Duty lawyer and Help Before Court guidelines for criminal charges in the Magistrates’ Court

Services available to 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 the 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 people on bail or summons

For all other accused adults the duty lawyer service provides:

• information – by providing information to help an accused person to understand the charges they face, the process to be followed, how to represent themselves in court and where to access services, including those of a private practitioner. Information is available to anyone charged with an offence.
• advice – by a lawyer providing advice to an accused person which can, at the discretion of the lawyer, include negotiating with the prosecution (including to arrange diversion). The lawyer should also refer the person to legal and non-legal support services as appropriate. The accused must satisfy an income test and be facing a straightforward charge.
• in-court advocacy – by a lawyer providing advice to an accused person, negotiating with the prosecution (including to arrange diversion where appropriate) and representing the accused person in court on the day. The accused must satisfy an income test and be facing a significant charge or satisfy one of the priority criteria.
• grant application – by helping an accused person to complete an application for legal assistance and, if necessary, helping the person to get an adjournment for that application to be processed.

Lawyers may exercise discretion around the level of service they provide (advice or in-court advocacy) for straightforward and significant legal matters based on capability factors.

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 the duty lawyer and Help Before Court services prioritise accused adults who:

• identify as Aboriginal and/or Torres Strait Islander
• have a cognitive impairment (such as an intellectual disability, an acquired brain injury or other serious cognitive condition)
• experience of a mental health issue that significantly affects their ability to engage in the court process
• are experiencing homelessness
• cannot effectively communicate in English
• have experienced family violence (including non-partner violence) or recent trauma including being a victim of violent crime
• are non-citizens who appear to hold a temporary (including bridging) visa, or may not hold any visa (unlawful non-citizens).

Capability factors

For in-court advocacy the duty lawyer and Help Before Court services consider:

• the person’s previous experience in the Magistrates’ Court (including prior criminal history) and their understanding of the summary crime legal process
• the number of charges the person currently faces
• the person’s experience of cultural or community practices, traditions or ideas that create a power imbalance or mistrust of authorities
• the person’s English language proficiency or literacy.

Charge categories and common examples

Information only charge

Information only is provided to all adults who are facing charges where a fine is the most severe penalty.

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

Straightforward charge

A straightforward charge is one where the legal issues are narrow and the penalties are likely to be moderate fines and/or loss of licence.

Significant charge

A significant charge is more complex (including application of sentencing law) 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 aggravating circumstances.

Download the Summary Crime Duty Lawyer and Help Before Court Guidelines

The Summary Crime Duty Lawyer and Help Before Court Guidelines apply to Victoria Legal Aid staff and private practitioners delivering Help Before Court and duty lawyer services in criminal cases at Magistrates’ courts across Victoria.