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Case management standards—criminal law

 

Download the Criminal Law Case Management Standards(PDF, 1MB)

Introduction

These Case management standards have been prepared to assist Legal Aid Queensland staff and preferred suppliers who practice in the criminal jurisdiction.

They represent the minimum work necessary to be undertaken in representing the client. The objective of these standards is to assist officers in achieving an efficient and effective practice.

Compliance with the standards is a pre-requisite to ensuring consistency of service delivery to clients, and is therefore an important requirement of undertaking legal aid work.

These Case management standards should be read in conjunction with and not in substitution of the statute law, rules and practice directions of any courts which may issue from time to time.

Practitioners appearing as duty lawyers in the magistrates and childrens court in Queensland should also refer to LAQ’s Criminal Law Duty Lawyer Handbook for useful practical guidance.

Part A – General

A1. Initial interview

At the initial interview, the practitioner is to explain the legal process and procedure relating to the client’s matter. This should include an explanation of the criminal justice process, the client’s options in respect to their hearing and sentencing. In addition, when relevant, the nature and responsibilities of community service, fines, probation orders etc should be explained.

A2. Grant of aid

Approving Authority

The approving authority of a grant of aid is Legal Aid Queensland (LAQ). Generally, the date aid is effective is the date the application is received by LAQ. A grant of aid must exist before any work can be done on the file. The Practitioner should check the approval letter to determine the nature and appropriateness of the grant of aid. Where the grant of aid is subject to an initial contribution, the Practitioner must not commence work until appropriate arrangements for the payment of the contribution have been made with the client.

Payment

LAQ will pay the practitioner in accordance with LAQ’s set schedule of fees less the initial contribution from the client (where applicable). The schedule of fees includes the scales of fees, rules for payment of accounts and claiming guidelines provided by LAQ.

A3. Management of the client

Client information

Following approval for a grant of aid, the practitioner is to provide the client with the information contained in the Client information sheet attached as Annexure A. If the matter is urgent and it is not appropriate to send the information sheet to the client, the information sheet must be given to the client by the practitioner at the first available opportunity. An appropriate record must appear on the file.

Communications

The practitioner must communicate regularly with the client.

Bail application

The practitioner must give ongoing consideration to the client’s bail position and communicate about bail issues with the client throughout the case. Upon receipt of a bail decision, the practitioner must communicate the results to the client.

Aboriginal & Torres Strait Islander clients

The practitioner must be aware of and comply with the Best practice guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients. A copy of the Best practice guidelines is attached at Annexure B.

The practitioner must be aware of and comply with the Best practice guidelines for working with children and young people and its supporting framework. A copy of the guidelines and framework are attached at Annexures C and D.

Interpreters

The practitioner must be aware of and comply with the Guidelines for working with interpreters. A copy of the guidelines is attached at Annexure E.

Protocol

Practitioners should be aware of the existing protocol between LAQ and the Crime and Corruption Commission (CCC) regarding clients who are or have been in witness protection. A copy of the protocol is attached at Annexure F.

A4. Management of the file

Prosecution material

All relevant prosecution material must be obtained by the practitioner. In a lower court matter, examples include bench charge sheets, QP9’s, criminal history, police brief, record of interview. In a higher court matter, examples include indictment, criminal history, record of interview, depositions, police and/or committal briefs.

In cases involving child exploitation material (CEM) the practitioner must refer to the LAQ guidelines relating to the handling of CEM. The guidelines are attached in Annexure G.

Defence material

The practitioner must obtain all relevant defence material sufficient to conduct the client’s matter. The practitioner must obtain a signed, dated and witnessed copy of the client’s instructions which includes details of all charges against the client and details of how the client wishes to plead and where appropriate the reasons why. The practitioner must obtain a signed, dated and witnessed copy of the client’s statement. Any potential witness statements should be included with the client’s statement. Where appropriate, comments on depositions should be obtained.

Personal particulars record of client

A signed, dated and witnessed personal particulars statement must be obtained from the client. The type of information which it may contain include details concerning the client’s education, employment, criminal history, relevant family information and character/work references. Refer also to the Penalties and Sentences Act, Sections 11 and 12.

Bail application

The file must demonstrate, on an ongoing basis, that bail issues have been considered. If an application is to be mounted, it must comply with the requirements of Criminal Practice Rules 1999. When applying for a grant of aid for a bail application, the practitioner is required to provide sufficient information in order to enable LAQ to assess the merit of the application. Upon receipt of a bail decision, the practitioner must communicate the results to the client and note the file accordingly.

Other pending matters

The practitioner should inform the Magistrate of a nexus or link with his/her client’s cases before the higher courts.

