Staying criminal trials in the hope that legal aid will stump-up more money ... Solicitorless in a fused world ... Too much work for barristers ... More lawyers needed for cases that are not complex
Lasry J: stay a while
IN the past week, two criminal trials have been brought to a halt in Victoria because counsel were going to be without instructing solicitors for the duration of the trials.
New Vic legal Aid regulations, aimed at reducing a $3.1 million deficit, dictate that an instructing solicitor will only be provided for two and half days of the trial.
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Last Friday, Justice Lasry's court heard that Andrew Jackson, counsel for the accused in an attempted murder case, was forced to head on down to the local magistrates court to locate his instructing solicitor.
Despite admitting that "in the context of trials in this Court, [the case] could not be regarded as complex", Lasry was hesitant to allow Jackson to continue to fly solo.
Although Lasry concluded he could not provide a remedy to the situation under s.197 of the Criminal Procedure Act, he ordered a temporary stay under the guise of an accused's right to a fair trial.
HH said proceedings would not resume until counsel has a solicitor for the entire trial.
His reasons provided an exhaustive list of tasks that differentiate a solicitor from a barrister both prior to and during the trial, including:
- The briefing of counsel, by then armed with a thorough knowledge of the case and an understanding as how a trial could or should be conducted;
- Being present at discussion concerning whether the client should plead guilty or not guilty;
- Consulting with counsel on how to most effectively cross-examine prosecution witnesses;
- Being present at all conferences with client and counsel.
Lasry was also concerned about an increased workload should a barrister have to complete "administrative tasks".
The following Monday saw Justice Terry Forrest in lock-step with Lasry, also awarding a temporary stay until an instructing solicitor could be guaranteed for the entire trial in a murder case.
He thanked Lasry for compiling the list of solicitors' duties.
The rumour-mill at the Vic Supremes has it that the Chief Justice has been calling her peers in other jurisdictions to see if the justice system still works with only one defence lawyer.
However, all this careful listing of the separate tasks of lowly solicitors seems a bit unnecessary - particularly in a jurisdiction that is technically fused, and where solicitors and barristers are supposedly interchangeable.
According to practitioners on the ground in other fused states is not unusual for serious criminals cases to be conducted with only one lawyer each side.
Ultimately, the courts have to get on with it. The accused cannot continue to languish while judges and the government squabble over legal aid funding.
The problems with legal aid have been going on since Lex and Terry were in shorts.
In Lasry's own words:
"There have been debates about legal aid funding for many years. This is the latest of them."
The profession is cheering the judiciary's brave stand to get more lawyers into court, even for cases that "could not be regarded as complex".
It's unlikey that s.197 will save the day, because it is not as though these accused do not have legal representation. The court is saying they need more legal representation.
There's an interesting chart here, showing how the Vic and NSW governments have been milking their respective public purpose funds to prop-up legal aid, while state (and Commonwealth) funding declines comparatively.
Reporter: Alix Piatek