back up duty scheme forcourts serviced by a legal aid … · balmain, newtown, waverley, burwood,...

BACK UP DUTY SCHEME FOR COURTS SERVICED BY A LEGAL AID NSW OFFICE

INFORMATION PACKAGE FOR PRACTITIONERS

1. Information for Practitioners

2. Information for Referees

3. Back up Duty Scheme for Courts serviced by a Legal Aid NSW Office - Guidelines

4. General Criminal Law Practice Standards


INFORMATION FOR PRACTITIONERS

Legal Aid NSW is inviting Expressions of Interest from current members of the general crime panel for appointment to a Back up Duty Scheme for Courts serviced by a Legal Aid NSW Office (the Duty Scheme). Members of the Duty Scheme will be eligible to be allocated duty back-up and urgent case work at courts where duty and case services are ordinarily provided by salaried Legal Aid NSW solicitors. The majority of duty back up and urgent case work allocated under the Duty Scheme will be performed in Local Courts in metropolitan areas and in Local and Children's Courts in non-metropolitan areas. Sentence appeals in the District Court dealt with on a duty basis may also be allocated under the Duty Scheme. The Duty Scheme will apply to courts in the following areas:

Coffs Harbour – to be allocated work from Coffs Harbour, Macksville and Bellingen Local and Children's Courts and Coffs Harbour District Court Dubbo – to be allocated work from Dubbo, Wellington, Gilgandra, Narromine and Peak Hill Local and Children's Courts and Dubbo District Court Warren – to be allocated work from Warren Local and Children's Courts Mudgee – to be allocated work from Mudgee Local and Children's Courts Coonabarabran – to be allocated work from Coonabarabran Local and Children's Courts Gosford – to be allocated work from Gosford, Wyong and Woy Woy Local Courts and Gosford District Court Lismore – to be allocated work from Lismore, Casino and Kyogle Local and Children's Courts and Lismore District Court Ballina – to be allocated work from Ballina and Byron Bay Local and Children's Courts Newcastle – to be allocated work from Newcastle, Belmont and Toronto Local Courts and Newcastle District Court Orange – to be allocated work from Orange and Blayney Local and Children's Courts and Orange District Court Bathurst – to be allocated work from Bathurst Local, Children's and District Courts

Parkes – to be allocated work from Parkes and Forbes Local and Children's Courts and Parkes District Court Sydney Central – to be allocated work from Central, Downing Centre, Balmain, Newtown, Waverley, Burwood, Manly and North Sydney Local Courts and Sydney District Court Sydney West – to be allocated work from Parramatta, Ryde, Blacktown, Penrith and Mt Druitt Local Courts and Parramatta and Penrith District Courts Sydney South and South-West – to be allocated work from Bankstown, Fairfield, Liverpool, Campbelltown, Sutherland and Kogarah Local Courts and Campbelltown District Court

Tamworth – to be allocated work from Tamworth and Quirindi Local and Children's Courts and Tamworth District Court Wagga Wagga – to be allocated work from Wagga Wagga Local, Children's and District Courts Albury – to be allocated work from Albury Local, Children's and District Courts Wollongong – to be allocated work from Wollongong, Albion Park and Port Kembla Local Courts and Wollongong District Court.

Practitioners will be required to nominate the area(s) in which they would be prepared to be allocated duty back-up and urgent case work and must be able to satisfy Legal Aid NSW that they can provide a responsive service to the courts in the nominated area(s). Practitioners will be expected to accept work at all Courts in the area(s) in which they nominate and are appointed. GENERAL INFORMATION Appointments to the Duty Scheme will apply to specific individual practitioners and not to firms. The individual practitioner who is appointed to the Duty Scheme must personally perform all offers of work accepted under the Duty Scheme. Practitioners who are appointed to the Duty Scheme will be eligible to perform the role of duty solicitor and appear in assigned urgent case matters at courts within the area to which they have been appointed, at the request of Legal Aid NSW. In addition to their current service provision agreement relating to the General Crime Panel, practitioners who are appointed to the Duty Scheme will be bound, as a condition of appointment, to adhere to all policies, procedures and guidelines relating to the Duty Scheme. Practitioners who are assessed as most suitably qualified for appointment may be appointed to the Duty Scheme in one, or more than one, area. The appointment of practitioners to the Duty Scheme, and to a particular area or areas, will be dependent upon the number of suitably qualified practitioners seeking appointment and the demand for the provision of duty back-up and urgent case work in each area. The number of practitioners appointed to each area will be limited and will be determined by Legal Aid NSW.

Travel Where a practitioner indicates in an Expression of Interest their willingness to be allocated work in a particular area (whether or not it is their first preference), there will be no payment for travel by that practitioner to a court within that area for the performance of duty back-up or urgent case work allocated under the Duty Scheme. Allocation of work Salaried solicitors of Legal Aid NSW undertake the majority of duty and case matters at the courts covered by the Duty Scheme. The amount of legal aid duty back-up and urgent case work which is available for private practitioners is limited and is dependent upon the capacity of the salaried solicitors to meet the demand for legal aid services. This capacity can vary over time, and from court to court. Appointment to the Duty Scheme does not confer an entitlement to work.

Legal Aid NSW is, however, committed to ensuring a fair and reasonable distribution of work amongst practitioners appointed to the Duty Scheme in each area. Unless exceptional circumstances exist, offers of work will be made by Legal Aid NSW offices in sequence to each of the practitioners appointed to the Duty Scheme in the relevant area.

Duty back-up and urgent case work at the Courts covered by the Duty Scheme will be allocated only to practitioners who have been appointed to the Duty Scheme unless there are exceptional circumstances. The allocation of duty back-up work to a practitioner under the Duty Scheme will not effect the usual order of panel offers made to that practitioner as a member of the General Crime Panel. The allocation of an urgent case matter to a practitioner under the Duty Scheme will have the same effect on the usual order of panel offers as any other specific assignment of case work accepted by that practitioner. The appointment of a practitioner to this Duty Scheme will have no effect on the practitioner's appointment to other Regional Duty Schemes servicing courts that are not serviced by a Legal Aid NSW office. Fee rates Practitioners allocated work under the Duty Scheme will be paid at legal aid rates as notified from time to time and in accordance with Legal Aid NSW policy. SELECTION CRITERIA Practitioners who wish to be considered for appointment to the Duty Scheme are invited to submit an Expression of Interest. The Expression of Interest must address the selection criteria set out below and provide details and information to demonstrate that all the criteria are met.

• Member of the Legal Aid NSW General Crime Panel

• Five years post-admission experience and devotion of not less than 50% of normal full-time practice to the area of criminal law in each year of the past

three year period. (Preference will be given to practitioners who satisfy this criterion. However, in areas where there are insufficient numbers of practitioners who meet this criterion, Expressions of Interest from practitioners who do not meet the criterion may be considered. Practitioners who do not meet the criterion may be appointed in these circumstances if the Selection Committee is satisfied that, given their level of experience and knowledge, they will be able to competently perform the work allocated through the Duty Scheme. Conditions of supervision may be imposed in these circumstances.)

• Extensive knowledge of criminal law (max. 500 words)

• Experience in the conduct of criminal duty list work in the Local Court (max. 300

words)

• Demonstrated experience representing legal aid clients in courts (max. 300 words)

• Knowledge of criminal law as it applies to children and experience as an advocate in Children's Court criminal matters. (Practitioners seeking appointment to Gosford, Newcastle, Sydney Central, Sydney West, Sydney South and South-West and Wollongong areas only need not address this criterion.) (max. 300 words)

• Experience in the conduct of sentence appeals in the District Court (max. 300 words)

• Proven experience to provide quality advice and representation in a high

volume work environment (max. 300 words)

• Nominate the area(s) in which the practitioner would be willing to perform duty back-up and urgent case work. (If practitioners wish to nominate more than one area they should list the areas in order of preference for appointment.) Coffs Harbour – to be allocated work from Coffs Harbour, Macksville and Bellingen Local and Children's Courts and Coffs Harbour District Court Dubbo – to be allocated work from Dubbo, Wellington, Gilgandra, Narromine and Peak Hill Local and Children's Courts and Dubbo District Court Warren – to be allocated work from Warren Local and Children's Courts Mudgee – to be allocated work from Mudgee Local and Children's Courts Coonabarabran – to be allocated work from Coonabarabran Local and Children's Courts Gosford – to be allocated work from Gosford, Wyong and Woy Woy Local Courts and Gosford District Court Lismore – to be allocated work from Lismore, Casino and Kyogle Local and Children's Courts and Lismore District Court Ballina – to be allocated work from Ballina and Byron Bay Local and Children's Courts

