Cardamone v Director of Public Prosecutions
[2017] VSC 618
•13 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 3775
IN THE MATTER of the Confiscations Act 1997
and
IN THE MATTER of an alleged offender, Michael Cardamone
BETWEEN
| MICHAEL CARDAMONE | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | First Respondent |
| and | |
| VICTORIA LEGAL AID | Second Respondent |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 October 2017 |
DATE OF RULING: | 13 October 2017 |
CASE MAY BE CITED AS: | Cardamone v DPP & anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 618 |
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PRACTICE AND PROCEDURE – Confiscation of property – Restraining order over property of the applicant – Application for provision of legal aid on appeal against sentence – Underlying purpose – Whether court to consider practical consequences - Confiscations Act 1997 (Vic), s 143.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Menegas | Patrick W Dwyer |
| For the First Respondent | Ms M Lattanzio | Director of Public Prosecutions |
| For the Second Respondent | Ms R Yemane | Victoria Legal Aid |
HIS HONOUR:
Introduction
On 30 June 2017, Michael Cardamone pleaded guilty to the murder of Karen Chetcuti, incitement to murder and breaching a prescribed condition of parole. He was sentenced to life imprisonment by Lasry J.[1]
[1]The Queen v Michael Cardamone [2017] VSC 493.
The question that has now arisen is whether this Court should, pursuant to s 143 of the Confiscations Act 1997 (Vic) (the Act), direct Victoria Legal Aid (VLA) to provide legal assistance to Mr Cardamone on his appeal against sentence.
For reasons that I will now set out, I do not think that the Court should make such an order. This does not mean, however, that Mr Cardamone should not be provided with Legal Aid if VLA takes the view that it is appropriate under the terms of the Legal Aid Act 1978 (Vic) (Legal Aid Act).
The legislation
The relevant provision of the Act is as follows:
143 Provision of legal aid
(1) If a court is satisfied at any time that—
(a)a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made in respect of property of a person and the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, is in force; and
(b)the person is in need of legal assistance in respect of any legal proceeding, whether civil or criminal, and whether in respect of a charge to which the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, relates or otherwise, because the person is unable to afford the full cost of obtaining legal assistance from a private law practice or private legal practitioner (within the meaning of the Legal Aid Act 1978) from unrestrained property or income of the person—
the court may order Victoria Legal Aid to provide legal assistance to the person, on any conditions specified by the court, and may adjourn the legal proceeding until such assistance has been provided.
(2)Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal assistance in accordance with an order made under subsection (1).
(3) If—
(a) a court makes an order under this section; and
(b)a condition of the provision of legal assistance is that the cost or part of the cost, and any interest payable on the whole or the part of the cost, to Victoria Legal Aid of providing the assistance be secured by a charge over any land or any other property in which the person has an interest; and
(c)an amount required to be paid to Victoria Legal Aid under such a condition is not paid; and
(d)the person to whom legal assistance is provided is registered as the proprietor of an estate in fee simple, either solely or as a joint tenant or a tenant in common, in land under the Transfer of Land Act 1958 or holds an estate in fee simple or an equity of redemption, either solely or as a joint tenant or a tenant in common, in land not under that Act—
Victoria Legal Aid may secure the payment of any amount which has not been paid (including any unpaid interest) and any interest which may become due and unpaid on the whole or any part of that amount by taking out a charge over that land.
(4)A charge taken out by Victoria Legal Aid is to be for the benefit of the Legal Aid Fund.
(5)Sections 47B, 47D and 47E of the Legal Aid Act 1978 apply to a charge over land referred to in this section as if it were a charge to which section 47A(2) of that Act applies.
(6)If an amount owed to Victoria Legal Aid under this section is not paid and Victoria Legal Aid is unable, by enforcing a charge to which subsection (3) applies or otherwise, to recover that amount, then the State must pay that amount to Victoria Legal Aid to the value of any property forfeited to the Minister or the amount of any penalty paid to the State (less conversion costs and any amount paid under section 31 or section 36ZB) in relation to the offence in reliance on which the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, was made and the Consolidated Fund is, to the necessary extent, appropriated accordingly.
