the brief has been served. This allows time for the careful preparation of a bail application, which would include a proper assessment of the strength of the Crown case. If your client wants to ask for bail, it is your duty to make the application as best you can.

Selected Ethical Problems in Relation to Bail

A number of ethical problems are discussed in Ethical Issues on page 55. Some of the issues that arise in relation to bail are discussed below. Sureties

Rule 22 of the Solicitors’ Rules states that:

22.1 A practitioner must not promote, or be a party to, any arrangement whereby the bail provided by a surety is obtained by using the money of the accused person, or by which the surety is given an indemnity by the accused person or a third party acting on behalf of the accused person.

22.2 A practitioner must not become the surety for the practitioner’s client’s bail.

Sometimes family and other members may indicate to you that they will be getting money for a surety from other people, or will be pooling their resources. If your client tells you to “speak to the family” to find out how much money might be available, you need to make it clear both to your client and to the proposed surety that the money must come from the surety and no one else.

Similarly, if your client must enter into an agreement as part of the bail, you should explain to your client that the surety must come from your client and no other person.

Section 58 of the Bail Act makes it an offence for one person to indemnify, or agree to indemnify, another person in relation to forfeiture. The offence carries both a monetary penalty and a term of imprisonment



Acting for Co–accused at First Instance in a Bail Application

Sometimes a duty solicitor is faced with the dilemma of having a number of co–accused in custody wanting to apply for bail at first instance. Often they are charged with serious offences, some of which are strictly indictable. In these situations, the duty solicitor may feel the need to immediately assign one or more of the clients because of the potential conflict. This is not so.

Legal Aid NSW would prefer the duty solicitor to hang onto all of the accused for at least the first appearance at court. The duty solicitor may make an application for bail on behalf of one or more provided the client does not instruct the solicitor to address on the facts that is against the interest of any co–accused and provided the client does not seek to incriminate any other accused.

Legal Aid NSW would prefer the duty solicitor to defer the question of assignment in the above situation until they have referred the matter to the Solicitor in Charge (SIC) or the Senior Criminal Solicitor (if the Solicitor in Charge is not a criminal solicitor). It is preferable for the SIC to decide the issue after they have discussed the matter with the Committal solicitor and the brief of evidence has been served.

You can in such situations get assistance from a private solicitor on a duty back–up basis to conduct one or more bail applications, particularly if the Facts against one co–accused need to be distinguished from those against another in the bail application. The question of the actual assignment of one or more matters can then be deferred until the briefs are received and instructions clarified.

If however, it appears to the duty solicitor at court that there is an actual conflict, which is evident on the facts or from the client’s instructions, then it is appropriate to assign the bail application.

It is preferable to assign the client who is seeking to assist the police in their investigation. The reason for this is that experience has shown that there is a greater cost to Legal Aid NSW assigning the remaining co–accused.

Clients who are Drug Affected or Mentally Ill

Sometimes clients who have just been arrested are either in withdrawal from drugs or may be exhibiting signs of being mentally ill. If appearing at a court where there is a Court Liaison Nurse, the nurse may assist in identifying the cause of your client’s condition and can make an assessment and recommendation about what action should be taken.

It will always be your decision as to whether your client’s condition is such that you are not able to be properly instructed and hence cannot appear.

Lodging Applications for Bail in the Supreme Court

The most crucial decision in lodging a Supreme Court bail application is the timing of that application. This is due to s.22A Bail Act 1978, which provides that a Court may refuse to entertain an application by a person if they have already made an application to the court unless the court is satisfied that there are new facts or circumstances that justify the making of a second application.



This section effectively limits a client to one application for bail in the Supreme Court.

Bearing this in mind, the problem is that many clients lodge their applications prematurely. For example, a Supreme Court bail application for serious offences should only be made after a brief has been served. The police facts tendered at bail often represent the Crown case at its highest. Often it is only when the brief has been served that weakness in the Crown case can be clearly identified and an application for bail can be strengthened.

There are exceptions to this rule, such as a case that is obviously weak on the facts sheet alone, or a Crown case that is unlikely to change upon service of the brief. Factors such as the arrangement of full–time residential rehabilitation and/or delay in service of the brief may mean in some circumstances that the bail application should proceed before the brief is served.

Legal Aid NSW’s Supreme Court Bail Section

Legal Aid NSW clients appearing before the Supreme Court for bail applications are represented by solicitors from the Inner City Local Courts section. Legal Aid NSW clients appear on Mondays, Tuesdays and Wednesdays. Solicitors obtain instructions on Thursdays and Fridays by video link or by visiting the gaol.

The vast majority of clients are in custody seeking a grant of bail. Only a few clients seek bail variations. Most Supreme Court bail applications are conducted by AVL and a special application needs to be made for a person to be brought to the court in person. Legal Aid NSW Policies Regarding Supreme Court Bail

The Means Test applies to Supreme Court bail applications. Remember that the means of any financially associated person (e.g. income and savings of partner/spouse) and savings of the applicant should be taken into account.

A merit test is applied to Supreme Court bail applications. Legal Aid NSW will only represent clients on applications that have reasonable prospects of success. You should advise your clients that legal aid might be refused on these grounds. The Supreme Court Bail Application

Any information you can place on the Supreme Court bail application form (available in all Legal Aid NSW offices) will assist the solicitor appearing in the Supreme Court.

It is preferable that clients sign applications for bail to the Supreme Court themselves. If possible, you should assist your client in this process at court. However, there may be occasions when your client is returned to the gaol before they have been able to sign the application, or have appeared in court by way of Audio-Visual link. In these circumstances, it may be appropriate for you to lodge the application on your client's behalf if you have instructions to do so. Do not forward the application to the Supreme Court bails section for filing. The application should be faxed directly to the Supreme Court Bails Registry.

If your client wishes to lodge their own application, they can fill out the form at the gaol and give it to Corrective Services. Alternately your client can ask to see the Prisoners Legal Service (PLS) and the PLS solicitor may be able to lodge the application. Further information on the PLS can be found at page 177.



Assignments of Substantive Matters

If you are aware that your client’s case is being assigned due to a conflict, you need to advise the Supreme Court Bails Section, as this same conflict will apply. If matters are being assigned for a non–conflict reason, forward copies of the documents to the Supreme Court Bails Section, who will act on the bail application before sending the relevant contents of the file to the private lawyer. This will help prevent delays in retrieving the paperwork. Relevant Information for the Bail Hearing

When you lodge a Supreme Court bail application you can assist the Supreme Court Bails Section by providing briefs, facts and records, residential details, surety details, rehabilitation arrangements, psychological reports and your view as to the strength or weakness of the Crown case and the merit of the bail application. This will ensure the Supreme Court Bails Section is able to prepare the matter properly – otherwise they are reliant on papers from the prosecution, which often arrive the night before a hearing.

An Information as to Bail for Legal Aid NSW form on page 92 is a helpful document to be completed and sent with the relevant documents when a client applies for Supreme Court bail.


Appendix D

The Bail Instruction Sheet sets out a structure for your submissions. It can be filled out and placed inside the Legal Aid application form.

The Guide to Matters Going to the District Court can be given to clients to outline the possible course of an indictable matter through the Local Court.

The Information as to Bail for Legal Aid NSW should be used as the cover sheet (in addition to any memorandum and attachments you include) when sending documents to Legal Aid NSW's Supreme Court Bails Section.


Bail Instruction Sheet

THE APPLICABLE PRESUMPTION

Advice in relation to section 22A - one bail application unless there are new facts or circumstances

THE OFFENCE

a) The circumstances of the offence.

b) The strength of the prosecution case.

c) The likely penalty upon conviction.

PROTECTION OF THE COMMUNITY/LIKELIHOOD OF COMMISSION OF FURTHER OFFENCES

a) Prior record for same type of offence.

b) Prior record frequency of offending.

c) Specific matters relevant to the likelihood of the committing further offences.

LIKELIHOOD OF ATTENDING

a) Previous appearances at court (particularly for serious offences).

b) FTA’s explained.

c) Previous compliance with court orders (e.g. bonds, parole).

BACKGROUND AND COMMUNITY TIES

a) Where the accused has lived (rented or owned), for how long and with whom.

b) The accused’s employment.

c) The accused’s family and community ties.

d) Other need to be at liberty.

AVAILABILITY AND DETAILS OF SURETY

PROPOSED BAIL CONDITIONS

Information as to Bail for Legal Aid NSW

TO: SENIOR SOLICITOR

SUPREME COURT BAILS

INNER CITY LOCAL COURTS SECTION

RE: SUPREME COURT BAIL APPLICATION

APPLICANT:……………………………………………………………………..………

(Full Name)

ADDRESS:………………………………………………………………………..………

….…………………………………………………… Postcode ………………....……....

OFFENCE(S):

…..….……………………………………………………………………………………..

……………………………..……………………….……………………………………..

…..………………..………….……………………………………………………………

BAIL and REASON(S) FOR REFUSAL ………………………………………………….

……………………..………….…………………………………………..………………

NEXT COURT APPEARANCE and DATE: …………….………………...……………

NAME and PHONE NUMBERS OF ACCEPTABLE PERSONS: ……………………..

………………………………..……………………….…………………………………..

………………………………..……………………….…………………………………..

COMMENTS ON MERIT OF APPLICATION: ………………...…….…………………

………………………………..……………………….…………………………………..

………………………………..……………………….…………………………………..

ENCLOSED PLEASE FIND (TICK AS APPROPRIATE):

� COPY OF LOCAL COURT LAC APPLICATION

� POLICE FACTS

� BRIEF

� CRIMINAL RECORD

� INSTRUCTIONS TAKEN FROM APPLICANT

� BAIL APPLICATION AS LODGED AT SUPREME COURT BY FAX

� OTHER: …………………………………………………………………………

………….………….… ……………….…………………. ………………

SOLICITOR LEGAL AID OFFICE DATE

Guide to Matters Going to the District Court or Supreme Court

POLICE STATION

LOCAL COURT

Charge Fact Sheet

Bail

Bail Refused Bail Granted Conditions

SUPREME COURTBail

Bail continues until matters are finalised

Negotiations

Trial

Sentence

Brief Witness statements

CCTV Forensic evidence

Drug analysis Intercepts/surveillance

Committal Tender papers

or call witnesses

Case to Answer

DISTRICT COURT

No Case to Answer

PG PNG

6 weeks

4 weeks

Reply to Brief and committal

applications/case conferencing timetable

Sentence

Appeal sentence or conviction Guilty Not Guilty

COURT OF CRIMINAL APPEAL

Part III: Representing Clients in Court — Sentencing

9 Sentencing

References and Other Documents on Sentence ..............................95 Personal References...............................................................95 Letters from the Client to the Court..........................................95 Other Documents on Sentence ................................................96

Calling Evidence in Local Court Sentence Proceedings .....................96

Appealing .................................................................................96

Appendix E ...............................................................................99 Instruction Form for Sentencing ............................................ 100 Checklist of Matters to Consider when Preparing a Matter for Sentence .......................................................... 102 Instructions to Plead Guilty ................................................... 106 Reference Layout ................................................................ 107

Other chapters in the Manual relevant to sentencing include Clients, Advice and Instructions, Ethical Issues, Reports, and the Advocacy Rules. This chapter does not repeat what is contained in those chapters. There is a checklist of sentencing principles and issues contained in the appendix to this chapter.

References and Other Documents on Sentence

Personal References

These are often useful and relevant, so long as they are recent, are addressed to the court, and refer to the current offences. Old references or references that have been prepared for a job application are neither useful nor relevant.

A letter from a relative or close friend – parent, sibling, or partner, for example – shows support for your client, and may set out relevant background material or information about your client’s life and circumstances.

Such material is even stronger if the person who wrote the letter is in court. You can indicate that that person is willing to answer any questions from the prosecutor or the Magistrate. The invitation is rarely taken up. This is a way of getting background material before the Court that would normally be called as evidence in sentence proceedings in the District Court. Letters from the Client to the Court

These self–serving statements are often very eloquent in your client’s own terms and generally ought to be encouraged. Prosecutors rarely object to them, and they provide a way to get personal material and statements of contrition before the court.



Check the letter before it is handed up to make sure that everything in it is appropriate and does not damage your client’s case (for example, that it does not traverse the plea or embarrass you or your client). If you suggest amendments to your client, make sure you get your client to sign and date the document and to initial any amendment that is made. Other Documents on Sentence

Reports or letters from employers are helpful, as are any certificates or documents referring to educational or vocational achievements or completion of courses.

Any such report or letter needs to be relatively recent and have some relevance to a submission you propose to make before you consider tendering them.

Calling Evidence in Local Court Sentence Proceedings

It is unusual to call evidence in Local Court sentences because of time constraints in busy courts, particularly on list days. You should consider calling evidence where you have a particularly difficult sentence matter, or a true borderline case where your client may or may not be sent to prison.

Tell the Magistrate you intend to call evidence and explain why it is necessary. Let the Magistrate know that the matter will take some time, that you propose to call evidence, and ask that it be listed at a convenient time later in the day, or on a day set aside for summary trials.

An alternative to calling evidence is to put the evidence before the Court by way of affidavit evidence from your client or other relevant witness and indicate that these witnesses are available for cross–examination.

Appealing

Legal Aid NSW’s Local Court Practice Standards states that once a sentence or defended matter is completed in the Local Court, a practitioner will:

• Speak to the client immediately following the court appearance and confirm the client understands the proceedings and the outcome.

• Advise on appeal prospects and, if appropriate, take instructions on an appeal.

• Assist the client in lodging the appeal.

• Advise the client whether legal aid is likely to be available for the appeal.

• Assist the client to complete a legal aid application.

• Take the client’s instructions on a bail application.

• Apply for appeal bail.

• Forward the notice of appeal and legal aid application to Legal Aid NSW.

• Write to the client and confirm the date of the appeal and that an application for legal aid had been lodged.



You should advise your client that in relation to grants of aid for appeals to the District Court that Legal Aid NSW will consider, among other matters, whether the applicant has reasonable prospects of success in the proceedings.

Remember that there is a time limit on lodging an appeal. Your client has 28 days from the date of sentence to appeal as of right and up to three months from the date of sentence to seek leave to appeal if s/he missed the 28–day deadline. It is important to remind your client of this in writing if they are considering an appeal but have not made a final decision, or if they were transported to the gaol before you had a chance to speak to your client in the cells on the day of sentence.


