MK v Victoria Legal Aid
[2013] VSC 49
•18 February 2013
| Not Restricted | ||
| IN THE SUPREME COURT OF VICTORIA | Redacted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0080 of 2012
| MK | Applicant |
| v | |
| VICTORIA LEGAL AID | Respondent |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 13 February 2013 | |
DATE OF RULING: | 18 February 2013 | |
CASE MAY BE CITED AS: | MK v Victorian Legal Aid | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 49 | |
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CRIMINAL LAW – Application under s 197(3) of the Criminal Procedure Act 2009 (‘the Act’) – Applicant not provided funding for an instructing solicitor for the duration of the trial – Meaning of ‘legal representation’ – Section 197 of the Act concerned with the indigent accused who has been refused funding and is forced to proceed self-represented – ‘Legal representation’ means representation by a legal practitioner - Application refused.
CRIMINAL LAW – Application for a temporary stay – Section 197(2) of the Act does not preclude a stay – Dietrich v R (1992) 177 CLR 292 – Important role of instructing solicitor – Equality of arms – Circumstances of the case relevant – Application for a stay granted.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant For Victoria Legal Aid For the Crown For the Law Institute of Victoria | Mr G. Meredith Mr S. Holt SC Mr M. Gibson Mr G. Georgiou SC | Galbally & O’Bryan Lawyers Victoria Legal Aid The Office of Public Prosecutions Law Institute of Victoria |
HIS HONOUR:
Background to applications
The applicant in this matter, MK, together with his co-accused, KA, is charged with two counts of murder. The circumstances of this alleged offending are outlined below. The applicant was initially privately represented. [REDACTED] Once those private funds were depleted the applicant applied for and was granted legal aid. The grant letter, dated 27 November 2012, provided for the applicant’s solicitors to ‘represent [their] client at criminal law proceedings at the Supreme Court in Melbourne’. It is uncontroversial that this initial grant of aid contemplated an instructing solicitor and counsel being funded for the estimated duration of the trial.
On 7 January 2013 changes to Victoria Legal Aid’s (‘VLA’) guidelines came into effect. Under the amended guidelines an instructing solicitor would only be funded for two half days.[1]
[1]There are exceptions to this general position which are not presently relevant.
By letter dated 1 February 2013 the applicant’s solicitors requested that VLA reconsider its position and provide funding for an instructing solicitor for the length of the trial. VLA advised that it was unable to reconsider a decision of the VLA board and it was not possible to seek independent review of that decision.
The applicant now seeks an order under s 197(3) of the Criminal Procedure Act 2009 (‘the Act’) ordering VLA to provide legal representation to him. If I am against him on that application, the applicant seeks a temporary stay of his trial until such time as he is provided with legal representation necessary for a fair trial or until further order is sought.
Mr Georgiou SC and Mr Carr were given leave to appear on behalf of the Law Institute of Victoria (‘LIV’) as an intervener.
Application for an order under s 197(3) of the Act
Section 197 of the Act
Section 197 of the Act relevantly provides as follows:
197 Order for legal representation for accused
…
(2)Subject to subsection (3) and despite any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(3) If a court is satisfied at any time that—
(a)it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b)the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial—
the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.
(4)Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (3).
(5) Despite anything to the contrary in subsection (3)—
(a)if the court is satisfied that, in relation to the trial, the accused has engaged in vexatious or unreasonable conduct that has contributed to the accused's inability to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial, the court may refuse to make an order under subsection (3);
(b)the legal burden of proof for the purposes of subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused;
(c)for the purposes of proving under subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation, regard must be had to property—
(i)that is subject to the effective control of the accused (whether or not the accused has an interest in it); or
(ii)in which the accused has an interest—
as determined in accordance with section 9 or 10 of the Confiscation Act 1997;
(d)the conditions that may be specified by the court under subsection (3) do not include conditions relating to the identity, number or remuneration of persons representing the accused.
The applicant’s application for a grant of legal assistance [REDACTED] was tendered at the hearing of this application. Upon that evidence I am satisfied that the applicant is in need of legal representation because he is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial. That finding is accepted by VLA, and consequently the requirements of s 197(3)(b) are satisfied.
Further, for reasons that I discuss below, I am satisfied that in this case the Court will be unable to ensure that the applicant will receive a fair trial unless he is legally represented in the trial. It follows that I am satisfied that two of the preconditions set out in ss 197(3)(a) and (b) are made out.
