Thursday, 2 May 2013

R v Chaouk [2013] VSCA 99: no funding for instructors means trials likely to be unfair

Edit: Austlii now has R v Chaouk online.

Today in R v Chaouk [2013] VSCA 99, the Court of Appeal rejected an application by the DPP to appeal Justice Lasry's decision in February to stay a murder trial until VLA agreed to fund an instructing solicitor.

The original decision was R v Chaouk [2013] VSC 48. That decision was affirmed about a week later by Justice T Forrest in MK v Legal Aid [2013] VSC 49.

Today's Court of Appeal decision is not yet on Austlii — I expect it will probably be posted tomorrow — but till then you can download R v Chaouk [2013] VSCA 99 here.

Arguably, as a refusal of leave, this creates no precedent and so the single-judge decision remains valid: Blackmore v Linton [1961] VR 374 at 380; Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 at 25; Sir Anthony Mason, 'Where now?' (1975) 49 Australian Law Journal 570 at 575.

In any event, the Court said at [17]:

In case it matters, however, we should say that, even if the Crown were permitted to advance that point for the first time on appeal, we are not at all persuaded that the judge was in error in finding that, in the circumstances of this case, a fair trial necessitated the attendance of the defence instructing solicitor at trial for each day of the trial.

And later at [31]:

For the reasons already stated, we do not consider that the judge proceeded upon wrong principle. To the contrary, his Honour’s perception of relevant law appears to us to be right. Nor do we consider that the judge took into account irrelevant considerations or failed to have regard to any relevant considerations in the course of his reasoning process. To the contrary, his Honour’s survey of the facts and relevant considerations, and in particular his Honour’s analysis of the critical importance of the role of instructing solicitor in the course of a criminal trial for a serious indictable offence, present to us as compelling. His Honour was bound to make a judgment of fact and degree. His conclusion was plainly open to him. Indeed, so far from his conclusion being so plainly unjust as to imply that his Honour must have failed properly to exercise his discretion, we find it difficult to imagine on the particular facts of this case that his Honour could properly have come to any other conclusion.

In the short term, this means the trial against Chaouk won't proceed unless VLA modifies its current grants policy, or the State government provides additional funding, or both.

The Law Institute issued a media release calling on the government to increase legal aid funding to prevent further stays, but The Age quotes Attorney-General Robert Clark as rejecting this.


Anonymous said...

The A-G's press release on the Chaouk decision included:

"It will be important for Victoria's reputation as a centre of legal excellence to see whether or not the Court of Appeal is suggesting that Victorian lawyers are incapable of running a trial without an instructing solicitor in circumstances where their interstate counterparts have been doing so successfully for many years."

This shows that not only is the Ag totally devoid of any sense of justice, he also doesn't even understand, as a matter of law, what the decision was all about. "Competency" has nothing to do with it.

Also, the AG loves to keep referring to other states as some kind of justification for the changes. He is simply wrong.

In NSW, ACT and QLD instructing solicitors are funded to instruct for the duration of a criminal trial and there is no cap on the number of days funded.

In NT instructors are funded for trials for “serious offences” and when funded there is no cap on the number of days.

It is only SA, WA, and TAS where there is no funding for instructors.

He is comparing apples with oranges and it is misleading, disingenuous, and even worse just plain moronic.

It is time the AG and VLA were brought to account for their actions.

Anonymous said...

from The Australian Newspaper:

State Attorney-General Robert Clark said the government fully supported the work of VLA in "seeking to ensure that taxpayer funds are spent wisely and targeted appropriately, and to question whether instructing solicitors are needed in all trials in Victoria when they are not needed in all trials in many other states".

No Mr Clark, not many other states, just 3 of them. And the 3 smaller states. Yes, let us look to Tasmania or even better WA as the pinnacle of a justice system. Just ask Andrew Mallard or the Mickleborough brothers...

Jeremy Gans said...