Appendix E

The Instruction Form for Sentencing highlights important areas for instructions to be taken on and submissions to be prepared. This can be completed and placed inside the Legal Aid application form.

The Checklist of Matters to Consider when Preparing a Matter for Sentence can be used in preparation of sentence matters and is a list of matters that frequently arise in sentence matters.

The Instructions to Plead Guilty can be copied and given to clients to sign.

The Reference Layout can be given to clients or potential referees.


Instruction Form for Sentencing

OBJECTIVE SERIOUSNESS OF THE OFFENCE

Why the offence occurred.

The level of planning or impulsiveness involved in the offence.

Other matters affecting the objective seriousness of the offence (e.g. state of mind at time of offence, role, length of time over which it occurred).

Conclusion: Where in the range of offences of that type the particular offence falls.

SUBJECTIVE BACKGROUND

Age.

Mental and emotional state.

Background and upbringing.

School/work history.

Drug/Alcohol addiction (including relevance to commission of the offence).

Previous criminal record and relevance (Gaps, seriousness, commencement, recency).

Health/Medical condition.

AGGRAVATING OR MITIGATING FACTORS NOT ALREADY ADDRESSED

THE EFFECT OF THE PLEA OF GUILTY

Time of entering the plea.

Evidence relating to contrition/remorse.

SPECIFICALLY APPLICABLE SENTENCING PRINCIPLES OR GUIDELINE JUDGMENTS

PROSPECTS FOR THE FUTURE

THE PENALTY THAT YOU ARE SEEKING

ADDITIONAL ORDERS (e.g. compensation/disqualification)

SPECIFIC ISSUES RELATING TO IMPRISONMENT

Time already in custody/commencement date of sentence.

Concurrency/cumulation.

Totality.

Special circumstances.

Checklist of Matters to Consider when Preparing a Matter for Sentence

PRELIMINARY MATTERS

• Application of the Evidence Act 1995 to sentencing – see s.4(2).

• Onus and standard of proof – matters of aggravation must be proved beyond reasonable doubt; matters in mitigation proved on the balance of probabilities.

• Matters on which evidence should be called – see Calling Evidence in Local Court Sentence Proceedings on page 96.

• Check the section, elements of the offence and maximum penalty.

• Pre–sentence and other reports.

• Use of written submissions.

THE PURPOSES OF SENTENCING (SECTION 3A CRIMES (SENTENCING PROCEDURE) ACT)

• Punishment.

• General deterrence and specific deterrence.

• Protection of the community from the offender.

• Rehabilitation.

• Making the offender accountable for his or her actions.

• Denunciation.

• Recognising the harm done to the victim of the crime and the community.

SELECTED PRINCIPLES OF SENTENCING

• Proportionality – punishment must be in proportion to the objective seriousness of the offence.

• Frugality – the least restrictive sentence should be imposed.

• Parity – Co–offenders should, if other things are equal, receive the same sentence.

THE OFFENCE

• Factual basis of sentence.

• Level of impulsivity/planning.

• Degree of participation.

• Level of culpability displayed.

• Place of the offence in the range of objective seriousness.

Sentencing principles relating to specific types of offences. For example, social security fraud is likely to result in a custodial sentence.

Other Guides to Determining an Appropriate Sentence.

• Guideline judgments (High Range PCA; Form 1; Break, enter and steal; Armed robbery; Dangerous driving occasioning death or GBH; Pleas of guilty).

• Standard non–parole periods (apply to certain offences dealt with on indictment in the Supreme Court or District Court).

THE SUBJECTIVE FEATURES OF THE OFFENDER

• Personal.

• Age.

• Education/Employment.

• Developmental/physical condition.

• Health.

• Disadvantaged background.

Character.

• Prior good character.

• Prior criminal record.

Motivation in committing the offence.

• Drugs.

• Intoxication at the time of the offence.

• Need versus Greed.

• Provocation.

• Duress.

Sentencing Principles Relating to Certain Types of Offenders.

• Mental Illness.

• Developmental disability.

• Aboriginality (the Fernando principles).

• Children.

Possible effects of sentence.

• On livelihood.

• Hardship of custody.

• On family.

• On third parties.

RELEVANCE OF THE PLEA OF GUILTY

• Utilitarian value.

• Contrition and remorse.

• Assistance to authorities.

OTHER MATTERS

• Taking offences into account on a Form 1 (allows a court to take other offences into account at sentencing. See Crimes (Sentencing Procedure) Act 1999).

SENTENCING OPTIONS

Non–custodial options.

• S.10 Crimes (Sentencing Procedure) Act 1999.

• Good behaviour bonds.

• Fines.

• Community service orders.

Adjournment for rehabilitation and other purposes.

• S.11 Crimes (Sentencing Procedure) Act 1999.

• MERIT program

Availability of alternatives to traditional sentencing

• Forum sentencing

• Circle sentencing

• Drug Court

Imprisonment.

• Suspended sentences.

• Periodic detention.

• Fulltime custody.

• Home detention.

Issues in relation to imprisonment.

• Commencement of sentence.

• Non–parole periods.

• Parole orders.

• Concurrent and cumulative sentences.

• Special circumstances.

• Totality.

ADDITIONAL ORDERS

• Non–association and place restriction orders.

• Restitution.

• Confiscation and forfeiture.

Other Ancillary orders.

• Mandatory ADVO following conviction for domestic assault.

• Victim’s compensation.

• Sex Offenders Register.

• Other consequences of conviction (such as on firearms licences, employment in certain professions, and overseas travel).

Driving offences.

• Alcohol interlock program.

• Sober Driver Program.

• Licence Disqualification.

• Habitual Traffic Offenders Declaration.

Instructions to Plead Guilty

I,……………………………… tell my solicitor ……………………….….. as follows:

I am charged with:

My solicitor has gone through the police facts/brief of evidence with me.

My solicitor has told me that the evidence against me is as follows:

My solicitor has told me that the evidence in the police facts/brief is evidence on which I can be found guilty of my offence(s).

I understand that:

• I have a right to plead not guilty.

• If I plead not guilty, I will have a hearing.

• I will not get a heavier sentence for pleading not guilty and being found guilty at my hearing.

• I will get a discount (less of a sentence) for pleading guilty.

I instruct my solicitor that I wish to plead guilty to: …………………………………..

I accept the elements of the offence/each of the offences.

My solicitor has told me that the maximum penalty for the offence is ...............

Additional matters:

………………………………… …………………………

SIGNED DATE

Reference Layout

R v

Date

The Presiding Magistrate

Local Court at ………………………….

Your Honour

GENERAL TOPICS TO BE COVERED:

• The writer knows about the charge[s].

• How long the writer has known the accused.

• How the writer got to know the accused.

• What the writer thinks of the accused.

• Anything specific about the accused.

Yours faithfully

Signed

Name printed

• Do not tell the judge his or her job. (for example, “Only a fool would put this person in gaol”.)

• The accused has been found guilty or has pleaded guilty. There is no point in saying that s/he is innocent.

• The reference should be typed, or if that is not possible — neatly hand–written.

• The reference should be on letterhead, or if that is not possible — on good paper.

Part III: Representing Clients in Court — Summary Trials

10 Summary Trials

Legal Aid NSW Local Court Practice Standards ............................. 110

Checklist in Relation to the Preparation of a Summary Trial ............ 111 Preparation ........................................................................ 111 Pre–hearing Conferences with Client and Witnesses.................. 111 Before the Hearing .............................................................. 112 Police Statements and the Brief of Evidence ............................ 112 Police Conduct .................................................................... 112 The Summary Trial .............................................................. 113

Appendix F ............................................................................. 115 Witnesses and Defence Case Summary................................... 117 Matters to Consider in Preparation of Defence Case .................. 118 Written Submissions of Accused re Directions as to the Issues and Evidence ...................................................................... 119 Examination of Issues .......................................................... 120 Crown Case ........................................................................ 120 Defence Case...................................................................... 120 Anticipated Objections to the Evidence ................................... 121 List of People Involved ......................................................... 122 Chronology......................................................................... 123 Identification Evidence Ready Reckoner .................................. 124 Exhibits List........................................................................ 125 Crown Exhibits.................................................................... 125 Defence Exhibits ................................................................. 125 Documents Marked for Identification ...................................... 125 Matters to Raise with an Accused/Witness who will be Giving Evidence .................................................. 126



Legal Aid NSW’s Local Court Practice Standards

Legal Aid NSW’s Local Court Practice Standards apply to in–house staff and solicitors accepting work on assignment from Legal Aid NSW. The following Local Court Practice Standards relate to summary trials:

A practitioner appearing in a summary trial will:

• Open a file for the client with copies of the police facts, bail conditions, criminal history and the brief.

• Read the brief.

• Advise the client in writing that the matter has been assigned, the terms of the grant of aid and the hearing date.

• Meet with the client at a place convenient for the client and the practitioner.

• If the matter has not already been set down for hearing ensure that the matter is ready to proceed before setting it down. Thus, there should be a brief of evidence, and instructions taken on the brief of evidence. The client should verify before setting the matter down for hearing.

• Advise the client on the evidence in the brief and whether there is sufficient evidence to prove a prima facie case.

• Advise the client of any relevant defences available to the charges faced by the client. If the client wishes to enter a plea of guilty despite a possible defence, the practitioner should obtain signed instructions where practical.

• Explain appeal rights and processes to the client.

• Prepare the matter for hearing.

• Issue any subpoenas.

• Check the clients bail conditions and take any instructions on any bail variations.

• Represent the client at the hearing in accordance with Rule 23.A15a, 15b, A16A, A17A, A17B of the Advocacy Rules).

• Record the outcome of the proceedings on the file.

• Appear for the client at the subsequent sentence proceedings.



Checklist in Relation to the Preparation of a Summary Trial

This checklist contains a number of matters to be considered in the preparation and conduct of summary trials in the Local Court.

Reference will also be made to the Evidence Act (EA), Crimes Act (CA), Criminal Procedure Act (CPA), and the Law Enforcement (Powers and Responsibilities) Act (LEPRA). Preparation

• The following documents should be obtained in preparation for the hearing:

o Court Attendance Notices (CAN).

o Police Facts.

o Criminal history of accused and main civilian witnesses in the case.

o ERISP.

o Custody records.

• Check the commencement date of the proceedings. Note that there is a time limit for commencing summary prosecutions (s.179 CPA).

• Thoroughly read the sections of the CA or any other Act that the offence is brought against.

• Be thoroughly familiar with the elements of the offence.

• Prepare objections and grounds of the objections (a document for this purpose is contained in Appendix F, beginning on page 115).

• A chronology of important dates should be prepared (see Appendix F, beginning on page 115). These dates include the dates of the offence, arrest, CAN, ERISP/statements of accused and witnesses.

• Go on a view if this will assist. In appropriate cases, take photographs.

• Identify the real issues in the hearing and disregard matters that are not relevant.

• Consult with others – get advice and share ideas on the proposed conduct of the trial.

Pre–hearing Conferences with Client and Witnesses

• It is important to take initial instructions and the need to get witness statements as soon as possible.

• Get full instructions: get signed and dated instructions from your client and consider whether you need to take further written instructions during the course of the hearing.

• Get signed and dated statements from witnesses.



• Consider your client and whether there are any issues of mental illness or developmental disability that need to be investigated – see s.32 and s.33 Mental Health (Criminal Procedure) Act.

Before the Hearing

• If representations are made, they must be made in accordance with the time limits specified in the current Local Court Practice Note (available on the Lawlink Web site).

• Consider issuing subpoenas: s.220–s.232 CPA; Part 7 Local Court Rules:

o For production.

o For defence witnesses – it is prudent to subpoena witnesses for the defence.

• Consider, in relation to co–accused, the advantages and disadvantages of having a joint hearing: see s.29 CPA. There is a danger in having separate hearings: R v Suteski (2002) 56 NSWLR 182. Co–accused may be called to give evidence and their ERISP tendered even if they do not wish to give any evidence.

• Experts and reports – s.177 EA. Make sure that all notices have been served and that you have received or provided a reply.

Police Statements and the Brief of Evidence

• See s.183–s.188 CPA as to requirements for police briefs of evidence. Subject to any regulations the copy of the brief of evidence is generally to be served at least 14 days before the hearing.

• Request particulars if appropriate – s.166–s.169 EA.

• Note s.33 EA in relation to police officers reading statements –see also Orchard v Spooner (1992) 28 NSWLR 114: the issue is whether the statement is contemporaneous, and should be looked at in terms of days and not weeks.

Police Conduct

• Consider potential challenges to the prosecution case as a result of the conduct of the police.

• Police behaviour:

o R v Rondo (2001) 126 A Crim R 562.

o Search without warrant – Part 4 LEPRA.

o Search with warrant – Part 5 LEPRA.

o Search etc. regarding domestic violence offences – Part 6 LEPRA.

o Emergency Powers – Public Disorder – Part 6A LEPRA

o Arrest – Part 8 LEPRA.

o Investigations/questioning – Part 9 LEPRA.



o Use of In-Car Video Equipment – Part 8A – LEPRA

o Drug Detection Powers – Part11 LEPRA

o S.138 EA: discretion to exclude improperly or illegally obtained evidence.

• Admissibility of admissions by the accused: s.81–s.90 and s.139 EA and s.281 CPA.

• Discretionary exclusion of evidence: s.135–s.139 EA.

• Consider also the admissibility of any evidence offered by forensic procedures against the accused. See Crimes (Forensic Procedures) Act 2000 and Walker v Bugden [2005] NSWC 428.

The Summary Trial

• Representing a client who does not appear: see Barker v Jacob and anor, Unreported, NSW Supreme Court, 27 March 2000. You should represent a client who does not appear in limited circumstances only, such as where you have sufficient instructions to do so, or where the prosecution may not be able to establish a prima facie case. If you do act in these circumstances ensure that you have appropriate instructions to run the summary trial. See Withdrawing from a Matter on page 66.

• S.192 EA – leave provisions.

• Have examination in chief and cross–examination prepared before starting.

• Opening address – will often be useful in clarifying relevant issues. See s.159 CPA and R v MM (2004) 145 A Crim R 148.

• Consider the importance of putting relevant instructions in cross–examination.

o Browne v Dunn (1893) 6 R 67.

o Section 46 EA.

o R v Birks (1990) 19 NSWLR 677.

o R v MWJ [2005] HCA 74.