Ex officio indictments

The practitioner must provide a Certificate of readiness to the ODPP within one month of receipt of the proposed ex officio indictment and agreed schedule of facts.

Pre trial review

Prior to the trial review, the practitioner must confer with the client, brief counsel, confer with counsel and confer with the prosecution to determine the way forward. The practitioner must be in a position to confirm conferencing and the status of considerations at the trial review where a trial date should be listed.

Electronic mentions

Where possible the practitioner should consider using out-of-court means to dispense of routine matters previously considered by mentions, i.e. electronic mentions.

Instructing agents

The practitioner must complete a higher courts memo where instructing an agent to appear at mentions in the higher courts. The practitioner must forward the completed higher courts memo to the agent by close of business on the day prior to the mention. A higher courts memo is attached at Annexure H.

Negotiation with ODPP

All submissions to the ODPP must be in writing and their quality to be such that the true issues are identified. Submissions to the ODPP should be made in a timely manner, e.g. prior to the first trial review date.

Expert witnesses

The practitioner must disclose expert evidence (such as psychological reports) to the prosecution in accordance with S.590B of the Criminal Code, where it is intended to adduce expert evidence in relation to an issue in the trial or sentence. In a sentence, contact should be made with the court to determine whether the sentencing judge requires copies of expert reports so that these can be provided to the court at least two days prior to sentencing.

Communications

The file must demonstrate on-going written and oral communication.

Finalisation

The finalised file must contain all documentation supporting the practitioner’s claim for payment rendered to LAQ.

Court procedures

The practitioner must be aware and comply with criminal practice rules and practice directions as issued by the court.

Comparative sentences database. Following completion of the matter, the practitioner is required to provide LAQ with comparative sentence information for specific serious crime matters. LAQ is the determining authority for the type of matters which should be reported.

Pro forma instruction sheet

A Pro forma instruction sheet for pleas of guilty in the lower court is attached at Annexure I.

A5. Counsel

In selecting counsel from the private bar, all reasonable endeavours should be made to:

  1. Identify female counsel in the relevant practice area;
  2. Genuinely consider engaging such counsel;
  3. Regularly monitor and review the engagement of female counsel; and
  4. Periodically report when called upon on the nature and rate of engagement of female counsel.

When applicable, briefs to counsel must contain the following:

  1. a logical and ordered index
  2. observations to counsel demonstrating legal acumen in analysis of the case and material and identifying and commenting upon relevant issues, and clear instructions to counsel
  3. copy of all relevant material
  4. the brief should be marked "Legal Aid brief" and include details of the aid available for counsel if the client is represented by an inhouse practitioner, or the LAQ pro forma invoice if the client is represented by a private practitioner.

In-house lawyers, when briefing counsel, must comply with the In-house lawyers briefing counsel policy, which can be found on the Legal Aid Queensland intranet (Legal Aid Queensland staff access only). 

A6. Completion of matter

The client is to be advised of the outcome, the penalties imposed and appeal options before the file is closed.

The practitioner should notify LAQ of the outcome of a file when submitting their final account for payment and finalising the file.

A7. Initial/final contribution

The Practitioner must ensure that the initial or final contribution has been paid or arrangements entered into for the payment of the final contribution.

A8. Appeal

The practitioner must consider potential merit for appeal. If merit is considered, the practitioner must assist the client to complete and lodge the appeal notice and the Legal Aid application form .

A9. Checklist

Should the practitioner choose to use a checklist for the file, a sample copy of a Criminal practice checklist is attached as Annexure J.

Part B – Case management standards specific to duty lawyer

B1. Duty lawyer services

Legal Aid Queensland’s duty lawyer services offer free, initial legal advice and representation to people charged with criminal and some traffic offences, who are on bail or in custody in Queensland.

B2. The duty lawyer

The duty lawyer must be a lawyer with a current practising certificate and duty lawyer accreditation approved by Legal Aid Queensland. Separate accreditation is required for magistrates and childrens courts.

B3. Arrival

Duty lawyers must arrive at the court in sufficient time to view the prosecution brief of evidence (QP9), see prospective clients, take instructions and provide advice. Duty lawyers must attend to defendants in custody and in the court precincts.

B4. Preparation

There is generally a room made available for the duty lawyer to interview clients. The duty lawyer should get a copy of the court list (if available) from the prosecutor or court staff. The duty lawyer should have access to:

  • a supply of Criminal law duty lawyer forms and Criminal law duty lawyer session reports
  • a Duty Lawyer Handbook
  • the Criminal Code
  • the Summary Offences Act 2005
  • the Bail Act 1980
  • the Penalties and Sentences Act 1992, and
  • Legal Aid Queensland application forms.

