R v Gillard and Preston No. Sccrm-98-266, Sccrm-98-267

R v GILLARD and PRESTON
[2000] SASC 212

Application pursuant to Criminal Law Consolidation Act s 360

DUGGAN J. The applicants have been granted leave to appeal to the Court of Criminal Appeal against their convictions for murder and attempted murder. They have now applied to the court for an order that they be assigned solicitors and counsel to represent them at the hearing of the appeal.
The applications are made pursuant to s 360 of the Criminal Law Consolidation Act 1935 which provides as follows:
“A judge may assign to an appellant a solicitor and counsel, or counsel only, in any appeal or new trial or proceedings preliminary or incidental to any appeal or new trial in which, in the opinion of the judge, it appears desirable in the interests of justice that the appellant should have legal aid and when, in the opinion of the judge, he has not sufficient means to enable him to obtain that aid.”
Section 363(2) of the Act is also relevant. It provides that the expenses of any solicitor or counsel assigned to an appellant under the Act shall be -
“Defrayed, up to an amount allowed by a master and approved by any judge who was a member of the Full Court on the hearing of the appeal, out of moneys provided by Parliament for the purpose, but subject to any regulations as to rates and scales of payment made by the Governor.”
Affidavit evidence tendered before the court establishes that the appellants have been refused legal aid by the Legal Services Commission and appeals against the refusal have been rejected. The refusals were not based on considerations of merit in relation to the grounds of appeal, but on the fact that the finance cap placed on the grants of legal aid for the trial had been reached and no extension would be granted. Applications to the Attorney - General to fund the appeals were also rejected.
It is not in dispute that the applicants themselves do not have sufficient funds to enable them to obtain representation and Mr Millsteed QC, for the Director of Public Prosecutions, conceded that it is desirable in the interests of justice that the applicants should be represented at the hearing of the appeal. The concession is well founded. The applicants were convicted following a trial which lasted several months. The grounds of appeal and the application to call fresh evidence at the hearing of the appeal give rise to questions of some complexity. It is obvious that the applicants could not conduct their own appeal effectively. However, Mr Millsteed argued that it would be inappropriate to make an order under s 360 because no money had been provided by Parliament for the purposes of the section. Counsel for the applicants responded by saying that, if orders were made under s 360, they and their instructing solicitors were prepared to take the risk that no moneys would be set aside for the purposes of the section.
The history of s 360 and its predecessors can be traced back to the turn of the century. On the passing of the Legal Services Commission Act 1977, the Poor Persons Legal Assistance Act 1925 and the provisions of the Legal Practitioners Act 1936 which related to the legal aid scheme conducted by the Law Society were repealed. The clear intention was that legal aid was henceforth to be provided through the scheme administered by the Legal Services Commission. However s 360 remained and it is reasonable to infer that Parliament decided it had some role to play. The discretion to grant legal aid under the authority of the section remains.
It is true that the practical application of the section is dependent upon funds being provided by Parliament as envisaged by s 363. However, in answer to the argument that no funds had been authorised for this purpose in the current budget, Mr Kourakis QC, for the applicant Preston, pointed out that s 12 of the Public Finance and Audit 1987 provides that the Governor may, in any financial year, appropriate funds from the Consolidated Account to the public purposes of the State subject to the amounts not exceeding a prescribed maximum. In any event, the funds to meet the expenses would not have to be provided for in the current budget. It is possible for allowance to be made in a future budget approved by the Parliament. In my view these considerations provide some support for the argument that there is a limit to the extent to which the absence of any existing funds should operate to prevent orders being made pursuant to s 360.
In an earlier application in this matter, Bleby J refused to make orders under s 360. He based his decision on the consideration that Parliament had not provided any moneys for this purpose. However, his Honour regarded as a relevant and important consideration the fact that the legal practitioners at that stage did not consent to act for the appellant without remuneration being assured. His Honour said:
“If I were to make an order as requested by the applicants, it would have been on the basis that there were no funds provided by Parliament for the purpose. I would, in effect, be appointing a solicitor and counsel to perform an important function involving substantial time in argument and an enormous amount of reading time for no assured remuneration at all. Without the consent of the legal practitioner to those conditions, which in this case is not forthcoming, I would not be prepared to make an order under s 360. It would not be fair on them. If one were to consent to being appointed without fee, then an order under the section would, indeed, not be necessary.”
If s 360 has no role to play under the present scheme for legal assistance it can be repealed. But, as the position stands at the present time, the section contemplates that there will be some circumstances in which it is appropriate to make an order under the section. The only guidance in the Act to those circumstances is in s 360 itself.
As it is conceded that it is in the interests of justice that the applicants be represented on the hearing of their appeals, I am of the view that the orders sought should be made.
I will allow the applicants’ legal advisers time to draw up draft orders in accordance with these reasons.

[2000] SASC 212

6 July 2000