• Beware of impermissible questions by the prosecution, such as ‘why would the complainant lie?’

• Consider the first and second limbs of May v O’Sullivan (1955) 92 CLR 654.

o First limb: no evidence regarding one or more of the elements of the offence.

o Second limb: evidence available regarding each element of the offence but not sufficient to satisfy the court beyond reasonable doubt.

• Raising character: do so with caution. See s.110 EA.



• Keep questions simple.

• Use simple language at all times.



Appendix F

The attached documents are of assistance in the preparation of a summary trial.


Witnesses and Defence Case Summary

R v # Name Objection? Questions? Comments 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

Matters to Consider in Preparation of Defence Case

R vProblem Answer

Sever counts (See CPA)

Separate trial from co–accused?

Accused – Give evidence or remain silent?

Raise character? Generally? Or in particular? Call character witnesses?

Cross examination of Crown witnesses regarding criminal records – a problem if the Accused gives evidence

Alibi?

Other notice requirements?

Experts?

Other witnesses?

Defence exhibits?

Other aspects?

Matters of Law for the Court

R v Issue Comment

Examination of Issues

R vCrown Case

Problem Answer Comment

Defence Case

Good Points Crown Answer Comment

Anticipated Objections to the Evidence

R v # Location Basis Comment 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

List of People Involved

R v

Name Relation

to the Victim/Accused Comment

Chronology

R v Year Date Day Time Event

Identification Evidence Ready Reckoner

R v Age Ht Wt Hair Face Head Top Other

W1 Name

W2 Name

W3 Name

W4 Name

W5 Name

Accused in fact

Exhibits List

R v Crown Exhibits

# Description Comment

Defence Exhibits


Documents Marked for Identification


Matters to Raise with an Accused/Witness who will be Giving Evidence

Taking an oath. Procedure in court. Listen to each question. Understand all of the words and the question as a whole. Tell the truth, including if you don't remember a matter. Give short and direct answers - not like a conversation. The roles of examination-in-chief, cross-examination, and re-examination. Wait for questions, if necessary. Objections to evidence may be made. Credit - the Bench will be listening to the answers given, as well as to how they are given. Face up to difficulties in evidence; do not avoid them. Particular matters in this hearing.

Part III: Representing Clients in Court — The Advocacy Rules

11 The Advocacy Rules

Efficient Administration of Justice............................................... 128

Duty to a Client ....................................................................... 129

Independence – Avoidance of Personal Bias................................. 129

Frankness in Court................................................................... 130

Delinquent or Guilty Clients....................................................... 132

Responsible Use of Court Process and Privilege ............................ 133

Integrity of Evidence................................................................ 134

Duty to Opponent .................................................................... 135

Integrity of Hearings ................................................................ 136

Prosecutor’s Duties .................................................................. 136

The advocacy rules are found in the Solicitors’ Rules.

Rules A.15–A.72 apply to all legal practitioners (whatever may be their predominant style of practice) when they are acting as advocates. The term "practitioner" is used throughout these Rules to refer to legal practitioners acting as advocates whether they are persons who practise only as barristers, or persons, who practise as solicitors, or as barristers and solicitors.

Efficient Administration of Justice

A.15. A practitioner must ensure that:

(a) the practitioner does work which the practitioner is retained to do, whether expressly or impliedly, specifically or generally, in relation to steps to be taken by or on behalf of the client, in sufficient time to enable compliance with orders, directions, rules or practice notes of the court; and

(b) warning is given to any instructing practitioner or the client, and to the opponent, as soon as the practitioner has reasonable grounds to believe that the practitioner may not complete any such work on time.

A.15A. A practitioner must seek to ensure that work which the practitioner is retained to do in relation to a case is done so as to:

(a) confine the case to identified issues which are genuinely in dispute;

(b) have the case ready to be heard as soon as practicable;



(c) present the identified issues in dispute clearly and succinctly;

(d) limit evidence, including cross–examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case; and

(e) occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.

A.15B. A practitioner must take steps to inform the opponent as soon as possible after the practitioner has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of the fact and the grounds of the application, and must try with the opponent’s consent to inform the court of that application promptly.

Duty to a Client

A.16. A practitioner must seek to advance and protect the client’s interests to the best of the practitioner’s skill and diligence, uninfluenced by the practitioner’s personal view of the client or the client’s activities, and notwithstanding any threatened unpopularity or criticism of the practitioner or any other person, and always in accordance with the law including these Rules.

A.17 A practitioner must seek to assist the client to understand the issues in the case and the client's possible rights and obligations, if the practitioner is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions, particularly in connexion with any compromise of the case.

A.17A. A practitioner must inform the client or the instructing practitioner about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the practitioner believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.

A.17B. A practitioner must (unless circumstances warrant otherwise in the practitioner’s considered opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty) if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

Independence – Avoidance of Personal Bias

A.18. A practitioner must not act as the mere mouthpiece of the client or of the instructing practitioner and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client’s and the instructing practitioner’s desires where practicable.



A.19. A practitioner will not have breached the practitioner’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing practitioner’s desires, simply by choosing, contrary to those desires, to exercise the forensic judgments called for during the case so as to:

(a) confine any hearing to those issues which the practitioner believes to be the real issues;

(b) present the client’s case as quickly and simply as may be consistent with its robust advancement; or

(c) inform the court of any persuasive authority against the client’s case.

A.20. A practitioner must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the practitioner’s personal opinion on the merits of that evidence or issue.

Frankness in Court

A.21. A practitioner must not knowingly make a misleading statement to a court on any matter.

A.22. A practitioner must take all necessary steps to correct any misleading statement made by the practitioner to a court as soon as possible after the practitioner becomes aware that the statement was misleading.

A.23. A practitioner will not have made a misleading statement to a court simply by failing to correct an error on any matter stated to the court by the opponent or any other person.

A.24. A practitioner seeking any interlocutory relief in an ex parte application must disclose to the court all matters which:

(a) are within the practitioner’s knowledge;

(b) are not protected by legal professional privilege; and

(c) the practitioner has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

A.24A. A practitioner who has knowledge of matters which are within Rule A.24(c):

(a) must seek instructions for the waiver of legal professional privilege if the matters are protected by that privilege, so as to permit the practitioner to disclose those matters under Rule A.24; and

(b) if the client does not waive the privilege as sought by the practitioner:

(i) must inform the client of the client’s responsibility to authorise such disclosure and the possible consequences of not doing so; and



(ii) must inform the court that the practitioner cannot assure the court that all matters which should be disclosed have been disclosed to the court.

A.25. A practitioner must, at the appropriate time in the hearing of the case and if the court has not yet been informed of that matter, inform the court of:

(a) any binding authority;

(b) any authority decided by the Full Court of the Federal Court of Australia, a Court of Appeal of a Supreme Court or a Full Court of a Supreme Court;

(c) any authority on the same or materially similar legislation as that in question in the case, including any authority decided at first instance in the Federal Court or a Supreme Court, which has not been disapproved; or

(d) any applicable legislation; which the practitioner has reasonable grounds to believe to be directly in point, against the client’s case.

A.26. A practitioner need not inform the court of matters within Rule A.25 at a time when the opponent tells the court that the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for the practitioner to have informed the court of such matters in the ordinary course has already arrived or passed.

A.27. A practitioner who becomes aware of a matter within Rule A.25 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:

(a) a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or

(b) requesting the court to re–list the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.

A.28. A practitioner need not inform the court of any matter otherwise within Rule A.25 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

A.29. A practitioner will not have made a misleading statement to a court simply by failing to disclose facts known to the practitioner concerning the client’s character or past, when the practitioner makes other statements concerning those matters to the court, and those statements are not themselves misleading.

A.30. A practitioner who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

A.31. A practitioner must inform the court in civil proceedings of any misapprehension by the court as to the effect of an order which the court is making, as soon as the practitioner becomes aware of the misapprehension.



A.31A. A practitioner must take all necessary steps to correct any express concession made to the court in civil proceedings by the opponent in relation to any material fact, case law or legislation:

(a) only if the practitioner knows or believes on reasonable grounds that it was contrary to what should be regarded as the true facts or the correct state of the law;

(b) only if the practitioner believes the concession was in error; and

(c) not (in the case of a concession of fact) if the client’s instructions to the practitioner support the concession.

Delinquent or Guilty Clients

A.32. A practitioner whose client informs the practitioner, during a hearing or after judgment or decision is reserved and while it remains pending, that the client has lied in a material particular to the court or has procured another person to lie to the court or has falsified or procured another person to falsify in any way a document which has been tendered:

(a) must refuse to take any further part in the case unless the client authorises the practitioner to inform the court of the lie or falsification;

(b) must promptly inform the court of the lie or falsification upon the client authorising the practitioner to do so; but

(c) must not otherwise inform the court of the lie or falsification.

A.33. A practitioner retained to appear in criminal proceedings whose client confesses guilt to the practitioner but maintains a plea of not guilty:

(a) may cease to act, if there is enough time for another practitioner to take over the case properly before the hearing, and the client does not insist on the practitioner continuing to appear for the client;

(b) in cases where the practitioner continues to act for the client:

(i) must not falsely suggest that some other person committed the offence charged;

(ii) must not set up an affirmative case inconsistent with the confession; but

(iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

(iv) may argue that for some reason of law the client is not guilty of the offence charged; or

(v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged.



A.34. A practitioner whose client informs the practitioner that the client intends to disobey a court’s order must:

(a) advise the client against that course and warn the client of its dangers;

(b) not advise the client how to carry out or conceal that course; but

(c) not inform the court or the opponent of the client’s intention unless:

(i) the client has authorised the practitioner to do so beforehand; or

(ii) the practitioner believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.

Responsible Use of Court Process and Privilege

A.35. A practitioner must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the practitioner or on the practitioner’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

(a) are reasonably justified by the material already available to the practitioner;

(b) are appropriate for the robust advancement of the client’s case on its merits;

(c) are not made principally in order to harass or embarrass the person; and

(d) are not made principally in order to gain some collateral advantage for the client or the practitioner or the instructing practitioner out of court.

A.36. A practitioner must not allege any matter of fact in:

(a) any court document settled by the practitioner;

(b) any submission during any hearing;

(c) the course of an opening address; or

(d) the course of a closing address or submission on the evidence; unless the practitioner believes on reasonable grounds that the factual material already available provides a proper basis to do so.

A.37. A practitioner must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the practitioner believes on reasonable grounds that:

(a) available material by which the allegation could be supported provides a proper basis for it; and

(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.



A.38. A Practitioner must not make a suggestion in cross–examination on credit unless the practitioner believes on reasonable grounds that acceptance of the suggestion would diminish the witness’s credibility.

A.39. A practitioner may regard the opinion of the instructing practitioner that material which is available to the practitioner is credible, being material which appears to the practitioner from its nature to support an allegation to which Rules A.36 and A.37 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).

A.40. A practitioner who has instructions which justify submissions for the client in mitigation of the client’s criminality and which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person’s identity directly or indirectly unless the practitioner believes on reasonable grounds that such disclosure is necessary for the robust defence of the client.

Integrity of Evidence

A.43. A practitioner must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage in the proceedings.

A.44. A practitioner will not have breached Rule A.43 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true.

A.45. (deleted)

A.46. A practitioner must not confer with, or condone another practitioner conferring with, more than one lay witness (including a party or client) at the same time, about any issue:

(a) as to which there are reasonable grounds for the practitioner to believe it may be contentious at a hearing; or

(b) which could be affected by, or may affect, evidence to be given by any of those witnesses.

A.47. A practitioner will not have breached Rule A.46 by conferring with, or condoning another practitioner conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

A.48. A practitioner must not confer with any witness (including a party or client) called by the practitioner on any matter related to the proceedings while that witness remains under cross–examination, unless:

(a) the cross–examiner has consented beforehand to the practitioner doing so; or



(b) the practitioner:

(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;

(ii) has, if possible, informed the cross–examiner beforehand of the practitioner’s intention to do so; and

(iii) otherwise does inform the cross–examiner as soon as possible of the practitioner having done so.

A.49. A practitioner must not take any step to prevent or discourage prospective witnesses or witnesses from conferring with the opponent or being interviewed by or on behalf of any other person involved in the proceedings.

A.50. A practitioner will not have breached Rule A.49 simply by telling a prospective witness or a witness that the witness need not agree to confer or to be interviewed.

Duty to Opponent

A.51. A practitioner must not knowingly make a false statement to the opponent in relation to the case (including its compromise).

A.52. A practitioner must take all necessary steps to correct any false statement unknowingly made by the practitioner to the opponent as soon as possible after the practitioner becomes aware that the statement was false.

A.53. A practitioner does not make a false statement to the opponent simply by failing to correct an error on any matter stated to the practitioner by the opponent.

A.54. A practitioner must not deal directly with the opponent’s client unless:

(a) the opponent has previously consented;

(b) the practitioner believes on reasonable grounds that:

(i) the circumstances are so urgent as to require the practitioner to do so; and

(ii) the dealing would not be unfair to the opponent’s client; or

(c) the substance of the dealing is solely to enquire whether the person is represented and, if so, by whom.

A.55. (deleted)

A.56. A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connexion with current proceedings unless:

(a) the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or

(b) the opponent has consented beforehand to the practitioner dealing with the court in a specific manner notified to the opponent by the practitioner.



A.57. A practitioner must promptly tell the opponent what passes between the practitioner and a court in a communication referred to in Rule A.56.

A.58. A practitioner must not raise any matter with a court in connexion with current proceedings on any occasion to which the opponent has consented under Rule A.56(b), other than the matters specifically notified by the practitioner to the opponent when seeking the opponent’s consent.

Integrity of Hearings

A.59. (deleted)

A.60. (deleted)

A.61. A practitioner must not in the presence of any of the parties or practitioners deal with a court, or deal with any practitioner appearing before the practitioner when the practitioner is a referee, arbitrator or mediator, on terms of informal personal familiarity which may reasonably give the appearance that the practitioner has special favour with the court or towards the practitioner.

Prosecutor’s Duties

A.62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

A.63. A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

A.64. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.

A.65. A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.

A.66. A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connexion with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused, unless:

(a) such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person; and

(b) the prosecutor believes on reasonable grounds that such a threat could not be avoided by confining such disclosure, or full disclosure, to the opponent being a legal practitioner, on appropriate conditions which may include an undertaking by the opponent not to disclose certain material to the opponent’s client or any other person.



