Graham v Director of Public Prosecutions (Vic) and Victoria Legal Aid (Ruling)

[2023] VCC 1110

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Confiscation List

Case No. CI-22-02812

IN THE MATTER of the Confiscation Act 1997 (Vic)

and

IN THE MATTER of application under s 143 of the Confiscation Act 1997 

BETWEEN

KRISS LYNTON GRAHAM	Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS	First Respondent
and
VICTORIA LEGAL AID	Second Respondent

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JUDGE:	HIS HONOUR JUDGE FRAATZ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2023
DATE OF RULING:	30 June 2023
CASE MAY BE CITED AS:	Graham v Director of Public Prosecutions (Vic) and Victoria Legal Aid (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1110

RULING
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Subject:CRIME – CONFISCATIONS

Catchwords:              Application for grant of legal aid

Legislation Cited:      Confiscation Act1997 (Vic), s143; Sentencing Act 1991 (Vic) s 85B.

Cases Cited:DPP v McEachran and Jolly [2006] VSC 67; Director of Public Prosecutions v McEachran (2006) 15 VR 268; Proudfoot v Director of Public Prosecutions [2020] VSCA 138; Cardamone v Director of Public Prosecutions [2017] VSC 618

Ruling:  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Nambiar	JT Lawyers Pty Ltd
For the First Respondent	Ms S Riley	Solicitor for the Office of Public Prosecutions
For the Second Respondent	Ms L O’Connor	Victoria Legal Aid

HIS HONOUR:

1By amended notice dated 8 May 2023, Kriss Lynton Graham made application under s143(1) of the Confiscation Act 1997 (“Act”) for Victoria Legal Aid (“VLA”) to provide legal assistance in respect of four applications for compensation orders against him pursuant to s85B of the Sentencing Act 1991 (Vic) (“compensation applications”).[1]  The compensation applications follow his conviction on charges of sexual offences involving a child under 16 years.

[1]        Exhibit KG-4 to the affidavit of Kriss Graham sworn 10 May 2023

2Mr Graham previously applied directly to Victoria Legal Aid (“VLA”) for legal assistance, but his application was refused.

3Section 143(1) of the Act provides as follows:

Provision of legal aid

(1)If a court is satisfied at any time that—

(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—

(c)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.

4It is not in dispute that the Court’s discretion under section 143(1) is enlivened because:

(a)   a restraining order has been made and remains in force in respect of real property registered to Mr Graham, being 2 Eli Court, Churchill (“property”) for the purpose of satisfying any order for restitution or compensation that may be made under the Sentencing Act 1991;[2]

(b)   Mr Graham is in need of legal assistance in respect of legal proceedings; and

(c)   he has insufficient unrestrained property or income to afford the full cost of obtaining legal assistance in respect of the compensation applications.  

[2]        Order of Judge Fraatz made 26 July 2022

5Mr Graham relies upon his affidavits sworn 8 February 2023 and 10 May 2023. 

6The form of orders sought by Mr Graham provide that:

1.Pursuant to sub-section 143(1) of the Confiscation Act 1997 (Vic), the second respondent provide legal assistance to the applicant in respect of the applications for compensation orders under s 85B of the Sentencing Act 1991 currently listed in proceeding number CR-19-01956 in the County Court of Victoria (“the proceedings”), in accordance with the standard processes and procedures.

2.It is a condition of the provision of legal assistance to the applicant in respect of the proceedings that the applicant reimburse to the second respondent the cost of the legal assistance provided to the applicant by the second respondent.

3.It is a condition of the provision of legal assistance to the applicant in respect of the proceedings that the cost of the legal assistance so provided by the second respondent be secured by way of a charge over the applicant’s interest in the property, situated at:

(a) Eli Court, Churchill in the State of Victoria, more particularly described in Certificate of Title Volume 08886 Folio 458 (“Churchill Property”), as contemplated by sub-section 143(3) of the Confiscation Act 1997 (Vic) (“the charge”).

4.Notwithstanding paragraph 3 of these orders, the second respondent may not take and enforce the charge until and unless:

(a)  the second respondent has incurred cost in providing legal assistance to the applicant in respect of the proceedings; and

(b)  the second respondent has sought from the applicant payment of the cost of the provision of such assistance or any part thereof, or payment of any interest upon the amount of such cost, or any part of such interest; and

(c)   the applicant has not made payment to the second respondent of the amount demanded in accordance with such demand; and

(d)  the restraining order made by his Honour Judge Fraatz on 26 July 2022 has been discharged or set aside, whether because the purposes specified by the order have been satisfied, or for some other reason; and

(e)  in connection with the proceedings, no other restraining order is then in force in respect of the property.

5.In the event that the property the subject of the restraining order made by his Honour Judge Fraatz on 26 July 2022 becomes unrestrained, the applicant will not deal with the property without first reimbursing the second respondent’s costs of legal assistance provided to the applicant in the proceedings referred to in Order 1 of these orders and in this application.

6.Liberty to apply is reserved generally to all parties on written notice to all other parties.

7Each party was represented at the hearing of the application and made oral submissions to supplement written submissions.

