Sunday, 17 February 2013

Instructors at trial

Edit: The judgment referred to below can now be found on AustLII (suitably redacted), as MK v Victoria Legal Aid [2013] VSC 49.

On Monday the Supreme Court will rule on an application in a murder trial for an order directing Victoria Legal Aid 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.

At issue is the new VLA funding model, discussed back here and here in December. Fees for the appearance of instructing solicitors are limited to two half-days of the trial only. This has been criticised by the Law Institute before, and they briefed their own counsel to intervene pro bono on Friday.

LIV President Reynah Tang wrote on his blog that,

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.

Reynah Tang says the amicus appearance included a submission that s 197 of the Criminal Procedure Act 2009 contemplates representation by both a solicitor and barrister at trial. That's a long bow, in my view. If that interpretation was given to s 197, without any express words to that effect, it would create widespread uncertainty, where consistency was the original aim. What should happen when a trial judge thinks that counsel is not up to the task? And how trivial does a charge need to be before an instructor isn't required?

Lasry J considered the applicability of s 197 in a similar case on Friday; R v Chaouk [2013] VSC 48. His Honour found that neither s 197(2) or (3) applied when temporarily staying a trial due to the absence of an instructing solicitor. The source of the Court's power to stay the trial came from a judge's inherent jurisdiction to prevent an unfair trial.

Lasry J [at 46]

In my opinion the absence of a solicitor in this case means that [counsel] is without a valuable resource. His workload is increased as he will also be required to do the “administrative” work and the making of arrangements. More importantly, and in the context of this increased workload, he will be required to make forensic decisions without the assistance of a solicitor, informed of the law and abreast of the evidence.

Such circumstances, in my opinion, substantially increase the likelihood of errors being made or important matters being overlooked by counsel – a risk that will not confront the prosecution. I am therefore of the view that in the circumstances as they are at present, the trial of the accused is likely to be unfair in the sense that it carries a risk of improper conviction.

I order that the further hearing of this trial be adjourned to a date to be fixed and that the trial not commence until counsel for the accused has the assistance of his instructing solicitor on a day to day basis for the duration of the trial.

The Crown remained silent on the adjournment application in Chaouk so will presumably not challenge it, and VLA's appeal rights are found in s 197, which Lasry J said wasn't applicable in these circumstances.

On its website VLA said,

In his decision this morning, Justice Lasry clearly stated that this trial was not complex.

However, he still adjourned the trial because he believes the Victorian taxpayer should have to pay for not only a solicitor to prepare the case for trial and a barrister to represent the accused during the trial but also for the instructing solicitor to sit through the trial.

In other Australian states, including South Australia, Western Australia, Tasmania and the Northern Territory, this trial would currently be going ahead. Barristers routinely run trials for accused without instructing solicitors, especially for non complex matters.

We are concerned that Justice Lasry’s decision will delay this matter, when it is ready to proceed because the accused has legal representation. We are keen for this case to proceed to avoid lengthy delays in the court system.

You can read VLA's full response here.


Anonymous said...

This situation, and specifically VLA, is totally out of control. Since this article was posted above, a second Supreme Court criminal trial has been stayed today due to the same issue of VLA not providing funding for an instructing solicitor for the duration of the trial.
After each ruling, a VLA "spokeswoman" has come out a publicly criticised, in the media, the Court's ruling. The conduct boarders on contempt.

After this morning's ruling, Nicole Rich from VLA even went as far as calling for the Director of Public Prosecutions to appeal the Ruling. That is, VLA are calling for the prosecution to Appeal against a ruling that favours the Accused person - this from the organisation who is funding the Accused man's defence!
The hypocrisy of VLA is staggering. Last week, in one of the 2 cases which have now been stayed, Mr Saul Holt SC, an in-house lawyer employed by VLA in the position of "Chief Counsel" appeared in Court instructed by a solicitor to oppose the application by the Accused for the trial to be stayed until VLA funded an instructor. How can VLA rationally justify its conduct?
It is time for some big changes at VLA and the first step is to clear out those in management who have turned VLA into a basket-case.

A cold dose of reality said...

Unfortunately the courts are going to have to wear the loss of respect for society's institutions that they have been actively responsible for promoting. We have a court system that says jail is harmful and should be discouraged, and any trial is unfair unless the accused is given a big chance of getting off, whether he do it or not. Have a look at the rididiculous new Slaveski decision out today if you want confirmation of how heavily weighted in favour of the accused this broken system is.

Oh, and we have to pay for it all.

After years of watching ordinary people being denied aid because they have (shock, horror) actually got a low income job, Legal Aid have finally decided to provide minimal assistance to serial killers, drug dealers and human traffickers. Of course lawyers (by which I include judges) are crying about that. Nobody else is.

We have had a public defence system run like a Medicare where aged pensioners can't get to see their Gp because the system is too busy providing lung transplants for smokers and IVF for the suicidal.