A.66A. A prosecutor who has decided not to disclose material to the opponent under Rule A.66 must consider whether:

(a) the defence of the accused could suffer by reason of such non–disclosure;

(b) the charge against the accused to which such material is relevant should be withdrawn; and

(c) the accused should be faced only with a lesser charge to which such material would not be so relevant.

A.66B. A prosecutor must call as part of the prosecution’s case all witnesses:

(a) whose testimony is admissible and necessary for the presentation of the whole picture;

(b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;

(c) whose testimony or statements were used in the course of any committal proceedings; and

(d) from whom statements have been obtained in the preparation or conduct of the prosecution’s case; unless:

(e) the opponent consents to the prosecutor not calling a particular witness;

(f) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or

(g) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; provided that:

(h) the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a)–(d), if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly unreliable by reason of the witness being in the camp of the accused;

(i) the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision; and

(j) the prosecutor must call any witness whom the prosecutor intends not to call on the ground in (h) if the opponent requests the prosecutor to do so for the purpose of permitting the opponent to cross–examine that witness.



A.67. A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly:

(a) inform the opponent if the prosecutor intends to use the material; and

(b) make available to the opponent a copy of the material if it is in documentary form;

(c) inform the opponent of the grounds for believing that such material was unlawfully or improperly obtained.

A.68. A prosecutor must not confer with or interview any of the accused except in the presence of the accused’s representative.

A.69. A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor.

A.70. A prosecutor who has informed the court of matters within Rule A.69, and who has later learnt that such evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court.

A.71. A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but:

(a) must correct any error made by the opponent in address on sentence;

(b) must inform the court of any relevant authority or legislation bearing on the appropriate sentence;

(c) must assist the court to avoid appealable error on the issue of sentence;

(d) may submit that a custodial or non–custodial sentence is appropriate; and

(e) may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority.

A.72. A practitioner who appears as counsel assisting an inquisitorial body such as the National Crime Authority, the Australian Securities Commission, a Royal Commission or other statutory tribunal or body having investigative powers must act in accordance with Rules A.62, A.64 and A.65 as if the body were the court referred to in those Rules and any person whose conduct is in question before the body were the accused referred to in Rule A.64.


Part III: Representing Clients in Court — Recovering Costs in Legally Aided Criminal Cases

12 Recovering Costs in Legally Aided Criminal Cases

Matter Dismissed or Withdrawn ................................................. 140

Adjournments ......................................................................... 141

Committals ............................................................................. 141

Costs Being Awarded to the Prosecution...................................... 141

Making the Application for Costs ................................................ 141

Payment of Costs..................................................................... 142

Appeals to the District Court ..................................................... 143

Appendix G............................................................................. 144 Notice of Assignment Pursuant to Section 45........................... 145

When a matter in the Local Court is adjourned, withdrawn, or dismissed, you should think about applying for costs.

The fact that the matter is a legally aided matter is not relevant to applying for costs, as s.42 of the Legal Aid Commission Act states:

A court or tribunal, which may order the payment of costs in proceedings before it, shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.

You should consult a document prepared by Legal Aid NSW called "Procedures for Recovering Costs in Criminal Cases" when you decide to apply for costs. This document sets out the relevant legislation, case law, and procedures that apply, and is available in Policy Online on Legal Aid NSW’s internet and intranet sites.

The summary that follows is in relation to matters in the Local Court.

The Criminal Procedure Act (CPA) is relevant when seeking costs against the police.

Matter Dismissed or Withdrawn

Section 213 CPA authorises the payment of costs by the prosecutor if:

• The prosecutor fails to appear or both the prosecutor and the accused person fail to appear.

• The matter is dismissed or the proceedings are invalid.


http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=746


The criteria are set out in s.214 CPA:

• Investigation was conducted in an unreasonable or improper manner.

• Proceedings initiated without reasonable cause, in bad faith or in an improper manner.

• The prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested that either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought.

• Because of exceptional circumstances relating to the conduct of the proceedings by the conduct by the prosecutor.

Adjournments

Section 216 CPA allows a court to order that one party pay costs if the matter is adjourned, but only if the Court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.

Committals

Section 116 CPA allows costs to be paid to the accused person if:

• The accused person is discharged as to the subject-matter of the offence or the matter is withdrawn, or

• The accused person is committed for trial or sentence for an indictable offence, which is not the same as the indictable offence the subject of the court attendance notice.

Section 117 sets out the criteria, s.118 allows costs for an adjournment, and s.119 states that the order must specify the amount.

Costs Being Awarded to the Prosecution

Always keep in mind that s.215 allows the court to order professional costs to the prosecution if the accused person is convicted or an order made against the accused person.

If this occurs, s.47(3A) Legal Aid Commission Act provides that:

Where a court or tribunal makes an order as to costs against a legally assisted person in respect of proceedings for a criminal offence in which the legally assisted person was the accused person, the legally assisted person shall be liable for the payment of the whole of those costs.



Making the Application for Costs

The amount ordered is to be the amount the Magistrate considers “just and reasonable”, and must specify the amount of professional costs payable.

The costs application is to be made at the end of the summary proceedings (or in the case of an adjournment, when the adjournment is granted) but if you are not prepared to make an application at this stage, put the court on notice that an application will be made and seek a date for the hearing of the application.

A private practitioner acting on an assignment from Legal Aid NSW can claim costs at the legal aid scale, at 175% of the scale fee or at such rate, as the Court considers just and reasonable. This does not apply to costs awarded to either party in applications for Apprehended Violence Orders.

For example if your client is acquitted after a hearing in the Local Court and one or more of the criteria set out in s.214(1) CPA is met, you apply for costs at 175% of legal aid rates.

Legal Aid scale fee Preparation 200.00

One day in court 650.00

Total 850.00

175% of scale fee 1,487.50

GST 148.75

TOTAL APPLIED FOR $1,636.25

If the application is successful, this is the amount you will render to, and be paid by, Legal Aid NSW.

A Legal Aid NSW solicitor who applies for costs should apply for costs at the Legal Aid scale.

Payment of Costs

The Magistrate will note on the Bench papers the amount awarded. You must inform the court that the costs are to be paid to Legal Aid NSW and ask that to be noted on the Bench papers. The costs will be paid by the Local Court to Legal Aid NSW.

A Notice of Assignment Pursuant to Section 45 signed by your client should also be handed up. Retain a copy on your file. A Notice of Assignment Pursuant to Section 45 is included in Appendix G, beginning on page 143.

Substantiate the amount with a document itemising the individual costs, such as preparation, conference with the client, travel, and time in court. It may be advisable to approach the prosecutor to discuss the amount to be claimed.

The court generally orders that costs are to be paid within 28 days. As these costs are paid by the New South Wales Police Service, write a follow up letter to the Informant in the matter enclosing a copy of the Bench papers (on which the amount is written) and Notice of Assignment from the client. If you prefer, send your file to the solicitor in Legal Aid NSW’s Grants section responsible for costs to follow up.



Appeals to the District Court

An appeal against sentence also includes an appeal against costs (s.3(e) Crimes (Local Courts Appeal and Review) Act 2001). Section 28(2) allows the District Court to exercise any function that the original Local Court could have exercised in the original Local Court proceedings so if, having successfully appealed against conviction, sentence or refusal to grant annulment, you can also apply for costs. The same approach as outlined for the Local Court should be adopted in relation to a costs application in the District Court.


Appendix G

The Notice of Assignment Pursuant to Section 45 should be signed by your client and kept on file to be handed up to the Court.


Notice of Assignment Pursuant to Section 45

of the Legal Aid Commission Act 1979

To: GRANTS DIVISION

Legal Aid NSW

PO BOX K847

HAYMARKET NSW 1238

Date:

From:

LAC Reference:

Re: Grant of Legal Aid

Court:

Date:

In accordance with Section 45 of the Legal Aid Commission Act 1979, I hereby assign to Legal Aid NSW the right to recover monies ordered by way of costs in my favour in the above proceedings.

Dated ……………………….. day of ……………………………… 2006

____________________________________

Client

____________________________________

Witness

Note: Under Section 45(2) of the Legal Aid Commission Act, 1979, if you do not sign and return this notice within 21 days you will be deemed to have assigned the right to recover monies.


Part IV: Resources

13 Reform .............................................................................. 148

14 Specialist Services at Legal Aid NSW ...................................... 150

Client Assessment and Referral Service (CARS) ....................... 152 The Children’s Legal Service (CLS) ......................................... 156 The Civil Law Division .......................................................... 164 The Drug Court ................................................................... 167 The Family Law Division ....................................................... 171 The Legal Aid Library ........................................................... 177 The Mental Health Advocacy Service (MHAS) ........................... 178 The Prisoners Legal Service (PLS) .......................................... 180

Part IV: Resources



13 Reform

Law Reform ........................................................................ 148 Reform of the Policy, Practice and Procedures of Legal Aid NSW.................................................................................. 148 Legal Aid NSW’s Strategic Planning and Policy Division.............. 149

Law Reform

Legal Aid NSW staff are at the forefront of dealing with changes in the law – particularly those that affect socially and economically disadvantaged clients.

If areas of law operate unfairly against our clients, these should be raised so that Legal Aid NSW can consider a formal approach to Government.

You should initially raise the matter with your Solicitor in Charge. Your Solicitor in Charge may agree that Legal Aid NSW should make submissions about the issue. Your Solicitor in Charge may ask you to draft a memorandum to the Director of Criminal Law, setting out the issues, any examples of how the matter has operated in practice, and your ideas as to how the matter can be addressed. After the submission is drafted, it will need to be approved by the Director and Chief Executive Officer.

Occasionally Legal Aid NSW is asked to prepare responses to proposed reforms. If you are interested in being involved in such submissions, let the Director of Criminal Law know of your interest. Reform of the Policy, Practice and Procedures of Legal Aid NSW

Staff who work for Legal Aid NSW have an important role in identifying problems and issues that arise in their daily work. Most issues and problems can be resolved in the workplace through the development of appropriate business rules. Some problems and issues however affect the whole organisation.

Legal Aid NSW operates in a policy and legal framework shaped by decisions of the Legislature, Government, the Attorney–General, Legal Aid NSW’s Board, the Chief Executive Officer, and other senior officers. It is therefore important to alert senior staff to policy problems when they arise.

Two types of issues that Legal Aid staff may become aware of are policy problems and systemic issues.

A policy problem may arise, for example, where a law is passed that conflicts with a stated Legal Aid NSW policy or about which Legal Aid NSW policies are silent. This may not have been intended, but nonetheless an important problem exists. Another example is where staff observe that the application of a particular legal aid policy results in an unintended outcome.

A systemic issue is one that relates to the flow of unintended and undesirable consequences from factors related to how Legal Aid NSW functions. A systemic issue may arise, for example, where Legal Aid NSW’s Board makes a policy decision, and subsequent action taken by Legal Aid NSW fails to implement the decision as intended.

Where a policy or systemic problem is identified it should be raised with the staff member’s Solicitor in Charge, who may then raise the matter with the Director of Criminal Law and the Director of Strategic Planning and Policy.

Part IV: Resources — Reform Legal Aid NSW’s Strategic Planning and Policy Division

The Review and Reform Unit within Legal Aid NSW’s Strategic Policy and Planning Division has several roles, including developing and delivering policy to Legal Aid NSW. It deals with matters such as Law Reform proposals and policy development, review and reform. Law reform submissions by Legal Aid NSW’s Criminal Branch are prepared in conjunction with the Policy and Planning Division.

Legal Aid staff with enquiries as to any of these matters are encouraged to contact the Division on (02) 9219 5000.


Part IV: Resources — Specialist Services at Legal Aid NSW

14 Specialist Services at Legal Aid NSW

Client Assessment and Referral Service (CARS)............................ 152 Psychosocial Reports............................................................ 152 Section 32 Case Plans .......................................................... 152 Referrals and Advocacy Regarding Non–Legal Needs................. 152 Direct Advocacy Protocol ...................................................... 152 How to Make a Referral ........................................................ 152 Interviews.......................................................................... 153 Clinics ............................................................................... 153 Timeframes ........................................................................ 153

The Children’s Legal Service (CLS) ............................................. 156 The Jurisdiction of the Children’s Court ................................... 156 Representation of Children.................................................... 157 Children Appearing Before the Local Court by Mistake............... 159 Understanding Children’s Court Orders ................................... 160 The Role of CLS Solicitors ..................................................... 161 Youth Drug and Alcohol Court................................................ 161 Youth Hotline...................................................................... 161 Visiting Detention Centres .................................................... 162 Contact Details ................................................................... 162

The Civil Law Division............................................................... 163 Services Offered by the Civil Law Division ............................... 163 Legal Aid Policies in Relation to Civil Law................................. 163 Details of the Civil Law Division ............................................. 164 Regional Offices .................................................................. 165

The Drug Court ....................................................................... 166 Assisting Your Client when Referred to the Drug Court .............. 167 Compulsory Drug Treatment Correctional Centre...................... 167 Contacting Drug Court Solicitors ............................................ 169

The Family Law Division............................................................ 170 Services Offered by the Family Law Division ............................ 170 Where to Refer Clients to Receive Help from the Family Law Division........................................................ 171 Regional and Rural Areas of the State..................................... 172

The Legal Aid Library................................................................ 176 About the Library ................................................................ 176 Assisting Legal Aid Staff with Research ................................... 176 Resources from the Library ................................................... 176

The Mental Health Advocacy Service (MHAS) ............................... 178 Who Does the MHAS Represent?............................................ 178 What Form Does Legal Representation Take? ........................... 178 How Does a Person Get Assistance from the MHAS? ................. 179 How Do I Contact the MHAS? ................................................ 179

The Prisoners Legal Service (PLS) .............................................. 180 Representation at the State Parole Authority ........................... 180


Part IV: Resources — Specialist Services at Legal Aid NSW Parole Authority Procedures .................................................. 181 Other Representation by PLS................................................. 182 Visiting Advice Service ......................................................... 182 Assistance PLS Can Give to Legal Aid Solicitors ........................ 183



Client Assessment and Referral Service (CARS)

The Client Assessment And Referral Service (CARS) provides services to clients of Legal Aid NSW.

In criminal law matters, CARS can provide the following:

• Psychosocial Reports.

• Section 32 case plans.