Newcastle – to be allocated work from Newcastle, Belmont and Toronto Local Courts and Newcastle District Court Orange – to be allocated work from Orange and Blayney Local and Children's Courts and Orange District Court Bathurst – to be allocated work from Bathurst Local, Children's and District Courts Parkes – to be allocated work from Parkes and Forbes Local and Children's Courts and Parkes District Court Sydney Central – to be allocated work from Central, Downing Centre, Balmain, Newtown, Waverley, Burwood, Manly and North Sydney Local Courts and Sydney District Court Sydney West – to be allocated work from Parramatta, Ryde, Blacktown, Penrith and Mt Druitt Local Courts and Parramatta and Penrith District Courts Sydney South and South-West – to be allocated work from Bankstown, Fairfield, Liverpool, Campbelltown, Sutherland and Kogarah Local Courts and Campbelltown District Court


• Ability to provide a responsive service to the needs of Legal Aid NSW and its clients within the area(s) to which appointment is sought. (In order to satisfy this requirement it would generally be expected that the principal place of business of the practitioner would be located within or in reasonably close proximity to the relevant area.) (max. 300 words)

• Ability to identify and address the legal issues faced by people: a) with mental illness and/or disabilities b) who are socially and economically disadvantaged c) from wide-ranging culturally diverse backgrounds (max. 300 words)

• Excellent interpersonal skills, including the ability to understand and

effectively communicate with people from a wide range of backgrounds including clients and other professionals (max. 300 words)

• Excellent written communication skills, including the ability to prepare court

documents, correspondence, submissions and other written materials (max. 300 words)

• Excellent file management skills, including making file notes, accurate recording of client instructions and recording court outcomes (max. 300 words)

• Knowledge of Legal Aid NSW policies and procedures to determine

applications of legal aid on a duty basis and advise clients about eligibility; or the capacity to rapidly acquire such knowledge (max. 300 words)

• Willingness and ability to comply with Legal Aid NSW policies, guidelines, reporting and administrative requirements (max. 300 words)

• Practitioners should also provide the name and contact details (including telephone number and email address) of two referees who can attest to the practitioner's demonstrated ability to meet the above selection criteria. The comments and opinions of referees will be taken into account in the assessment of the Expression of Interest.

Nominated referees should be independent. They should not be employed by or have a commercial interest in the firm where the practitioner is currently employed. Judicial officers should not be given as referees. An information document for referees is included in the information package. The practitioner should give a copy of this document to each nominated referee. Referees may be asked to provide information about their direct knowledge of a practitioner's skills and experience and their opinion as to whether or not the practitioner is a suitable person for appointment to the Duty Scheme and the reasons for their opinion. They may also be asked to give their opinion about the extent to which the practitioner meets the selection criteria.

• In addition to information provided by referees, the selection committee may request and take into account information from employees of Legal Aid NSW who are in a position to attest to the practitioner's demonstrated ability to meet the above selection criteria.

HOW TO APPLY Expressions of Interest must be emailed to [email protected]

When completing an expression of interest a practitioner should:

by 5pm on Friday 23 August 2013.

• address each selection criteria and supply all other relevant information as required to demonstrate that all the criteria are met

• not assume that the selection committee knows of the practitioner's expertise in a particular area, past experience or achievements

• adhere to the maximum word limits where applicable.

SELECTION PROCESS All Expressions of Interest will be considered by a Selection Committee comprising of a nominee of the Legal Aid NSW Executive Director Crime, a nominee of the Legal Aid NSW Executive Director Grants and Community Partnerships, a nominee of the Law Society of NSW and a nominee of the NSW Bar Association. The Selection Committee will make recommendations to the NSW Legal Aid Executive Director Crime or his delegate who will determine appointments to the Duty Scheme. During the evaluation of Expressions of Interest, the Selection Committee may seek further information from a practitioner in relation to the Expression of Interest, may require a practitioner to attend an interview to discuss the Expression of Interest and may contact referees nominated by the practitioner. The Selection Committee will consider such information and/or interview in evaluating the Expression of Interest. The comments and opinions of referees and relevant Legal Aid NSW employees will be taken into account in the assessment of the Expression of Interest. Legal Aid NSW is not bound to appoint any practitioner expressing an interest in being appointed to the Duty Scheme. Practitioners will be advised in writing of the outcome of their Expression of Interest. All Expressions of Interest will be treated in confidence. PRIVACY The information provided in an Expression of Interest will be used to determine initial appointments under the Duty Scheme, and may be used in considering a practitioner's re-appointment to the Duty Scheme during a Review of Appointments. The Expression of Interest will be provided to the Selection Committee and to the Executive Director Crime or his delegate, where appropriate. It is not intended to disclose any personal information contained in Expressions of Interest to any other persons. ENQUIRIES Enquiries relating to the lodgement of Expressions of Interest should be directed to [email protected]

or Leanne Robinson, Senior Legal Project Manager, Legal Aid NSW on 92195672.

FURTHER DETAILS Further details regarding appointment to and operation of the Duty Scheme are contained in this information package under Duty Scheme for Courts serviced by a Legal Aid NSW Office – Guidelines.

mailto:[email protected]�

Information for Referees

A legal practitioner who has expressed interest in being appointed to the Back Up Duty Scheme for Courts serviced by a Legal Aid NSW Office (the Duty Scheme) has nominated you as a referee. The Expression of Interest is currently being assessed. As a referee, you may be contacted shortly and asked to provide information about your direct knowledge of the practitioner, their skills and experience, and your opinion as to whether or not the practitioner is a suitable person for appointment to the Duty Scheme and the reasons for your opinion. A brief outline of the Duty Scheme is attached. You may also be asked to give your opinion as to the extent to which the practitioner meets the selection criteria for appointment to the Duty Scheme, a copy of which are attached. Your comments will be recorded in writing and will form part of the decision making process. Your comments may be disclosed to the practitioner. If circumstances change and you are unable to act as the practitioner's referee, please advise the practitioner at the earliest possible opportunity. Legal Aid NSW thanks you for taking the time to undertake this important role in the selection process.

If you require any further information please email [email protected]

or contact Leanne Robinson, Senior Legal Project Manager at Legal Aid NSW on 92195672

mailto:[email protected]�

Back Up Duty Scheme for Courts serviced by a Legal Aid NSW Office Brief Outline for Referees

Practitioners appointed to the Duty Scheme will be eligible to be allocated duty back-up and urgent case work at courts where duty and case services are ordinarily provided by salaried Legal Aid NSW solicitors.

Practitioners appointed under the Duty Scheme will be eligible to be allocated duty back-up work in circumstances where salaried solicitors of Legal Aid NSW are unable to meet the demand for services at a court covered under the Duty Scheme. Practitioners allocated duty back-up work will appear for clients on behalf of Legal Aid NSW on their first appearance and for pleas of guilty, mentions, adjournments, Section 32 applications and bail applications. District Court sentence appeals dealt with on a duty basis may also be allocated under the Duty Scheme.

Practitioners appointed under the Duty Scheme will also be eligible to be allocated urgent case work including defended hearings and other matters requiring expenditure at courts covered by the Duty Scheme.


SELECTION CRITERIA Information for Referees


• Five years post-admission experience and devotion of not less than 50% of normal full-time practice to the area of criminal law in each year of the past three year period. (Preference will be given to practitioners who satisfy this criterion. However, in areas where there are insufficient numbers of practitioners who meet this criterion, Expressions of Interest from practitioners who do not meet the criterion may be considered. Practitioners who do not meet the criterion may be appointed in these circumstances if the Selection Committee is satisfied that, given their level of experience and knowledge, they will be able to competently perform the work allocated through the Duty Scheme. Conditions of supervision may be imposed in these circumstances.)

• Extensive knowledge of criminal law

• Experience in the conduct of criminal duty list work in the Local Court

• Demonstrated experience representing legal aid clients in Courts

• Knowledge of criminal law as it applies to children and experience as an

advocate in Children's Court criminal matters. (Practitioners seeking appointment to Gosford, Newcastle, Sydney Central, Sydney West, Sydney South and South-West and Wollongong areas only need not address this criterion.)

