Criminal Legal Aid: if you’ve been charged with a crime
Criminal cases: other free legal advice
Free legal advice when you’ve been arrested: The PDLA scheme
New Zealand Bill of Rights Act 1990, s 23(1)(b) Case: [2017] NZDC 7387 Police Detention Legal Assistance Service: Operational Policy (2021)
Under the New Zealand Bill of Rights Act 1990, everyone who is detained by the police must be told of their right to talk to a lawyer. The police have to give you an opportunity to get legal advice (including doing whatever’s reasonable in that particular situation to help you speak to a lawyer).
Talk to a lawyer before answering questions!
Although it’s up to you, it’s almost always best not to say anything to the police before you’ve had the chance to talk to a lawyer.
For more about dealing with the police when they’re asking you questions, see: “Police powers”.
The Police Detention Legal Assistance (PDLA) scheme is set up so that you can talk to a lawyer for free. You should be given the opportunity to talk to a PDLA lawyer if the police:
- have arrested you, or
- are holding you under some legal power without arresting you – for example, if they’re searching you for illegal drugs or weapons (see: “Search powers”).
Ask the police, “Am I free to go?”
If they tell you you’re free to go, you can just leave.
If they tell you you’re not free to go, then you have the right to talk to a lawyer under the PDLA scheme.
Note: The PDLA scheme doesn’t cover people held by other government officials like the Customs Service or Immigration NZ – it’s only about the police.
Do I have to show I can’t afford a lawyer?
No. The PDLA is available to anyone who doesn’t have a lawyer, whether or not they can afford one.
How do I get in touch with a PDLA lawyer?
The police have a list of the names and phone numbers of PDLA lawyers who are available to be contacted day or night, free of charge. These are all experienced criminal lawyers. Ask the police to show you the list.
If you like the lawyer you spoke with through PDLA, you can usually ask to be assigned that lawyer if you later apply for Legal Aid (if that lawyer is approved to do Legal Aid work).
Will I get to talk to the PDLA lawyer face-to-face?
Almost always, the lawyer will talk to you over the phone. In some more complicated cases, the lawyer might come to you and talk to you in person.
Whether you’re talking to them over the phone or face-to-face, you have the right to talk to the lawyer in private.
What if I’m under 18?
Oranga Tamariki Act 1989, ss 215-218
Young people can use the PDLA scheme – there’s no minimum age.
If you’re under 18, and the police want to question you about an offence they suspect you’ve committed, they have to first explain that you have:
- the right to talk to a lawyer, and
- the right to see a nominated adult, which can be either a parent or another adult of your choice.
You have the right to talk privately with the lawyer and with your nominated adult.
The police also have to contact your parents or caregivers to tell them that you’re being questioned or have been arrested.
Your first day in court: Free legal advice from the Duty Lawyer
Duty Lawyers are available at the courts to give free legal help to people who have been charged with an offence and don’t have their own lawyer. Duty Lawyers can advise and represent you on the day, help you decide whether to plead guilty or not guilty, and can sometimes help you apply for bail.
Duty Lawyers are usually available only for the first day when you are in court for your case (sometimes called your “first appearance”). You can use a Duty Lawyer again if you have to go back to court for a different charge.
Do I have to show that I can’t afford a lawyer before I can use the Duty Lawyer?
No – anyone who doesn’t have their own lawyer can use a Duty Lawyer’s services.
How do I find the Duty Lawyer when I get to the Court?
When you get to court, you should let the person at the front desk know that you have arrived. You can ask their help to find a Duty Lawyer, or you can ask any other court staff. There might also be notices, posters or pamphlets at the courts telling you where to find the Duty Lawyer. If you’re in police custody, the Duty Lawyer will see you in the cells.
What information do I have to give the Duty Lawyer?
When you first talk to the Duty Lawyer, they will ask you a few questions to get to know you and understand what happened. For example, they might ask you about your side to the story, if you’ve been charged with a crime before, if you want to plead guilty or not guilty, and other information about your personal and living situation.
How to make the most of the Duty Lawyer service
To make the most of the Duty Lawyer’s services, you should get to court early so that there’s plenty of time to talk with the Duty Lawyer about your case. Usually this will mean getting to the court by 8.30am.
You should also prepare for court by writing down key information, including:
- What happened from your point of view. For example, if you’ve been charged with assault after a fight, you should include things like why and how it started, who got violent first, and whether you were just acting to defend yourself or someone else against being physically hurt.
- Your background and personal situation, including things like your income and living costs, and any things you do for your local community, like coaching children’s sports teams or mentoring younger people.
What can the Duty Lawyer help me with?
When you first talk to them, the Duty Lawyer can:
- explain to you what offence you’re charged with and how serious it is
- tell you about the usual range of sentences the courts give for the charge
- tell you if you might have a defence to the charge
- explain what happens after you plead guilty or not guilty
- explain the police diversion scheme and tell you whether you might be able to get diversion (see: “Diversion”)
- help you have your case postponed (“remanded”) until you have your own lawyer.
If it’s a minor charge and you decide to plead guilty, the courts might deal with your whole case and sentence you on that one day. In that case the Duty Lawyer can be your lawyer for the day. They can:
- tell the judge you are pleading guilty (“enter a guilty plea”)
- tell the judge about your personal situation and your point of view about the offence when the judge is deciding on a sentence for you (this is called making a “plea in mitigation” – see: “Plea in mitigation”)
- apply for a suppression order to stop your name and identifying details being made public.
If you decide to plead not guilty to the charge, the Duty Lawyer can:
- tell the judge you are pleading not guilty (“enter a not guilty plea”)
- apply for bail for you
- help you apply for Legal Aid to get a lawyer to represent you when you come back to court for trial or sentencing (see: “Criminal Legal Aid”).
Can the Duty Lawyer continue to help throughout the rest of my case?
The Duty Lawyer usually can’t represent you after the first day of your case. If you can’t afford a lawyer, you’ll need to apply for Legal Aid for a lawyer to represent you for the rest of your case.
If you want the Duty Lawyer to be your Legal Aid lawyer, you can ask for them in your application form, but this isn’t guaranteed. Duty Lawyers aren’t allowed to ask or pressure you to choose them as your preferred lawyer for Legal Aid.
Can a Duty Lawyer help me with bail applications?
Duty lawyer service: Operational policy (2021)
Duty Lawyers can assist you with straight-forward bail applications if you don’t have a lawyer. They won’t be able to help you with bail applications if:
- the starting point is that you won’t get bail, and you’d have to prove to the judge why you should get bail (this depends on what you’ve been charged with, and your previous conviction history)
- you are subject to an order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
- the judge has asked for further information before they grant bail (such as checking if your bail address is suitable), and getting that information is not possible for the Duty Lawyer to do for you on the day.
If they cannot provide further help, the Duty Lawyer will assist you to file an urgent Legal Aid application.
Duty Lawyers have limited time for each person they must help. If you make a bail application and it is refused, you cannot make another unless there is a significant change in your circumstances. Sometimes Duty Lawyers will tell you to wait in custody until you have your own lawyer who can take more time to make your bail application (see: “Bail: Being released while your case is ongoing”).