• Referrals and advocacy regarding non–legal needs. Psychosocial Reports

Psychosocial reports are prepared in–house by CARS. These reports present a comprehensive social history/background, and explain how this has impacted both socially and psychologically on the client.

Psychosocial reports are described in detail in Reports on Clients on page 27. Section 32 Case Plans

These are described in Acting for People with a Mental Illness or Developmental Disability on page 41. Referrals and Advocacy Regarding Non–Legal Needs

Referrals for parents to services such as family support, casework, or counselling for drug and alcohol, gambling, budgeting, and domestic violence can be made by contacting CARS directly.

When referring, please ensure the following:

• Your client understands that you will be contacting CARS.

• Your client understands that CARS will be contacting them.

• Provide CARS with your client’s contact details.

• Provide CARS with detail about your client’s presenting issues. Direct Advocacy Protocol

The Community Referral and Information Service (CRIS) is the referral part of CARS. CRIS assists clients in matters such as accommodation, drug, and alcohol referrals. This direct advocacy may be of particular assistance to clients from Aboriginal and Torres Strait Islander backgrounds, or clients who have a developmental disability or mental illness.

CRIS will prioritise clients who require direct advocacy and assistance negotiating with services such as Centrelink and Department of Ageing Disability and Home Care.

When CRIS has direct client contact, CRIS will determine whether your client may require direct advocacy. When referring a matter to CRIS you should comment on whether your client may require direct advocacy. This can be determined by consideration of the following matters:

• Your client has a history of agreeing to access services or make referral but not following through.

• Your client says s/he cannot find service or says that service has been rejected.



• Developmental disability is clearly apparent and you are concerned that your client will not manage to self–refer.

• Your client is in an at risk situation and needs immediate and direct assistance. Such situations include where your client is suicidal, threatens self–harm, appears psychotic, or has experienced chronic homelessness.

Please note that CRIS does not provide a direct casework service. In matters where ongoing casework is required CRIS will refer to a service that provides a casework service. How to Make a Referral

Referrals can be made by:

• Telephoning the Manager, Client Assessment and Referral directly on (02) 9219 5753 or the criminal law Client Assessment and Referral consultant on (02) 9219 5843.

• E–mailing: [email protected].

• Completing the referral form and forwarding to Client Assessment and Referral at Head Office or DX 5 SYDNEY.

What to include:

• Client’s contact details.

• Police facts.

• Criminal history.

• Previous psychologist, psychiatrist or probation and parole reports. Interviews

Clients are expected to attend interviews at the office where the CARS consultant is located. Arrangements can me made to meet with clients at regional offices in the metropolitan area. Rural and regional clients may attend a clinic (see Clinics below).

Clients who are in custody will be interviewed in gaol. Where clients are in custody at a regional gaol, appropriate arrangements will be made for temporary transfer to the Metropolitan Remand and Reception Centre (MRRC) at Silverwater. Clinics

Clinics are conducted at regional offices when two or more referrals are received from a regional office. Regular clinics are conducted at Wollongong, Newcastle, Lismore, and Coffs Harbour. A clinic can be arranged by request. Timeframes

It is your responsibility to indicate the date the report is required.

Generally, report preparation times are as follows:

• Requests for referral information are responded to within 24 hours.

• Section 32 case plans can be prepared within four weeks.

• Psychosocial reports can be prepared within four weeks.

• Other assessments can be prepared within four weeks.




Urgent requests for reports will be considered and accepted, subject to other commitments.

CARS is unable to provide an ongoing case management service. CARS cannot provide ongoing support to clients.



Client Assessment and Referral

Print this form, fill it out and send with relevant documentation to

the Client Assessment and Referral Service (323 Castlereagh St, Haymarket)

Date of referral:

Name of referrer:

Section/Office

Phone number/extension:

CLIENT DETAILS

Name of client:

Date of birth:

Address:

Phone:

Interpreter required (please circle):

Yes / No Language:

Matter type:

Date of court/tribunal (if appropriate):

Reasons for referral: (Please attach additional memo if required)

Checklist

Have you allowed for 2 weeks for preparation of a report for the court or tribunal matter?

Have you contacted the Client Assessment and Referral unit to discuss the referral before completing the form?

Have you attached photocopies of all relevant documents to provide a background to the client and their circumstances (e.g. client instructions, depositions, antecedents, other professional reports)?

________________________

Reminders:

• Please remember to inform us if client circumstances change.

• To maintain relevance and standards of service, we request feedback on the outcome of all court/tribunal matters.

Upon receipt of your referral a CARS Consultant case will contact you for case discussion and clarification. Client Assessment and Referral • 323 Castlereagh St, Haymarket NSW 2000

Ph: (02) 9219 5751 • Fax: (02) 9219 5806



The Children’s Legal Service (CLS)

The Children's Legal Service (CLS) is a branch of the Criminal Division of Legal Aid NSW.

CLS branches are located within Legal Aid offices at Parramatta PJP, Penrith,

Campbelltown, and Head Office. The CLS services Children’s Courts at Lidcombe Parramatta, Penrith (Cobham Children's Court), Campbelltown, and Glebe (Bidura Children's Court). Note that the opening of the new six court Children’s Court complex at Parramatta will result in the closure of Children’s Courts at Lidcombe and Campsie.

The Children's Court in NSW has a dual jurisdiction: care -, (applications brought before the court by the NSW Department of Community Services with respect to the care and protection of children) and crime. CLS lawyers represent children who appear in the criminal jurisdiction of the Court. Legal Aid family lawyers appear for adults or children in the care jurisdiction, applications brought before the court by the NSW Department of Community Services, with respect to the care and protection of children.

CLS solicitors do not practice in the care jurisdiction, and solicitors in the care section

do not practice in the criminal jurisdiction.

The Jurisdiction of the Children’s Court

The Children’s Court presides over matters in relation to children who are aged between

10 and 18 years. Traffic matters involving a child who is old enough to obtain a licence between 16 and 18 must be dealt with in the Local Court unless the charges are accompanied by criminal matters see ‘Traffic Matters for Young People in the Local Court’ below. AVO matters with a child applicant or defendant (but not a child applicant unless the defendant is also a child) are heard in the Children’s Court.

If an adult under 21 years of age has been charged with an offence arising from when they were under 18, the matter must be listed before the Children’s Court. If an adult has been charged with an offence arising from when they were under 18 but they were not charged until they were 21, then the matter goes to the Local Court (see section 28 of the Children (Criminal Proceedings) Act). If a child was convicted in their

absence, the warrant is recalled before the Children’s Court, regardless of the age of

the accused when the warrant is executed.

Most criminal matters are finalised in the Children’s Court. Serious Children’s



Indictable Offences (SCIO), as defined in section 3 of the Children (Criminal Proceedings) Act, are committed to the District Court or Supreme Court. It is important to note that SCIO do not include all strictly indictable offences and many strictly indictable offences (for example robbery in company) will be dealt with to finality in the Children’s Court. SCIO offences include offences such as homicide, an offence punishable by imprisonment for life or for 25 years and other specific sexual and firearms offences.

Indictable offences which are not SCIO may be dealt with to finality in the Children’s Court. In some circumstances the Children’s Court will decide that it is appropriate that a child charged with an indictable offence be dealt with “according to law” and the Children’s Court will commit the matter to the District Court. The relevant law is contained in the Act.

Representation of Children

Pursuant to NSW Law Society’s Guidelines, all children who come before the Children's Court must be represented. The representation of children in the criminal

jurisdiction is direct representation, as opposed to the representation of the "best

interests of the child" in family law and care matters. In other words, the child is represented according to their instructions, not his/her parent(s) or carer(s), and as if

he/she was an adult client.

The grant of aid for legal representation is automatic for children in all matters where

they are appearing in the Children’s Court. There is no means or merit test applied when

determining a grant of aid for any child whothat has been served with a Court Attendance or Infringement Notice or has been charged with a criminal offence. Children who are either applicants or defendants in AVO proceedings are also eligible for legal aid. Where there is a conflict in situations where both the applicant and the defendant in an AVO are children, both children are eligible for a grant of aid; however, the representation of one of the parties will be assigned to a private practitioner.

Bail Applications for Children

The Bail Act 1978 applies to children in the Children’s Court including provisions such as section 22A. However be aware of section 32 (4) which provides that for the purposes of residence in reference to ‘background and community ties’, the fact that a child does not reside with a parent or guardian of the person shall be ignored and also section 32(1)(b)(v) which provides if the person is under the age of 18 years any special needs of the person arising from that fact must be taken into consideration. While the general case law on bail applies to children as well, there are a number of important decisions relating to Children’s Court bail applications, such as the Supreme Court decision of R v PDR (the status of an applicant for bail as a juvenile is one of the factors, weighed with other factors, in the assessment of whether there are “exceptional circumstances” for bail).


Part IV: Resources — Specialist Services at Legal Aid NSW Traffic Matters for Children in the Local Court

Traffic offences involving a child who is old enough to obtain a licence (16 years old for a learner car licence and 16 and 9 months for a learner motorcycle licence) must be dealt with in the Local Court unless the charges are accompanied by criminal matters arising out of the same circumstances. “Traffic offence” is defined in section 3 of the Children (Criminal Proceedings) Act.

Legal Aid Policy states that for legal aid to be granted for traffic matters in the Local Court the applicant must be eligible under the means test and there be either a real possibility of a term of imprisonment being imposed or exceptional circumstances exist. Being aged under 18 years may be considered exceptional circumstances. If advising or representing a child in this situation, be aware that section 210 of the Criminal Procedure Act allows the Local Court to sentence children under the Children (Criminal Proceedings) Act.

Severity Appeals for Children in the District Court

Severity appeals from the Children’s Court are to the District Court. When appearing for children on sentence appeals sentencing statistics from JIRS may be useful to indicate to the Court the different sentencing outcomes in the Children’s Court (where, for example, most robbery matters are dealt with by way of a community based order or an alternative to full time custody).

Children’s Parole Matters

The Children’s Court sits as the parole board for children serving sentences of greater than three years and also for parole hearings following breach and revocation of parole. The parole authority for children who are “detainees” is the Children’s Court and this includes all young people serving control orders or periods of imprisonment (under section 19 of the Children (Criminal Proceedings) Act) at Juvenile Justice Centres (Cobham, Keelong, Reiby, Juniperina and Frank Baxter). The situation for young people at Kariong or adult Correctional Centres is complicated. Kariong Juvenile Correctional Centre was previously a Juvenile Justice Centre. It has now been handed over from Juvenile Justice to Corrective Services and young people at Kariong are “inmates” under the Crimes (Administration of Sentences) Act 1999. In most cases, irrespective of the age of the “inmate” the Adult Parole Board is the parole authority for those at Kariong, though it depends on the individual circumstances. If the control order has been converted to an order of imprisonment under section 28 of the Children (Detention Centres) Act 1987 then the Children’s Court no longer has jurisdiction. The situation with young people in adult gaols is more complex and will depend on whether the young person has been transferred to adult gaol (converting their control order to an imprisonment order) or whether they have been arrested on fresh adult offences.


Part IV: Resources — Specialist Services at Legal Aid NSW Children Appearing Before the Local Court by Mistake

If a child is at liberty, a mistaken appearance before the Local Court is easily fixed.

The Local Court registry can remit the matter to the Children’s Court, or the registry

may prefer the matter to be mentioned before the Magistrate. In some courts,

the Magistrate will decide to close the court and sit as a Children’s Court for

the purpose of determining the matter. If a specialist Children’s Court is in the area, it

is best to adjourn the matter to the Children’s Court, where the child will receive

assistance from a CLS solicitor.

If a client appears before the Local Court in custody on matters that should be before

the Children’s Court, you may have a problem. The law is unclear on whether the Local

Court has the jurisdiction to hear a bail application on a Children’s Court warrant.

Magistrates will have different approaches.

For the sake of your client, you can argue that the Court does have the jurisdiction

to determine the application. The Local Court can sit as a Children’s Court for

the purpose of the application (you could also consider whether the matter should be

finalised in this manner). Local Courts used to be gazetted to act as Children’s Courts,

which meant that some courts did not have the power to act as Children’s Courts.

The law has changed, and now all Local Courts can sit as Children’s Courts. Authorised Children’s Magistrates are supposed to preside over Children’s Courts but the requirement for an Authorised Children’s Court Magistrate is not enforced in regional areas, and arguably does not have to be enforced in metropolitan areas. The relevant law is in the Children’s Court Act.

Your strongest argument may be that a child should never be at a greater disadvantage

than an adult who appears before the courts. See section 6 of the Children (Criminal Proceedings) Act.

Understanding Children’s Court Orders

The sentencing options in the Children’s Court are set out in s.33 of the Children

(Criminal Proceedings) Act.

If you are representing a child on a traffic matter and have convinced the Magistrate

to sentence your client as a child, you will need to be familiar with the sentencing

options under s.33. The Young Offenders Act 1997 (which provides for the cautioning of a child without charge or conviction) does not apply to children in this situation.

If your client has committed a fresh offence in breach of a Children’s Court order, it

may be useful to know the following information:



Section 33(1)(a) - dismissed with a caution and no conviction entered - is similar

to a s10 bond

• Section.33(1)(b) is the equivalent of a s.9 bond. They can be supervised or unsupervised.

• Section.33(1)(e) is “probation” and is a more serious equivalent of a s.9 bond. Supervision under this bond is often more intensive. Your client may have a Juvenile Justice worker (JJ), which is the equivalent of a Probation and Parole officer. Probation is not parole. A breach is serious, but can still result in alternatives to full time custody.

*Section 33(1)(g) is a ‘control order’ -A full time gaol sentence of detention is called a “control order”. These can be suspended, and a breach acts in the same way as a breach of a s.12 bond (suspended sentence).

• Children can be released to parole, and a breach will be heard before the Juvenile Parole Authority, which sits at ParramattaBidura Children’s Court.

Your client cannot get bail on a parole revocation warrant.

The Role of CLS Solicitors

CLS solicitors act as duty lawyers before the Children’s Court, appearing in bail

applications, mentions, sentences, and defended hearings. CLS solicitors appear

in serious children’s indictable offences in the Children’s Court.

Where a children’s matter is listed in the District Court, the CLS solicitor may continue

to act in the matter and either appear for the client on sentence, or instruct counsel

to appear in the sentence or trial, or transfer the file to the Indictable section of Legal Aid NSW.

