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Assisting unrepresented defendants

A defendant with a mental illness or impairment may attend unrepresented in the duty solicitor’s office with little or no idea of the charges, or the particulars of the allegations. Such defendants may be aggressive, withdrawn, incoherent and irrational. The urgent priority in these cases is to help arrange for legal representation in a way that they can realistically follow through. Many simple cases are repeatedly adjourned, or warrants issued, merely because the defendant with a mental illness or impairment cannot get through the initial stages of applying for legal representation. A duty solicitor can help a person apply for legal aid by completing an application form while they are present; explaining the procedure and time-frames for approval of legal aid applications, and asking to see their Centrelink Health Care card as proof of income and noting this on the legal aid application form.

In cases where it is unlikely that a defendant is capable of lodging the application in person, the duty solicitor can assist by lodging it on their behalf, marked “Urgent”, with an accompanying memorandum explaining the details of the defendant's disability, and indicating that it may be appropriate for full financial details of means and assets to be assessed at a later stage once contact has been made with an assigned solicitor.

Unrepresented defendants attended by a case worker or relative

A defendant with a mental illness or impairment may attend unrepresented in the duty solicitor’s office accompanied by a case or social worker, or a relative. This situation needs firm and tactful handling where the support person, with good intentions, wants to usurp the client’s role in instructing the duty solicitor. For example, the support person may insist that it is in the person’s best interests to get the matter dealt with immediately by way of a guilty plea, or that it is ‘important that the person learns that they mustn’t do this …’ and so forth.

Information gleaned from support persons may be more coherent than that from the defendant with a mental illness or impairment, and may be valuable later once it is decided whether the matter should proceed by way of guilty plea. However, the support person’s opinion as to the appropriate legal course for the defendant to take should be politely but firmly disregarded. Further, if information supplied to the duty solicitor by the support person is denied by the defendant, the duty solicitor cannot use that information, because the defendant, who the duty solicitor is representing, has instructed to the contrary.

The duty solicitor may only take instructions from the actual defendant and must never exceed the ambit of those instructions.
Assisting unrepresented defendants  :  Last Revised: Wed May 1st 2019