B5. Instructions

Duty lawyers should deal with clients the same day and not remand matters because the client or matter is difficult. Duty lawyers must be aware of and comply with the Criminal practice guideline: Taking instructions from clients. A copy of the guideline is attached at Annexure K.

Duty lawyers must complete a Criminal law duty lawyer form and record their client’s instructions and their advice to clients. Client instructions will depend on their decision in their matter, eg basic instructions taken on a guilty plea in a straight forward matter might include:

  • client’s version of events
  • financial and employment background
  • family and marital status
  • previous convictions
  • summary of court submissions.

Where practicable, duty lawyers should have the client sign the completed form. Where it is not practicable to obtain the client’s signature at the time of taking instructions, the following procedure should be adopted:

  1. The duty lawyer should explain to the client it is preferable the client has the opportunity to peruse the duty lawyer form and confirm by signature the client’s instructions and that an adjournment of the matter will be required for that process to occur.
  2. The duty lawyer should explain to the client that if the client wishes to waive the opportunity to peruse and sign the document so as to have their matter dealt with as soon as possible, the client’s instructions may, where practicable, need to be confirmed by other means, eg by another appropriate person witnessing the instructions.
  3. The duty lawyer should record on the duty lawyer form and have the client verbally confirm:
    1. if the instructions between the client and the duty lawyer are to be witnessed, that the client consents to the instructions being witnessed
    2. that the client wishes to have their matter dealt with as soon as possible and therefore waives the opportunity to read and sign the written record of the client's instructions
    3. the client’s instructions as to their plea.
  4. Any witness to instructions should be asked to sign the duty lawyer form as witness of the client confirming those instructions.
  5. The duty lawyer must request that the presiding magistrate ask the client how they plead to each charge, as required by s 145(1) of the Justices Act 1886, rather than having the duty lawyer enter pleas on the client’s behalf.

B6. Case conferencing

Duty lawyers for defendants can engage in case conferences with prosecution representatives to discuss issues in dispute and resolve proceedings in line with the Criminal Jurisdiction Reform Administrative Arrangement. Duty lawyers should attempt to negotiate with prosecutors, if reasonably practical and considering their service demands.

Duty lawyers can negotiate for straight forward issues such as:

  • amending, substituting or withdrawing charges
  • reaching a common agreement on the factual basis for a plea.

Due to the limitations of duty lawyer services, different duty lawyers will often appear on separate occasions for defendants. This means complex, prolonged negotiations will be impractical.

Duty lawyers should not attempt case conferencing for matters requiring complex and lengthy negotiations. These matters should be adjourned and defendants should be advised to apply for legal aid or get private legal representation.

For more information on case conferencing, read Practice Direction 9 of 2010, issued by the Chief Magistrate.

B7. Pleas and remands

Duty lawyers can enter guilty pleas, make bail applications or request remands for clients. Duty lawyers should not conduct trials or committals, or apply for extradition proceedings requiring more preparation in the time available. For more information, read the duty lawyer guidelines.

B8. Acting for co-defendants 

Duty lawyers who intend to act for co-defendants must ensure that they comply with the ethical obligation to act in the best interests of their clients. When seeking to act for two or more co-defendants, a duty lawyer must:

  • be satisfied of the requirements of Rule 11 of the Australian Solicitors Conduct Rules; and
  • have regard to the legal authorities which interpret ethical practice in relation to acting for co-accused, such as R v Pham [2017] QCA 43.

B9. Prosecutors

If it is possible to get details of clients requiring a duty lawyer, the duty lawyer should ask the prosecutor to provide a QP9 form containing an accurate summary of the offences and details of any previous convictions known to the police, so meaningful instructions can be taken from the client. Duty lawyers should check with the prosecutor the names of defendants appearing and their instructions to enter a plea or ask for a remand.

B10. Bail

For clients in custody, duty lawyers should consider applying for bail. If applying for bail, ask the prosecutor if the application will be opposed, or if they will be requesting any bail conditions. Record bail instructions on the Criminal law duty lawyer form, or if the application is refused, attach the form to the Legal aid application form.

B11. Applications for legal aid

The duty lawyer should consider if it is appropriate to take a Legal aid application form from the client. Complete the Legal aid application form and the relevant Legal Aid Queensland checklist with enough details for a Legal Aid Queensland officer to decide the application.

B12. Appearance

Announce your appearance as duty lawyer on each case. After each appearance, record the following information on the Criminal law duty lawyer form:

  • the result of the client’s plea
  • the next appearance date, the purpose of the appearance and the court location (and then give the client the original slip), and
  • the result of any bail application, and if refused, the reasons for the refusal.