Youth Drug and Alcohol Court

Some matters that come before the Children's Court can be referred to the Youth Drug

and Alcohol Court, which sits once a week each at Campbelltown, Cobham Parramatta, and Bidura Children's Courts.

There is a designated Youth Drug and Alcohol Court solicitor from the CLS that

represents children in this jurisdiction. Please contact the CLS at Parramatta if you have an enquiry about the Youth Drug and Alcohol Court. Matters are referred to the Youth Drug and Alcohol Court where a child is facing a custodial sentence because all other sentencing options are exhausted or inappropriate, and there is a relevant drug/alcohol issue.

Youth Hotline

The Children's Legal Service runs a Hotline for children under the age of 18.

The Hotline is staffed by CLS solicitors and takes calls from children in police custody,

or children who have questions about court appearances or infringement notices.

The Hotline is available to children who are in detention, and to legal practitioners who



have questions about the Children's Court and its jurisdiction. Where the CLS cannot

give advice, the caller is referred to the appropriate service.

The Hotline runs from 9am: to midnight Monday to Friday, and for 24 hours

on the weekend, from midnight Friday to midnight Sunday.

The Youth Hotline number is 1800 10 18 10 and is toll free from any landline in NSW.

Visiting Detention Juvenile Justice Centres

The CLS runs a Visiting Legal Service (VLS) funded by the Department of Juvenile

Justice. A VLS solicitor visits all Detention Juvenile Justice Centres in NSW on a weekly basis to provide legal advice on criminal matters to children in detention. CLS solicitors visit the following Juvenile Detention Justice Centres:

• Cobham (Werrington).

• Kariong and Baxter (Gosford).

• Keeloung (Unanderra/Wollongong).

• Reiby (Campbelltown).

• Juniperina (Lidcombe).

The CLS also visits Kariong Juvenile Correctional Centre (Gosford).

The CLS arranges for private solicitors to visit Acmena (Grafton), and Legal Aid

solicitors to visit Orana (Dubbo) and Riverina (Wagga Wagga).

Contact Details

HEAD OFFICE – BIDURA CHILDREN’S COURT

DX 5 SYDNEY

Ph: (02) 9219 5120

Fax: (02) 9219 5793

Bidura Court Legal Aid Room

Ph: (02) 9660 9894

Fax: (02) 9660 9893

PARRAMATTA PJP OFFICE – PARRAMATTA CHILDREN’S COURT

DX 8283 PARRAMATTA

Ph: (02) 8688 3800

Fax: (02) 8688 3890


Part IV: Resources — Specialist Services at Legal Aid NSW Parramatta Court Legal Aid Room

Ph: (02) 8688 1612-1617

Fax: (02) 8688 1664

OFFICE – LIDCOMBE CHILDREN’S COURT

DX 8293 PARRAMATTA

Ph: (02) 9891 1600

Fax: (02) 9689 1082

Lidcombe Court Legal Aid Room

Ph: (02) 9643 5267

Fax: (02) 9643 5265

PENRITH OFFICE – COBHAM CHILDREN’S COURT

DX 8038 PENRITH

Ph: (02) 4731 5155

Fax: (02) 4721 8943

Cobham Court Legal Aid Room

Ph: (02) 9623 7710

Fax: (02) 9623 9610

CAMPBELLTOWN OFFICE – CAMPBELLTOWN CHILDREN’S COURT

DX 5119 CAMPBELLTOWN

Ph: (02) 4628 2922

Fax: (02) 4628 1192

Campbelltown Court Legal Aid Room

Ph: (02) 4629 96904629 9737

Fax: (02) 4629 97374629 9737

HEAD OFFICE – BIDURA CHILDREN’S COURT

DX 5 SYDNEY

Ph: (02) 9219 5120

Fax: (02) 9219 5793

Bidura Court Legal Aid Room

Ph: (02) 9660 9894

Fax: (02) 9660 9893



The Civil Law Division

When getting instructions from clients in criminal matters it may become apparent that your client requires civil law advice or representation. You can help them complete a Legal Aid application and forward it to the Civil Law Division, refer them to the Division, or contact the Division directly. Services Offered by the Civil Law Division

• Free, confidential legal advice to members of the public at all offices where a civil practice operates, including outreach services.

• Representation in accordance with our policies, particularly in specialist areas of:

o Housing – tenancy, mortgage repossessions.

o Consumer – consumer credit, scams, insurance.

o Government law – social security, refugee, other migration.

o Human rights – discrimination, unlawful detention.

o Public interest coronial inquests.

o Mental health advocacy.

o Veteran’s entitlements.

• Community legal education.

• Law reform and policy work.

Where the in–house practice does not have capacity or expertise or where there is no civil law practice in a regional office, the matter can be referred to the Grants Division who can assign the matter where appropriate.

If your client seeks assistance on matters that fall outside Legal Aid guidelines, you can refer them to a community legal centre, LawAccess telephone information and advice service, a private solicitor, or a Chamber Magistrate.

The Director of Civil Law at Legal Aid NSW can be contacted on (02) 9219 5828. Legal Aid Policies in Relation to Civil Law

The Civil Law division undertakes work pursuant to Commonwealth and State guidelines. Legal Aid policies cover the following areas:

1. Housing and loss of dwelling.

2. Consumer protection.

3. Discrimination.

4. Civil liberties such as wrongful arrest and malicious prosecution.

5. Social security.

6. Some migration matters.

7. Public interest coronial inquests.

8. Public interest human rights matters.

9. Public interest environment matters.



10. Veteran’s entitlements.

11. Mental health advocacy.

Where a client is at “special disadvantage”, aid can be granted for a wide range of proceedings in state courts. “Special disadvantage” includes a person who is a child or a person who has a substantial difficulty in dealing with the legal system by reason of a substantial psychiatric condition, developmental or developmental impairment, or physical disability.

A means and merit test is applied where legal representation is required.

If your client makes a serious allegation about police misconduct, false imprisonment, assault in gaol or other matters that indicate there may be grounds for a civil action, you should refer them to a the Civil Law Division.

For less serious allegations, your client may simply require assistance preparing a complaint to the Ombudsman or NSW Police Service. Consider when this complaint should be lodged, given the circumstances of your client’s criminal matter. Details of the Civil Law Division

Solicitors in the Civil Law Division at Head Office specialise in an area of law and belong to one of sixPractice Groups as set out in the table below:

Practice Group Matter Types

Human Rights Group • Discrimination. • Sexual Harassment. • Civil Liberties. • Human Rights.

Consumer Law Group • Mortgages. • Loans. • Credit. • Insurance. • Consumer Purchases.

Housing Law Group • Tenancy. • Public Housing. • Residential Parks. • Retirement Villages.

Government Law Group, Head Office • Migration. • Refugee and Social Security matters.

Coronial Inquest Unit Public interest coronial inquests or inquests into deaths where representation is a preliminary step to civil proceedings for which aid is available.

Older persons Legal and Community Education Unit



Regional Offices

There are civil law practices in thirteen metropolitan and regional Legal Aid NSW offices. Solicitors in regional offices generally have diverse practices covering matters within the civil law guidelines. The civil law offices are Lismore, Coffs Harbour, Newcastle, Gosford, Dubbo, Wollongong, Nowra, Wagga, Penrith, Campbelltown, Liverpool, Fairfield, and Parramatta

A number of regional offices run Specialist Homeless Outreach Clinics including Nowra, Penrith, Parramatta, Gosford, Newcastle and Coffs Harbour

.



The Drug Court

Legal Aid NSW’s Drug Court solicitors represent clients appearing in the Drug Court, which is located at Parramatta.

Referring Clients to the Drug Court

Clause 5 of the Drug Court Regulation states that only the following Courts may refer matters to the Drug Court:

• District Courts in Campbelltown, Penrith, and Parramatta; and

• Local Courts: Bankstown, Blacktown, Burwood, Campbelltown, Fairfield, Liverpool, Mt. Druitt, Parramatta, Penrith, Ryde, and Windsor.

A matter that originates in a non–referring court cannot be adjourned to a referring court for the sole purpose of making an application to the Drug Court. The only situation where a matter can be adjourned to a referring court for a referral to the Drug Court is when a client has been arrested on a warrant that issued from a referring court or if there are other outstanding matters already at a referring court( i.e. S.9 Bond breach proceedings).

Section 6 of the Drug Court Act 1998 states that referring courts must ascertain whether an applicant appears to be an eligible person and whether the applicant wishes to be referred. If so, the court must refer the applicant to the Drug Court. This is not discretionary.

The Ballot

The Drug Court does not have the resources to accept all the applicants to the Drug Court program. Consequently, the Drug Court registry conducts a ballot.

If referring a matter to the Drug Court, the matter needs to be listed on a Thursday. At 1:00 PM every Thursday, the Drug Court registry conducts a random computer ballot. Those selected from the ballot are adjourned to the Drug Court and will be listed approximately two (2) weeks from the referred date.

If your client has been accepted by the Drug Court, their case will be managed by Drug Court solicitors and you can close your file.

Eligibility

Five criteria must be met before an applicant is found eligible. These are found in s.5 of the Drug Court Act 1998 and clause 4 of the Drug Court Regulation:

1. The offence must be a referable offence. All offences are referable except those set out in s.5(2) of the Drug Court Act 1998. Non–referable offences include – any offence involving violent conduct, matters of a sexual nature or strictly indictable supply charges.

The Drug Court can deal with offences involving minor violence, by sitting as a regular Local Court or District Court, so long as the sentence to be imposed would allow the applicant to enter a Drug Court program (that is, to be at liberty). Breach of Bond matters may be referred so long as the bond was originally imposed for a referable offence.



2. There must be a plea of guilty or an indicated plea of guilty.

Please note, for Table 1 offences, it is vital for a conviction to be recorded. The Crown in the Drug Court frequently elects on Table 1 charges that would not normally attract such an election. The only way to prevent this is if the Local Court records a conviction and the facts relied on by the prosecution are handed up.

3. There must be a high likelihood that the applicant will receive a custodial sentence.

4. The applicant must be drug dependant.

5. The applicant’s usual place of residence prior to being taken into custody must be within the local government areas of Auburn, Bankstown, Baulkham Hills, Blacktown, Campbelltown, Fairfield, Hawkesbury, Holroyd, Liverpool, Parramatta, or Penrith.

This criterion is strictly imposed by the Drug Court. The criteria do not refer to where they might reside whilst on a Drug Court program.

You should advise your clients that selection from the ballot does not automatically ensure a place in the Drug Court. It is for the Drug Court to determine if an applicant is an eligible person.

Violence on Criminal Records

This is a separate issue to eligibility and is not strictly something that should concern the referring Court. When advising your client about their likely eligibility for the Drug Court, you should warn them their record might be an issue. Assisting Your Client when Referred to the Drug Court

You do not have to send your file to the Drug Court section when your client is referred to the Drug Court.

If you have any relevant reports, such as psychiatric, psychological or PSRs on file, please send a copy to the Drug Court solicitors.

If there is other information about your client that might assist the Drug Court solicitors, please e–mail the Drug Court team on ‘_CRIM Parramatta Drug Court’. This e–mail address can only be used on the Legal Aid NSW's internal e–mail system. Compulsory Drug Treatment Correctional Centre

Solicitors should be aware of the Compulsory Drug Treatment Correctional Centre Act 2004 (CDTCCA), which provides that offenders who fall within the eligibility criteria set out in the Act are to serve their sentence by way of compulsory drug treatment detention.

Section 18B of the Drug Court Act (DCA) places a mandatory duty on a sentencing Court to ascertain whether “the Drug Court might find the [sentenced] person to be an eligible convicted offender.” If a sentencing Court concludes that this “might” be the case, it must refer the offender to the Drug Court.

Eligibility

Section 5A DCA defines “eligible convicted offender”. Seven criteria must be met before the Drug Court can make a compulsory drug treatment order. These criteria are set out in the attached table summarising the CDTCCA.



A sentencing court must address the eligible criteria regardless of whether a conviction flows from a plea of guilty or after a summary hearing or jury trial.

If a person is found to be an “eligible convicted offender”, the Drug Court will then refer the offender to a “multi–disciplinary team” who will report to the Drug Court on the offenders “suitability” for entering compulsory drug treatment detention. The Drug Court cannot make a compulsory drug treatment order without reference to this report.

When assessing an offender’s suitability, the multi–disciplinary team must address the offender’s level of motivation and attitude to compulsory drug treatment, drug treatment history and the likelihood of the offender committing a domestic violence offence when released to the community supervision component of the program.

The multi–disciplinary team will be comprised of the Director of the Compulsory Drug Treatment Correction Centre, a probation and parole officer and a representative from Justice Health.

Making a Compulsory Drug Treatment Order

The effect of s.18G(a) is that the offender will be taken from the mainstream gaol system and placed into the Compulsory Drug Treatment Centre. The Centre is currently located in a modified secure wing of the Parklea Correctional Centre.

The second effect of a compulsory drug treatment order is that under s.18G(b) it revokes any court based parole order.

The third effect, s.18G(c), refers to the offender’s obligation to comply with the conditions of the order set out in a “compulsory drug treatment personal plan”.

Quick Guide to Compulsory Drug Treatment Gaol

General Overview The Compulsory Drug Treatment Correction Centre Act 2004 (CDTCCA) amends certain sections of the Drug Court Act 1998, Crimes (Sentencing Procedure) Act 1999 (C (SP) Act) and the Crimes (Administration of Sentences) Act 1999 (Crimes (A of S) Act).

Referral The compulsory aspect of the CDTCCA is found in s.18B of the Drug Court Act. This places a “duty” on a sentencing court to:

• ascertain whether the Drug Court might find a person eligible; and • if so, refer the person to the Drug Court to determine if the person should be

subject to a compulsory drug treatment order.

Eligibility “Eligible Convicted Person” is defined in s.5A of the Drug Court Act. The criteria are:

1. Prison sentence by way of full time imprisonment – the unexpired non–parole period is between 18 months and 3 years (s.5A(1)(b)).

2. In the five years preceding the sentence, the person has been convicted of at least two offences (not arising from same circumstances) that resulted in “any one or more” of the following penalties: imprisonment (including s.12 suspended), CSO, Good Behaviour Bond (s.5A(1)(c)).

3. The person has a long–term drug dependency (s.5A(1)(d)). 4. The referred charge and criminal record (and any other information) indicate

the offence was related to the person’s long–term drug dependency (s.5A(1)(e)).