Section 14(5) is also relevant and reads as follows:
(5)A court, in making a restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil, and whether in respect of a charge to which the restraining order relates or otherwise.
Background
On 12 January 2016, Mr Cardamone murdered Karen Chetcuti.
On 5 February 2016, a Restraining Order under s 26(1) of the Act was made by Zammit J over a property at Whorouly Road, Whorouly[2] (the restrained property) owned jointly by Mr Cardamone and his mother, Maria Cardamone.
[2]More particularly described in Certificates of Titles Volume 07107 Folio 340 and Volume 10077 Folio 825.
On 2 February 2017, I made orders by consent of the DPP and Mr Cardamone excluding the 50% interest in the restrained property of Maria Cardamone.
On 24 April 2017, Digby J ordered that VLA provide legal assistance to Mr Cardamone for his trial pursuant to s 143(1) of the Act, on the condition that the cost of legal assistance be secured by way of a charge over Mr Cardamone’s interest in the restrained property. Mr Cardamone’s trial was fixed to commence at Wangaratta on 31 July 2017. At that time Mr Cardamone intended to plead not guilty.
On 24 May 2017, I varied the restraining order so that the restrained property could be sold. I ordered that the funds from the sale of Mr Cardamone’s interest (after deduction of expenses and loan repayment) be paid to the Asset Confiscation Office (ACO).
Those orders have now been effected. The bottom line is that the ACO holds $149,000 (plus interest) as a result of the sale.
On 30 June 2017, Mr Cardamone entered a plea of guilty to three charges: murder, incitement to murder and breaching a condition of parole. On 25 August 2017 Lasry J sentenced Mr Cardamone on the charge of murder to life imprisonment, on the charge of incitement to 8 years imprisonment and the charge of breach of a condition of parole to 3 months imprisonment. No minimum period to be served after which he would be eligible for parole.[3]
[3][2017] VSC 493 (25 August 2017), [90]-[101]; Sentencing Act 1991 (Vic), s 11(1).
Mr Cardamone subsequently lodged an application for leave to appeal against sentence on 11 September 2017 asserting that Lasry J erred in failing to fix a non-parole period.
On 20 September 2017, Mr Cardamone filed an application with the Court seeking an order that he be provided with legal aid for the appeal against sentence pursuant to s 143 of the Act. The application filed sought that a condition of the order be the provision of a charge over Mr Cardamone’s interest in the property.[4]
[4]Paragraphs [2] and [3] of the Notice of Application, filed 20 September 2017.
Mr Cardamone made the application at the direction of VLA[5] who, by letter of 18 September 2017, refused to provide assistance under s 24 of the Legal Aid Act until an application was made and determined under s 143 of the Act.
[5]See the letter of VLA to Mr Cardamone’s lawyers of 18 September 2017.
On 27 September 2017, lawyers for VLA and Mr Cardamone forwarded to the Court minutes consenting to the making of an order under s 143 of the Act. There was no provision for a charge in favour of VLA over real or personal property.
On 2 October 2017, oral submissions were made by counsel for Mr Cardamone, VLA and the DPP as to whether the Court should make an order under s 143 of the Act. Consistent with the minutes, counsel for VLA and Mr Cardamone consented to orders being made for the provision of legal aid. Counsel for the DPP did not oppose the application.
Should this Court direct that Mr Cardamone be granted legal aid for his appeal?
In DPP v McEachran,[6] Ashley JA (with whom Nettle JA and Smith AJA agreed) considered the application of s 143 of the Act in the context of the imposition by a Judge of a charge upon the property (real or personal) of the person seeking legal assistance. For the purpose of this determination, the relevant parts are extracted below:
[6](2006) 15 VR 268, 275; [2006] VSCA 286, [37] (McEachran).
In terms, what does s 143 provide?
• First, it empowers a court, in some circumstances, to oblige VLA to provide a person with legal assistance. When the impugned order was made, it had no statutory counterpart. Under the Legal Aid Act1978, the decision whether to grant or refuse aid is in the first instance a decision by VLA in the context established by, inter alia, ss.24, 25 of the Act, and any written directions of the Attorney General given under s.12M. Decisions to refuse aid, and certain other decisions, must be reconsidered on request, and there are elaborate provisions for independent review. See ss.19, 34, 35 and 36. But the regime, from beginning to end, is of administrative character.