• Experience in the conduct of sentence appeals in the District Court

• Proven experience to provide quality advice and representation in a high volume work environment

• Nominate the area(s) in which the practitioner would be willing to perform duty

back-up and urgent case work. (If practitioners wish to nominate more than one area they should list the areas in order of preference for appointment.) Coffs Harbour – to be allocated work from Coffs Harbour, Macksville and Bellingen Local and Children's Courts and Coffs Harbour District Court Dubbo – to be allocated work from Dubbo, Wellington, Gilgandra, Narromine and Peak Hill Local and Children's Courts and Dubbo District Court Warren – to be allocated work from Warren Local and Children's Courts Mudgee – to be allocated work from Mudgee Local and Children's Courts

Coonabarabran – to be allocated work from Coonabarabran Local and Children's Courts Gosford – to be allocated work from Gosford, Wyong and Woy Woy Local Courts and Gosford District Court Lismore – to be allocated work from Lismore, Casino and Kyogle Local and Children's Courts and Lismore District Court Ballina – to be allocated work from Ballina and Byron Bay Local and Children's Courts Newcastle – to be allocated work from Newcastle, Belmont and Toronto Local Courts and Newcastle District Court Orange – to be allocated work from Orange and Blayney Local and Children's Courts and Orange District Court Bathurst – to be allocated work from Bathurst Local, Children's and District Courts Parkes – to be allocated work from Parkes and Forbes Local and Children's Courts and Parkes District Court Sydney Central – to be allocated work from Central, Downing Centre, Balmain, Newtown, Waverley, Burwood, Manly and North Sydney Local Courts and Sydney District Court Sydney West – to be allocated work from Parramatta, Ryde, Blacktown, Penrith and Mt Druitt Local Courts and Parramatta and Penrith District Courts Sydney South and South-West – to be allocated work from Bankstown, Fairfield, Liverpool, Campbelltown, Sutherland and Kogarah Local Courts and Campbelltown District Court


• Ability to provide a responsive service to the needs of Legal Aid NSW and its

clients within the area(s) to which appointment is sought. (In order to satisfy this requirement it would generally be expected that the principal place of business of the practitioner would be located within or in reasonably close proximity to the relevant area).

• Ability to identify and address the legal issues faced by people: with mental illness and/or disabilities who are socially and economically disadvantaged from wide-ranging culturally diverse backgrounds

• Excellent interpersonal skills, including the ability to understand and effectively communicate with people from a wide range of backgrounds including clients and other professionals


documents, correspondence, submissions and other written materials

• Excellent file management skills, including making file notes, accurate recording of client instructions and recording court outcomes

• Knowledge of Legal Aid NSW policies and procedures to determine

applications of legal aid on a duty basis and advise clients about eligibility; or the capacity to rapidly acquire such knowledge

• Willingness and ability to comply with Legal Aid NSW policies, guidelines,

reporting and administrative requirements

• In addition to information provided by referees, the selection committee may request and take into account information from employees of Legal Aid who are in a position to attest to the practitioner's demonstrated ability to meet the above selection criteria.

Back Up Duty Scheme for Courts

serviced by a Legal Aid NSW Office

GUIDELINES These Guidelines outline the Duty Scheme relating to the involvement of private practitioners in criminal duty back-up and urgent case work in courts serviced by a Legal Aid NSW Office. Salaried solicitors of Legal Aid NSW undertake the majority of duty and case matters at the courts covered by the Duty Scheme.

Practitioners appointed to the Duty Scheme are eligible to be allocated duty back up work in circumstances where salaried solicitors of Legal Aid NSW are unable to meet the demand for services at a court covered by the Duty Scheme. Practitioners allocated duty back-up work in the Local Court appear for clients on behalf of Legal Aid NSW on their first appearance and for pleas of guilty, mentions, adjournments, Section 32 applications, annulment applications and bail applications (subject to a Means Test when applicable).

Practitioners appointed to the Duty Scheme are also eligible to be allocated urgent case work including defended hearings and other matters requiring expenditure at Courts covered by the Duty Scheme. Practitioners appointed to the Duty Scheme are also eligible to be allocated District Court sentence appeal matters that can be dealt with on a duty basis.

Legal Aid NSW has established the following guidelines relating to the provision of the Back Up Duty Scheme for Courts serviced by a Legal Aid NSW Office (the Duty Scheme): Courts covered by the Duty Scheme The Duty Scheme will apply to courts in the following areas:

Coffs Harbour – to be allocated work from Coffs Harbour, Macksville and Bellingen Local and Children's Courts and Coffs Harbour District Court Dubbo – to be allocated work from Dubbo, Wellington, Gilgandra, Narromine and Peak Hill Local and Children's Courts and Dubbo District Court Warren – to be allocated work from Warren Local and Children's Courts Mudgee – to be allocated work from Mudgee Local and Children's Courts Coonabarabran – to be allocated work from Coonabarabran Local and Children's Courts Gosford – to be allocated work from Gosford, Wyong and Woy Woy Local Courts and Gosford District Court Lismore – to be allocated work from Lismore, Casino and Kyogle Local and Children's Courts and Lismore District Court Ballina – to be allocated work from Ballina and Byron Bay Local and Children's Courts Newcastle – to be allocated work from Newcastle, Belmont and Toronto Local Courts and Newcastle District Court Orange – to be allocated work from Orange and Blayney Local and Children's Courts and Orange District Court Bathurst – to be allocated work from Bathurst Local, Children's and District Courts Parkes – to be allocated work from Parkes and Forbes Local and Children's Courts and Parkes District Court Sydney Central – to be allocated work from Central, Downing Centre, Balmain, Newtown, Waverley, Burwood, Manly and North Sydney Local Courts and Sydney District Court Sydney West – to be allocated work from Parramatta, Ryde, Blacktown, Penrith and Mt Druitt Local Courts and Parramatta and Penrith District Courts Sydney South and South-West – to be allocated work from Bankstown, Fairfield, Liverpool, Campbelltown, Sutherland and Kogarah Local Courts and Campbelltown District Court


Practitioners will be required to nominate the area(s) in which they would be prepared to be allocated duty back-up and urgent case work and must be able to satisfy Legal Aid NSW that they can provide a responsive service to the courts in the nominated area(s). Practitioners will be expected to accept work at all courts in the area(s) in which they nominate and are appointed. Initial Appointment to the Duty Scheme Practitioners will be appointed to the Duty Scheme by the Legal Aid NSW Executive Director, Crime or his delegate. Practitioners wishing to be considered for appointment under the Duty Scheme may submit an Expression of Interest when called for by Legal Aid NSW. To be eligible for appointment under the Duty Scheme, practitioners must be appointed to the Legal Aid NSW General Crime Panel and satisfy certain other selection criteria nominated by Legal Aid NSW and set out below. Expressions of Interest will be considered by a Selection Committee consisting of a nominee of the Legal Aid NSW Executive Director Crime, a nominee of the Legal Aid NSW Executive Director Grants and Community Partnerships, a nominee of the Law Society of NSW and a nominee of the NSW Bar Association. The Selection Committee will make recommendations to the Executive Director Crime or his delegate. The Selection Committee will meet as required to consider Expressions of Interest. Practitioners who are assessed as most suitably qualified for appointment will be appointed to the Duty Scheme in one, or more than one, area. The appointment of practitioners to the Duty Scheme, and to a particular area or areas, will be dependent upon the number of suitably qualified practitioners seeking appointment and the demand for the provision of duty back-up and urgent case work in each area, as determined by Legal Aid NSW. The number of practitioners appointed to each area will be limited and will be determined by Legal Aid NSW. An individual practitioner, rather than a firm of practitioners, will be appointed to the Duty Scheme. Only those individual practitioners appointed will be eligible to perform work allocated under the Duty Scheme. Duration of Appointment Practitioners will be appointed under the Duty Scheme until the next Review of Appointments is conducted, or earlier if the practitioner is removed from the Scheme.

Review of Appointments to the Duty Scheme A Review of Appointments to the Duty Scheme will be conducted every 12 months or as deemed appropriate by Legal Aid NSW. The Review will be conducted by a Selection Committee consisting of a nominee of the Legal Aid NSW Executive Director Crime, a nominee of the Legal Aid NSW Executive Director Grants and Community Partnerships, a nominee of the Law Society of NSW and a nominee of the NSW Bar Association. The Selection Committee will make recommendations to the Executive Director Crime or his delegate. Prior to any Review of Appointments being conducted, Legal Aid NSW may call for new Expressions of Interest from practitioners on the NSW Legal Aid General Crime Panel who wish to be considered for appointment to the Duty Scheme. After consideration of the recommendations of the Selection Committee, the Executive Director, Crime or his delegate may:

1. Determine to re-appoint a practitioner to the Duty Scheme in one or more of the areas

2. Determine not to re-appoint a practitioner previously appointed to the Duty Scheme in one or more of the areas

3. Determine to appoint a practitioner to the Duty Scheme who has not previously been appointed in one or more of the areas.

