M2 - Learner Manual

14.1. Advise client on court procedures and options

Identify and acknowledge client’s issues and needs

One of the greatest challenges a legal practitioner/interviewer has is building and maintaining rapport. Consequently, if a client has specific needs, or certain goals, it is important to make the client aware that they have been acknowledged.

Some common needs of a client may include:

·      Family: custody of children, separation proceedings (divorce and property settlement)

·      Civil: consumer rights, tenancy, neighbour disputes

·      Criminal: criminal charges, breach of bail, AVOs

It is important to be aware that clients often present with a similar set of, often intergenerational, underlying economic and social issues, for example:

·      Drugs and alcohol

·      Mental health

·      Homelessness

·      Lower socio-economic status

·      Poor educational outcomes

·      Low job prospects

·      Broken families

·      Domestic violence victim, witness or both

·      Criminal history

Refer client and/or client issues to appropriate practitioner

If appropriate, legal practitioners can refer a client to a service that is better suited to their needs, or has capacity to assist them. Some different referral services include:

·      Aboriginal Legal Services

·      Legal Aid Commissions

·      Private representation

·      Community Legal Centres

·      Law Society solicitor referral service and pro bono schemes

·      Bar Association Pro Bono Scheme

·      Self-represented (which is a last resort)

Additionally, a practitioner can refer internally, such as to a solicitor who specialises in family law, if it is a family law matter.

Identify and explain available options to the client for their court appearance, case strategy, plea/s and potential outcomes

An essential skill of a legal practitioner is being able to identify the nature of the client’s problem, and what area of law it falls into e.g. civil, family, or criminal. A practitioner should have an approximate idea following the initial interview with the client. After the client has provided the practitioner with all of the relevant information, the practitioner will explain the next steps in the process before the conclusion of the interview. This is dependent on what area of law their matter will come under.

For example, in a criminal matter, a practitioner would advise their client in relation to the strength of the prosecution case and the client’s option to plead guilty or not guilty, and what the likely outcomes of both of those pleas would be.

The client can plead guilty at any time from the first mention in Court or at a later time up until their matter has been determined by way of a hearing or trial. A person can change their plea to guilty, even if they have pleaded not guilty at an earlier time.[1]

If the client pleads not guilty, then the defendant indicates that they wish to defend the charge and the case may be determined by the hearing of evidence either in the Local/Magistrates’ Court before a Magistrate or in a higher court, depending on the seriousness of the charge.

Summary matters and indictable charges that the Director of Public Prosecutions (DPP) decide not to have dealt with in the District Court, are dealt with in the Local/Magistrates’ Court. Strictly indictable matters must be dealt with in the District or Supreme Courts. The DPP may, in some circumstances, decide to elect to have some charges dealt with in the District Court if they are of the view that they are of sufficient seriousness and the Local/Magistrates’ Court does not have enough power to sentence the offender for the charge.

In all other states and territories apart from NSW charges which are dealt with in the District/County or Supreme Court all commence in the Local/Magistrates’ Court and are transferred to the higher Court in proceedings which are called a “committal”. A Magistrate “commits” a matter to the higher court if it is satisfied that there is sufficient evidence to prove the charges. The Judge of the District/County or Supreme Court finalises the matters either by presiding over a trial if the matter is defended or at a sentence hearing if the person is convicted after trial or if the person pleads guilty.

Note: In NSW now Defendants charged with indictable offences no longer have the right to a Committal Hearing. Instead, the Magistrate’s role is now limited to overseeing the procedural steps required under the Criminal Procedure Act 1986. This means ensuring a brief of evidence is served on the defendant or their lawyer, ensuring that a charge certificate is filed and served on the defendant or their lawyer, and ensuring that a case conference is held between the prosecution and the defence (if the defendant is represented) and that a case conference certificate is subsequently filed with the court. The accused person must then enter a plea to each of the charges that prosecution is proceeding with and the Magistrate will commit the matter for trial or for sentence (Section 55).

 

Summary or indictable matters which are dealt with in the Local/Magistrates’ Court are either finalised by a defended hearing before a Magistrate or a sentence hearing before a Magistrate. The procedures set out below are those relating to matter finalised in the Local/Magistrates’ Court (which represents the vast majority of charges which come before the Courts).    

Pleading guilty:

·      After a client pleads guilty, depending on the seriousness of the matter or if the defendant wishes to gather documents or other material to assist their case on sentence. The matter may be adjourned for a period for this to happen. Examples of the sorts of document which may be ordered or obtained:

-       A pre-sentence report (Court ordered document which sets out the person’s background and issues contributing to their offending as well as assessing whether they are eligible for community based sentencing options e.g. community service). This assessment is prepared by Probation and Parole, or the equivalent Department in other states and territories.

-       Psychiatric or Psychological reports

-       Character references  

·      If the person is on bail and there have not been any issues with the person complying with their bail, they will likely remain on bail until the next Court date.

·      If client has limited criminal history and the facts of the offence are not too serious, then the Magistrate may sentence the client at the first appearance

 

 

Pleading not-guilty:

·      Magistrate adjourns the matter, usually for 6 weeks, for a ‘brief of evidence’ to be served. Police may sometimes be granted more time from the Court to collect their evidence, particularly if the evidence includes testing of drugs or DNA evidence which can, in some cases, take a significant period of time to be obtained.

·      Once the client’s legal representative receives the brief of evidence from the police, the legal representative will contact the client to take further instructions on the charge.

·      At the next court date the client will need to either confirm the plea of not guilty after which the matter will be set for hearing (some weeks later), or enter a plea of guilty.

·      After hearing Magistrate will find client either guilty (and therefore the client will be sentenced) or not guilty and dismiss charges without the matter going on client’s criminal record.

It is also relevant to note that there are also provisions for defendants to be diverted from the general criminal justice system. A sound understanding of the diversion options in the court system within which you are assisting clients is essential to achieving the best possible result for the client. For example, circle sentencing for Indigenous clients, youth justice conferences for young people and the Drug Court.

Importantly, it is also important to understand the options available for people with mental health issues. For example, in NSW, it is important to work out whether a client suffering from a mental health condition may be eligible to be diverted from the criminal justice system under s32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The effect of a person being dealt with under this section is that they are “discharged” or not required to have the matter dealt with in the usual way of pleading guilty or not guilty and will receive no record for their charge on the condition that they comply with a mental health treatment plan for a certain period of time.