VLA submitted that in the event that the preconditions in s 197(3) are satisfied, I ought not make an order under that section because the applicant has behaved unreasonably in applying all of the financial resources available to him on a privately funded committal without retaining adequate resources to apply or contribute to his trial.[2] I do not accept this submission. The applicant is entitled to a committal hearing, it was properly conducted, and the issues at trial will be focussed as a result of that hearing. [REDACTED]
[2]See s 197(5)(a).
The applicant’s case will therefore turn on the proper construction of the words ‘legally represented’. He has to meet a submission that the words carry a plain meaning and that VLA have already provided legal representation as countenanced by s 197 and thus the Court’s power to make the impugned order is not enlivened.
Submissions on the meaning of ‘legal representation’
The applicant submitted that ‘legal representation’, properly construed, embraces the provision of both counsel and an instructing solicitor. This submission was supported by the LIV.
In support of this interpretation, the applicant relied on the decision of Eames J in DPP v Kim.[3] In Kim, his Honour was concerned with interpreting s 360A of the Crimes Act 1958, the forerunner to the current s 197. His Honour held:
But whilst s 360A(2)(a) plainly must refer to a case where an unsuccessful applicant will be forced to proceed to trial without counsel, the sub-section should also be taken to refer to the case where the accused will be forced to trial without an instructing solicitor for his counsel, although counsel will appear. Balmford J in R v Reid at 17 gave the phrase ‘legally represented in the trial’ a broad interpretation, so that it covered preparation for trial too. In my view, given that the section is concerned with the fundamental question of the provision of a fair trial it should, also, not be narrowly interpreted as to the matters which concern me in this application. The fact that the phrase adopted in sub-section (2)(a) is ‘legally represented’, a phrase applicable to both an instructing solicitor and counsel, suggested to me that I should have regard both to the presence of counsel and solicitor when deciding that question.[4]
[3](Unreported, Supreme Court of Victoria, Eames J, 21 August 1997) (‘Kim’).
[4]Ibid, 9 (citations omitted).
The applicant also relied on Attorney General of New South Wales v Milat, where the Court opined:
There could, no doubt, be cases where the legal aid being offered was so inadequate, or subject to such restrictive terms and conditions, that it would be right to conclude that a person to whom legal aid was offered has been left relevantly unrepresented. [5]
The applicant contended that the grant of assistance for a solicitor to attend on two half days only is so deficient as to amount to a lack of ‘legal representation’ for the purposes of s 197.
[5](1995) 37 NSWLR 370, 375.
The LIV noted that s 197 was enacted after the decision in Kim and submitted that if the legislature intended a narrower interpretation of the words ‘legal representation’ it would have made that intention clear. It relied on Re Alcan Australia Limited & Ors; Ex Parte Federation of Industrial, Manufacturing and Engineering Employees, where the High Court said:
There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to [them]’.[6]
As the legislature repeated the words ‘legally represented’ without further clarifying the way in which they ought be interpreted, the LIV submitted that Eames J’s expansive interpretation must be followed.
[6](1994) 181 CLR 96, 106 (citations omitted).
The applicant also submitted that interpreting ‘legal representation’ in this way is consistent with a purposive reading of the provision. The applicant submitted that the purpose of s 197(3) is to avoid an unfair trial, and the other words contained in s 197(3)(a) give meaning and content to the words ‘legally represented’. The applicant argued that the section operates on a case-by-case basis. Therefore, in some cases (such as a fairly simple, single charge case involving one accused), counsel appearing alone would be sufficient to ensure that a fair trial is possible. In this case, however, which will involve a long and complicated trial of two co-accused in respect of the most serious of offences, the applicant argued that counsel and an instructing solicitor are required for the duration of the trial in order to ensure that he is ‘legally represented’ and the trial is fair.
The applicant submitted that, as a result of the split nature of the legal profession in Victoria, ‘legal representation’ implicitly includes both counsel and an instructing solicitor. The applicant outlined the discrete functions performed by counsel and instructing solicitors. He submitted that pursuant to Part VI of the Bar Rules counsel is not permitted to appear in a matter of this nature without an instructing solicitor. The LIV supported these submissions and further submitted that a narrow interpretation of ‘legal representation’ may leave a legal practitioner exposed to disciplinary proceedings for breaching their professional obligations should the minimum standards of representation not be met due to inadequate funding. The LIV also argued that as s 197(3) is beneficial to an accused person, it should be construed liberally, in favour of those whom it was designed to benefit.