In making recommendations to the Executive Director, Crime or his delegate, the Selection Committee may consider the following:

1. The need to increase or decrease the number of practitioners appointed to a particular area in response to the business needs of Legal Aid NSW

2. The practitioner's ability to meet or continue to meet the selection criteria for appointment or re-appointment to the Duty Scheme

3. Any non-compliance with or breach of the Service Agreement, Duty Scheme Guidelines or Legal Aid NSW General Criminal Law Standards by the practitioner.

In considering the re-appointment of a practitioner, the Selection Committee may request, and take into account, any information or opinion provided by a Solicitor in Charge/Senior Criminal Solicitor at a Legal Aid NSW office at which the practitioner has been allocated work under the Duty Scheme, relating to the practitioner's ability to continue to meet the selection criteria for re-appointment or any alleged non-compliance with or breach of the Service Agreement, Duty Scheme Guidelines or Legal Aid NSW General Criminal Law Standards by the practitioner. Where the Executive Director Crime or his delegate is intending to make a determination that a practitioner not be re-appointed to the Duty Scheme as a result of an alleged inability to continue to meet the selection criteria or an alleged non-compliance with or breach of the Service Agreement, Duty Scheme Guidelines or Legal Aid NSW General Criminal Law Standards, the practitioner will be advised of the intention not to re-appoint and the reasons for this determination and will be given an opportunity to address the issues raised. Removal from the Duty Scheme A practitioner will be removed from the Duty Scheme by the Executive Director, Crime or his delegate in the following circumstances:

1. after a Review of Appointments is conducted and a determination is made

not to re-appoint a practitioner 2. at the practitioner's request 3. for breach of the Service Agreement, Duty Scheme Guidelines or Legal Aid

NSW General Criminal Law Practice Standards. Prior to removal from the Duty Scheme for breach of the Service Agreement, Duty Scheme Guidelines or Legal Aid NSW General Criminal Law Practice Standards, the practitioner will be advised of the intention to remove and the reason for removal and will be given an opportunity to address the issues raised. Selection Criteria The following selection criteria will be considered in determining appointments and re-appointments to the Duty Scheme.


• Five years post-admission experience and devotion of not less than 50% of normal full-time practice to the area of criminal law in each year of the past three year period. (Preference will be given to practitioners who satisfy this criterion. However, in areas where there are insufficient numbers of practitioners who meet this criterion, Expressions of Interest from practitioners who do not meet the criteria may be considered. Practitioners who do not meet the criterion may be appointed in these circumstances if the Selection Committee is satisfied that, given their level of experience and knowledge, they will be able to competently perform the work allocated through the Duty Scheme. Conditions of supervision may be imposed in these circumstances.)

• Extensive knowledge of criminal law (max. 500 words)

• Experience in the conduct of criminal duty list work in the Local Court (max. 300

words)

• Demonstrated experience representing legal aid clients in Courts (max. 300 words)

• Knowledge of criminal law as it applies to children and experience as an advocate in Children's Court criminal matters. (Practitioners seeking appointment to Gosford, Newcastle, Sydney Central, Sydney West, Sydney South and South-West and Wollongong areas only need not address this criterion.) (max. 300 words)

• Experience in the conduct of sentence appeals in the District Court (max. 300 words)

• Proven experience to provide quality advice and representation in a high

volume work environment (max. 300 words)

• Nominate the area(s) in which the practitioner would be willing to perform duty back-up and urgent case work. (If practitioners wish to nominate more than one area they should list the areas in order of preference for appointment)

Coffs Harbour – to be allocated work from Coffs Harbour, Macksville and Bellingen Local and Children's Courts and Coffs Harbour District Court Dubbo – to be allocated work from Dubbo, Wellington, Gilgandra, Narromine and Peak Hill Local and Children's Courts and Dubbo District Court Warren – to be allocated work from Warren Local and Children's Courts Mudgee – to be allocated work from Mudgee Local and Children's Courts Coonabarabran – to be allocated work from Coonabarabran Local and Children's Courts Gosford – to be allocated work from Gosford, Wyong and Woy Woy Local Courts and Gosford District Court Lismore – to be allocated work from Lismore, Casino and Kyogle Local and Children's Courts and Lismore District Court Ballina – to be allocated work from Ballina and Byron Bay Local and Children's Courts Newcastle – to be allocated work from Newcastle, Belmont and Toronto Local Courts and Newcastle District Court Orange – to be allocated work from Orange and Blayney Local and Children's Courts and Orange District Court Bathurst – to be allocated work from Bathurst Local, Children's and District Courts Parkes – to be allocated work from Parkes and Forbes Local and Children's Courts and Parkes District Court Sydney Central – to be allocated work from Central, Downing Centre, Balmain, Newtown, Waverley, Burwood, Manly and North Sydney Local Courts and Sydney District Court Sydney West – to be allocated work from Parramatta, Ryde, Blacktown, Penrith and Mt Druitt Local Courts and Parramatta and Penrith District Courts Sydney South and South-West – to be allocated work from Bankstown, Fairfield, Liverpool, Campbelltown, Sutherland and Kogarah Local Courts and Campbelltown District Court

Tamworth – to be allocated work from Tamworth and Quirindi Local and Children's Courts and Tamworth District Court Wagga Wagga – to be allocated work from Wagga Wagga Local, Children's and District Courts Albury – to be allocated work from Albury Local, Children's and District Courts

Wollongong – to be allocated work from Wollongong, Albion Park and Port Kembla Local Courts and Wollongong District Court.

• Ability to provide a responsive service to the needs of Legal Aid NSW and its clients within the area(s) to which appointment is sought. (In order to satisfy this requirement it would generally be expected that the principal place of business of the practitioner would be located within or in reasonably close proximity to the relevant area). (max. 300 words)

• Ability to identify and address the legal issues faced by people:

d) with mental illness and/or disabilities e) who are socially and economically disadvantaged f) from wide-ranging culturally diverse backgrounds (max. 300 words)

• Excellent interpersonal skills, including the ability to understand and

effectively communicate with people from a wide range of backgrounds including clients and other professionals (max. 300 words)


documents, correspondence, submissions and other written materials (max. 300 words)

• Excellent file management skills, including making file notes, accurate

recording of client instructions and recording court outcomes (max. 300 words)

• Knowledge of Legal Aid NSW policies and procedures to determine applications of legal aid on a duty basis and advise clients about eligibility; or the capacity to rapidly acquire such knowledge (max. 300 words)

• Willingness and ability to comply with Legal Aid NSW policies, guidelines, reporting and administrative requirements (max. 300 words)

• Practitioners should also provide the name and contact details (including telephone number and email address) of two referees who can attest to the practitioner's demonstrated ability to meet the above selection criteria. The comments and opinions of referees will be taken into account in the assessment of the Expression of Interest.

Nominated referees should be independent. They should not be employed by or have a commercial interest in the firm where the practitioner is currently employed. Judicial officers should not be given as referees.

Referees may be asked to provide information about their direct knowledge of a practitioner's skills and experience and their opinion as to whether or not the practitioner is a suitable person for appointment to the Duty Scheme and the reasons for their opinion. They may also be asked to give their opinion about the extent to which the practitioner meets the selection criteria.

• In addition to information provided by referees, the selection committee may request and take into account information from employees of Legal Aid who are in a position to attest to the practitioner's demonstrated ability to meet the above selection criteria.

Travel Travel will not be paid to practitioners attending court to perform work allocated under the Duty Scheme. Allocation of work Salaried solicitors of Legal Aid NSW undertake the majority of the duty and case matters at the Courts covered by the Duty Scheme. The amount of legal aid duty back-up and urgent case work which is available for private practitioners is limited and is dependent upon the capacity of the salaried solicitors to meet the demand for legal aid services. This capacity can vary over time, and from court to court. Appointment to the Duty Scheme does not confer an entitlement to work.

Legal Aid NSW is, however, committed to ensuring a fair and reasonable distribution of work amongst practitioners appointed to the Duty Scheme in each area. Unless exceptional circumstances exist, offers of work will be made by Legal Aid NSW offices in sequence to each of the practitioners appointed to the Duty Scheme in the area applicable to the court serviced by that office.

