Deciding whether to represent/ advise/refer elsewhere

Deciding whether to represent/ advise/refer elsewhere

DISCRETION WHETHER TO ACT
A duty solicitor's discretion to act for unrepresented people should generally be exercised in favour of representation where there is any dimension of disadvantage to the defendant. Many defendants are terrified of appearing alone in court. Duty solicitor refusal of assistance may simply increase their fear, make the Magistrate’s task more difficult, and possibly prejudice a satisfactory outcome.

DISCRETION WHETHER TO ACT

A duty solicitor's discretion to act for unrepresented people should generally be exercised in favour of representation where there is any dimension of disadvantage to the defendant.

Many defendants are terrified of appearing alone in court. Duty solicitor refusal of assistance may simply increase their fear, make the Magistrate’s task more difficult, and possibly prejudice a satisfactory outcome.

Deciding to not represent a person

The following are examples where the duty solicitor would usually decide to not represent a person:

At trial, or in the call over list to set a date for trial (where it is assumed the lawyer appearing has responsibility for the conduct of the trial);
At special reasons applications (made before committal but after declarations are provided), committal or no case to answer submissions for indictable matters (where more senior legal representation is required);
On complex pleas of guilty, or where there is a possibility of a sentence of imprisonment or other severe penalty (where more senior legal representation is required);
Where the defendant’s best interest would be served by adjourning/remanding the matter to prepare detailed submissions or conduct negotiations with prosecution (defendants can request this themselves);
On pleas of guilty to simple cannabis possession charges or simple traffic matters (where there is no risk of imprisonment). Having ascertained that there is no possible defence, the duty solicitor can assist the defendant to represent him or herself by advising of penalties, material to put to the Court, and court procedure;
On contested and uncontested intervention or restraint order matters (defendants can represent themselves in these matters). However, if a matter involves a breach of an intervention or restraint order, then there is a risk of imprisonment, and a defendant should be advised to apply for legal aid;
On drink-driving charges, except where the person charged is so compellingly disadvantaged there would be a risk of justice miscarrying should that person be left to their own devices before the Court (normally representation at a level more senior than the duty solicitor is required here);
Where a defendant could readily afford to instruct a private solicitor but chooses to attend court unrepresented in the expectation the duty solicitor will provide representation free of charge;
Where a defendant has sought numerous remands/adjournments in the past for the purpose of obtaining legal advice but, for no good reason, has neglected to do so and has now been refused any further adjournment by the Magistrate;
Where a defendant that a duty solicitor is representing persists in hostile or aggressive behaviour. There can be no solicitor/client relationship unless he or she can be persuaded to calm down.

A DUTY SOLICITOR CANNOT BE COMPELLED TO CONDUCT A PLEA OF GUILTY
A duty solicitor cannot be required either by the defendant or the Court to conduct a plea of guilty in circumstances where there is a potentially serious penalty [see Guilty Pleas chapter]. In such a case the Dietrich principle may apply and the Court may consider a stay of proceedings to allow the defendant to obtain proper legal representation [see *Dietrich v R (1992) 177 CLR 292; [1992] HCA 57*].

A DUTY SOLICITOR CANNOT BE COMPELLED TO CONDUCT A PLEA OF GUILTY

A duty solicitor cannot be required either by the defendant or the Court to conduct a plea of guilty in circumstances where there is a potentially serious penalty [see Guilty Pleas chapter].

In such a case the Dietrich principle may apply and the Court may consider a stay of proceedings to allow the defendant to obtain proper legal representation [see Dietrich v R (1992) 177 CLR 292; [1992] HCA 57].

Deciding whether to represent/ advise/refer elsewhere : Last Revised: Tue Sep 27th 2016

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