•Second, the necessary starting point is that a restraining order has been made; and that such order remains in force.
• Third, the court must be satisfied that the applicant is in need of legal assistance and is unable to meet the full cost of obtaining such assistance from a private practitioner from unrestrained property or income. The second of those matters recognises that in a particular case there may be unrestrained property – although in most instances it is probably the case that a restraining order addresses all the known property of the putative offender. Nonetheless, in a particular instance property may be unrestrained because:
·It was never the subject of the restraining order; or
·It was subsequently excluded from the restraining order under any of ss. 21, 22, or 24 of the Act; or
·It was the subject of a further order made under s.26(1) of the Act.
…
•Sixth, it is implicit in s.143(1) that the assistance which VLA may be ordered to provide will be prospective from the date of the order. It will not be an order which addresses services already provided.
…
·Tenth, preliminary examination of s 143(6) – I will later refer to it in more detail - shows, in my opinion, a definite preference that the use of restrained property be prioritized by first meeting claims for compensation and/or restitution by a victim of an offence in those cases where the subsection can apply. The effective system of priorities, out of the value of property forfeited or penalty paid, is compensation/restitution first, VLA second, and the State third.
McEachran was primarily concerned with the Court’s power under s 143(3) of the Act to impose a condition for a charge over property the subject of an existing restraining order. That point does not arise here: Mr Cardamone’s property has been sold – and VLA does not now seek any charge or encumbrance over the funds held by the ACO.
Ashley JA described the purpose of the Act in terms of restrained property and the role of s 143 as follows:
Second, there is no doubt that the Act sets up an elaborate scheme with respect to restraint on dealings with property. That scheme, in my opinion, is incompatible with s.143(3) operating to give VLA the right to take a charge over land which is then restrained. Important aspects of the scheme are:
• The declared purposes of the Act; see s.1 (a) - (d) and, particularly for present purposes, (h).
· The nature of a restraining order; see s.14(1).
• The inclusive definition of the phrase "dealing with property"; see s.11.
• The express power of a court, when making a restraining order, to provide for meeting the reasonable living expenses and the reasonable business expenses of a person to whose property the order applies; see s.14(4).
· The express prohibition upon a court, in making a restraining order, providing for the payment of legal expenses in respect of any legal proceeding; see s.14(5). This is a very wide prohibition. It specifically extends to civil as well as criminal proceedings; and in the latter case to any criminal proceedings. With respect to criminal proceedings, it is the obverse of s.16(9) of the predecessor legislation, the Crimes (Confiscation of Profits) Act 1986 ("the 1986 Act"). Moreover, the change was intended, as the Attorney-General made clear in her Second Reading speech with respect to the Act.
• The express specification of purposes to which property which is subject to a restraining order may be put; see s.15(1). Of the five purposes, three relate to forfeiture, one to pecuniary penalty orders, and one to orders for restitution or compensation under Part 4 of the Sentencing Act. To emphasize the obvious, none relate to the payment of legal costs.
• The requirement, consequential upon there being stated purposes, that an application for a restraining order state the purpose(s) for which such order is sought, and that a restraining order state the purpose(s) of the restraint; see s.15(2) and (3)(a).
• The circumstances in which an application for a restraining order may be made, and the necessary content of such an application; see s.16, and particularly subs. (4)(e).
• The obligation of a court to make a restraining order if satisfied of certain matters. Note particularly that where a stated purpose is the availability of restrained property to meet claims for restitution or compensation (for convenience, "compensation claims", and, by analogy, "compensation orders"), the court must be satisfied that application for the same have been or are likely to be made, and that the order of the court under Part 4 of the Sentencing Act would be likely to exceed $10,000; see s.18(1)(d).
• Detailed procedures for seeking exclusion of property from a restraining order; and as to the circumstances in which an order for exclusion may be made; see ss.20 - 22 and 24. Note that in several circumstances the court is required to be satisfied that property will not be required to satisfy any purpose for which the order was made; see ss.21(a)(ii) and 22(a)(iii) – the latter of which refers specifically to prospective compensation orders under the Sentencing Act. Note also that in one particular factual situation –where the applicant for exclusion is not the defendant - a court is empowered to make an exclusion order notwithstanding that it is not satisfied that restrained property will not be required to satisfy a purpose for which the restraining order was made; see s.21(b)(ii). In that situation, it may be said, the legislation has disclosed a conscious choice in favour of a blameless non-defendant applicant as against potential disadvantage to a victim.