It is the responsibility of the Solicitor in Charge or Senior Criminal Solicitor at each regional office or criminal law section to ensure the fair and reasonable distribution of work allocated under the Duty Scheme. Role of the Practitioner

1. When required to perform duty back-up work, a practitioner must arrive at court at 9 am, or at such other time as requested by Legal Aid NSW.

2. A practitioner must attend court as arranged with Legal Aid NSW. If unable to do so, a practitioner must advise the office of Legal Aid NSW which services the court at which the work was to be performed as soon as possible.

3. A practitioner performing duty back-up work must represent all clients who

qualify for legal aid in the following matters:

• Pleas of guilty and sentence matters in summary State and Commonwealth charge matters and indictable charge matters which may be dealt with summarily

• Bail applications, bail variations and breaches of bail (NB. The Means test does not apply to defendants in custody for the first appearance in bail applications)

• Mentions and adjournments • Section 32 applications • District Court sentence appeals that can be dealt with on a duty basis

4. A practitioner should not set a matter down for hearing unless the defendant

has a grant of aid to run a defended hearing.

5. If a salaried Legal Aid NSW solicitor is available to be contacted, a practitioner performing duty back-up work should not commit Legal Aid NSW to a course which will require the expenditure of funds unless that course has

been discussed with and approved by the salaried solicitor. Where it is not possible to contact a salaried solicitor, the practitioner should indicate to the court that the course proposed is subject to a grant of legal aid being approved for that purpose.

6. A practitioner performing duty back-up work who adjourns a matter for representations to be made to the police should draft the representations during the course of or at the end of the duty day and provide that draft to the relevant Legal Aid NSW office.

7. Duty as if to private client.

Although a practitioner performing duty back-up work is not acting for a defendant on a continuous basis, the practitioner has the same duties towards the defendant as would apply to a private client under the normal practitioner-client relationship. If a practitioner believes he/she is unable to act for the defendant for ethical reasons, the practitioner should seek instructions in relation to an adjournment or refer the defendant to another practitioner performing duty work at the court on the day.

8. Defended hearings and committals

A practitioner performing duty work should not ordinarily appear in defended hearings or committal proceedings.

9. In first contact duty matters (ie. matters where a Legal Aid file does not already exist), a practitioner should ensure that each client fully completes and signs a Duty Legal Aid Application Form (where a client is in custody the practitioner should complete the Application form and note in the signature box that the client is in custody).

10. Verification

A practitioner should sight any verification documents the client has in his/her possession. These may include a Centrelink Pensioner Concession card, a Centrelink Statement of Benefit, a payslip and/or bank statements. The documents should be retained on file or copied if possible. If unable to be retained or copied, details of the documents sighted should be recorded on the Application form. A duty practitioner has the delegation to waive the requirement for verification in special circumstances. This should be noted on the duty form.

11. A practitioner must be familiar with, remain up to date with and adhere to

Legal Aid Policies and Means Tests Guidelines and NSW General Criminal Law Practice Standards particularly in relation to duty work and file management.

12. A practitioner appearing in Children's Court matters must be familiar with and adhere to the Legal Aid Children's Criminal Practice Standards.

13. A practitioner should return all files and applications for Legal Aid resulting

from duty back-up work to the Legal Aid NSW office servicing the court at

which the work was performed within 3 business days. All applications, regardless of whether the matter was adjourned or completed on the day, or whether the client was eligible for legal aid or not, should be returned to Legal Aid NSW. A practitioner will not be authorised to retain any matter resulting from a duty back-up appearance.

14. Duty Tax Invoices must be submitted through Grants Online as soon as

possible after the performance of duty back-up work to allow for prompt payment.

15. When requested to appear in an urgent case work matter (eg. a defended

hearing) a practitioner should only accept the assignment of work if he/she believes that he/she has adequate time to prepare the matter before the next court date.

16. A practitioner must comply with the Terms and Conditions for Use of Grants Online (as amended), which can be located on the Legal Aid NSW website.

17. A practitioner is obliged to abide by professional standards of conduct,

including behaving with courtesy and respect in their dealings with staff of Legal Aid NSW, clients, the courts, and other members of the legal profession.

General Criminal Law Practice Standards This document sets out practice standards for legal practitioners representing clients in criminal matters in the Local and District Court under a grant of legal aid or appearing as a rostered duty practitioner. These practice standards apply to in-house Legal Aid NSW solicitors and private practitioners. The Grants Division assigns grants of legal aid in Local and District Courts in NSW. Practitioners who are included on the general criminal law panel will be eligible to receive grants of legal aid. Continued inclusion on the general criminal law panel is conditional on compliance with these practice standards. Index General Principles ..................................................................................................................... 25 1. Responsibilities to Clients .................................................................................................. 25 2. Responsibilities to Legal Aid NSW ..................................................................................... 26 3. Duty Work.......................................................................................................................... 28 4. Summary Matters .............................................................................................................. 30

4.1. Defended Hearings .................................................................................................... 30 4.2. District Court Appeals ................................................................................................ 31

5. Indictable Matters .............................................................................................................. 32

5.1. Committals (for matters committed to the District Court) ............................................ 32 5.2. Briefing Counsel in District Court matters ................................................................... 34 5.3. Instructing at Trial ...................................................................................................... 36 5.4. Appearing at Sentence .............................................................................................. 36

6. File Management ............................................................................................................... 37 7. Definitions.......................................................................................................................... 37

7.1. Duty ........................................................................................................................... 37 7.2. Difficult Matters (Duty) ............................................................................................... 38 7.3. Complex Matters (Case) ............................................................................................ 38

General Principles The majority of people appearing in the Criminal Justice System are people who are disadvantaged in the legal system. Many are from disadvantaged backgrounds. It is important that practitioners representing people in criminal courts are able to communicate effectively with them. Practitioners must also have an understanding of cross-cultural issues and issues facing socially and economically disadvantaged people.

1. Responsibilities to Clients

A practitioner representing an accused person in a criminal matter will: 1.1 Provide representation in accordance with the Law Society of NSW

Professional Conduct and Practice Rules.

1.2 Assist the client in obtaining a grant of aid by providing Legal Aid NSW with all information relevant to the application.

1.3 Ensure that the client’s application for legal aid is lodged promptly with all relevant information and supporting material provided in the application form.

1.4 Ensure that any applications for further grants and requests for reconsideration and review are lodged promptly with all relevant information and supporting material to enable a decision to be made without delay.

1.5 Meet with the client as early in the process as possible, at least within 4 weeks of being advised of the grant of Aid.

1.6 Communicate with the client in a way that the client understands using language appropriate to the age, maturity, education and cultural background of the client.

1.7 Use a qualified interpreter whenever necessary.

1.8 Modify or explain obscure or inappropriate language in any documents to the client.

1.9 Provide the client with the practitioner’s details.

1.10 Answer all telephone inquiries promptly.

1.11 Provide a meaningful reply to all correspondence within five working days, reply promptly to all urgent matters and advise clients that a detailed response for advice may require more time

1.12 Inform clients of their obligations in respect to the grant of legal aid.

1.13 Obtain prior instructions from the client before presenting their case in court. If there is insufficient time, the practitioner should adjourn the matter for such time as is necessary for the client to give proper instructions.

1.14 In circumstances where the practitioner is unable to meet with a client on a particular occasion, a suitably qualified agent must attend. The attendance of a person, other than the nominated solicitor is to be regarded as an

exceptional circumstance. If the nominated solicitor cannot attend by such a circumstance, every effort shall be made to inform the client and counsel beforehand.

1.15 Ensure that the client is informed of the process generally, the outcome of all Court appearances and of particular developments in their case as appropriate.

1.16 Advise the client if a possible delay in the progress of the matter becomes apparent, at the first reasonable opportunity.

1.17 Advise the client on the law, procedure and practice that applies to their case, including the charges and potential penalties, and the likely time their matter will take to be heard and completed. Before entering a plea the practitioner should have all relevant prosecution evidence including the charge sheet/court attendance notice/summons, the police facts sheet, the brief of evidence where appropriate and the client’s criminal record. The client should be fully appraised of the case against him or her.

1.18 Speak with the client immediately following a court appearance, including clients who have been remanded in custody, and confirm that the client understands the result and any orders made by the court. If it is not possible due to the lack of time because of list demands then a letter should be sent to the client informing them of the results and their effect.

