Duty lawyers at court for criminal charges

Duty lawyer services in the Magistrates’ Court of Victoria prioritise people in custody, and people who cannot afford to pay for representation having regard to their circumstances and the seriousness of the charges.

Note: The priorities set out here do not apply to duty lawyer services in the Children’s Court or family violence matters.

People in custody

Duty lawyers will prioritise assisting accused people who have been remanded in custody and are being brought to court for the first time on that charge.

Duty lawyers will give advice and representation on the day or help the person to get legal representation either through an application for legal aid or by a referral to a private practitioner. Wherever possible they duty lawyer will appear for unrepresented persons applying for bail.

Bail applications by Aboriginal or Torres Strait Islander accused will be prioritised. If the accused has a private lawyer, the duty lawyer will contact the lawyer to ensure they are aware that their client is in custody.

No income test applies to people in custody.

Services available to others

For all other accused adults the duty lawyer service comprises:

• information – fact sheets about specific offences and what happens in court. Fact sheets are available to anyone charged with an offence.
• advice – about the law, how it applies and what happens in court. This may extend to negotiations with the prosecution. The accused needs to satisfy an income test.
• in-court advocacy – the accused must satisfy an income test and be facing a significant charge or satisfy one of the priority criteria.

Income test

An income test applies to all accused adults who are not in custody. The income test does not require the production of proof of income.

Priority criteria

For in-court advocacy duty lawyers prioritise accused adults:

• with an intellectual disability, an acquired brain injury or mental illness
• who are experiencing or at risk of homelessness
• who cannot speak, read or write well in English
• are Indigenous Australians.

Information only

While fact sheets are available to anyone, information only is provided to all adults who are facing minor charges. Minor charges are those where a fine is the most severe penalty. This would ordinarily include:

• licence restorations
• prosecutions under Domestic Animals Act 1994
• Department of Transport prosecutions for minor offences e.g. no ticket, feet on seats or smoking on a train, no evidence of concession
• minor traffic matters in which there is no punishment of imprisonment including speeding, unregistered vehicle, fail to wear a seatbelt, improper use
• public drunkenness
• applications for interlock device removal
• agency prosecutions by the Victorian Taxi Directorate, Australian Taxation Office, or Department of Primary Industries – Fishing and Aquaculture (with the exception of abalone poaching or commercial fishing)
• traffic infringements where a client has elected to take the matter to court.

For a full list of the information available to give to clients see the summary crime fact sheets for clients.

Advice only

Advice only is provided to adults facing a straightforward charge who do not meet the priority criteria and satisfy an income test.

Straightforward charge

A straightforward charge is one where the legal issues are narrow and the penalties are likely to be low level fines and/or loss of licence. This would ordinarily include:

• careless driving
• infringement matters (no section 160(2) or (3) application)
• other low-level driving offences such as forge/alter registration/number plate
• matters listed for diversion
• unlicensed driving
• hinder police (no assault)
• use or possess drug of dependence – small quantity of cannabis
• re-hearings
• appeals against a registrar's decision to refuse revocation
• community correction order variations (elected, with consent)
• drug driving
• first or second drink driving
• use drug of dependence
• first or second drive while disqualified or suspended
• other summary assaults
• shop theft.

The accused will be given a guide to assist them in preparing what they want to say in court.

In-court advocacy

In-court advocacy is provided if the accused satisfies an income test and:

• meets one of the priority criteria; or
• is facing a significant charge.

Significant charge

A significant charge is one where the accused is at a real risk of imprisonment, a community corrections order or a substantial fine (i.e. a total fine of more than $1500). This will require an assessment of prior convictions and can include:

• dishonesty offences other than shop theft
• fail to appear with substantive charges
• criminal damage
• aggravated burglary and burglary
• recklessly causing serious injury, intentionally causing injury, recklessly causing injury, and assault by kicking
• possess a prohibited weapon
• stalking
• threat to kill
• breach of family violence/personal safety orders
• third drink driving offence
• possess drug of dependence – other than a small quantity of cannabis
• third drive while disqualified or suspended offence.

More information

The Duty lawyer guidelines – criminal law (docx, 141.77 KB) apply to Victoria Legal Aid staff and private practitioners delivering duty lawyer services in criminal cases at Magistrates’ courts across Victoria.