• Provision for making further orders in relation to restrained property – that is, orders other than exclusion orders; see s.26. That section sets out examples of orders which might be made; see s.26(5). Whilst the list is not intended to be exhaustive, it certainly does not suggest that the section could be used to make an order that legal costs be met out of restrained property, or that property could be rendered unrestrained in order that a defendant’s legal costs be met.
• The varying circumstances in which a restraining order may come to an end. Note particularly s.27(4), which provides for circumstances in which the discharge of a restraining order is linked with, inter alia, the making of a compensation order. Note also the powers of a court which refuses to make an order for a purpose specified in a restraining order; see s.27(5).
• Provision for registering the particulars of a restraining order. In the case of land under the Transfer of Land Act 1958, a caveat may be lodged; see s.28(2). That is some indication of the importance which the Act attaches to a restraining order - which, as the Act makes very clear, is an order made for specified purposes.
• The circumstance that knowing contravention of a restraining order by a disposition or other dealing in restrained property is made a criminal offence, and that knowledge of a restraining order is deemed where particulars of the order have been registered; see s.29.
• Specific priority being given to satisfaction of compensation orders. By s.30, if one of the stated purposes of a restraining order is satisfaction of compensation orders, and an order of the latter kind is made, then the State must ensure that the same is satisfied out of the restrained property, so far as that is possible, before satisfaction of any other purpose. Then, by s.31(1), if property is forfeit, or a pecuniary penalty order is made, and if a compensation order is also made – or, indeed, damages are awarded – the State must satisfy the order of the latter kind, broadly to the amount of the value of the property forfeited or penalty paid.
• Extensive provisions relating to forfeiture and pecuniary penalty orders. Note, when a forfeiture order is made, or automatic forfeiture occurs, that property vests in the relevant Minister subject to then existing mortgages, charges or encumbrances, special reference being made to land under the Transfer of LandAct; but that power is given a court to discharge mortgages or charges in some circumstance; see ss.41(2) and 42(1). The purposes, then, for which a restraining order is made may lead to the removal of an encumbrance designed to inhibit achievement of those purposes. Note also the preference given to restitution and compensation orders over pecuniary penalty orders by ss.59(5) and 64(4). [7]
[7]Ibid, 280 [50].
To enliven the jurisdiction in the sense of subject matter jurisdiction[8] so as to enable an order to be made under s 143(1) of the Act (as was explained by Ashley JA), the following conditions must be met:
[8]Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, 375 [30].
(a) first, that a restraining order has been made and remains in force;
(b) second, that the applicant is in need of legal assistance; and
(c) third, that the applicant is unable to meet the full costs of obtaining such assistance from a private practitioner from unrestrained property.[9]
[9]The second and third criteria are similar in some respects to those contained in s 197(3)(b) of the Criminal Procedure Act 2009 (Vic), and its predecessor s 360A of the Crimes Act 1958 (Vic).
It was not in issue that each of these conditions were satisfied by Mr Cardamone,[10] and that the Court has the ability to make the orders sought if it considers it appropriate to do so.
[10]Mr Cardamone’s affidavit of 27 September 2017.
Therefore, the question is whether the Court should make the order sought. The Court has a wide discretion in determining whether to make such an order. Of course, such a discretion must be exercised judicially.
In my opinion, determining whether an order should be made in this case turns to a large extent on the resolution of the following, namely whether:
(a)the interests of justice dictate the making of the order;
(b)the funds held by the ACO will be diluted as a result of the order, so as to reduce the pool available to those relatives of Ms Chetchuti seeking to make a claim under the Sentencing Act, the Victims of Crime Assistance Act 1996 (Vic) or at common law; and
(c)it is appropriate to make such an order where VLA has not made a determination as to the provision of legal aid pursuant to s 24 of the Legal Aid Act.