5. Person is not eligible if at any time they have been convicted of the offences listed in s.5A(2) – e.g. murder, attempt murder, sexual assault, offence involving “serious” violence”, offence involving the “use” of a firearm.

6. Person is not an eligible convicted person if, in the opinion of the Drug Court, they are suffering from a mental illness or disorder that is “serious” or “leads to the person being violent” and the illness or condition could prevent or restrict their participation is a drug treatment program.

7. The person’s usual place of residence must be within one of the Local


Part IV: Resources — Specialist Services at Legal Aid NSW Government areas set out in the new clause 4A of the Drug Court Regulations. The boundary includes the greater Sydney metropolitan region.

Making an Order Once referred to the Drug Court, the initial assessment of eligibility will be made by a “multi–disciplinary team” (s.18A of the Drug Court Act). The team prepares a report for the Drug Court that addresses the eligibility criteria above, suitability and appropriateness (s.18D and s.18E of the Drug Court Act). The Drug Court cannot make a compulsory drug treatment order without this report. Relevant issues as to an offenders “suitability” are contained in s.18E(2) – motivation and attitude, drug treatment history, history of domestic violence offences. The Drug Court can decline to make a compulsory drug treatment order for “any reason it considers sufficient” and there is no appeal against the Drug Court’s decision either way (s.18D (3) & (4)).

Effect of an Order The following occurs as a result of the Drug Court making a compulsory drug treatment order:

1. Any Parole order made under s.50 of the C (SP) Act is revoked. 2. The Court revokes the original committal warrant and issues a fresh warrant

for the committal of the offender to the Compulsory Drug Treatment Correctional Centre.

3. A compulsory drug treatment personal plan is prepared which sets out the goals and conditions of the offenders program. This is prepared by the Commissioner and comes into operation when approved by the Drug Court (see s.106F C(A of S)Act).

Compulsory Drug Treatment Programs

All Programs have three stages (s.106D and s.106M C(A of S) Act): 1. Closed Detention – minimum 6 months duration. 2. Semi–open Detention – minimum 6 months duration. 3. Community Custody – minimum 6 months duration.

The Drug Court has the power to make a progression order (moving up a stage) or a regression order (moving back a stage) (s.106M C(A of S) Act). The Commissioner has the power make a regression order. If an offender is convicted and sentenced for an offence that occurred before the compulsory drug treatment order was made, the sentencing court is to refer the offender to the Drug Court (s.106W).

Revocation The Drug Court may revoke an offender’s compulsory drug treatment order for any reason it sees fit. These reasons include (see s.106Q C(A of S) Act):

1. If the offender is in breach of the order (breach must be of a “serious nature”) and the Drug Court is satisfied that the offender is unlikely to make further progress or is an unacceptable risk to the community or poses a significant risk to others or him/herself.

2. If the non–parole period for the offenders sentence has expired or is about to expire and the offender has reached stage 1 or 2.

3. If the offender ceases to be an eligible convicted person. No appeal lies against the Drug Court’s decision to revoke a treatment order. Section 106E states that an offender’s compulsory drug treatment order expires at the end of the term of the sentence or when the offender is released on parole. When the Drug Court makes a revocation order, it is to issue a warrant committing the offender to a correctional centre for the remainder of the sentence (s.106S). The Drug Court then becomes the authority that may make a parole order in relation to an offender in exactly the same way as the Parole Board does under Part 6 of the C (A of S) Act. After the offender is granted parole, Part 7 applies as normal, i.e. the Parole Board is responsible for breaches and revocation of Parole.

Contacting Drug Court Solicitors

The Legal Aid solicitors can be contacted at the Drug Court office on (02) 9685 8020.

The Drug Court solicitors are happy to answer questions about a client’s referral. They can assist solicitors with enquiries regarding recent studies into drug use, current trends, and urinalysis.



The Family Law Division

Clients often present with a wide range of legal issues and at times, you may identify a need to refer a client to see a family lawyer. It may be sufficient for you to refer clients to see a family lawyer or in some cases, you may need to assist your client to complete an application for legal aid or to follow–up directly with a legal officer in Legal Aid NSW’s Family Law Division. Services Offered by the Family Law Division

• Free, confidential legal advice in family law, child support, and matters concerning the care jurisdiction in the Children’s Court including extensive outreach services as outlined below.

• Representation in accordance with our policies, particularly in specialist areas of:

o Family law – children’s matters, and in limited circumstances divorce and property proceedings.

o Child support – representation is available to both carers and payers of child support provided that the means and merit test is met.

o Care matters – representation is available for parents facing proceedings concerning their child/ren in the Children’s Court.

• Duty solicitor services at the Family Court, Federal Magistrates Court, Local Court Family Matters, and many Local Courts.

• Minor assistance with family law matters which can involve writing letters, making phone calls or advising on court applications. A grant of legal aid is not required to provide minor assistance.

• A specialist Child Support Service (CSS). This service provides both payers of child support and those who are or should be receiving child support with advice, minor assistance (described below) and representation in accordance with our means and merit guidelines. This Service also provides an outreach service to the following metropolitan locations and many regional and rural locations as outlined below in the outreach section. The metropolitan officers where legal advice and assistance is provided by the CSS:

o Blacktown – (02) 9621 4800.

o Campbelltown – (02) 4628 2922.

o Fairfield – (02) 9727 3777.

o Gosford – (02) 4324 5611.

o Kingsford Legal Centre – (02) 9398 6366.

o Parramatta – (02) 9891 1600.

o Sutherland – (02) 9521 3733.



• Additional assistance with child support matters including drafting letters to the Child Support Agency or Centrelink or making representations on behalf of your client to these agencies. This assistance can be offered by both specialist legal officers from the CSS.

• Conferencing offered by the Family Law Conferencing Unit. This service requires a grant of legal aid and utilises alternative dispute resolution to help parties reach agreement about their family law matter.

• Community legal education.

• Law reform and policy work.

Family law and child support legal advice and representation are available at Head Office and in all regional offices. Advice regarding care matters is available at all offices and specialist care and protection legal officers are located at Head Office, Campbelltown, Penrith, and Dubbo offices. Where to Refer Clients to Receive Help from the Family Law Division

The Family Law Division provides legal advice in all family law related areas in each regional office in the State. Additionally, the following services are provided by the three major offices:

Head Office

• Drop in advice clinic Monday to Friday 9:00 AM – 4:30 PM.

• Duty Service – Family Court and Federal Magistrates Court at Sydney and Local Court Family Matters – Monday to Friday 9:00 AM – 5:00 PM.

Parramatta Office

• Drop in advice clinic Monday, Wednesday, and Friday 9:00 AM – 4:30 PM.

• Duty Service – Family Court and Federal Magistrates Court at Parramatta Monday – Friday 9:00 AM – 5:00 PM.

Newcastle Office

• Drop in advice clinic on Tuesday and Friday 9:30 AM – 12:00 PM and 2:00 PM – 4:00 PM.

• Duty Service – Family Court and Federal Magistrates Court at Newcastle 9:00 AM – 5:00 PM during court sitting days.


Part IV: Resources — Specialist Services at Legal Aid NSW Regional and Rural Areas of the State

Advice from a legal officer in the Family Law Division is available in almost every part of the State as part of the Division’s outreach program. The following table outlines the office that should be called by a client to make an appointment to see a legal officer in the following locations:

Name of Town Child Support Family Law Albury Wagga Wagga Legal Aid

(02) 6921 6588 Wagga Wagga Legal Aid (02) 6921 6588

Armidale Child Support Service 1800 451 784

Child Support Service 1800 451 784

Ballina Lismore Legal Aid (02) 6621 2082

Lismore Legal Aid (02) 6621 2082

Balranald Child Support Service 1800 451 784


Batemans Bay Nowra Legal Aid (02) 4422 4351

Nowra Legal Aid (02) 4422 4351

Bathurst Child Support Service 1800 451 784

Orange Legal Aid (02) 6362 8022

Bega Nowra Legal Aid (02) 4422 4351


Bourke Dubbo Legal Aid (02) 6885 4233

Dubbo Legal Aid (02) 6885 4233

Brewarrina Dubbo Legal Aid (02) 6885 4233


Broken Hill Head Office (02) 9219 5790

Head Office (02) 9219 5790

Byron Bay Lismore Legal Aid (02) 6621 2082


Cessnock Newcastle Legal Aid (02) 4929 5482

Newcastle Legal Aid (02) 4929 5482

Cobar Dubbo Legal Aid (02) 6885 4233


Coffs Harbour Child Support Service 1800 451 784

Coffs Harbour Legal Aid (02) 6651 7899

Condobolin Child Support Service 1800 451 784


Cooma Child Support Service 1800 451 784


Coonabarabran Child Support Service 1800 451 784


Cootamundra Child Support Service 1800 451 784


Cowra Child Support Service 1800 451 784


Deniliquin Child Support Service 1800 451 784




Name of Town Child Support Family Law Dubbo Dubbo Legal Aid

(02) 6885 4233 or



Eden Nowra Legal Aid (02) 4422 4351


Forbes Child Support Service 1800 451 784


Forster Newcastle Legal Aid (02) 4929 5482


Glen Innes Child Support Service 1800 451 784


Gosford Gosford Legal Aid (02) 4324 5611

Gosford Legal Aid (02) 4324 5611

Goulburn Child Support Service 1800 451 784


or Child Support Service 1800 451 784

Grafton Child Support Service 1800 451 784


Griffith Wagga Wagga Legal Aid (02) 6921 6588

Wagga Wagga Legal Aid (02) 6921 6588

Gunnedah Child Support Service 1800 451 784


Guyra Child Support Service 1800 451 784


Hay Child Support Service 1800 451 784


Illawarra Wollongong Legal Aid (02) 4228 8299

Wollongong Legal Aid (02) 4228 8299

Inverell Child Support Service 1800 451 784


Jerilderie Child Support Service 1800 451 784


Jervis Bay Nowra Legal Aid (02) 4422 4351


Junee Child Support Service 1800 451 784


Katoomba Penrith Legal Aid (02) 4732 3077

Penrith Legal Aid (02) 4732 3077

Kempsey Child Support Service 1800 451 784


Leeton Child Support Service 1800 451 784




Name of Town Child Support Family Law Lightning Ridge Dubbo Legal Aid

(02) 6885 4233 Dubbo Legal Aid (02) 6885 4233

Lithgow Penrith Legal Aid (02) 4732 3077


Lismore Lismore Legal Aid (02) 6621 2082


Maitland Newcastle Legal Aid (02) 4929 5482


Moree Child Support Service 1800 451 784


Mudgee Child Support Service 1800 451 784


Murwillumbah Lismore Legal Aid (02) 6621 2082


Muswellbrook Newcastle Legal Aid (02) 4929 5482


Narooma Nowra Legal Aid (02) 4422 4351


Narrabri Child Support Service 1800 451 784


Nowra Nowra Legal Aid (02) 4422 4351


Nyngan Child Support Service 1800 451 784


Ocean Shores Lismore Legal Aid (02) 6621 2082


Orange Child Support Service 1800 451 784


Parkes Child Support Service 1800 451 784


Penrith Penrith Legal Aid (02) 4732 3077


Port Macquarie Child Support Service 1800 451 784


Queanbeyan Child Support Service 1800 451 784


San Remo Newcastle Legal Aid (02) 4929 5482


Scone Newcastle Legal Aid (02) 4929 5482


Singleton Newcastle Legal Aid (02) 4929 5482


Tamworth Tamworth Legal Aid (02) 6766 6322

Tamworth Legal Aid (02) 6766 6322

Taree Newcastle Legal Aid (02) 4929 5482




Name of Town Child Support Family Law Tenterfield Child Support Service

1800 451 784 Child Support Service 1800 451 784

Tumut Child Support Service 1800 451 784


Tweed Heads Lismore Legal Aid (02) 6621 2082


Wagga Wagga Wagga Wagga Legal Aid (02) 6921 6588


Walgett Dubbo Legal Aid (02) 6885 4233


Wentworth Child Support Service 1800 451 784


Wilcannia Head Office (02) 9219 5790

Head Office (02) 9219 5790

Windsor Penrith Legal Aid (02) 4732 3077


Wodonga Wagga Wagga Legal Aid (02) 6921 6588


Wreck Bay Nowra Legal Aid (02) 4422 4351


Yass Child Support Service 1800 451 784


Young Child Support Service 1800 451 784




The Legal Aid Library

About the Library

The Legal Aid Library is situated on level 2 of Head Office. There are two librarians and two library technicians.

The Library has a collection of hardcopy materials including:

• Commonwealth and NSW legislation.

• Law reports from most Australian jurisdictions and some English reports.

• Journals.

• Legal texts.

• Loose–leaf services.

Most books are available for a four–week loan and materials from Special Reserve, including loose–leaf services, are available overnight. Items can be loaned to staff in regional offices.

The Library also maintains a comprehensive and well–organised intranet site, available on Legal Aid’s intranet home page. The site has links to the Library catalogue, subscription databases available only to Commission staff, freely available Internet sites in law and other areas such as medicine, online journals, newspapers, CLE resources and a variety of other resources. Contact details for Library staff are also on this page. The site is regularly updated with new information. Assisting Legal Aid NSW Staff with Research

Library staff do a significant amount of research to support the work of solicitors and other staff in Legal Aid NSW. They can assist by:

• Supplying cases, legislation and journal articles, or papers.

• Looking for repealed legislation.

• Providing sentencing statistics.

• Doing case law research on specific issues.

• Doing research in areas such as medicine, psychology, psychiatry, and forensic evidence.

Requests can be made by:

• Phone: (02) 9219 5846.

• Fax: (02) 9219 5873.

• E–mail: ([email protected]).

Library staff will do their best to supply the information within the required time frame, including requests for material for solicitors in court. When you make a request, please indicate when you require the information, particularly if it is urgent. Resources from the Library

The Library distributes a monthly e–mail “New Stuff – Crime”, alerting staff to new cases, legislative developments, reports, inquiries and other material of relevance to the Criminal law practice of Legal Aid NSW.




The Library is also responsible for managing all the loose–leaf services, access to online legal resources and purchase of books for Legal Aid NSW, including regional offices. Any suggestions for relevant books or other material for purchase can be sent to the Library. Also, if you hold copies of papers or material that could be of interest to other practitioners, please forward copies to the Library so this material can be catalogued and stored for long term, easy and reliable access.

