If another solicitor is acting for a defendant, it is not appropriate for the duty solicitor to appear for that defendant other than on the instructed solicitor’s specific instructions, or where the duty solicitor is unable to contact the instructed solicitor and the defendant simply needs assistance to remand/adjourn the matter.

It is unprofessional to intervene if somebody else is acting. In practical terms, intervention by the duty solicitor (in the absence of specific instructions by the instructed solicitor) may interfere with the way in which they are conducting the defendant’s case.

Occasionally, defendants give instructions which raise doubt about the truth of what they are saying. The duty solicitor is not responsible for the veracity of a defendant’s instructions, and should always put them to the court as instructed, unless to do so would mislead the court [see Professional Ethics and Court Etiquette chapter].

Where there is a discrepancy between the defendant’s instructions (for example, as to prior offending, prior non-appearance, personal circumstances, outstanding interstate matters, drug addiction) and other indicators (for example, the Form 2 - Reasons for Refusal of Police Bail, or the allegations), and the discrepancy is not one that can be resolved by negotiation, the duty solicitor should note the discrepancy and go back to the defendant seeking further instructions by way of explanation.

Where a plausible explanation is given, this may well become the thrust of a submission when the time comes to make the application for bail or submissions in mitigation. Where the explanation is not sound, at the very least, the duty solicitor is forewarned of a weakness in the defendant’s position.

The duty solicitor may know from previous dealings that a defendant’s instructions are false. For example, the duty solicitor may know that a defendant is charged under a false name or is on bail for other matters, but this is denied by the defendant; or that a defendant has approached a witness despite an undertaking not to do so.

When this occurs, the duty solicitor cannot reconcile their duty to robustly put a defendant’s instructions with their primary duty, as an officer of the Court, to not knowingly mislead the court [see Professional Ethics and Court Etiquette chapter].

When this occurs, the duty solicitor should:

Sometimes whilst conducting a bail application or a guilty plea, the duty solicitor may find themself making submissions about a person who the court may think has no prior criminal record, or a lesser criminal record than the duty solicitor knows to be the case. It is important that this situation is handled carefully so as not to prejudice the defendant’s position, but at the same time without misleading the court [see Professional Ethics and Court Etiquette chapter].

Where the defendant has a record, but the prosecutor tells the court they do not

It is not the responsibility of the duty solicitor to tell the court about the undisclosed record (unless of course there are specific instructions from the defendant to do so) but great care must be exercised so as not to be in a position of misleading the court [see box below].

Where the record is more extensive than has been disclosed to the Court

The duty solicitor is not obliged to tell the Court about any additional prior offences but must be careful to not mislead the Court.