Today in R v Chaouk  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  VSC 48. That decision was affirmed about a week later by Justice T Forrest in MK v Legal Aid  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  VSCA 99 here.
Arguably, as a refusal of leave, this creates no precedent and so the single-judge decision remains valid: Blackmore v Linton  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 :
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 :
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.