Library staff also provide training and assistance with using the online research services in dedicated training sessions and to individuals by phone or in person.

Library staff are keen to provide assistance so feel free to ask for help.



The Mental Health Advocacy Service (MHAS)

The Mental Health Advocacy Service (MHAS) is located at the Burwood Legal Aid office. Solicitors from the MHAS represent clients who have legal matters under the Mental Health Act, the Protected Estates Act, and the Guardianship Act.

LA Office will indicate whether your client has had previous contact with the MHAS. The MHAS files on your client may contain information that will assist you in presenting your client’s case to the court. Documents including hospital admission summaries, discharge summaries and community treatment orders may be retained on the MHAS file, depending on the information that has initially provided to the MHAS. You can contact the MHAS to ascertain what information is contained on the file. Who Does the MHAS Represent?

The MHAS represents people with mental illness or other disabilities in the following types of hearings:

• All patients appearing before Magistrates in psychiatric hospitals.

• Temporary patients appearing before the Mental Health Review Tribunal (MHRT) to have their order extended.

• Temporary patients appearing before the MHRT to be made continued treatment patients.

• Temporary and continued treatment patients appearing before the MHRT to have a Protected Estates Act order made.

• Forensic patients appearing before the MHRT.

• “Incapable persons” appearing before the Guardianship Tribunal (subject to request).

Subject to eligibility tests, the MHAS also represents:

• Patients wanting to appeal against their detention in hospital.

• Former patients wishing to have a Protected Estates Act order revoked.

• People wanting to appeal against decisions of the MHRT or Guardianship Tribunal.

• People other than the “incapable person” appearing before the Guardianship Tribunal.

In limited circumstances, there is provision for the MHAS to represent other parties in hearings before the Guardianship Tribunal. What Form Does Legal Representation Take?

Legal representation means advocating for the patient’s wishes. This may involve opposing the opinions of treating doctors or relatives. It is important that the tribunal considers the patient’s view as well as the view of the medical professionals.

The law provides that orders may be made compelling people to have treatment against their wishes. Legal representation is intended to ensure that these orders are not made unless the need for them is properly established.



If you have sought an order under s.33 Mental Health (Criminal Procedure) Act and your client is detained in hospital, it is likely that the MHAS will represent them. The MHAS may have information about your client’s condition and treatment plan. How Does a Person Get Assistance from the MHAS?

When doctors decide a patient should be detained in a hospital against the patient’s wishes, a Magistrate conducts a hearing to determine whether it is necessary to make an involuntary order. The MHAS attends each hospital and represents patients at these hearings and any hearings that arise for further orders.

The Magistrate can only make an involuntary order after determining that a patient is ‘mentally ill’ according to the definition under the Mental Health Act. The Magistrate can adjourn the matter for a number of reasons. The client can be released before the next hearing if their condition has improved. It may be worth assuring your client that it is unusual for hospitals to keep a patient for any longer than is necessary.

People seeking representation before the Guardianship Tribunal need to contact the MHAS and request representation. This can be done by telephone.

The MHAS will give general advice by telephone to anyone who calls. How Do I Contact the MHAS?

Mental Health Advocacy Service

PO Box N1018

Burwood North 2134

Phone: (02) 9745 4277

Fax: (02) 9744 6936



The Prisoners Legal Service (PLS)

The Prisoners Legal Service (PLS) is a specialist section of Legal Aid NSW based in head office. The contact number is (02) 8688 3888.

PLS provides the following:

• Representation in:

(i) Hearings at the State Parole Authority.

(ii) Prison discipline offences before a Visiting Magistrate.

(iii) Reviews of segregation directions.

(iv) Applications in the Supreme Court to determine a term for pre ‘truth–in–sentencing’ life sentences.

• General legal advice and minor assistance to prisoners by way of:

(i) A visiting advice service to most gaols.

(ii) Responding to letters and telephone calls from or on behalf of prisoners.

Representation at the State Parole Authority

The State Parole Authority was called the NSW Parole Board until 10 October 2005.

The Parole Authority sits in Parramatta, every Tuesday to Friday and conducts hearings to reconsider:

• Intentions to refuse parole.

• Revocations of parole, home detention, and periodic detention.

Parole Authority decisions will be relevant for duty solicitors when a client appears in custody on fresh matters together with a revocation warrant, or when the client has been charged with a fresh matter.

Decisions by the Parole Authority to revoke occur in the absence of the offender and without an opportunity to be heard.

Revocation Warrants

A revocation warrant is a direction to go to gaol to serve the balance of the sentence. Bail cannot be granted on a revocation warrant and a court has no jurisdiction in relation to the warrant.

Following execution of the warrant, the offender will appear six to eight weeks later before the Parole Authority at a hearing to reconsider the revocation. The purpose of this hearing is to determine whether the revocation should be confirmed and what further action, if any, can be taken.

Due to amendments to parole effective from 10 October 2005, when parole is revoked, the offender cannot be considered for re–parole for twelve months. This means that in many cases the sentence will expire before the opportunity arises for re–parole. However, this is subject to a discretion the Authority has when it reconsiders the revocation. The Authority can decide that, in the circumstances, revocation is not warranted. This results in the revocation being rescinded, which restores the original parole order, releasing the offender.



An offender who has breached home detention can apply for reinstatement of the home detention after serving three months custody fulltime.

An offender who has breached periodic detention can apply for reinstatement of the periodic detention after serving three months custody fulltime. In some circumstances, the Authority will consider releasing them pending a home detention assessment as an alternative to reinstating the periodic detention or serving the balance fulltime.

Solicitors should be aware of these consequences for the purpose of effectively representing a Local Court client on a matter when there is also a revocation of parole, home detention, or periodic detention.

It would also assist PLS at the hearing to reconsider the revocation if you sent a summary of the fresh charges, plea, court, next date, and likely result.

Fresh Charges but Not Yet Revoked

If there are fresh charges but parole is sill on foot, the circumstances of the fresh charges may be referred to the Parole Authority by the Local Court or by your client’s parole officer.

The Parole Authority may revoke parole on the basis of the fresh charges rather than waiting for a conviction on the ground that the offender has “failed to adapt to normal lawful community life.” If this occurs, a warrant will issue and your client will go into custody notwithstanding bail on the fresh charges. If the fresh charges are later withdrawn or there is a finding of not guilty, you should immediately write the Parole Authority advising of this and requesting that parole be considered.

If your client is on bail, it is important to advise them to keep reporting to their parole officer and to inform the parole officer of the charges. It is critical to finalise the matter as soon as possible and not draw it out. This is because if found guilty (or pleading guilty), the Parole Authority will revoke parole from the date of the breach, that is, the date of the offence. This means that any clean “street time” following the offence does not count toward serving the sentence. Therefore, if the fresh matters take six months or longer to resolve, that time is lost if there is a finding of guilty even if the offender has continued reporting on parole and otherwise complied with parole and bail conditions.

After the finding of guilty, consider writing to the Authority advising of the penalty, the subjective case, acknowledge the breach but having regard to all the circumstances, request that parole not be revoked. The Parole Authority may decide to give your client a written warning instead of revoking parole.

If you have any questions contact a solicitor in PLS for advice. Parole Authority Procedures

Initially, the Parole Authority makes a decision in chambers not to grant parole or to revoke parole/home detention/periodic detention and then fixes a hearing date to reconsider its decision and allow the offender the opportunity to appear before it and be represented. The authority sends the prisoner a copy of the papers and notice of hearing date. The hearing date is six to eight weeks after the decision not to grant parole/execution of the revocation warrant. PLS appears at these hearings.



The Authority sits as a panel of six to eight members with a retired Judge or Magistrate as the Chairperson. The offender appears via audiovisual link. In some revocation cases, the offender is not in custody and s/he is sent a notice to appear for an inquiry but this is rare. The offenders can represent themselves, be privately represented or be represented by PLS or the Aboriginal Legal Service. Other Representation by PLS

PLS provides representation at prison discipline offence hearings before a Visiting Justice and review of segregation directions. Prison offences and segregation are recorded on the custodial file and have an impact on classification and parole. If your client asks about either of these, please refer the matter to the PLS.

In relation to applications to the Supreme Court for determination of life sentences, this work has all but finished because most of those who were eligible to apply when the law changed in 1990 have now been finalised, with only a small number of prisoners remaining to apply. Visiting Advice Service

Advice clinics are held regularly at all metropolitan gaols by PLS solicitors. Prisoners need to ask welfare, the wing officer, or the area manager for their name to be put in the “Legal Aid book”. Friends, family and welfare can request visits by contacting the PLS directly. PLS visits the MRRC twice per week and other gaols between one and four times a month.

Legal Aid solicitors can request a PLS visit. E–mail PLS for referral. You should provide your client’s full name, MIN, date of birth, date of next court appearance, and the gaol in which your client is held, and the purpose of the visit.

The gaols visited by solicitors from PLS are:

• Emu Plains Correctional Centre.

• Long Bay Correctional Complex (there are seven separate gaols in the complex).

• Metropolitan Remand and Reception Centre (MRRC) at Silverwater.

• Silverwater Womens Correctional Centre.

• Parklea Correctional Centre.

• Parramatta Correctional Centre.

• Silverwater Correctional Centre.

• Windsor, John Morony Correctional Centre.

The visiting advice service to following gaols is conducted for PLS by local solicitors/Legal Aid offices:

• Bathurst.

• Cessnock.

• Cooma.

• Dillwynia.

• Glen Innes.

• Goulburn.

• Grafton.



• Junee.

• Kirkconnell.

• Lithgow.

• Mid North Coast (at Kempsey).

• Tamworth.

The PLS has details of the duty roster if you need to request a visit. In relation to gaols which are not visited, such as Berrima, Broken Hill, Mannus (at Tumbarumba), Oberon, St Heliers (at Muswellbrook), welfare officers occasionally make contact for a prisoner and arrange a telephone conference.

The majority of advice requested relates to the prisoner’s current criminal situation, for example, how to apply for legal aid, the criminal process, bail, likely sentence, appeal, classification, interstate/international transfer, and parole. However, advice is sought on any topic and it is not unusual to be asked for advice in relation to civil and family law, bankruptcy, and victim’s compensation claims/payments. Assistance PLS Can Give to Legal Aid Solicitors

PLS solicitors are happy to see clients if there is some follow–up information or advice you wish passed on.

PLS solicitors cannot go through the prosecution brief nor obtain instructions for a summary trial. PLS solicitors can go through police facts and can obtain instructions on specific questions you may have.

PLS solicitors can also pass on advice regarding prospects of appeal and will arrange filing of appeal forms and take an application for legal aid. The same applies to Supreme Court bail applications.

PLS solicitors can also give advice if your client has offended while on parole or parole has been revoked. If needed, PLS can also obtain details of a prisoner’s gaol movements and history of prison discipline offences.

In order to obtain assistance from PLS solicitors, you can e–mail or send a memorandum to PLS at Head Office.

Please keep in mind that PLS solicitors are limited to about 20 minutes per client, so do not send voluminous material but summarise it and seek answers to specific questions.

Please provide your client’s full name and gaol and, if you know it, the prison MIN number, otherwise, date of birth; and, the charges and date of next court appearance/where or the sentence details.


Index

A

advice; 23 to clients

about giving evidence; 25 in relation to bail; 81 initial; 23 recording; 24

Amicus curiae; 74 appealing; 96 appendices

Appendix A; 19 letter to correctional centre advising of

confidential correspondence; 21 the course of a matter in the Local Court; 20

Appendix B; 35 authority; 36 authority to release information and records; 37 authority to release legal file; 38 letter requesting transfer of an inmate; 40 medical authority; 39

Appendix C; 69 instructions to plead guilty; 71 instructions to put the prosecution to proof; 70

Appendix D; 89 bail instruction sheet; 90 guide to matters going to the District Court; 93 information as to bail for Legal Aid NSW; 92

Appendix E; 99 checklist of matters to consider when preparing a

matter for sentence; 102 instruction form for sentencing; 100 instructions to plead guilty; 106 reference layout; 107

Appendix F; 115 acticipated objections to the evidence; 121 chronology; 123 examination of issues; 120 exhibits list; 125 identification evidence ready reckoner; 124 list of people invloved; 122 matters of law for the court; 119 matters to consider in preparation of defence

case; 118 matters to raise with an accused/witness who will

be giving evidence; 126 witness and defence case summary; 117

Appendix G; 144 notice of assignment pursuant to section 45; 145

assignments of legal aid; 68 authority; 36

to release information and records; 37 to release legal file; 38

C

children appearing before the Local Court by mistake; 159 representing; 158

Children’s Legal Service; 156 Civil Law Division; 164 Client Assessment and Referral Service; 152 clients; 11, 13

communicating with; 16, 41 conference; 18 duty to; 128

complainant, contact with; 57 costs

making application; 142 payment of; 142

court liasion nurses, assessments by; 31 Criminal Justice Support Network; 44 criminal record and bail history; 82

D

disclosing information in relation to grants of legal aid; 75 your client’s unknown convictions; 65

Drug Court; 167

F

Family Law Division; 170 file management; 49

G

Guilty plea; 61 reversing; 64 traversed in the PSR or psychological assessment; 63


Index

I

instructions; 23 form for sentencing; 100 from a client, practical issues; 26 from a witness; 24 terminated; 67 to plead guilty; 71, 106 to put the prosecution to proof; 70 withdrawn; 67

L

LA Office protocol and reports on clients; 33 law reform; 148 Legal Aid NSW

application form; 49 file

contents; 51 cover; 50 notes; 51

loss of contact with your client; 67

M

managing clients; 14 files; 49

media complaints about the; 77 dealing with; 77

Mental Health Advocacy Service; 178

P

pre–sentence report; 28

Prisoners Legal Service; 180 PSR; 31, 62, 63, 168 psychiatric reports; 29

assessments, justice health; 31 policy for obtaining; 28

psychological reports; 30 assessment; 63 policy for obtaining; 28

psychosocial reports; 31

R

releasing files at the end of representation by Legal Aid NSW; 52

retainer, nature and scope; 13 reversing a plea of guilty; 64

S

Section 32 case plans for people with a mental illness or developmental disability; 42

T

transferring files to another court; 53

W

withdrawing being granted leave; 68 from a matter; 66

witnesses advice about giving evidence; 25 taking instructions from; 24
