Criminal Law Duty LawyerCriminal Handbook Law Duty Lawyer Handbook Criminal Law Duty Lawyer HandbookCriminal Law Duty Lawyer Handbook Criminal CriminalLaw DutyCriminal Lawyer Handbook Law Law Duty LawyerDuty Handbook Lawyer Handbook Criminal Law Duty Lawyer Handbook Criminal Law Duty Lawyer Handbook Criminal Law Duty Lawyer Handbook 6TH EDITION 2014 Criminal Law Duty Lawyer Handbook Published by Legal Aid Queensland 1st edition 1987 Updated in 1988 2nd edition 1993 Updated in 1995 3rd edition 1998 Updated in 2001 4th edition 2004 5th edition 2012 Updated in April 2014 (Chapter 2—Bail) 6th edition 2014 Updated in August & December 2014 (Chapter 11—Youth Justice) The contents of this volume are copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968 (Cth), no part may be reproduced by any process without the authors’ written permission. Direct all inquiries to Legal Aid Queensland. While Legal Aid Queensland has taken the utmost care in preparing this volume, it accepts no responsibility whatsoever for any errors, omissions or inaccuracies. This volume is not intended for, nor is it suitable for, use by members of the public. Published by Legal Aid Queensland, Brisbane. © Legal Aid Queensland 1987–2014 National Library of Australia card numbers and ISBN ISBN 978-0-646-58200-9 (Legal Aid Queensland) Legal Aid Queensland – Criminal Law Duty Lawyer Handbook Foreword Legal Aid Queensland is responsible for updating and distributing the Criminal Law Duty Lawyer Handbook, and for duty lawyer accreditation throughout Queensland. This is the fifth edition of the handbook. As such, I acknowledge the Legal Aid Queensland officers who researched and revised the text to provide an up-to-date and concise publication. We have produced the handbook in ebook and online formats to improve access and updates to content. I also acknowledge the Communication and Community Legal Education team, who project managed, designed and formatted the handbook and Kylee Bristow of Lexi Corporate Publishing, who edited it. Since the Criminal Law Duty Lawyer Program was introduced in Queensland in 1974, practitioners appearing in the magistrates or childrens court have seen the various complex and difficult issues that confront the duty lawyer. The Criminal Law Duty Lawyer Handbook is a succinct theoretical and practical guide for these practitioners, particularly those less experienced in this jurisdiction. It highlights most of the issues they are likely to encounter. However, it does not attempt to resolve all these issues or solve all the problems that a duty lawyer will encounter. Legal Aid Queensland believes that the handbook helps ensure the Criminal Law Duty Lawyer Program’s successful operation. All duty lawyers should thoroughly familiarise themselves with the topics and procedures outlined in the handbook. This will not only assist duty lawyers, but maintain the high standard that the Criminal Law Duty Lawyer Program has achieved throughout Queensland. Anthony Reilly Chief executive officer Legal Aid Queensland Legal Aid Queensland – Criminal Law Duty Lawyer Handbook Foreword | 3 Preface The production of this fifth edition of the Criminal Law Duty Lawyer Handbook was necessary due to substantial legislative changes and case law developments. Legal Aid Queensland commissioned Legal Aid Queensland’s in-house counsel and lawyers to revise the text. Several Legal Aid Queensland staff contributed to the text, including Kylie Bell, Joseph Briggs, Nadia Bromley, Darin Clearwater, Amber Crowley, Claudia Davies, John Dean, Tracey de Simone, Peter Delibaltas, Mark Dixon, Sue Ganasan, Len Handley, Nicholas Hanly, David Law, Jakub Lodziak, Craig May, Justin O’May, Howard Posner, Laura Reece, Laura Rouse, Leigh Smith, Rachel Smith, Susan Stockwell, David Thompson, Kate Volk, Robyn Wilkinson and Penny Williams. Their efforts have ensured that the Criminal Law Duty Lawyer Handbook will remain an essential tool for duty lawyers. Unless otherwise stated, this edition reflects the law as it applied at December 2012. Legal Aid Queensland is responsible for Queensland criminal law duty lawyer accreditation. Please direct all queries about the Criminal Law Duty Lawyer Handbook and the accreditation process to Legal Aid Queensland. Priorities Legal Aid Queensland has determined the following priorities regarding the provision of duty lawyer services. No person charged with a criminal or serious simple offence should, through ignorance, lack of financial resources or other disadvantage, be denied legal advice and representation before the court at either the initial appearance or a subsequent remand. Within its financial constraints, one of Legal Aid Queensland’s long-term priorities is to provide a free duty lawyer service to all defendants appearing unrepresented before magistrates courts and childrens courts in Queensland. Legal Aid Queensland will establish duty lawyer schemes, using the services of salaried lawyers of Legal Aid Queensland and private practitioners, to provide legal advice and legal representation on pleas of guilty or applications for remand and bail. Legal Aid Queensland Legal Aid Queensland – Criminal Law Duty Lawyer Handbook Preface | 4 Contents Foreword . .. 