Both the applicant and the LIV submitted that s 197(5)(d) ought not compel a narrow interpretation of s 197(3). The applicant argued that his application has nothing to do with the identity, number or remuneration of persons representing the accused, but rather relates to the provision of ‘legal representation’ in the manner already described. The LIV submitted that the word ‘number’ in that sub-section should be interpreted as amounting to a restriction on the Court’s power to order two or more counsel (i.e. directing that VLA provide both senior and junior counsel).
Victorian Legal Aid opposes the application and argued that the applicant is, for the purposes of s 197(3), legally represented. Victorian Legal Aid submitted that the text of the provision is clear, and it is appropriate to apply a bright-line test; either a person is self-represented or they are legally represented. It would be counter-intuitive, so VLA contends, to find that a person who has been granted legal aid, has a solicitor assigned and counsel funded for the duration of the trial is not ‘legally represented’. Therefore, the Court’s power to make an order under s 197(3) is not enlivened.
Victorian Legal Aid submitted further that it was the clear intention of Parliament by enacting the forerunner to s 197(5)(d) to remove a court’s power to specify conditions as to the identity, number or remuneration of legal practitioners assigned to a case. To order that funding be made available for an instructing solicitor to be present for the duration of the trial would abrogate Parliament’s clear intention.
Relevant history of s 197
The predecessor of s 197, being s 360A of the Crimes Act 1958, was originally enacted in response to the High Court’s decision in Dietrich v R.[7] In Dietrich, the accused was charged with various drug trafficking offences. He was denied legal aid and forced to represent himself during the course of his trial. He was convicted. On appeal, the High Court held that his trial was unfair. Mason CJ and McHugh J stated:
[I]t should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused.
[7](1992) 177 CLR 292 (‘Dietrich’).
Section 360A was inserted into the Crimes Act 1958 by s 27 of the Crimes (Criminal Trials) Act 1993. During the second reading speech, the Attorney-General described the purpose of the section in these terms:
This Bill limits the power of the court to adjourn a trial solely on the grounds that an accused has been refused legal assistance in respect of the trial.
It further gives the court power to order the Legal Aid Commission to provide assistance to an accused where it is satisfied that he or she will not receive a fair trial unless represented and that he or she cannot afford the full cost of obtaining private legal representation. The government has great confidence in the ability of the courts to ensure that the rights of an accused person who is unrepresented are protected. Over the years the courts have elaborated principles designed to ensure a person receives a fair trial, and it is entirely appropriate that this legislation gives the courts the power to determine when a person is unlikely to receive a fair trial if he or she is unrepresented.[8]
[8]Victoria, Parliamentary Debates, Legislative Assembly, 29 April 1993, 1359.
When it was first enacted, s 360A did not include a restriction in the form of what is now s 197(5)(d) on the conditions that could be imposed by a court on an order under that section. The legislation in that form was considered in Victoria Legal Aid v Beljajev, where Winneke P said:
The powers given to the court by the section and their manifest purpose make it clear to me that the ‘conditions’ which the court is empowered to impose on the provision of assistance are not confined to conditions imposed on the person who receives that assistance… It is for the court to specify such conditions as it considers are necessary to achieve [a fair trial]. [9]
[9][1999] 3 VR 764 (‘Beljajev’), [31] per Winneke P.
In Kim, Eames J considered s 360A in this form, without the restrictions on conditions. In that case, VLA refused to fund the instructing solicitor, a private practitioner who had represented the accused in the matter for 18 months, for the purpose of the trial. Instead, VLA advised on the eve of the trial that it would provide a solicitor employed by VLA to act as instructor during the trial. His Honour held that ‘a change of solicitor at this time would mean that I could not be satisfied that I could ensure that the accused would receive a fair trial’ and made an order compelling VLA to continue to fund the solicitor already engaged for the duration of the trial.[10]
[10]Kim (Unreported, Supreme Court of Victoria, Eames J, 21 August 1997), 25-26.
