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LIV President's Blog 2012

LIV President's Blog 2013

Reynah Tang, LIV President 2013 on the latest issues and topics. Read and comment.

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LIV seeks to ensure fair trials by intervening in Supreme Court case

LIV seeks to ensure fair trials by intervening in Supreme Court case

On Monday, a Supreme Court judge will rule on an application that Victoria Legal Aid be ordered to provide funding for an instructing solicitor for a complex trial of a person accused of a serious offence. The LIV sought, and was granted, leave to intervene in the case. We believe this is a matter of public interest affecting the administration of justice in this state.

Application sought

The application was made under s197 of the Criminal Procedure Act 2009 . Counsel for the accused, Gavin Meredith, sought an order directing VLA to “provide legal representation to the accused necessary for the accused to receive a fair trial, including the attendance at court of an instructing solicitor for the duration of his trial. In the alternative, should that not be available, it’s sought that the trial of the accused be stayed until such time as the accused be provided with legal representation necessary for his fair trial, or further order”.

The LIV became aware of the circumstances of the trial on Monday when we were contacted by criminal defence lawyer Peter Ward who is representing the accused.

We agreed to seek leave to appear as part of our mission to "advocate justice for all" and because we believe this is a test case regarding an issue which has the potential to affect many other cases adversely impacted by the recent changes to VLA's guidelines

VLA announced in December that one of the restrictions it was introducing on grants of aid was to limit funding for solicitors to two half days per trial.

We believe that the case is important because having a solicitor to assist a barrister in a trial is not a luxury, but fundamental to a fair and just outcome.

If solicitors are not present throughout trials, delays and stays are inevitable, which will extend the length and expense involved in running trials and impact on the administration of justice.  Mr Meredith advised the Court that the length of the instant trial might double as a result of the absence of an instructing solicitor.   Further, there is an issue of "equality of arms" and its impact on the perceptions of juries, as the prosecution would continue to have an instructing solicitor and an informant to assist.

What we did

We briefed George Georgiou SC who acted pro bono with Christopher Carr on our behalf. They were instructed by Criminal Law section co-chair Sam Norton.

We argued that:

- The meaning of legal representation under s197 contemplates representation by both a solicitor and barrister at trial;

- The roles of solicitor and barrister are separate and distinct;

- Each role has specific professional obligations and a solicitor that is not present for the duration of a trial may be in breach of his or her obligations.

 Role of solicitors at trial

Mr Georgiou argued that a solicitor’s role at trial is extensive and includes:

- taking instructions from the client before and during the trial, including during the course of evidence;

- instructing counsel;

- attending conferences between counsel and the client often  during the course of trial and before and after court, often in the cells of the court;

- the taking of notes during the course of evidence, particularly during cross examination by counsel for the accused;

- assisting the client to follow the evidence and the case against them;

- assisting counsel with the marshalling of material including exhibits;

- preparing proofs of evidence to be given by witnesses or the accused;

- issuing subpoenas;

- reviewing subpoenaed or disclosed material;

- attending conferences between counsel and witnesses (including prosecution witnesses),

- researching matters of fact and law; and

- ensuring the client understands what is occurring in court and why counsel has proceeded in a certain manner. 

Each of those tasks arises both before and during the course of a trial, particularly in a complex trial.

Saul Holt SC appeared for VLA and argued that the phrase “legal representation in the trial” was open to a range of interpretations and that it was enough that a person was represented, whether or not that representation was adequate.

The judge said at the start of the hearing that there was acute public interest in the application and the ramifications it may have for the administration of criminal justice in this state.

However, to protect the accused's right to a fair trial, he granted a suppression order in respect of the accused's name and any material that could identify him. This includes the name of the trial judge.

Next steps

This is not the only significant case to deal with this issue. Earlier in the week there was an application for a stay of proceedings in a case where VLA had refused a grant for instructing solicitors. Justice Lasry today granted a stay and recognised the importance of instructing solicitors in trials.  More cases are anticipated to follow.