B13. After court

After all appearances, the duty lawyer should consider if an application for bail should be lodged in the Supreme Court or if an appeal should be lodged as a result of any penalties imposed.

If the duty lawyer considers a Supreme Court bail application should be lodged, complete the Supreme Court bail checklist and Legal aid application form and return them to Legal Aid Queensland for processing.

If the duty lawyer considers an appeal should be made, the duty lawyer should:

  • consult and discuss this option with the client — the advice must be recorded on the Criminal law duty lawyer form
  • where possible, attend the cells/watch-house to see clients remanded in custody, and complete Legal aid application forms or legal advices as needed
  • ensure the Legal aid application form and Notice of appeal are lodged,
  • check if the client wants to proceed with the appeal and if they do, complete or arrange for a Notice of appeal and a Legal aid application form to be completed, and
  • provide any information needed to assist with any application for bail pending appeal.

B14. Administrative requirements

The duty lawyer must complete any necessary administrative work within three working days of the appearance. This includes:

  • completing the Criminal law duty lawyer session report
  • returning the Criminal law duty lawyer forms and Criminal law duty lawyer session reports to Legal Aid Queensland (this applies to duty lawyers providing services on behalf of tender firms/consortiums)
  • arranging for Legal aid application forms, bail applications and/or Notices of appeal to be processed
  • attending any follow-up work from appearances or visiting people in custody, and
  • advising the legal representatives of any legally-aided person (represented by the duty lawyer that day) of court dates and/or other relevant developments.

Part C – Case management standards specific to juvenile crime

The practitioner must be aware of and comply with the Best practice guidelines for working with children and young people and its supporting framework. A copy of the guidelines and framework are attached at Annexures C and D.

C1. Preparation

The practitioner must obtain prosecution material and take instructions from the client. The practitioner must ensure that any instructions taken from young clients are taken independently and confidentially and without the influence of the wishes expressed by parent/s or guardian/s. The practitioner must consider diversionary options such as cautions or youth justice conferences as a sentencing outcome. The practitioner should ensure that the client is advised of his/her rights of elections and rights generally. The practitioner should specifically be aware of the age of the client, particularly in relation to capacity issues, in considering a client’s defences and/or sentencing outcomes. The practitioner should liaise with the Court Services Officer from the Department of Communities for bail accommodation, previous criminal history and performance on orders.

C2. Prosecutors

The practitioner must consult with the prosecution and Court Services Officers from the Department of Communities before the commencement of any court proceedings. The practitioner must specifically consult with the Court Services Officers from the Department of Communities who prosecute breach of court orders under the Juvenile Justice Act, before the Children’s Court Magistrate.

C3. Bail

The practitioner must liaise with Family Service Officers within the detention centre and/or the Departmental officer at the Regional office, if the client is in detention. The practitioner must give ongoing consideration to the client’s bail position. In the case of clients refused bail, the practitioner should also consider seeking a conditional bail program through the Department of Communities and review the refusal of bail position at each court appearance.

C4. Communication with the parent(s) or guardian(s)

The practitioner can explain to the parent(s) or guardian(s) the nature of the charges, the court proceedings, and the consequences of those court proceedings, with the consent of the client. If counsel is briefed, the instructions to counsel should contain a reference to the presence of the parent(s) or guardian(s). Where possible, the practitioner is to advise the parent(s) or guardian(s) of all court dates and request their attendance. In the event that the parent(s) or guardian(s) cannot attend, the practitioner must take instructions as to the reason for their non-attendance.

C5. Court appearances

The practitioner must obtain the client’s signed, dated and witnessed instructions to plead guilty or to have a committal or to have a trial. The practitioner should obtain signed, dated and witnessed instructions at each stage of the proceedings, including details of advice provided to the client on the client’s rights of election and rights generally. Any potential witness statements should be included with the client’s statement. Where appropriate, comments on depositions should be obtained. The practitioner must, at the arraignment of the client, have signed instructions on the plea of guilty. The practitioner should also obtain sufficient information to advise the court whether a pre-sentence report is required.

C6. After court

The practitioner should consider, in any case, whether a sentence review/s.222 appeal or Court of Appeal Notice should be lodged. If the practitioner considers a sentence review or appeal should be made, the practitioner must consult with and discuss this option with the client. If merit is considered, the practitioner must assist the client to complete and lodge the appeal notice and the Legal Aid application form. An Application for legal aid should be forwarded to Legal Aid Queensland with sufficient information so that the merits of a sentence review/s.222 appeal or Court of Appeal Application can be assessed.

Annexures

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