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LIV President's Blog 2012

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What does legal representation mean in criminal trials?

What does legal representation mean in criminal trials?

Two recent decisions in the Supreme Court (15 & 18 February 2013) by Justices Lasry and Forrest have resulted in orders staying criminal trials.

In the first decision His Honour Justice Lasry was told of a policy decision by Victoria Legal Aid to restrict the funding of an instructing solicitor to two half days irrespective of the length of the trial. It was argued that in those cases the accused would not receive a fair trial if he was deprived of his right to have his instructing solicitor present.

His Honour accepted that proposition citing 16 tasks that he identified as being within the delineated role of a solicitor. Victoria Legal Aid were invited to make submissions but declined to do so. R v Chaouk [2013] VSC 48.

The tasks identified by His Honour went well beyond what is sometimes wrongly perceived as simply providing administrative assistance to trial counsel appearing in the matter.

His Honour emphasised the important strategic role the solicitor would have in decision making during the course of the trial including cross-examination of witnesses, forensic decisions that were required to be made in the running of the trial, together with all of those other important tasks involved in the management of a complex criminal trial.

In the matter that proceeded before Justice Forrest, an application was made under s197 of the Criminal Procedure Act to direct Victoria Legal Aid to provide for the attendance of a solicitor during the running of the trial. His Honour construed the requirement to provide legal representation narrowly upholding Victoria Legal Aid’s submission that the provision of legal representation did not extend to providing both a barrister and solicitor during the course of the trial.

He interpreted legal representation as being simply the provision of an Australian Lawyer as defined by the Legal Profession Act and departed from a decision of Justice Eames in Kim’s case in which the court held that legal representation included both provision of a barrister and solicitor. Kim (Unreported. Supreme Court of Victoria, Eames J, 21 August 1997).

Legislative amendment subsequent to Kim’s Case has, on the face of it, resulted in that more narrow interpretation now being the court’s view.

Nevertheless, His Honour determined that the absence of an instructor would result in an inequality of arms between prosecution and defence. He found that the accused would be substantially prejudiced by an instructing solicitor not being present. His Honour concluded that the accused could not receive a fair trial and stayed the proceedings. MK v VLA [2013] VSC 49.

Curiously Victoria Legal Aid, having previously described Victoria Legal Aid as the largest defence criminal practice in the State, has encouraged the Director of Public Prosecutions to appeal the Court’s decision in both instances.. It is apparent that the management view of how trials are conducted is not shared by senior solicitors and the soldiers within Victoria Legal Aid.

The consequences for an accused person in any murder trial are dramatic. A sentence of life imprisonment, and that means for the term of the accused’s natural life, is at the pinnacle of the sentencing hierarchy.

Inadequate representation results in miscarriages of justice. It results in the interruption of trials. It has the capacity to completely disrupt the administration of criminal justice. It is absolutely audacious for VLA to encourage the Director of Public Prosecutions to appeal decisions of two experienced senior Supreme Court Judges in which they have formed the view that an accused person cannot receive a fair trial in the absence of an instructing solicitor. 

The situation needs to be rectified immediately.  What are your views on the role of legal representation in criminal trials?

Guest blog by: Robert Stary

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Esan Pilai
It is of the utmost essence for an accused to be defended at a level that does not prejudice their chances against the prosecution. The VLA funding cuts are just another debilitating hurdle placed in the defence's path of the ever so changing police-state of Victoria within criminal trials. A decision as this should be applauded. Well done Justice Lasry and Forrest; along with an extension of gratitude to Robert Stary for bringing these matters to our attention.
25/02/2013 11:13:59 PM

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