8Mr Graham submits that he would not receive a fair trial without legal assistance because:

(a)   compensation for psychological injury is sought not just by the primary victims of the sexual offending, but also their parents.  It is anticipated that medical evidence by each applicant will be filed.  The differing impact of the offending on each applicant for compensation increases the complexity of the applications in relation to causation, expert evidence and quantum issues;

(b) this complexity means that Mr Graham may require advice as to the proper exercise of the court’s discretion to refuse to hear and determine an application under section 85B of the Sentencing Act;  

(c)   Mr Graham is currently in prison, and the inherent difficulties in representing himself in a complex case will likely be amplified by the constraints of his custodial setting; and

(d)   considerations relevant to VLA under the Legal Aid Act 1978 and its own guidelines in relation to the provision of legal aid are different to the considerations arising under s143 of the Act.

9The Director of Public Prosecutions did not oppose the application.  In the event that the Court granted the application, the Director provided a form of order which would adequately protect her interests whilst the restraining order remained in place.  Mr Graham moved his application on the basis of the form of order proposed by the Director.

10Whilst VLA did not oppose the application, it submitted that the court ought not exercise its discretion to make the order sought because:

(a)   legal aid funding is limited and should be directed as determined by the Board of VLA; and

(b)   the matter is not one that would usually be funded by VLA.

Relevant principles

11In DPP v McEachran and Jolly,[3] the Court held that the power under s143 is an important part of the Act because it:

“allows the court to order VLA to provide legal assistance to persons who cannot afford it because their property has been restrained. Otherwise, they might be placed in the intolerable situation of not being able to exercise their legal rights because they cannot deal with their own property.”

[3] [2006] VSC 67 at [35]

12Once the conditions in subsections 143(1)(a) and (b) are satisfied, the Court’s discretion to order legal assistance is broad: Director of Public Prosecutions v McEachran,[4] and designed to protect an accused or the integrity of court processes: Proudfoot v Director of Public Prosecutions.[5] A relevant consideration in the exercise of the discretion under s143 is whether legal assistance is required to ensure a fair trial. While VLA may make a decision as to funding as a matter of policy and reflected in its guidelines, the court is concerned with the touchstone of ensuring a fair trial.[6]  

[4] (2006) 15 VR 268 (“McEachran”), at [37]

[5] [2020] VSCA 138 (“Proudfoot”) at [65], [83]

[6]        Proudfoot, [80]-[82]

13The Court has refused to make orders under s143 where there was no prospect of the applicant being subject to an unfair trial process if legal aid were not granted: Cardamone v Director of Public Prosecutions.[7]

[7] [2017] VSC 618 at [41]

14The broad scope of the power permits the court to order that assistance be provided on any conditions specified by it.  This may include a condition that the cost of VLA providing legal assistance be secured by a charge over property owned by the applicant.

Applicants for compensation under s85B of the Sentencing Act seek leave to be heard

15After the hearing concluded on 16 May 2023, and judgment reserved, the Court received correspondence from the applicants in the compensation applications (“interested non-parties”) who sought to be heard in relation to Mr Graham’s application for legal assistance.

16I granted the interested non-parties leave to file and serve submissions identifying:

(a)   the basis upon which they had standing to be heard in relation to the application;

(b)   whether or not they oppose the orders sought by Mr Graham; and

(c)   the form of any order sought.

17As directed, on 31 May 2023 the interested non-parties filed submissions; and, on 13 June 2023, all parties filed submissions in reply.

18The interested non-parties submitted[8] that:

(a)   they had standing on the following basis:

[The interested non-parties] have an interest in this proceeding, as their rights and their interests will be affected by the outcome

(b)   Mr Graham’s application should be refused because the property has been restrained for the purposes of satisfying a compensation order in their favour, which might be substantial:

The effect of an order in favour of the Respondent will affect the amount of compensation that they can receive. The value of the property restrained to satisfy the order may just cover the award sought.

[8] Interested non-parties outline of submissions dated 21 May 2023 at [13].

19In response, Mr Graham, the Director and VLA submitted that:

(a)   the interested non-parties have misunderstood McEachran and the effect of the orders sought. This is because if the orders are made in the form proposed by Mr Graham, the charge in favour of VLA securing repayment of any legal assistance may not be enforced until the property is no longer restrained; and under the Act the restraining order may not be discharged or set aside until any order for compensation under s85B is satisfied;[9]

(b)   the interested non-parties do not have standing because they do not yet have an interest in the property, and suffer no prejudice if the orders are made;  and

(a)   there is no basis for the submission that Mr Graham has the financial means to engage legal representation.

[9]The purpose of the restraining order made 26 July 2022 is to satisfy any order for restitution or compensation that may be made under the Sentencing Act.  See also McEachran, at [51]

20I accept these submissions.  Any grant of legal assistance made in these proceedings will have no impact on the amount recoverable by the interested non-parties in connection with the compensation applications.  As such, the interested non-parties do not have standing to be heard in relation to this application.

Disposition

21I am satisfied that, there is a real prospect Mr Graham may not receive a fair trial having regard to the potential legal and evidentiary complexity of the compensation applications if he does not receive legal assistance.  Mr Graham cannot afford the legal assistance he needs because his property, valued at $550,000 and unencumbered save for a charge in favour of VLA in relation to previous assistance, has been restrained.  For the reasons identified above by Mr Graham, it is appropriate that I exercise the Court’s discretion in the particular circumstances of this case to order VLA provide legal assistance.

22The form of Orders I propose to make do not breach the prohibition under s 14(5) of the Act, as they provide that the restraining order must be discharged or set aside before the equitable charge in favour of VLA may be enforced.

23Mr Graham’s application for legal assistance is granted in the form of the order sought by him.

24In the course of the hearing, the Director undertook to notify VLA of any application to discharge or set aside the restraining order made by me on 26 July 2022.  This will be reflected in Other Matters in the orders.

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