Before I go to these specific considerations, I should say something about the purpose of s 143 of the Act.
Self-evidently, this provision enables the Court to give a direction to VLA to provide assistance to a person in a civil or criminal proceeding (including on appeal). But there is a question, to my mind at least, at a different level – what is the underlying purpose of making such an order.
It can be accepted that the basis for the making of such an order is the fact that property of the accused has been restrained. It can also be accepted that, by s 35 of the Act, the conviction of an accused on an offence falling within Schedule 2 will lead to the automatic forfeiture of the restrained property.[11] So arguably the provision was designed to ensure that an accused be provided with legal aid where there is a real risk that his or her property might be automatically forfeited and the accused would not otherwise be adequately represented at trial. I discussed this at some length with counsel at the hearing on 2 October 2017. However, upon reflection and after hearing helpful submissions from counsel and particularly those of the DPP, I think this misunderstands the true purpose of the provision, which I set out below.
[11]See s 35 and Schedule 2 of the Act.
The effect of the restraining order by s 14(5) of the Act is to prevent a person having access to property (real or personal) which he or she might have utilised to pay for the defence of the charges. Section 143 then, if its preconditions are satisfied,[12] gives the Court the discretion to direct that VLA to provide assistance to an accused or appellant – on terms, if necessary, as set out in s 143(3)-(6) of the Act. In other words, once the terms of s 143 are satisfied and the jurisdiction enlivened, it is not necessary for the Court to have regard to whether there are any practical consequences for the person seeking legal aid, in relation to the restrained property, other than the effect of any order on the assets available for recovery by the victims of the crime (who may have claims under statute or at common law) which I will discuss in a moment.
[12]See [21] above.
I should add that both the Second Reading Speech and the Explanatory Memorandum of the Act are consistent with this interpretation.
Interests of justice
Mr Cardamone seeks assistance from VLA for the prosecution of an appeal against the sentence imposed by Lasry J. Here the appeal is solely against the severity of the sentence; and only one part of it - the refusal of the trial judge to fix a minimum period after which Mr Cardamone would be eligible for parole.[13] The provision of legal aid on this appeal is to be contrasted to two cases in which the Court has, under s 197 of the Criminal Procedure Act 2009 (Vic) (CPA),[14] directed that VLA provide assistance in complex trials where the liberty of the accused was very much in issue. In those cases, the Courts have emphasised the complexity of the trial and the consequences of a conviction for the accused. In addition, each of those cases VLA had refused legal aid.
[13]See [12] above.
[14]MK v Victorian Legal Aid [2013] VSC 49 (18 February 2013); R v Chaouk (2013) 40 VR 356; [2013] VSCA 99 (2 May 2013).
Whilst admittedly the criteria in this case and those under the CPA are not identical, here there is no complexity associated with this appeal notwithstanding the notoriety that the case has attracted and the consequences for Mr Cardamone of the sentence. This case is at the opposite end of the scale to cases in which courts have directed the provision of legal aid under s 193 of the CPA.
Whilst it can readily be accepted that Mr Cardamone would undoubtedly benefit from legal representation on his appeal, it is not a case which necessarily demands an order in the terms sought by the parties.
I have deliberately avoided any consideration of the merits of Mr Cardamone’s application for leave to appeal. There was no material adduced at this hearing on this point.
Adverse effect on any claim by victims
In McEachran, Ashley JA, as we have seen, pointed to the priority that the Act gives to the rights of those who have suffered injury or loss as a result of the alleged actions of the person seeking legal aid:
Sixth, quite apart from what is revealed by the scheme of the Act in that connection, it was evidently the intent of the legislature that a primary purpose to which restrained property should be put was satisfaction of compensation claims made under the Sentencing Act. That can be seen from three matters.
• The Second Reading Speech asserted that the reforms being effected to the 1986 Act were directed to achieve four key objectives. The fourth was:
to enhance the range of effective restitution mechanisms for victims of crime by enabling criminally acquired assets to be restrained and preserved for ultimate restitution to victims of crime.
In fact, restraining orders can extend beyond criminally-acquired assets. But that does not detract from the force of the asserted purpose.
