There are people who wish to make a “convenience plea” and wish to plead guilty to get the matter out of the way simply and cheaply, but at the same time they maintain a denial of the offence. Such people may, for example, try to enter a plea of guilty unrepresented to a shoplifting charge but state to the Magistrate that they “forgot to pay”, “did not realise they had the item when they left the shop”, “didn’t know what they were doing because of medication”, or that they struck a victim of an assault charge in self-defence. The Magistrate will not accept this plea, will usually order that it be struck out and recommend that the defendant seek legal advice, often from the duty solicitor, whilst the matter is held in the court list.
Often a defendant will tell the duty solicitor that they want to plead guilty to “get the matter over and done with”. This should always ring warning bells. When this occurs it is important for the duty solicitor to ask the defendant about the following:
KEEP ACCURATE AND COMPLETE NOTES |
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In either case it is important for the duty solicitor to record on the pink duty solicitor form exactly what instructions the defendant gives and what the duty solciitor has advised. The duty solciitor's only protection against future claims that they “made” the defendant plead guilty is the existence and accuracy of this record. |
The need for the duty solicitor to take accurate notes of instructions and subsequent advice cannot be overemphasised. People have been successful in appealing convictions or penalties due to a miscarriage of justice, on the grounds that they pleaded guilty:
Not only may the defendant appeal in such cases, but the solicitor involved may be the subject of adverse judicial comment when the appeal is heard, and may also be subject to disciplinary proceedings [see Stengle v Wells [1985] SASC S4958 (Unreported, Cox J, 30 April 1985) for the full implications of the principles discussed above; Akpata v Police [2003] SASC 305and Markl v Police [2005]SASC 141for similar circumstances].
ADVISING A DEFENDANT WHO WANTS TO MAKE A CONVENIENCE PLEA |
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The advice a duty solicitor gives to a defendant in these circumstances must be circumspect, careful, clear and recorded in detail for possible future reference [see Stengle v Wells [1985] SASC S4958 (Unreported,Cox J, 30 April 1995)]. The duty solicitor should:
Duty solicitors must keep detailed notes of the instructions the defendant has given and their subsequent advice to the defendant. |