Legal Counsel

Introduction

It is appropriate for CPPS to use legal counsel when the:

• outcome of the recall hearing may be in doubt (e.g. due to differences in interpretation of the Act)
• recall is contested
• offender is represented by counsel, or
• offender has a high profile, e.g.
  • on the Offender Warning System (OWS)
  • has a high media profile, or
  • is considered a high political risk.

Instructing legal counsel

Crown solicitors are always instructed to provide legal counsel in recall applications for parolees subject to indeterminate sentences.

Note: If legal counsel is required, a request must be made to head office.  The crown solicitor will be instructed by head office to represent CPPS.

Probation officers and disclosure

Probation officers need to be professional in their dealings with counsel for the parolee, particularly in the areas of disclosure and liaison.

Providing disclosure

Provide copies of the recall application and disclose any additional affidavits to the offender???s lawyer.

When giving disclosure, ask if the offender???s counsel has anything to disclose in return. The offender???s counsel is not obliged to disclose anything unless they are filing affidavits. A request can be made that any person who has sworn an affidavit for the offender must attend the hearing as a witness to allow cross-examination.

Liaising with offender???s counsel

Be aware that anything said to the offender???s counsel could be:

• recorded by the offender???s counsel, and
• raised in cross-examination during the recall hearing.

Note: Probation officers should record in IOMS casenotes what is said in any discussions with counsel for the offender.

Disclosure to parolee

Requests may be received from the parolee, or on their behalf, for information from the parolee???s CPPS file. The parolee is entitled to this information including any IOMS casenotes. Such requests should be responded to promptly.

Consider whether any information such as names and/or contact details of informants should be withheld or deleted from the copies of material provided. Assistance may be required in relation to disclosure issues.

Disclosure can be provided to the offender or any person who has signed authority from the offender to receive the information.