General Notices

DATES TO REMEMBER

NZLS Workshops 2008

TRUST ACCOUNT PARTNER (TAP) ASSESSMENT DAYS 2008

On Assessment Days course hours are from 8.30am—5.00pm.

FLYING START COURSE DATES 2008

For further information on this, please contact the local Law Society.

Restorative Justice new offences

Otago District Law Society Conference
August 30 2008

• Justice Robertson and a panel of QCs discussing appeals with tips on winning techniques.
• Judge Becroft will address the issue of good beginnings—ways to help young offenders.
• The new New Zealand Law Society —how it will work for you. President John Marshall and CEO Christine Grice will end the day talking with members on their expectations.
• Work shop sessions will look at employment issues in restructuring, the new complaint process (and those letters of engagement), and the thorny issue of law firm incorporation.
• Over the lunch time New Practitioners will have their own forum.
• Lunch, morning and afternoon tea too.

Mini Litigation Skills Course

Over the week of 12-17 May 2008 the New Practitioners’ Forum held another Mini Litigation Skills Course.

Twelve new practitioners were given the opportunity to practice their advocacy skills and be critiqued by senior practitioners, then to run a mock defended hearing before a Judge.

The feedback to date has been that all participants found the course highly rewarding.

The course can only be run with the voluntary assistance of senior practitioners and judges.

This year senior practitioners who volunteered on the Saturday session were John Farrow, Tim Black, Bernadette Farnan, Sarah Saunderson-Warner, and Jim Large.

Len Andersen, Bernadette Farnan and Jim Guest also provided their time and expertise holding lunch time seminars on the theory of the case, the course of evidence, and leading and cross-examining witnesses.

Judge’s Smith and Macdonald gave up their Saturday afternoons to preside over the defended hearings and to offer further critique from the bench.

Our thanks to all of the above practitioners and Judges who volunteered their time.

Thanks also to Lauren Pegg and Nathan Laws for their invaluable assistance in organising the course.

Ben Nevell for
New Practitioners Forum

ODLS Rules
The following rule change was passed at the recent SGM, adding a new member to the Council.
New clause. Rule 6.2.(i)
“ A representative with a current practising certificate, appointed by the Dean of the Law Faculty of the University of Otago, who shall notify the Secretary in writing prior to the Annual General Meeting.

If a member wants a copy of the Rules, please contact the Secretary

Restorative Justice Process

Information for New Practitioners

Referring Cases

If a victim has been personally affected by an offence and if the offender pleads guilty you may refer any case that falls within the range of offences in the programme, for a restorative justice assessment. This is usually on a criminal list day.

A referral can occur after a change of plea to guilty, provided that the Court has given no indication on sentencing, and the case has not been set down for a jury trial.

You will need to request a four-week adjournment to enable a Restorative Justice assessment to be undertaken.

If you have any queries about the process please contact Moya McConnell, Restorative Justice Co-ordinator on 471-5170 or e-mail moya.mcconnell@justice.govt.nz or ask at the criminal counter for the Restorative Justice Co-ordinator.

The Process

The Restorative Justice process is purely voluntary; no one must feel coerced into taking part.

After the offender appears and pleads guilty he/she will be interviewed by the Restorative Justice Co-ordinator, for an initial assessment.

A Restorative Justice Conference is a meeting between the victim and offender and their support people.

The offender hears about the effects of his/ her actions and is given a chance to apologise and take responsibility for them. The offender can have a say in how the harm can be repaired and make an effort to resolve some of the effects of the offence.

The victim has an opportunity to tell the offender how he/she has been affected and ask questions of the offender.

Both victim and offender then work towards some outcomes of the conference. This may be an apology, reparation.

The role of counsel at a Restorative Justice Conference

Lawyers may attend conferences at the invitation of their clients. However, lawyer’s role at the conference should be generally passive. They should not advocate on behalf of their client.

If the referral does not result in a conference

If a referral does not result in a conference either the offender or the victim are not willing, or the offender is not prepared to accept responsibility, or it is not appropriate that they meet (e.g. safety issues) a memo is sent to the judge stating a conference did not take place.