I agree that three states and half a territory aren't 'many other states'. Nor are two states and a territory or two. If these comments are correct, then there's no dominant approach to instructing solicitors in Australia.

But I don't see how comparing Vic to SA and WA (I'll concede Tas for argument's sake, but surely the territories must similarly be conceded?) is comparing apples with oranges. Every Australian jurisdiction has miscarriages of justice. NSW and Qld are scarcely poster childs on proper convictions in serious trials.

I'm curious to know whether every serious criminal trial in SA and WA is likely to be unfair (in the sense of risking is improper conviction.) If not, then what's the difference? If they are, then why aren't all the SA and Wa judges ordering stays? As a matter of comity, must they do so now?

Caen said...

Chaouk is a troubling decision in many ways. As Jeremy points out, and I agree, it raises real questions about comity with trial practice throughout the Commonwealth of Australia. Given that the decision is an exercise of common law powers and obligations to ensure a fair trial, it naturally raises real questions about the application of those common law principles to Tasmania, SA and WA. Cases like Mallard and the Mickelborough brothers are obviously terrible, but it seems difficult to assert that their troubles arose from the lack of instructing solicitors (rather than misconduct by police).

Second, Lasry J recognised that the trial was not especially complex. The decision is therefore of potentially far reaching scope. Does it establish, as a matter of principle, that a fair trial requires not only the availability of legal representation, but also the availability of an assistant for that representation? This would seem to be the implication of the process of distinguishing Milat, as the Court held that it was not a question of whether the accused was represented or competently represented, but whether there was some further requirement beyond the binary question of whether or not the accused was represented. This issue is even more apparent in MK v Legal Aid. If so, what is the scope of this decision? Does it apply to all Supreme Court trials? Or all trials on indictment? What about indictable matters determined summarily, where there is a real risk of imprisonment? Will we see trials in the County Court grind to a halt, given the well-publicised complexity that attends prosecutions for sexual offences?

Thirdly, what are the implications of this decision for self-represented accused. Scratch beneath the surface of the decision and it looks like there is a principle that modern trials for serious criminal offences are too complex for one person to handle alone. If experienced counsel cannot act to ensure a fair trial without assistance from an instructor, what hope does a self-represented accused have? Four of the matters Lasry J identified in the original decision at [31] are in the nature of consulting with counsel about trial strategy. These are matters a self-represented accused never has the benefit of, yet it is thought that mere explanation of "the rules of the game" from the judge is sufficient.

Fourthly, much of the response to the cutbacks in VLA's grants has been to call for greater funding for Legal Aid. If that is not forthcoming, other methods of ensuring the Legal Aid fund operates within its means must be considered. Should there be further cutbacks to representation in the Magistrates' Court, to ensure barristers and solicitors can be funded indictable matters? What about cutbacks to representation in child protection proceedings? Or an arbitrary quota established and a waiting list used, so as to avoid shortfalls? Or further reductions in the quantum of funds paid for legal aid matters? None of these options are desirable, but merely calling on increased legal aid funding does not address demand-side pressures on VLA and assumes that increased supply of resources to Legal Aid is both an available solution and indeed the only available solution.

It will be interesting to see if the DPP seeks special leave to appeal to the High Court, or whether VLA identifies further cutbacks in other areas. The timing of this decision and the remarks from the AG suggest that further funding in next week's Victorian budget should not be assumed.

Caen said...

Further to my previous comment, it is interesting to note the contrast in reasoning between the first instance decisions in Chaouk and MK. In MK, there is a more detailed analysis of s197 of the Criminal Procedure Act, and the power to set conditions on representation. Having concluded that there was no power under that provision, Forrest J found that on the circumstances of the case, it was a "two-person case" and that "one person, no matter how diligent or brilliant, simply cannot do to a proper standard what is expected of [the accused's counsel]" (at [46]). The reasoning in Chaouk is more far-reaching, as it focused on the value of instructing solicitors. It is that approach which naturally raises the question of what trials can, at common law, be conducted fairly without an instructing solicitor.