• It is a feature of the Sentencing Act provisions which relate to restitution and compensation, as the government should be taken to have known, that they provide for awards against offenders which, if they are to be met, must be met by the offenders. There is no public money at stake. The Act, by giving priority to satisfaction of such claims, gave some assurance, where a restraining order had been made, that such an order would translate into a compensation order which was worth powder and shot. The perceived significance of s.30 of the Act can be seen in ss.85, 87 and 85M of the Sentencing Act.
• Third, in the circumstances in which it has application, the Victims of Crime AssistanceAct 1996 does involve the outlay of public moneys. There is provision in the Sentencing Act for recovery of such moneys from offenders: see Division 2A of Part 4, which was introduced in 1996. There are also provisions in the Victims of Crime Assistance Act directed to that end, and provisions designed to ensure that a victim does not recover and hold both assistance and compensation or damages. But throughout, the concept that a victim shall have first call on restrained property for satisfaction of a compensation order under the Sentencing Act remains undisturbed. [15]
[15]McEachran, 283 [57] (emphasis added).
The position of any dependents of Ms Chetcuti who may have claims against Mr Cardamone is therefore relevant (Ms Chetcuti has two children). Here, VLA does not seek any form of charge (notwithstanding the terms of the original application) over the assets, now only personal, of Mr Cardamone. This is to be contrasted to the position in Shahi v DPP,[16] in which Teague J granted an equitable charge to the VLA after ordering the provision of legal assistance but made that subject (in terms of priority) to any order:
‘for compensation, restitution or damages that may be… contemplated by the Confiscation Act 1997 and the Sentencing Act 1991’.
[16][2006] VSC 311 (9 August 2006).
Accordingly, as the pool available to any potential claimant will not be diminished by an order requiring the provision of legal assistance, this consideration can be put to one side.
Entitlement of Mr Cardamone to apply for legal aid from VLA
This application has effectively been dictated by VLA. By its letter of 18 September 2017, it refused assistance to Mr Cardamone under s 24 of the Legal Aid Actuntil an application had been made and determined under s 143 of the Act. VLA said as follows:
Since it appears that a court could make an order under s 143(1) of the Confiscation Act, assistance will not be granted until an application is made and determined. When the application has been filed, please send us a copy of the hearing date.
VLA then provided limited funding for this application.
It is still open once this application is finalised (as the letter makes clear) to Mr Cardamone to obtain legal aid pursuant to s 24, which enables VLA to provide legal assistance to a person:
Circumstances in which legal assistance may be provided
(1) VLA may provide legal assistance to a person if—
(a)in its opinion the person is in need of that legal assistance by reason that he is unable to afford the full cost of obtaining from a private legal practitioner the legal services in respect of which the legal assistance is sought; and
(b)it is reasonable having regard to all relevant matters to provide the legal assistance.
…
…
(4)In the making of a decision whether it is reasonable in all the circumstances to provide legal assistance to a person, regard shall be had to all relevant matters, including—
(a)the nature and extent of any benefit that may accrue to the person, to the public or to any section of the public from the provision of the assistance or of any detriment that may be suffered by the person, by the public or by any section of the public if the assistance is not provided;
(b)in the case of assistance in relation to a proceeding in a court other than a criminal appeal—whether the proceeding is likely to terminate in a manner favourable to the person; and
(c)in the case of assistance in relation to a criminal appeal—whether there are reasonable grounds for the appeal.
Synthesis of these considerations
Whilst I accept that in the past orders have been made under s 143 of the Act for provision of legal aid on appeals against sentence, ultimately, I am not persuaded that the Court should give the direction sought by Mr Cardamone and VLA.
It is clear that there is no evident impact on the funds which may be available to compensate the victims of Mr Cardamone’s crime. That said, VLA can, and should, make up its own corporate mind as to whether or not to grant Mr Cardamone assistance. It is best placed to determine how its funds should be deployed. This is not a case where the Court should intervene because legal aid has been refused or there is a prospect of Mr Cardamone being subject to an unfair trial process if legal aid is not granted. Rather, there is a single point on appeal (being the failure to fix a minimum parole period) and VLA can, for itself, determine whether Mr Cardamone meets the criteria set out in s 24 – and particularly these contained in sub-section (4) of the Legal Aid Act.
I refuse the application.
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