Following the decisions in Kim and Beljajev, s 360A was amended to include a provision in identical terms to what is now s 197(5)(d). The Attorney-General described the amendment in the following way:
It also makes it clear that the court's power to order Victoria Legal Aid to provide assistance is limited to the provision of legal representation. It provides that, in making an order under section 360A, the court may not impose conditions relating to the identity, number or remuneration of the persons representing the accused. This reflects the common law position which applies in other states.
Conclusions
In light of the history outlined above, in my view the intention of Parliament in s 197 is clear. Section 197 is concerned with the position of an accused person who is unable to afford legal representation, is refused funding from VLA and is therefore forced to represent themselves.
A person is ‘legally represented’ for the purposes of s 197(3) if that person is represented by a legal practitioner, as that term is understood in this State. The term ‘Australian legal practitioner’ is defined in the Legal Profession Act 2004 (‘LPA’) as ‘an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate’.[11] ‘Australian lawyer’ is further defined as ‘a person who is admitted to the legal profession under this Act or a corresponding law’.[12] No reference is made in those definitions to any distinction between a barrister and a solicitor.
[11]LPA s 1.2.3(a).
[12]LPA s 1.2.2(a).
Further, I consider that any professional obligations owed by certain members of the legal profession cannot be used to interpret the term ‘legally represented’ in a manner which is inconsistent with the plain words of the legislation.
To the extent that the provision was unclear prior to the inclusion of the predecessor to s 197(5)(d), I am of the view that it is now clear. Whilst it is true that the legislature continued to use the term ‘legally represented’ after the decision of Eames J in Kim, I consider that the interpretation of those words is relevantly informed by s 197(5)(d) and a proper understanding of the mischief with which s 197 is concerned.
Section 197(5)(d), in prohibiting the Court from imposing conditions on an order under s 197(3) relating to the ‘identity, number or remuneration of persons representing the accused’, makes it clear that orders under s 197(3) are not concerned with the precise nature of the legal representation. Any consideration of the adequacy of legal representation is relevant to a stay application and does not inform a proper interpretation of the provision.
In this case, the applicant has been granted funding for counsel to appear for the duration of his trial. He has a solicitor assigned to his case. It cannot be said that he is not ‘legally represented’ in the relevant sense and consequently a necessary precondition to an order under s 197(3) is not made out. The application for an order directing VLA to provide legal representation to the applicant is therefore denied.
Application for a stay
Background
As I have said, MK is indicted on two counts of murder. His co-accused, KA, is also indicted on these charges. [REDACTED]
[REDACTED]
[REDACTED] The prosecution seeks to prove the actions of the accused within the shop and the murderous agreement almost entirely by circumstantial evidence. It also seeks to negate the defence of self-defence by the same process. There will be extensive evidence from crime scene examiners about apparent gunshot damage, including the angles and paths taken by the relevant bullets. Pathologists will give evidence about the angles and paths taken by the various bullets through both deceased [REDACTED]. Opinions as to the range at which the relevant firearm was discharged will be offered. Evidence of gunshot residue [REDACTED] will be adduced. [REDACTED]
[REDACTED]
There is a prospect, not altogether fanciful, that cut-throat defences may emerge. Both parties to the temporary stay application accept this possibility. At this stage, I consider it sensible not to articulate my reasons any further on this issue.
The trial will involve the calling of between 40 and 78 prosecution witnesses. An estimate of eight to ten weeks has been offered by counsel, who are more familiar with the material than I. I am familiar enough with the material however to know that there is a lot of it. I shall refer again to this aspect shortly.
The prosecution is represented by an experienced criminal barrister. He will have an instructing solicitor present throughout the trial, and will be assisted by both the informant and the broader resources of the Office of Public Prosecutions. KA is privately funding his defence. He will be represented by a member of Her Majesty’s counsel who, also, will be assisted by an instructing solicitor throughout the trial.
This application
I have observed earlier in these reasons that MK is funded by VLA and that as of January 2013 VLA has determined to confine the assistance it provides to its clients. The application before me is essentially this: in the circumstances of this trial, it is submitted that I ought conclude that I am unable to ensure that MK will receive a fair trial. It is submitted that the absence of an instructing solicitor, save for two half days, places the applicant at such a disadvantage that his fair trial cannot be assured, and so the trial ought be stayed until such time as a solicitor can be provided.