3 Preface . 4 Priorities . 4 Chapter 1—Introduction . 19 A . Purpose of handbook . 19 1-1 Handbook as a guide ................................................................19 B . History and aims of Criminal Law Duty Lawyer Program . 19 1-2 History ............................................................................19 1-3 Aims ..............................................................................19 C . Duty lawyer guidelines . 19 1-4 Duty lawyer guidelines ...............................................................19 D . Practical requirements of Criminal Law Duty Lawyer Program . 20 1-5 Criminal law duty lawyer form .........................................................20 1-6 Duty lawyer session report form .......................................................21 E . Responsibilities of duty lawyers . 21 1-7 Duty as if to private client .............................................................21 1-8 No obligation to appear ..............................................................21 1-9 Appearing as a ‘friend of the court’ .....................................................21 1-10 Primary duty to defendants ...........................................................21 1-11 Consciousness of time ...............................................................22 F . Practical hints for duty lawyers . 22 1-12 Practical hints only ..................................................................22 1-13 Be early ...........................................................................22 1-14 Speak to the police prosecutor or court staff .............................................22 1-15 Try to plan time .....................................................................22 1-16 Taking instructions—working out the issue ..............................................23 1-17 Do not rush ........................................................................23 1-18 Obtain further information from prosecutor if necessary ...................................23 1-19 Deal only with the prosecutor .........................................................23 1-20 Organise appearances ...............................................................23 1-21 Follow-up advice ....................................................................24 1-22 Remands for further advice ...........................................................24 G . Referrals from duty lawyers . 24 1-23 Referring defendants for further legal advice or assistance where necessary ..................24 1-24 Prisoners ..........................................................................24 1-25 Criminal charges against Aboriginal and Torres Strait Islander people in all jurisdictions ........24 1-26 Legal advice and assistance ..........................................................24 Chapter 2—Bail . 26 A . Basic principles . 26 2-1 Principles contained in the Bail Act 1980 (Qld) ...........................................26 2-2 When the court will refuse bail ........................................................26 2-3 Where a magistrates court cannot grant bail .............................................26 2-4 Supreme Court bail ..................................................................26 Legal Aid Queensland – Criminal Law Duty Lawyer Handbook Contents | 5 B . Grants of bail—general . 27 2-5 Power of a police officer to grant bail ...................................................27 2-6 Power of magistrates court to grant bail .................................................27 2-7 Consideration of options by court or police officer ........................................27 2-8 Special conditions ...................................................................27 2-9 Restriction on publication ............................................................28 2-10 Cash bail ..........................................................................28 2-11 Effect of Penalties and Sentences Act 1992 (Qld) .........................................28 2-12 Release of a person with an impairment of the mind .......................................28 C . Procedures on bail applications . 29 2-13 Procedures .........................................................................29 2-14 Facts