1.19 Consider the appropriateness of a bail application bearing in mind the restrictions of section 30AA and 22A of the Bail Act.

1.20 Maintain continuity of representation in complex and difficult matters where possible, and if continuity cannot be maintained, explain who will represent the client on the next occasion. In appropriate circumstances representation may continue with a private solicitor appointed by legal aid from the general panel of solicitors.

1.21 Keep proper records of all conferences and attendances and maintain files in an orderly and proper manner.

1.22 Refrain from charging or recovering any money from the client except with the approval of Legal Aid NSW (see: s.41 Legal Aid Commission Act 1979)

2. Responsibilities to Legal Aid NSW

A practitioner representing an accused person in a criminal matter will: 2.1 Comply with the Agreement for the Provision of Services to Legally Assisted

Persons.

2.2 Comply with these practice standards.

2.3 Comply with the provisions of the Legal Aid Commission Act 1979 and policies pursuant to the Act.

2.4 Comply with the terms and conditions of the grant of legal aid.

2.5 Ensure that a client completes an application for legal aid and, where necessary, assist the client to do so. Ensure that any application for further grants and requests for reconsideration and review are lodged promptly with all relevant information and supporting material to enable a decision to be made without delay.

2.6 Provide to Legal Aid NSW all information to assist in determining the grant of aid including the current status of the matter, the next stage of the matter and the relevant financial information.

2.7 When requesting extensions of a grant for a further stage of proceedings, the practitioner must, in the application form advise the outcome of the previous stage.

2.8 Where discretion to waive verification of means has been exercised, such as when a person is in custody or mentally ill, this decision should be clearly marked on the application form/file.

2.9 Notify Legal Aid NSW of any matter wherein Legal Aid NSW may review, alter or terminate the client’s grant of aid. (see: s.38A Legal Aid Commission Act 1979)

2.10 Notify Legal Aid NSW immediately of any circumstances that could give rise to a claim for professional negligence and provide a detailed statement in relation to the matter.

2.11 Ensure that a client complies with any arrangements for the payment of any contribution imposed by Legal Aid NSW.

2.12 Provide the file in a matter to Legal Aid NSW where a written authority is received from a client to hand over the file.

2.13 Complete at least five CLE points each year specifically relevant to the practice of Criminal law.

2.14 Seek approval of the Grants Division for any disbursements prior to expenditure on the file.

2.15 Submit tax invoices, including disbursements, to Legal Aid NSW within 21 days of each appearance for a client.

2.16 Take steps to avoid a potential conflict of interest, not act where a conflict exists and notify Legal Aid NSW as soon as possible that a conflict exists.

2.17 Maintain files in an order that will allow the Legal Aid Professional Practices Manager, the Audit Officer or such other officer nominated by the Director of Grants to quickly and easily understand the factual basis of the matter, the client’s instructions, attendances and work undertaken in the matter, the stage the matter has reached and any further action that is required. Files well maintained will allow another practitioner, if necessary, to quickly take over the file.

2.18 Ensure all correspondence, memoranda, notes of meetings or instructions, telephone notes, copy accounts etc are attached to the file in an orderly manner.

2.19 Keep timely and accurate records of work to enable proper costing of the file by the Audit Officer in accordance with Legal Aid NSW fee scales.

2.20 Make a note on a file of any advice given to a client that is not confirmed in writing.

2.21 Review each file on completion of the matter to ensure all necessary steps have been taken before notifying the Grants Division that the matter is finalised. When submitting an account to the Grants Division provide a brief report setting out the steps involved in completion of the matter. The report should also include the result in the matter.

2.22 Maximise use of information and communications technology (including the Legal Aid NSW’s electronic lodgement facilities) in dealings with Legal Aid NSW on behalf of clients.

2.23 Timely applications for costs under the Suitors Fund Act or the Costs in Criminal Cases Act must be made where appropriate.

2.24 Where Counsel receives an offer of a direct access matter from Legal Aid NSW and the matter is not categorised as complex under 7.3, Counsel may decline to accept the assignment if, in their opinion, the matter requires an instructing solicitor.

2.25 Where Counsel receives an offer of a direct access matter from Legal Aid NSW and the matter is categorised as complex under 7.3, Counsel must decline to accept the assignment if they have not been appointed to the Specialist Barrister Panel (Complex Criminal Law).

3. Duty Work

Private practitioners should note that current Duty Solicitor Guidelines apply. The guidelines are available on the Legal Aid NSW website. Duty Work Encompasses:

• Taking instructions on first appearances and if appropriate entering a plea; • Mentioning matters; • Replying to a brief and confirming a plea where appropriate; • Bail applications; • Bail variations; • Sentence matters; • Breach matters; • Mental Health matters • S. 4 Applications • District Court Severity Appeals • Supreme Court Bail Applications.

A practitioner appearing on a duty day in a Local Court will:

3.1 Comply with the Local Court Duty Solicitor Scheme Guidelines and/or the Duty Scheme for Courts serviced by a Legal Aid office Guidelines.

3.2 Give priority to clients in custody. 3.3 Complete a legal aid application for each client who requires assistance (the

application must be fully completed with address, contact and charge details) and record the outcome of the proceedings on the duty application.

3.4 Explain to the client what a grant of legal aid means, the basis of

representation and the confidential nature of the lawyer/client relationship and need for verification.

3.5 Obtain all relevant material from the client, and where necessary the

prosecutor, including the police facts, details of bail conditions and the client’s criminal history.

3.6 Advise the client of the nature of the charge(s) and any defence(s), read the

police fact sheet to the client, advise the nature of the proceedings and their possible outcomes along with the potential effect on the client including victim’s compensation restitution if appropriate, advise on the right to make an election and the consequences of not making an election in respect of Indictable Offences listed in Table 1 of the Criminal Procedure Act 1986.

3.7 Consider whether a bail application or bail variation is necessary and obtain

full instructions in respect of the factors necessary for bail or bail variation. 3.8 Speak to the client immediately following the court appearance and confirm

the client understands the proceedings, the outcome and the requirements of any penalty imposed.

3.9 Where a client has been charged with an offence which is strictly indictable or

where an election can be made, explain the committal procedure to the client. 3.10 Ensure that the client is aware that they need to apply for legal aid and

provide verification of income in committal/District Court proceedings. 3.11 Inform the client when a matter is not completed on the first appearance that

verification of the client’s income is required. In situations where a matter has been adjourned for plea/sentence and no expenditure is anticipated, the client should be asked for verification at court (if it is more convenient) or handed a request for verification. The application form should clearly mark that verification has been sighted and details should be recorded. If a written request has been handed to the client, this should be recorded.

3.12 Where a duty solicitor appearing at a court which is not serviced by a Legal

Aid office has adjourned a matter and will not be appearing on the next return date, send client’s documents, except those categorised as difficult under 7.2, to the rostered panel practitioner for the next return date no later than two working days prior to the next court appearance.

3.13 Where a duty solicitor appearing at a court which is not serviced by a Legal

Aid office has adjourned a matter which falls into the difficult category under 7.2, and continuity cannot be maintained, send client’s documents to the rostered panel practitioner for the next return date on completion of the current court appearance and attend to any necessary follow-up work.

3.14 Duty solicitors appearing at courts not serviced by a Legal Aid office should refer any matters categorised as difficult under 7.2 to Legal Aid NSW in order to obtain a grant of legal aid to continue the conduct of the matter.

3.15 Where a duty solicitor is appearing at a court serviced by a Legal Aid office, all application forms and relevant documents should be returned to the Legal Aid office within 3 days of the duty appearance.

3.16 Advise the client remanded in custody of their rights to bail review and to

lodge a Supreme Court bail application when appropriate. 3.17 Explain appeal rights and processes, advise on prospects on appeal, assist

the client to lodge an appeal if instructed, and appear in an appeals bail application if instructed. Ensure that the client is aware that a separate application for Legal Aid for an appeal must be lodged.

3.18 Following a duty day appearance a practitioner will:

(i) Compile the client’s documents incorporating:

a. The duty application; b. A copy of the facts; c. A copy of the client’s record; d. Notes of the client’s instructions; e. Any other documents obtained from the client or the

prosecutor at court; (ii) Where it is considered appropriate, write to the client confirming the

outcome of proceedings, any future court dates, appeal rights and processes and contact details for the practitioner.

(iii) Where a matter is adjourned for the service of a brief, write to the

informant advising the address for service of the brief and the date by which the brief must be served.