A preliminary issue is whether s 197(2) of the Act precludes me from granting a stay in these circumstances. For convenience, I reproduce that sub-section again:
(2)Subject to subsection (3) and despite any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
As I have said above at [25], in my view s 197 is concerned with an indigent accused who is not granted aid and is therefore forced to continue self-represented. Section 197(2) precludes a court from granting a stay on that basis only. Section 197(3) then operates to avoid the unfairness which would otherwise be caused by s 197(2) by giving a court the power to order VLA to provide legal representation. In this way, ss 197(2) and (3) operate together to achieve the purpose of the legislation.
The applicant in this case is represented by counsel. Funding arrangements are currently in place for counsel to appear for the duration of the trial. This application therefore cannot be said to be made on the ground that he has been refused legal assistance. To the extent that there is any practical difference in meaning between ‘legal assistance’ (s 197(2)) and ‘legally represented’ (s 197(3)), which I doubt, such difference has no bearing in this case. It follows that in my view, s 197(2) would not preclude me from ordering a stay in this case.
Implicit in the submissions for both parties to the stay application is the proposition that I have the necessary power to order a temporary stay or adjournment to ensure that the accused receives a fair trial. In Barton v The Queen, Gibbs ACJ and Mason J observed that ‘[t]here is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial’.[13] In Dietrich, the joint judgment of Mason CJ and McHugh J began in this way:
In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognise the right of an accused to be provided with counsel at the public expense. However, the courts possess an undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.[14]
[13](1980) 47 CLR 75, 96.
[14](1992) 177 CLR 292, 297-298.
Last Friday, Lasry J ruled upon a similar but not identical application.[15] With respect, I agree with his Honour’s conclusion that the decision to grant an adjournment or a stay is one made in the exercise of the inherent jurisdiction of the Court to ensure the fairness of proceedings before it.[16] I should add that I also agree with his Honour’s analysis of Dietrich,[17] as it bears upon some observations made by the Court of Appeal of New South Wales in Milat.[18] I have already determined that the applicant in this trial is legally represented – it would be torturing plain language to suggest that he is not. The question on this temporary stay application, as I see it, is not whether he is represented, but whether he is sufficiently represented in all the circumstances. If I conclude that he is not and that insufficiency causes me to be satisfied that I cannot ensure that the applicant will receive a fair trial, then it is my duty to intervene.
[15]R v Chaouk [2013] VSC 48 (‘Chaouk’).
[16]Ibid, [22].
[17]Ibid, [24] - [25].
[18]Attorney-General of New South Wales v Milat (1995) 37 NSWLR 370.
The enactment of the Legal Profession Practice Act 1891 legally fused branches of the legal profession in this State. As I have observed above, this fusion is maintained through the LPA, although the collective term ‘barrister and solicitor’ has been replaced by ‘legal practitioner’. Despite the best endeavours of the colonial Parliament, the independent bar survived and ultimately flourished under its voluntary arrangements. Complementary rules of practice have resulted in the two branches of the profession combining to perform different roles in litigation, although occasionally solicitor/advocates appear in the higher courts.
In Chaouk at paragraphs [29]-[31], Lasry J set out a comprehensive list of the tasks expected of a solicitor before and during a criminal trial. I gratefully adopt that list. In the trial before me, legal aid has been granted for the pre-trial period. I conclude that all pre-trial preparation has been carried out satisfactorily. The question, essentially, is what, if any disadvantages are suffered by the applicant as a result of being represented by a barrister only for the majority of the trial. In my view, the following disadvantages can readily be identified:
· There is an inequality of arms. The prosecution and the co-accused will be instructed at all times. The applicant will not. This inequality will be exacerbated should the defence(s) become cut-throat.