If the referral results in a conference

If a conference is convened a report of the conference is given to the judge, to counsel, to prosecutions, to probation as well as victim and offender.

Court-referred Restorative Justice Pilot

For a list of the offences included in the pilot, contact the ODLS office.

EM Bail
EM bail is now up and running in Otago. For those who have clients who wish to apply for this, applications area available at court. Please note that EM bail takes a minimum of 15 working days to process. Applications are to be filed with the Registrar but can only be heard by a Judge. No applications will be accepted without the filing of the completed forms. For further information contact Steve Grieg ph 471 5030 or Diane Lowry 471 4828.

DISCLOSURE OF DEFENCE AT STATUS HEARINGS

When the concept of status hearings was sold to the profession, we were assured by the late Judge Buckton that the judges would not permit the police to use disclosures made by the defence at the status hearing. This meant difficulties in the prosecution case could be disclosed without fear that the police would use the status hearing disclosures to patch up the case against the defendant if it went to trial.

Practitioners should be warned that not all judges have accepted that position and there is no legal obligation on the police to ignore such disclosures. Any statements made by the judge presiding over the status hearing cannot bind a different district court judge if he or she is asked to consider the consequences of police use of status hearing disclosures. The High Court in Mellon v Attorney General (CIV 2002/412/000330 Dunedin Registry 11 October 2004 (Chisholm J) has held that although use by the prosecution of material advanced by the defence at the status hearing may constitute an abuse of process, the fact that an abuse of process occurs is not itself sufficient to allow any new charge to be stayed. In that case, an abuse of process was found on the facts but the new charge was allowed to provide as the defendant had not proved prejudice (the police may have discovered the problem if not pointed out at the status hearing) and therefore the defendant could not establish grounds for a stay of proceedings.

Practitioners should remember that their client has a right of silence and be very careful before making disclosures as to the defence at a status hearing. If it is considered to be for the benefit of the client to make such disclosures then it is suggested that the practitioner should first obtain a written authorisation from the client permitting the disclosure to be made and also acknowledging that the court may not prevent the prosecution making use of that disclosure in respect of the evidence it calls for the current charge or in deciding to lay a new or different charge.

(Common Law Committee)

LOCUMS

The question has been asked what work can be undertaken by an enrolled solicitor without a practising certificate, and could they act as a locum. A person who is enrolled may be employed as a "legal officer" or "law clerk", but may not undertake restricted or reserved legal work. Law firms must see that the public is not misled about the status of any person named on letterheads and publicity.

Further an enrolled solicitor without a practising certificate may take oaths provided that the taking is done on a casual or infrequent basis and without payment of a fee. They can also certify true copies and witness other documents again on a causal or infrequent basis and without payment of a fee.

It is suggested that people in this situation describe themselves as "enrolled barrister and solicitor of the High Court of New Zealand" for accuracy.

For further information please contact the ODLS office.

(Property & Business Law Committee.)

PLEAS IN MITIGATION – COUNSEL'S DUTY TO INVESTIGATE

The Council has received two similar complaints arising from situations where clients have misrepresented to counsel the true position and counsel have passed this information on to the Court in a plea in mitigation. In both situations the clients advised counsel that they were registered with Student Health for counselling for an alcohol problem.

The Student Health Counselling Service does not offer drug and alcohol counselling for those before the Court, nor does it provide reports for the Court. In both these situations, therefore the clients passed on incorrect information.

What is the duty of counsel in these circumstances to investigate the truth of statements made? First of all it is accepted that any representation made to the Court on the basis of information provided by the client is not a personal representation by counsel involved and that in neither of these cases was counsel necessarily at fault. The Court however will place greater weight on information provided if it is checked out by counsel beforehand and particularly if confirmation is provided by letter on the appropriate letterhead.

The duty of counsel to check out the facts would depend on the amount of time available and the importance of the information. It is obviously not feasible to check all facts personally (age, home situation and so on) but Council would like to remind members practising in the Criminal Court that they should encourage their clients where possible to obtain letters of confirmation.