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General NoticesDATES TO REMEMBERNZLS Workshops & Seminars 2010
Otago Branch Dates
CLE ProgrammeOn 17 November the session on "How to avoid complaints" presented by David More and Janie Kilkelly was very well attended. In that session there was discussion on the requirement under the Lawyers and Conveyancers Act to provide clients with letters of engagement. A summary of the advice given follows:Many complaints can be avoided if you clearly define the work to be completed, the fee or method of charging for that work, and the internal complaints process in letters of engagement. There are also a lot of complaints which result because clients feel that there is undue delay or a lack of communication, a quick call, email or letter even to let the client know that there is no progress and the reason for that can avoid such complaints. Complaints can also be avoided by treating client’s, other practitioners and unrepresented litigants with courtesy, even when you are provoked. In the situation when a complaint is made ensure that a response which answers all points in the complaint is made in a timely manner. If there was an error it is always better to acknowledge that as soon as possible and apologise straight away. Good records are always beneficial. In the New Year David Littlefair will be running the seminar on Trust Account Issues which has already been presented and very well received in Oamaru, Queenstown and Invercargill. The council is intending to run another mid winter conference. The programme for this is currently being organised. If there are any topics that you would like to see covered in the local programme either as lunchtime sessions or as part of the conference, or if there are any topics you would be prepared to present a session on please let me know by e-mailing Debbie Ericsson CLE Convenor Employment Law CommitteeChanges in the Delivery of Restorative Justice ServicesAs a result of the work that has been done over the past few months by the Ministry of Justice and the Crime Prevention Unit, a number of changes are due to take place in the delivery of restorative justice services in Dunedin. Restorative Justice operates in 24 courts nationally. Up to this time there have been 20 Restorative Justice Providers funded by the Crime Prevention Unit (CPU) and 4 Providers funded by the Ministry of Justice. Two different programmes have been delivering the same services. The purpose of the Ministry and CPU review, which led to these changes, is to provide a more consistent service across all courts, to "underpin the unified restorative justice approach" nationally. These changes will have a considerable impact on Restorative Justice Otago, (RJO) and the delivery of our services. The Dunedin Court, as one of the four Courts that was part of the initial national Pilot, has had a dedicated Court Restorative Justice Coordinator. This role, most recently held by Moya McConnell, will cease to exist. From 1 July, RJO will have a presence at the court. To maintain the standard of service delivery that now exists we will need to have a strong working relationship with Lawyers, the Police – especially the Police Prosecutions Team - with the Judges, and with Court Staff than we have had previously. Another change is the removal of the restriction on the type of cases which formerly existed in Dunedin, enabling a broader type of case to be available for consideration for restorative justice.. Cases will be classified as either
The referrals continue to be only pre-sentence and Court referred. With the wider type of cases that can now be referred to restorative justice the Ministry of Justice requires RJO to attain a larger number of completed conferences, and only completed conferences will be funded. Following concerns about confidentiality, victim consent is required before their details can be released to Providers. Victim Advisors will have the role of seeking this consent from victims and passing it on to RJO for the purposes of the referral. The Ministry noted two situations where Victim Advisors will not be in a position to seek the victim's consent,
The victim-centre approach and the voluntary nature of the process are fundamental and continue to be important. Our current practice of requiring offender agreement has been extended to this being a pre-requisite before RJO can contact a victim to discuss the conference process. This change has been made to ensure victims are not offered a service that cannot proceed when an offender declines to engage in the process; or when the facilitators are concerned that a victim may be re-victimised by engaging in a meeting. The RJO team of 12 facilitators continue to be passionate about their work in the area of restorative justice and will work to maintain their consistently high level of service in this new process. Josie Dolan Coordinator, Restorative Justice Otago rjo@familycare.co.nz 027 5767450 Oral History Interviews
Judge Tom Ross Kennedy Moore Restorative Justice new offencesNew offences to be included in the range of offences that can be referred for pre-sentence restorative justice are:Summary Offences (Tagging and Graffiti Vandalism) Amendment Act 2008 s11a Graffiti Vandalism, Tagging Defacing, s11b Possessing Instruments to Create Graffiti vandalism. Summary Offences Act 1981 s11 Wilful Damage Crimes Act 1961 s269 Intentional Damage Moya McConnell Restorative Justice Co-ordinator Dunedin District Court Private Bag 1925 Dunedin 9054 Phone 471 5170 ODLS Rules 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 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. |
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