· For the reasons I have set out at paragraphs [32]-[35] of these reasons, I regard this as a genuinely complex trial. The legal team for the applicant will need to:
(a)prepare and present legal argument;
(b)assist the applicant in jury selection;
(c)discuss with the applicant, on a daily basis, the progress of the trial;
(d)field queries from the applicant’s family;
(e)take instructions from the applicant about the evidence of contentious witnesses;
(f)prepare cross-examination of those witnesses;
(g)consider the expert evidence called by the prosecution and its circumstantial implications. It may also need to seek advice from other experts in the relevant areas as part of the preparation for the cross-examination of experts;
(h)have a thorough knowledge of each witness statement and of the evidence of the 30 witnesses cross-examined at the committal (the transcript of which runs to 754 pages);
(i)conduct cross-examination where necessary of the prosecution witnesses. The team will need ready access to material required for that cross-examination, and should the witness give evidence inconsistent with a previous statement, or another witness’ evidence, be able to locate and confront the witness with that inconsistency. I am told and accept that counsel’s brief occupies about 14½ lever arch folders, including 4½ volumes of depositions, 2 volumes of DNA notes and 2½ volumes of firearm notes. I have annexed to these reasons a document prepared by counsel that sets out comprehensively the ambit of this material;
(j)make important strategic decisions such as whether to challenge a particular piece of evidence and whether evidence ought be called on the applicant’s behalf. I regard this latter question as potentially a vexed one in this trial;
(k)confer with potential defence witnesses and deal with the logistics of getting them to court at an appropriate time;
(l)confer with prosecution witnesses where appropriate;
(m)deal with unexpected events that can and do occur regularly in criminal trials. The team will also need to seek instructions from the applicant concerning those events;
(n)if necessary, issue file and serve subpoenas during the running of the trial;
(o)listen attentively to what will certainly be a lengthy and quite complex charge and prepare and articulate exceptions where necessary; and
(p)deal with the consequences of the verdict.
I regard the proposal that the applicant be represented by a one-person legal team throughout this trial as constituting a significant disadvantage. I shall expand on this.
The applicant is represented by a careful, thorough criminal barrister with significant trial experience. The applicant will lose nothing by Mr Meredith’s presence but, in my view, he will lose considerably by the absence of an instructor. Every one of the activities that I have identified in the second bullet point of the preceding paragraph will fall to Mr Meredith alone.[19] Mr Meredith submits that in the present circumstances he will be unable to do justice to his client, and should this application fail he may be ethically obliged to withdraw from the case. In my view, he is correct to express this caution. This is a two-person case. I consider that one person, no matter how diligent or brilliant, simply cannot do to a proper standard what is expected of Mr Meredith. Put another way, I consider that I am unable to ensure that MK will receive a fair trial in the current circumstances. I propose to temporarily stay the trial until such time as those circumstances materially change.
[19]If the solicitor’s two half day allowance is not already exhausted the solicitor may be able to assist with jury empanelment and dealing with the consequence of the verdict.
It will be apparent that much of what I have said is confined to the precise circumstances of this case. No doubt there will be some criminal trials which can be managed competently by counsel alone after jury selection. In these cases, a trial judge will need to adopt strategies to ameliorate the absence of a solicitor. These strategies will include exercising more patience with counsel than is usually the case during cross-examination from documents, standing the matter down when instructions are required from the dock or when witnesses arrive and perhaps shortening court hours to allow counsel to attend to the sorts of matters that I have identified in paragraph [45] of these reasons. There will be other criminal trials where no amount of case management strategies can ensure that the applicant will receive a fair trial in the absence of an instructing solicitor.[20],[21] These trials should not be commenced until the unfairness is cured. If I am correct, the unfortunate effect of VLA’s cost constraints is that many criminal trials will be postponed for as long as the cost cutting protocol survives. This is incompatible with the proper, timely and just administration of criminal justice.
[20]Where I refer to the absence of an instructing solicitor I, of course, am not referring to the two half-day periods for which aid is granted.
[21]Although there may be certain occasions during this sort of trial where the presence of an instructor is unnecessary, e.g. during prepared preliminary legal argument or during the playback of lengthy recorded interviews or telephone intercepts.
Annexure 1
Volume of material in this case
14.5 lever arch folders of material
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
o[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
o[REDACTED]
o[REDACTED]
o[REDACTED]
o[REDACTED]
o[REDACTED]
9 photo books
7 CDs containing:
- Crime Scene Video;
- CCTV footage [REDACTED];
- CCTV footage [REDACTED];
- CCTV footage [REDACTED];
- CCTV footage [REDACTED];
- ‘000’ call to Emergency Services [REDACTED]; and
- ‘000’ call to Emergency Services [REDACTED];
Material that has been requested from the OPP but that the defence are still waiting to receive:
[REDACTED]
[REDACTED]
Outstanding notes from police witnesses, including any updated investigation notes
Notes of [REDACTED]
Information reports [REDACTED]
Working copy of CCTV footage [REDACTED]
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