As of Monday, justice will became a lot less accessible to thousands of Victorians.
From 1 October 2012, most people who need legal assistance in traffic matters will not receive it.
Unless a person has a pre-diagnosed disability or psychiatric condition and that person is facing a term of imprisonment, they will either be left on their own or given limited access to a duty lawyer on the morning of their hearing.
Victoria Legal Aid (VLA) has, with minimal notice and no consultation, changed the eligibility criteria for legal representation for traffic offences.
VLA describes it as a “guideline amendment”. The LIV calls it a “denial of access to justice”.
This is a fundamental change in Legal Aid philosophy. Previously, the VLA test was based on whether a person’s conviction was likely to result in a term of imprisonment, either immediate or suspended. Now, if you are charged with a traffic offence, the likelihood of a person going to jail is irrelevant.
It is, in the LIV’s view, a dereliction of the VLA’s objective which is to provide to the community improved access to justice and legal remedies pursuant to s4[c] Legal Aid Act 1978.
Let’s consider a typical case.
Grace is a 27-year-old single mum. When her children miss the school bus she drives them to school despite her licence having been suspended by a Magistrate six months earlier due to a low reading drink driving offence. She gets caught. She already has two prior convictions for driving while suspended, incurred on different occasions over the previous three years.
This time in the Magistrates’ Court will be very different to her previous two appearances, when she was provided with a lawyer funded by VLA.
This time, Grace will either have access to a duty lawyer for 10 minutes if she is lucky or instead will be given a generalised fact sheet from the court telling her the type of things she might want to say to a magistrate in an unrepresented plea hearing.
In the latter circumstance, when her case is called by the clerk, this young woman with limited education and erudition, will be left to stand on her own before the magistrate to conduct her own plea in mitigation. The magistrate will need “the patience of Job” to draw out all the relevant plea material.
Grace being unrepresented, would add, not only to the magistrate’s frustration, but also all other court users waiting to be heard. Grace will not know all of what is relevant to the magistrate; she might well be overawed by the experience.
Even with 10 minutes to talk to the duty lawyer, Grace is likely to leave gaps in her instructions.
Without question, Grace will be bewildered and frightened as she answers questions she doesn’t understand and tries to makes sense of the situation.
Forgetting to give instructions, or tell the magistrate, of her personal circumstances will harm her case and may see her unnecessarily locked up. Factors such as the fact that her son has cerebral palsy or that her elderly mother, who lives 15 minutes from home, is in her care.
If she is given a jail term, she will not have a proper understanding of her right of appeal, or how to conduct an appeal bail application.
If Grace is fortunate enough to gain access to a duty lawyer, she will be limited to only a matter of minutes to convey her circumstances to her court based representative.
Pressure on the criminal justice system
Duty lawyers are already under immense pressure to deal with a wide range of cases on a daily basis that are increasing both in number and in their level of seriousness and complexity. There will be no time or opportunity to properly investigate potential defences or to obtain plea material that may be significant in persuading a Magistrate that there is a realistic alternative to immediate imprisonment.
In Grace’s case, references as to her previous good character and personal circumstances, or medical reports from her mother’s doctor confirming her need of care and Grace’s role in that, will simply not be able to be obtained by a duty lawyer who has a queue of people waiting to see them each day.
Where a person’s liberty is at stake, it is reprehensible that they should be hurried through the system purely as a so-called cost-saving measure.
The rule of law in relation to sentencing can only function where all matters are before the court. Where resources are stretched and additional time with a client is unavailable, the court could not be considered to be abreast of all the necessary materials allowing for appropriate sentencing. The resulting injustice, particularly where a person may be unnecessarily imprisoned, is untenable.
Expected to work in this way, duty lawyers themselves may be breaching their professional obligations under the Professional Conduct and Practice Rules 2005 by not attending to the work with competence, diligence and by taking on a matter with insufficient time to do it justice. This is likely to diminish public confidence in the legal profession.
I think LIV members will agree that this “guideline amendment” doesn’t make sense.
We understand that VLA justifies the change of rules as a necessary cost saving measure. But it is a false economy. The change will result in more people charged with traffic offences being sentenced to immediate terms of imprisonment, further clogging up our already over-stretched prisons.
The Productivity Commission Report of 2012 indicates that a three to six month jail term costs Victorian taxpayers between $29,500 and $59,000.
It will also result in more appeals to the County Court and more appeal bail applications in the Magistrates’ Court. This will in turn impact on the functioning of the courts, and an increased involvement of the Office of Public Prosecutions, the cost of which will come out of the same public purse that VLA is intent on sparing.
In going ahead with the amendment, the VLA seems to be ignoring its own research. Price Waterhouse Coopers has calculated that for every $1 spent on legal aid, $1.68 is saved down the track.
The country accused charged with careless driving who has no access to public transport and loses their licence because of inadequate representation, for example, is likely to be back, charged with driving while disqualified, causing further expense to the police, courts, duty lawyer service and, if imprisoned, the state.
The LIV has written to the Attorney-General Robert Clark, chairperson of VLA Andrew Guy and managing director of VLA; Bevan Warner, imploring the VLA to suspend implementation of the new guideline so that the LIV and the Victorian Bar can together discuss these matters with VLA.
The LIV has received no positive response to these calls.
A devastating impact on criminal justice
I reiterate the main points of the correspondence with members here. The LIV submits that these changes will have a devastating result on criminal justice in the following ways:
Greater number of appeals, appeal bail applications, associated costs and court delay.
Increase in the number of people going to prison, and therefore cost to the community.
Increased pressure on duty lawyers.
Loss of confidence in VLA.
Even one of those effects makes taking these changes off the table worthwhile.
More VLA funding required
The LIV, which has enjoyed and valued a close working relationship with VLA, well appreciates the financial pressures on the largest criminal defence practice in Victoria.
In our letter to the Attorney-General, we ask – again – that the state government provide urgent additional funding to VLA to remove the need for these changes to the traffic eligibility guidelines for assistance.
For the sake of the justice system, the LIV strongly urges VLA to suspend its tightening of eligibility guidelines relating to traffic offences, at least until proper consultation can take place and alternatives can be fairly considered.
The LIV is also drafting letters that members can use to help lobby their state and federal MPs to increase their legal aid spend in the hope that the “Graces” of our community will receive a proper level of legal service.
Tell us - what do you think will be the impact of these changes?