(iv) Where approval has been given by Legal Aid NSW, maintain

continuity in subsequent adjournments and appearances.

4. Summary Matters

4.1. Defended Hearings A practitioner appearing in a defended hearing in the Local Court will:

4.1.1 Open and retain a file for the client with copies of the police facts, bail

conditions, criminal history and the brief. 4.1.2 Advise the client in writing if the matter has been assigned, the terms of the

grant of aid and the hearing date. 4.1.3 Obtain prior instructions from the client before presenting their case in court. If

there is insufficient time, the practitioner should adjourn the matter for such time as is necessary for the client to give proper instructions.

4.1.4 Ensure the matter is ready to proceed and that a grant of aid has been formally approved before setting it down for hearing. There should be a brief of evidence, and instructions taken on the brief of evidence. The client should have verified their income and assets before setting the matter down for hearing.

4.1.5 Advise the client on the evidence in the brief and whether there is sufficient

evidence to prove a prima facie case. 4.1.6 Advise the client of any relevant defences available to the charges faced by

the client. If the client wishes to enter a plea of guilty despite a possible defence, the practitioner should obtain signed instructions where practical.

4.1.7 Consider whether a bail application or bail variation is necessary and obtain

full instructions in respect of the factors necessary for bail or bail variation. 4.1.8 Represent the client at the hearing in accordance with the Law Society of

NSW Revised Professional Conduct and Practice Rules. 4.1.9 Appear for the client at any subsequent sentence proceedings. 4.1.10 Once a sentence or defended matter is completed in the Local Court a

practitioner will:

(i) Speak to the client immediately following the court appearance and confirm the client understands the proceedings and the outcomes.

(ii) Advise on appeal prospects and, if appropriate, take instructions on an

appeal. (iii) Assist the client in lodging an appeal. (iv) Advise the client whether legal aid is likely to be available for the appeal. (v) Assist the client to complete a legal aid application for the appeal. (vi) Take the client’s instructions on a bail application. (vii) Apply for appeal bail if instructed. (viii) Forward a copy of the notice of appeal and legal aid application to Legal Aid

NSW. (ix) Write to the client and confirm the date of the appeal and that an

application for legal aid has been lodged.

4.2. District Court Appeals A practitioner appearing in a District Court Appeal will: 4.2.1 Open and retain a file for the client with copies of the police facts, bail

conditions, criminal history, the brief and Notice of appeal. 4.2.2 Advise the client in writing if the matter has been assigned, the terms of the

grant of aid and the next court date.

4.2.3 Determine whether the appeal lodged is a conviction or sentence appeal and

whether any other Appeal or leave to appeal document needs to be lodged. 4.2.4 Consider whether a bail application or bail variation is necessary and obtain

full instructions in respect of the factors necessary for bail or bail variation. 4.2.5 Obtain instructions from the client and give advice about the law, the

likelihood of the appeal succeeding and the possibility of the sentence being increased in sentence appeal proceedings (“Parker Warning”).

4.2.6 Keep the client well informed of the progress of the matter and inform them of

any delays in the case. 4.2.7 Obtain instructions from the client about whether they are on any medications

and/or whether they have been or are being treated for any psychiatric, psychological or medical issues. Obtain approval from Legal Aid NSW to gather reports deemed appropriate for the appeal proceedings.

4.2.8 In Sentence Appeals advise the client about, and obtain, full subjective

materials for use in the Sentence Appeal. 4.2.9 In Conviction Appeals obtain all transcripts and exhibits of the Local Court

proceedings before a merit determination is made and before the Appeal is listed for hearing.

4.2.10 In Conviction Appeals provide advice on and determine whether any fresh

evidence is to be called or whether an application will be made for evidence to be given.

4.2.11 Upon finalisation of the Appeal fully advise the client in writing of the result of

the Appeal. 4.2.12 Counsel, whether Public Defender or other, is not to be briefed unless

approval has been obtained from Legal Aid NSW. Approval will be given only in exceptional circumstances.

5. Indictable Matters

5.1. Committals (for matters committed to the District Court) A practitioner appearing at a committal will: 5.1.1 Obtain instructions from the client and give advice about the law, the benefits

of an early plea of guilty, maximum penalties, whether there is a Standard Non-Parole Period, the possible defences, and the legal process and procedure.

5.1.2 Advise the client of the strengths and weaknesses of the Crown case. 5.1.3 Advise on the right to make an election and the consequences of not making

an election in respect of Indictable Offences listed in Table 1 of the Criminal Procedure Act 1986.

5.1.4 Keep the client well informed of the progress of the matter, and give realistic

advice about brief service orders, depending on the nature of the evidence the brief is expected to contain.

5.1.5 Obtain instructions from the client about whether they are being treated for

any psychiatric, psychological or medical issues, whether they are prescribed any medication, and obtain background information relating to the medical history.

5.1.6 Determine if the client has mental health issues or an intellectual disability

requiring a psychological or psychiatric assessment, and subject to obtaining approval from Legal Aid NSW, arrange such an assessment.

5.1.7 Obtain signed authorities to release copies of files from eg Justice Health, and

community health centres. 5.1.8 Consider whether a bail application or bail variation is necessary and obtain

full instructions in respect to the factors necessary for bail or bail variations.

5.1.9 Obtain signed instructions from the client if he or she intends to plead guilty. 5.1.10 Comply with any relevant Practice Note issued by the NSW Chief Magistrate

and advise the client of the benefits of an early plea of guilty 5.1.11 Determine whether to brief counsel at the committal stage, subject to the

approval of Legal Aid NSW, which can be given in exceptional circumstances. If approval is given to brief counsel at committal, the practitioner must immediately contact the clerk of the Public Defenders Office to ascertain availability. If a Public Defender is not available the practitioner must inform Legal Aid NSW, sending a copy of the Non-acceptance of Brief Form from the Public Defenders Chambers, such notice to be sent immediately after receiving advice from the Public Defenders Office that they are not available. A copy of the Non-acceptance of Brief Form from the Public Defenders Chambers must be kept on the practitioner’s file. The practitioner may then brief private counsel for the committal unless the matter is categorised as complex under 7.3. If the matter is a complex matter, the practitioner must brief a barrister appointed to the Specialist Barrister Panel (Complex Criminal Law) unless there are special circumstances under the Grants Allocation Guidelines.

5.1.12 Try to ensure wherever possible that counsel briefed at committal, whether a

Public Defender or private junior counsel, will continue to be briefed for the trial and or sentence proceedings.

5.1.13 At the conclusion of the committal proceedings, and if a Public Defender or

private counsel were not briefed, contact the clerk of the Public Defenders to ascertain the availability of a Public Defender for the Trial. The practitioner must endeavour to obtain a trial date for which a Public Defender is available. If a Public Defender is not available the practitioner must immediately inform Legal Aid NSW, sending a copy of the Non-acceptance of Brief Form from the Public Defenders Chambers before private counsel may be briefed. This notice must be sent immediately to Legal Aid NSW after receiving notice that a Public Defender is not available. A copy of the Non-acceptance of Brief Form from the Public Defenders Chambers must be kept on the practitioner’s

file. The practitioner may then brief private counsel for the trial unless the matter is categorised as complex under 7.3. If the matter is a complex matter, the practitioner must brief a barrister appointed to the Specialist Barrister Panel (Complex Criminal Law) unless there are special circumstances under the Grants Allocation Guidelines.

5.2. Briefing Counsel in District Court matters

A practitioner briefing Counsel in a criminal matter that will be heard in the District Court will:

5.2.1 If counsel is already briefed at Committal, whether Public Defender or private counsel, the same counsel should continue to be briefed for the trial. If the matter subsequently becomes a plea, approval would be required by Legal Aid NSW to continue to brief counsel for the sentence proceedings.

5.2.2 If the practitioner was assigned the matter for the committal proceedings and

counsel was not briefed, contact the Clerk to the Public Defenders Chambers at the conclusion of the committal proceedings to ascertain availability. If a Public Defender is not available the practitioner must inform Legal Aid NSW, sending a copy of the Non-acceptance of Brief Form from the Public Defenders Chambers. This form must be sent immediately to Legal Aid NSW after receiving notice that the Public Defender is not available. A copy of the Non-acceptance of Brief Form from the Public Defenders Chambers must be kept on the practitioner’s file. The practitioner may then brief private counsel for the trial unless the matter is categorised as complex under 7.3. If the matter is a complex matter, the practitioner must brief a barrister appointed to the Specialist Barrister Panel (Complex Criminal Law) unless there are special circumstances as determined under the Grants Allocation Guidelines.