While the decisions in these cases are important to ensuring fair and just outcomes for the individuals concerned, there is a broader issue about the adequate funding of legal aid as part of the criminal justice system.  In this regard, the LIV is vigorously campaigning government to provide additional funds for legal aid.

The Age summarised the issues well in an editorial this week.

We have requested an injection of $10 million from the Victorian government to overcome the immediate issue of the growing deficit at VLA, which was reported at $3.1 million last financial year.

We have also approached the new Federal Attorney-General, together with the Victorian Bar, to provide additional funds in the May Federal Budget as this is a systemic and longstanding issue that requires national attention to resolve.

We look forward to the judgment on Monday and will keep our members informed of developments.

 

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Comments

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Roland Muller
I commend the LIV for its work on this issue, which plainly affects access to justice. As a practitioner who regularly appears in courts and tribunals on a wide range of proceedings (albeit not in VLA funded matters) I almost always find it of assistance to have an instructor.

Whilst the very limited funding available to VLA calls for tough decisions to be made in allocating available funds, expecting counsel to conduct complex criminal trials without an instructor for all but two half-days may well lead not only to inefficiency but also to injustice. It is also likely further to exacerbate the disparity in the quality of representation between defendants who have the resources to fund their legal representation privately and those who rely upon VLA funding. Whilst funding may be required to provide "representation" not "adequate representation", failing to provide for a paid instructor for the duration of a complex trial reduces the responsiveness and flexibility of the defendant's representation, provides practial impediments to implementing strategic aspects of the case and may consequently lead to an increase in the number of appeals where outcomes at trial are viewed by defendants as unsatisfactory.

Readers may also find the observations in R v Chaouk [2013] VSC 48 (15 February 2013) per Lasry J, (and in particular the observations as to the role of the intructing solicitor at [27] to [32]), of interest.
19/02/2013 12:02:00 AM

Classified
I currently am doing pro bono work for a client who is up for Manslaughter. My 9-5 job if you will is not in the Judicial system, rather the Writing fraternity as a Writer. This person is exclusively reliant upon Legal Aid. I am assisting both the client who is a long standing friend of mine and Legal Aid. This case happens to be in another state so all my case preparation is done via phone, email, mail and remote access. I have thus far been involved for two years. It's very cases like this that require desperately the due legal diligence that currently is lacking. Without me, my client who is my friend, would be either dead or struck out of his fair chance of a fair trial. And in this order, I serve as a Para Legal, Friend, Counselor and PA. The client is in such grief, shock, depression, anxiety and stress, that two years and going, he requires someone to remind him what day it is. I for one support any changes that assist the Legal Aid process and I for one, know how desperately it is required. 'Bout time.
17/02/2013 11:30:18 AM

Sukrit
The funding that the government provides should NOT be put into VLA, but should be given to the accused in the form of a voucher that can be redeemed at any firm of their choosing (including VLA if they prefer). This would ensure that the accused has the ability to select a solicitor they are comfortable with and also it would improve competition in the industry by allowing defendants to pick and choose.
15/02/2013 7:23:54 PM

N Yo
Why is the Law Society only now concerned about 'equality of arms'? And why only for criminal trials? If the government wants to take me to any court about anything, there is no question about funding for the judge, court staff, jury and prosecution staff. Meanwhile, I have to personally pay for lawyers or throw myself on the mercy of the state. The inequality is entrenched and longstanding across all types of cases the government elects to pursue against the individual.
15/02/2013 6:18:54 PM

Anthony Burke
Great work by the LIV. This is precisely what a law society should be doing.
15/02/2013 3:57:00 PM

KE
I think the work that is happening here is great and absolutely necessary. I note it is being done in progression of the Institutes [mission to "advocate justice for all]. In that case, I am wondering why there is a distinct lack of advocacy in regards to the media and their huge push to declare well known persons guilty prior to even being charged or going to trial ie Peter Slipper/ Craig Thompson. I am referring to all Law Societies here. Surely this is offensive to the main tenet of our legal system - innocent until proven guilty? A reason for which I expected to see all Australian law societies coming out in force to protect - but I have seen nothing...
15/02/2013 3:23:02 PM

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