5.2.3 If the practitioner was not assigned the matter for the committal proceedings,

contact Clerk to the Public Defenders Chambers immediately following receipt of the assignment letter to ascertain availability. If a Public Defender is not available the practitioner must inform Legal Aid NSW, sending a copy of the Non-acceptance of Brief Form from the Public Defenders Chambers. This form must be sent immediately to Legal Aid NSW after receiving notice that the Public Defender is not available. A copy of the Non-acceptance of Brief Form from the Public Defenders Chambers must be kept on the practitioner’s file. The practitioner may then brief private counsel for the trial unless the matter is categorised as complex under 7.3. If the matter is a complex matter, the practitioner must brief a barrister appointed to the Specialist Barrister Panel (Complex Criminal Law) unless there are special circumstances as determined under the Grants Allocation Guidelines.

5.2.4 If counsel was not briefed at committal and the matter is committed for

sentence, approval must be sought from Legal Aid to brief counsel for the sentence proceedings. Approval will be given only in exceptional circumstances.

5.2.5 Where it is deemed appropriate by the Executive Director of the Criminal Law Division, Legal Aid NSW may require an “in-house” advocate to be briefed instead of private counsel.

5.2.6 Promptly provide briefs and instructions to Counsel or “in-house” Advocates employed by Legal Aid NSW in writing, including where practicable, the following legible documents:

(i) A back sheet;

(ii) Where appropriate, when private Counsel is briefed, a lump sum fee agreement between the practitioner and counsel. (Lump sum fee agreements in some matters may be settled by Legal Aid NSW, where Legal Aid NSW deems it desirable for the cost effective management of the matter.);

(iii) an index of documents contained in the brief;

(iv) observations on the facts to Counsel sufficient to assist counsel in appreciating the issues, and the background of the matter;

(v) such other observations as the practitioner may regard as being useful to counsel;

(vi) an indictment;

(vii) client’s instructions; it is recommended that practitioners use Legal Aid NSW standard instructions for trial available under “Panels Information” on the Legal Aid Website; criminal history of the client;

(viii) medical and expert reports;

(ix) statements of Crown witnesses in chronological order;

(x) statements of defence witnesses;

(xi) transcript of Local Court proceedings if available; and

(xii) copies of any subpoenas issued.

5.2.7 Ensure that the original brief along with any additional material served throughout the proceedings are sent to counsel as soon as they are received.

5.2.8 Where counsel is briefed, he or she should have the first opportunity to advise the client on plea. A practitioner should have regard to counsel’s advice on the propriety of accepting the client’s instructions as to plea and should settle the terms of any document which records the client's signed instruction to plead guilty.

5.2.9 Ensure Counsel advises the client as to the benefits of an early plea pursuant to s22 of Crimes (Sentencing Procedure) Act 1999 and any other relevant legislation and case law.

5.2.10 Consider whether to negotiate with the DPP on a different or a lesser charge, in full satisfaction of any indictment.

5.2.11 Unless with the consent of Counsel, the practitioner must be in attendance at all conferences and court proceedings.

5.2.12 Unless with the prior written consent of the client, the written consent of Counsel and the written consent of Legal Aid NSW, clerks are not to be used by the practitioner for the purposes of instructing Counsel. The practitioner agrees to accept responsibility for the actions of employees, support staff and others in relation to the conduct of legally aided matters assigned to the Practitioner.

5.2.13 Ensure Counsel certifies on their fee note to Legal Aid NSW that Counsel was instructed in the hearing, the dates on which they were instructed, and by whom they were instructed for each of those dates.

5.3. Instructing at Trial

5.3.1 Order a transcript of trial proceedings on the prescribed application. Legal Aid NSW will not fund the cost of obtaining the transcript. Practitioners can make an application to the Court Reporting Service for the transcript by way of a brief letter setting out the fact that the accused is indigent, legally aided and that a transcript is necessary to prevent procedural unfairness.

5.3.2 Take proper notes, and record exhibits so that those exhibits can be easily identified, when required.

5.3.3 Provide Counsel with copies of witnesses’ statements, when Counsel is cross-examining.

5.4. Appearing at Sentence

A practitioner appearing in a sentence matter in the District Court following a conviction at trial or a plea of guilty (at committal, arraignment or trial) will:

5.4.1 Obtain prior instructions from the client and where a plea of guilty has been entered, have the client read and sign the instructions to plead guilty, and the agreed facts before presenting their case in court.

5.4.2 Advise the client on the law, procedure and practice that apply to their case, including the charges and the potential penalties.

5.4.3 Consider whether it is relevant or necessary to have any matters placed on a Form 1 and taken into consideration on sentence.

5.4.4 Consider whether a Pre-Sentence Report will be beneficial or useful. In deciding this issue, consider the client’s criminal record, any previous breaches of parole, bond, and community service orders. Consider the current offence and whether a non-custodial sentence is likely or possible.

5.4.5 Determine what material needs to be tendered on sentence on behalf of the client to enable you to present subjective material on sentence, including medical history, psychiatric diagnoses, psychological assessments, drug and alcohol history, attempts at rehabilitation, family background, and immigration status. If possible, obtain past psychological or psychiatric assessments, and/or past Probation and Parole reports to determine whether this person has issues which need to be addressed. Approval must be sought and given from Legal Aid before obtaining any reports and assessments which require expenditure of legal aid funds.

5.4.6 Advise the client about the appeal process, appeal prospects and time limits for appeal. Explain the Legal Aid NSW policy and the merit advice process in respect to obtaining legal aid for an appeal against conviction and/or severity or a Crown Appeal.

6. File Management

A practitioner will ensure that: 6.1 Files must be kept in such a way that if anyone, other than the practitioner

with the conduct of the matter, assumes management of the file it is possible to easily find out what the grant of legal aid is for, what stage the proceedings are up to, what orders are in place, what current negotiations are underway, what expenditure has been incurred, and when the matter is next before the court.

6.2 All relevant attendances upon and correspondence from the Grants Division

in relation to the grant of legal aid must be kept on the file. 6.3 All correspondence received and copies of letters sent must be kept on the

file in date order. 6.4 All court documents filed, served or issued in the proceedings must be kept in

a separate bundle. 6.5 File notes must be kept of all telephone conversations in relation to the matter

with the following details: date, name of person spoken to, relevant details of the conversation.

6.6 All court attendances must be noted with the following details:

(i) Coram, (ii) DPP/Crown representative, (iii) summary of any negotiations and orders, (iv) bail status, (v) start and finish time(s) of the court attendance.

6.7 All Conferences, Views, Prison Visits and any other specific

attendances must be noted on file including at a minimum, details of the type of attendance and the date on each occasion.

6.8 All records of receipts/expenditure should be kept in a separate section of the

file and logged/paid in a timely manner.

7. Definitions 7.1. Duty For private legal practitioners, a “duty” matter is presently defined as Local Court matters including first appearances, adjournments, mentions, bail applications and pleas. “Duty” matters do not include defended hearings, matters requiring expenditure and committal hearings.

7.2. Difficult Matters (Duty) A duty matter is categorised as difficult if:

• The client has significant difficulty dealing with the legal system because of a serious

- psychiatric condition - developmental disability - intellectual disability - physical disability - drug problem

• The client is homeless; • The client is alleged to have committed a serious indictable offence; • The client may be sentenced in the District Court; • The matter involves multiple co accused; • The hearing is expected to take more than two days; • There is a real possibility of a control order or custodial sentence being

imposed. 7.3. Complex Matters (Case) A complex criminal matter under a grant of legal aid includes:

• All Supreme Court trials and pleas; • Manslaughter trials and pleas; • Matters where the maximum penalty is life imprisonment; • Matters where the trial is complex because of the nature of the charge or the

defence or where significant case management is required. For example: sex slavery, fraud or money laundering charges where there are more than 30 counts and/or the total value is more than $500,000.00. Those trials involving a number of expert witnesses and identified by the trial judge as requiring significant case management pursuant to s.141 Criminal Procedure Act 1986;

• Where the trial length is estimated at 20 days or more; • Where the brief of evidence is more than 5,000 pages; • All terrorism matters; • Matters where there are multiple complainants and/or multiple defendants in

sexual assault trials.

back up duty scheme forcourts serviced by a legal aid … · balmain, newtown, waverley, burwood,...

Documents